G.R. No.

127325
Republic of the Philippines
SUPREME COURT
Manila

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 proponent1 and the main sponsor2 of the
proposed Article on Amendments or Revision of the Constitution, characterized this system as
"innovative".3 Indeed it is, for both under the 1935 and 1973 Constitutions, only two methods of
proposing amendments to, or revision of, the Constitution were recognized, viz., (1) by Congress
upon a vote of three-fourths of all its members and (2) by a constitutional convention.4 For this and
the other reasons hereafter discussed, we resolved to give due course to this petition.

On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent
Commission on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, by People's Initiative" (hereafter, Delfin Petition)5 wherein Delfin asked
the COMELEC for an order

1. Fixing the time and dates for signature gathering all over the country;

2. Causing the necessary publications of said Order and the attached "Petition for Initiative on the
1987 Constitution, in newspapers of general and local circulation;

3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners and
volunteers, in establishing signing stations at the time and on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative,6 a
group of citizens desirous to avail of the system intended to institutionalize people power; that he
and the members of the Movement and other volunteers intend to exercise the power to directly
propose amendments to the Constitution granted under Section 2, Article XVII of the Constitution;
that the exercise of that power shall be conducted in proceedings under the control and supervision
of the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be
established all over the country, with the assistance of municipal election registrars, who shall verify
the signatures affixed by individual signatories; that before the Movement and other volunteers can
gather signatures, it is necessary that the time and dates to be designated for the purpose be first
fixed in an order to be issued by the COMELEC; and that to adequately inform the people of the
electoral process involved, it is likewise necessary that the said order, as well as the Petition on
which the signatures shall be affixed, be published in newspapers of general and local circulation,
under the control and supervision of the COMELEC.

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of
Article VI,7 Section 4 of Article VII,8 and Section 8 of Article X9 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.

THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE
DELFIN PETITION.

Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth
issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when there
is a pending case before the COMELEC. The petitioners provide an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private respondent
Delfin. This being so, it becomes imperative to stop the Comelec from proceeding any further, and
under the Rules of Court, Rule 65, Section 2, a petition for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction
and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested. (People v. Vera, supra., p. 84). In this case the writ is
an urgent necessity, in view of the highly divisive and adverse environmental consequences on the
body politic of the questioned Comelec order. The consequent climate of legal confusion and
political instability begs for judicial statesmanship.

30. In the final analysis, when the system of constitutional law is threatened by the political ambitions
of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution. 25

It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin
Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the
petition. 26 The COMELEC made no ruling thereon evidently because after having heard the
arguments of Delfin and the oppositors at the hearing on 12 December 1996, it required them to
submit within five days their memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6
December 1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause the
publication of the petition, together with the attached Petition for Initiative, the signature form, and
the notice of hearing; and by setting the case for hearing. The COMELEC's failure to act on Roco's
motion to dismiss and its insistence to hold on to the petition rendered ripe and viable the instant
petition under Section 2 of Rule 65 of the Rules of Court, which provides:

Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal, corporation, board, or
person, whether exercising functions judicial or ministerial, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court alleging the facts with certainty and praying that judgment be rendered
commanding the defendant to desist from further proceedings in the action or matter specified
therein.

It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the
Delfin Petition because the said petition is not supported by the required minimum number of
signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its
discretion in refusing to dismiss the Delfin Petition, which does not contain the required number of
signatures. In light of these claims, the instant case may likewise be treated as a special civil action
for certiorari under Section I of Rule 65 of the Rules of Court.

In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush
aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28

A party's standing before this Court is a procedural technicality which it may, in the exercise of its
discretion, set aside in view of the importance of issues raised. In the landmark Emergency Powers
Cases, this Court brushed aside this technicality because the transcendental importance to the
public of these cases demands that they be settled promptly and definitely, brushing aside, if we
must, technicalities of procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO

THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986
Constitutional Commission, stated:

Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending
the Constitution is a mode of amendment which bypasses congressional action, in the last analysis it
still is dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the Constitution through the
system of initiative would remain entombed in the cold niche of the Constitution until Congress
provides for its implementation. Stated otherwise, while the Constitution has recognized or granted
that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its
implementation.

This system of initiative was originally included in Section 1 of the draft Article on Amendment or
Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That
section reads as follows:

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:

(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article___ Section ___of the
Constitution. 31

After several interpellations, but before the period of amendments, the Committee submitted a new
formulation of the concept of initiative which it denominated as Section 2; thus:

MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of the Members of
the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a
complete Committee Report No. 7 which embodies the proposed provision governing the matter of
initiative. This is now covered by Section 2 of the complete committee report. With the permission of
the Members, may I quote Section 2:

The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the registered
voters.

This completes the blanks appearing in the original Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the
legislature. Thus:

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

First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no details
in the provision on how to carry this out. Do we understand, therefore, that we are leaving this matter
to the legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as long as the legislature does not
pass the necessary implementing law on this, this will not operate?

MR. SUAREZ. That matter was also taken up during the committee hearing, especially with respect
to the budget appropriations which would have to be legislated so that the plebiscite could be called.
We deemed it best that this matter be left to the legislature. The Gentleman is right. In any event, as
envisioned, no amendment through the power of initiative can be called until after five years from the
date of the ratification of this Constitution. Therefore, the first amendment that could be proposed
through the exercise of this initiative power would be after five years. It is reasonably expected that
within that five-year period, the National Assembly can come up with the appropriate rules governing
the exercise of this power.

FR. BERNAS. Since the matter is left to the legislature — the details on how this is to be carried
out — is it possible that, in effect, what will be presented to the people for ratification is the work of
the legislature rather than of the people? Does this provision exclude that possibility?

MR. SUAREZ. No, it does not exclude that possibility because even the legislature itself as a body
could propose that amendment, maybe individually or collectively, if it fails to muster the three-
fourths vote in order to constitute itself as a constituent assembly and submit that proposal to the
people for ratification through the process of an initiative.

xxx xxx xxx

MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to vest
constituent power in the people to amend the Constitution?

MR. SUAREZ. That is absolutely correct, Madam President.

MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of institutionalizing
popular participation in the drafting of the Constitution or in the amendment thereof, but I would have
a lot of difficulties in terms of accepting the draft of Section 2, as written. Would the sponsor agree
with me that in the hierarchy of legal mandate, constituent power has primacy over all other legal
mandates?

MR. SUAREZ. The Commissioner is right, Madam President.

MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal values, the
Constitution is source of all legal mandates and that therefore we require a great deal of
circumspection in the drafting and in the amendments of the Constitution?
MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of constituent power we have a separate
article in the constitution that would specifically cover the process and the modes of amending the
Constitution?

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again
concede to the legislature the process or the requirement of determining the mechanics of amending
the Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be placed in the hands of the
National Assembly, not unless we can incorporate into this provision the mechanics that would
adequately cover all the conceivable situations. 33

It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals
to AMEND — not to REVISE — the Constitution; thus:

MR. SUAREZ. . . . This proposal was suggested on the theory that this matter of initiative, which
came about because of the extraordinary developments this year, has to be separated from the
traditional modes of amending the Constitution as embodied in Section 1. The committee members
felt that this system of initiative should not extend to the revision of the entire Constitution, so we
removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. 34

xxx xxx xxx

MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a
separate section in the Article on Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of
setting it up as another separate section as if it were a self-executing provision?

MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of
initiative is limited to the matter of amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the
Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes
(a) and (b) in Section 1 to include the process of revision; whereas the process of initiation to
amend, which is given to the public, would only apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned in the Committee. 35

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G.
Davide, Jr., which the Committee accepted. Thus:

MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with the
following:

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

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of the
sense contained in Section 2 of our completed Committee Report No. 7, we accept the proposed
amendment. 36

The interpellations which ensued on the proposed modified amendment to Section 2 clearly
showed that it was a legislative act which must implement the exercise of the right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to set
forth certain procedures to carry out the initiative. . .?

MR. DAVIDE. It can.

xxx xxx xxx

MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking
another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right
would be subject to legislation, provided the legislature cannot determine anymore the percentage of
the requirement.

MR. ROMULO. But the procedures, including the determination of the proper form for submission to
the people, may be subject to legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of
the procedures to be proposed by the legislative body must diminish or impair the right conceded
here.

MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be
legislated?

MR. DAVIDE. Yes. 37

Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AMENDMENTS to — NOT REVISION of — the Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers
to "amendment." Does it not cover the word "revision" as defined by Commissioner Padilla when he
made the distinction between the words "amendments" and "revision"?

MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section
1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." 38

Commissioner Davide further emphasized that the process of proposing amendments

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

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

The Davide modified amendments to Section 2 were subjected to amendments, and the final
version, which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows:
"AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE
PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE
TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT
MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS
THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE
YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN
ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE

FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40

The entire proposed Article on Amendments or Revisions was approved on second reading on 9
July 1986. 41 Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to
introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the
Article was again approved on Second and Third Readings on 1 August 1986. 42

However, the Committee on Style recommended that the approved Section 2 be amended by
changing "percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the
second paragraph so that said paragraph reads: The Congress 43 shall provide for the
implementation of the exercise of this right. 44 This amendment was approved and is the text of the
present second paragraph of Section 2.

The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under
Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of this right? Those who answer the
question in the affirmative, like the private respondents and intervenor Senator Roco, point to us
R.A. No. 6735.

There is, of course, no other better way for Congress to implement the exercise of the right than
through the passage of a statute or legislative act. This is the essence or rationale of the last minute
amendment by the Constitutional Commission to substitute the last paragraph of Section 2 of Article
XVII then reading:

The Congress 45 shall by law provide for the implementation of the exercise of this right.

with

The Congress shall provide for the implementation of the exercise of this right.

This substitute amendment was an investiture on Congress of a power to provide for the rules
implementing the exercise of the right. The "rules" means "the details on how [the right] is to be
carried out." 46

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose
amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill
No. 17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House
of Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No.
497, 47 which dealt with the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with
the subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of
Article X (Local Government) and initiative provided for in Section 2 of Article XVII of the
Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum concerning ordinances
or resolutions of local government units. The Bicameral Conference Committee consolidated Senate
Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June
1989 by the Senate 50 and by the House of Representatives. 51 This approved bill is now R.A. No.
6735.

But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the
implementation of the exercise of the right?"

A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not
suggest an initiative on amendments to the Constitution. The said section reads:

Sec. 2. Statement and Policy. — The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon compliance with the requirements of
this Act is hereby affirmed, recognized and guaranteed. (Emphasis supplied).

The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither
germane nor relevant to said section, which exclusively relates to initiative and referendum on
national laws and local laws, ordinances, and resolutions. That section is silent as
to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined
only to proposals to AMEND. The people are not accorded the power to "directly propose, enact,
approve, or reject, in whole or in part, the Constitution" through the system of initiative. They can
only do so with respect to "laws, ordinances, or resolutions."

The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1
of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum
and appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in
part." 52

Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to
the Constitution and mentions it as one of the three systems of initiative, and that Section 5
(Requirements) restates the constitutional requirements as to the percentage of the registered voters
who must submit the proposal. But unlike in the case of the other systems of initiative, the Act does
not provide for the contents of a petition 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 —

xxx xxx xxx

There are three (3) systems of initiative, namely:

a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial,
city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied).

Hence, to complete the classification under subtitles there should have been a subtitle on initiative
on amendments to the Constitution. 53

A further examination of the Act even reveals that the subtitling is not accurate. Provisions not
germane to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs
(b) and (c) of Section 9, which reads:

(b) The proposition in an initiative on the Constitution approved by the majority of the votes cast in
the plebiscite shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in an election
called for the purpose shall become effective fifteen (15) days after certification and proclamation of
the Commission. (Emphasis supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative
bodies of local governments; thus:

Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined by law, may file a
petition for indirect initiative with the House of Representatives, and other legislative bodies. . . .

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of
sufficiency or insufficiency of the petition for initiative or referendum, which could be petitions for
both national and local initiative and referendum.

Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and
Referendum is misplaced, 54 since the provision therein applies to both national and local initiative
and referendum. It reads:

Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the proper courts from
declaring null and void any proposition approved pursuant to this Act for violation of the Constitution
or want of capacity of the local legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in
the implementation of initiative and referendum on national and local legislation thereby giving them
special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to
the Constitution. Anent the initiative on national legislation, the Act provides for the following:

(a) The required percentage of registered voters to sign the petition and the contents of the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of votes for its
approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general
circulation in the Philippines; and

(f) The effects of the approval or rejection of the proposition. 55

As regards local initiative, the Act provides for the following:

(a) The preliminary requirement as to the number of signatures of registered voters for the petition;

(b) The submission of the petition to the local legislative body concerned;

(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the
power of initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local government unit
concerned as to whether the required number of signatures have been obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to the registered
voters for their approval, which must be within the period specified therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies. 56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its
twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative
on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3;
(c) speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution
may be approved or rejected by the people; (d) reiterates the constitutional requirements as to the
number of voters who should sign the petition; and (e) provides for the date of effectivity of the
approved proposition.

There was, therefore, an obvious downgrading of the more important or the paramount system of
initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments
to the Constitution by merely paying it a reluctant lip service. 57

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting
in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned. Its lacunae on this substantive matter are fatal and cannot be cured by "empowering" the
COMELEC "to promulgate such rules and regulations as may be necessary to carry out the
purposes of [the] Act. 58

The rule is that what has been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest. 59 The recognized exceptions to the rule are as
follows:

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the
Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. 60

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to

promulgate rules and regulations is a form of delegation of legislative authority under no. 5 above.
However, in every case of permissible delegation, there must be a showing that the delegation itself
is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate; and (b) fixes a standard — the limits of which
are sufficiently determinate and determinable — to which the delegate must conform in the
performance of his functions. 61 A sufficient standard is one which defines legislative policy, marks
its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected. 62

Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735
miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power
to the COMELEC is then invalid.

III

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS

ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement
the exercise of the right of the people to directly propose amendments to the Constitution through
the system of initiative. It does not have that power under R.A. No. 6735. Reliance on the
COMELEC's power under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws
and regulations referred to therein are those promulgated by the COMELEC under (a) Section 3 of
Article IX-C of the Constitution, or (b) a law where subordinate legislation is authorized and which
satisfies the "completeness" and the "sufficient standard" tests.

IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN

ENTERTAINING THE DELFIN PETITION.

Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress
to implement the right to initiate constitutional amendments, or that it has validly vested upon the
COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid,
the COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin
Petition.

Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for
initiative on the Constitution must be signed by at least 12% of the total number of registered voters
of which every legislative district is represented by at least 3% of the registered voters therein. The
Delfin Petition does not contain signatures of the required number of voters. Delfin himself admits
that he has not yet gathered signatures and that the purpose of his petition is primarily to obtain
assistance in his drive to gather signatures. Without the required signatures, the petition cannot be
deemed validly initiated.

The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then
is the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc.
The only participation of the COMELEC or its personnel before the filing of such petition are (1) to
prescribe the form of the petition; 63 (2) to issue through its Election Records and Statistics Office a
certificate on the total number of registered voters in each legislative district; 64 (3) to assist, through
its election registrars, in the establishment of signature stations; 65 and (4) to verify, through its
election registrars, the signatures on the basis of the registry list of voters, voters' affidavits, and
voters' identification cards used in the immediately preceding election. 66

Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution
No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent
Commission must have known that the petition does not fall under any of the actions or proceedings
under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not
assign to the petition a docket number. Hence, the said petition was merely entered as UND,
meaning, undocketed. That petition was nothing more than a mere scrap of paper, which should not
have been dignified by the Order of 6 December 1996, the hearing on 12 December 1996, and the
order directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it,
the COMELEC acted without jurisdiction or with grave abuse of discretion and merely wasted its
time, energy, and resources.

The foregoing considered, further discussion on the issue of whether the proposal to lift the term
limits of elective national and local officials is an amendment to, and not a revision of, the
Constitution is rendered unnecessary, if not academic.

CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no
longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should
not tarry any longer in complying with the constitutional mandate to provide for the implementation of
the right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing
rules and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-
037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ.,
concur.

Padilla, J., took no part.

Separate Opinions

PUNO, J., concurring and dissenting:

I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it
orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that
R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the
people's initiative to amend the Constitution. I likewise submit that the petition with respect to the
Pedrosas has no leg to stand on and should be dismissed. With due respect:

First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate
amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735
should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for
the intent of the legislature is the law and the controlling factor in its interpretation.1 Stated
otherwise, intent is the essence of the law, the spirit which gives life to its enactment.2
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative
to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the
history of the law which was a consolidation of House Bill No. 215053 and Senate Bill No.
17.4 Senate Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and
the Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and
Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the
Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to
propose amendments to the Constitution. In checkered contrast, House Bill No. 21505 5 expressly
included people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco
emphasized in his sponsorship remarks:6

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ROCO

At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the
proposed measure.

1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935
Constitution saw the application of the principle of separation of powers.

2. While under the parliamentary system of the 1973 Constitution the principle remained applicable,
the 1981 amendments to the Constitution of 1973 ensured presidential dominance over the
Batasang Pambansa.

Constitutional history then saw the shifting and sharing of legislative powers between the Legislature
and the Executive departments. Transcending changes in the exercise of legislative power is the
declaration in the Philippine Constitution that the Philippines is a republican state where sovereignty
resides in the people and all sovereignty emanates from them.

3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to
institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution
recognizes the power of the people, through the system of initiative and referendum.

As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers
since reserve powers are given to the people expressly. Section 32 of the same Article mandates
Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its
legislative powers with the people.

Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the power to
directly propose amendments to the Constitution through initiative, upon petition of at least 12
percent of the total number of registered voters.

Stating that House Bill No. 21505 is the Committee's response to the duty imposed on Congress to
implement the exercise by the people of the right to initiative and referendum, Mr. Roco recalled the
beginnings of the system of initiative and referendum under Philippine Law. He cited Section 99 of
the Local Government Code which vests in the barangay assembly the power to initiate legislative
processes, decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all of
which are variations of the power of initiative and referendum. He added that the holding of barangay
plebiscites and referendum are likewise provided in Sections 100 and 101 of the same Code.
Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the subject which he
will later submit to the Secretary of the House be incorporated as part of his sponsorship speech.

He then cited examples of initiative and referendum similar to those contained in the instant Bill
among which are the constitutions of states in the United States which recognize the right of
registered voters to initiate the enactment of any statute or to project any existing law or parts
thereof in a referendum. These states, he said, are Alaska, Alabama, Montana, Massachusets,
Dakota, Oklahoma, Oregon, and practically all other states.

Mr. Roco explained that in certain American states, the kind of laws to which initiative and
referendum apply is also without limitation, except for emergency measures, which are likewise
incorporated in House Bill No. 21505. He added that the procedure provided by the Bill from the
filing of the petition, the requirements of a certain percentage of supporters to present a proposition,
to the submission to electors are substantially similar to the provisions in American laws. Although
an infant in Philippine political structure, the system of initiative and referendum, he said, is a tried
and tested system in other jurisdictions, and the Bill is patterned after American experience.

He further explained that the bill has only 12 sections, and recalled that the Constitutional
Commissioners saw the system of the initiative and referendum as an instrument which can be used
should the legislature show itself to be indifferent to the needs of the people. This is the reason, he
claimed, why now is an opportune time to pass the Bill even as he noted the felt necessity of the
times to pass laws which are necessary to safeguard individual rights and liberties.

At this juncture Mr. Roco explained the process of initiative and referendum as advocated in House
Bill No. 21505. He stated that:

1. Initiative means that the people, on their own political judgment, submit a Bill for the consideration
of the general electorate.

2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the Constitution
once every five years; the initiative to amend statutes approved by Congress; and the initiative to
amend local ordinances.

3. The instant Bill gives a definite procedure and allows the Commission on Elections (COMELEC)
to define rules and regulations on the power of initiative.

4. Referendum means that the legislators seek the consent of the people on measures that they
have approved.

5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of plebiscite by
presenting a petition therefor, but under certain limitations, such as the signing of said petition by at
least 10 percent of the total of registered voters at which every legislative district is represented by at
least three percent of the registered voters thereof. Within 30 days after receipt of the petition, the
COMELEC shall determine the sufficiency of the petition, publish the same, and set the date of the
referendum within 45 to 90-day period.

6. When the matter under referendum or initiative is approved by the required number of votes, it
shall become effective 15 days following the completion of its publication in the Official Gazette.

In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the
people's call for initiative and referendum and urged the Body to approve House Bill No. 21505.
At this juncture, Mr. Roco also requested that the prepared text of his speech together with the
footnotes be reproduced as part of the Congressional Records.

The same sentiment as to the bill's intent to implement people's initiative to amend the Constitution
was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his
sponsorship remarks, viz:7

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ESCUDERO

Mr. Escudero first pointed out that the people have been clamoring for a truly popular democracy
ever since, especially in the so-called parliament of the streets. A substantial segment of the
population feels, he said, that the form of democracy is there, but not the reality or substance of it
because of the increasingly elitist approach of their representatives to the country's problem.

Whereupon, Mr. Escudero pointed out that the Constitution has provided a means whereby the
people can exercise the reserved power of initiative to propose amendments to the Constitution, and
requested that Sections 1 and 32, Article VI; Section 3, Article X; and Section 2, Article XVII of the
Constitution be made part of his sponsorship remarks.

Mr. Escudero also stressed that an implementing law is needed for the aforecited Constitutional
provisions. While the enactment of the Bill will give way to strong competition among cause-oriented
and sectoral groups, he continued, it will hasten the politization of the citizenry, aid the government
in forming an enlightened public opinion, and produce more responsive legislation. The passage of
the Bill will also give street parliamentarians the opportunity to articulate their ideas in a democratic
forum, he added.

Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that it can be
initially used for the Agrarian Reform Law. He said that the passage of House Bill No. 21505 will
show that the Members can set aside their personal and political consideration for the greater good
of the people.

The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a
Bicameral Conference Committee.8 In the meeting of the Committee on June 6, 1989,9 the
members agreed that the two (2) bills should be consolidated and that the consolidated version
should include people's initiative to amend the Constitution as contemplated by House Bill No.
21505. The transcript of the meeting states:

xxx xxx xxx

CHAIRMAN GONZALES. But at any rate, as I have said, because this is new in our political system,
the Senate decided on a more cautious approach and limiting it only to the local government units
because even with that stage where . . . at least this has been quite popular, ano? It has been
attempted on a national basis. Alright. There has not been a single attempt. Now, so, kami limitado
doon. And, second, we consider also that it is only fair that the local legislative body should be given
a chance to adopt the legislation bill proposed, right? Iyong sinasabing indirect system of initiative. If
after all, the local legislative assembly or body is willing to adopt it in full or in toto, there ought to be
any reason for initiative, ano for initiative. And, number 3, we feel that there should be some
limitation on the frequency with which it should be applied. Number 4, na the people, thru initiative,
cannot enact any ordinance that is beyond the scope of authority of the local legislative body,
otherwise, my God, mag-aassume sila ng power that is broader and greater than the grant of
legislative power to the Sanggunians. And Number 5, because of that, then a proposition which has
been the result of a successful initiative can only carry the force and effect of an ordinance and
therefore that should not deprive the court of its jurisdiction to declare it null and void for want of
authority. Ha, di ba? I mean it is beyond powers of local government units to enact. Iyon ang main
essence namin, so we concentrated on that. And that is why . . . so ang sa inyo naman includes iyon
sa Constitution, amendment to the Constitution eh . . . national laws. Sa amin, if you insist on that,
alright, although we feel na it will in effect become a dead statute. Alright, and we can agree, we can
agree. So ang mangyayari dito, and magiging basic nito, let us not discuss anymore kung alin and
magiging basic bill, ano, whether it is the Senate Bill or whether it is the House bill. Logically it
should be ours sapagkat una iyong sa amin eh. It is one of the first bills approved by the Senate
kaya ang number niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if you insist, really
iyong features ng national at saka constitutional, okay. ____ gagawin na natin na consolidation of
both bills.

HON. ROCO. Yes, we shall consolidate.

CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so. 10

When the consolidated bill was presented to the House for approval, then Congressman Roco upon
interpellation by Congressman Rodolfo Albano, again confirmed that it covered people's initiative to
amend the Constitution. The record of the House Representative states: 11

xxx xxx xxx

THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized.

MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate
Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally,
Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact
in the bill. The Senators ironically provided for local initiative and referendum and the House
Representatives correctly provided for initiative and referendum on the Constitution and on national
legislation.

I move that we approve the consolidated bill.

MR. ALBANO. Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few questions?

THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate
version there was a provision for local initiative and referendum, whereas the House version has
none.

MR. ROCO. In fact, the Senate version provide purely for local initiative and referendum, whereas in
the House version, we provided purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding therefore, that the two provisions were incorporated?
MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and referendum both in the
constitutional amendment and national legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision of the
Constitution whereby it mandates this Congress to enact the enabling law, so that we shall have a
system which can be done every five years. Is it five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987 Constitution, it
is every five years.

MR. ALBANO. For every five years, Mr. Speaker?

MR. ROCO. Within five years, we cannot have multiple initiatives and referenda.

MR. ALBANO. Therefore, basically, there was no substantial difference between the two versions?

MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier, ironically was
about local, provincial and municipal legislation.

MR. ALBANO. And the two bills were consolidated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. Thank you, Mr. Speaker.

APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)

THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on Senate
Bill No. 17 and House Bill No. 21505.

Is there any objection? (Silence. The Chair hears none; the motion is approved.

Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to amend
the Constitution, it is our bounden duty to interpret the law as it was intended by the legislature. We
have ruled that once intent is ascertained, it must be enforced even if it may not be consistent with
the strict letter of the law and this ruling is as old as the mountain. We have also held that where a
law is susceptible of more than one interpretation, that interpretation which will most tend to
effectuate the manifest intent of the legislature will be adopted. 12
The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to
implement the people's initiative to amend the Constitution. To be sure, we need not torture the text
of said law to reach the conclusion that it implements people's initiative to amend the Constitution.
R.A. No. 6735 is replete with references to this prerogative of the people.

First, the policy statement declares:

Sec. 2. Statement of Policy. — The power of the people under a system of initiative and referendum
to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances,
or resolutions passed by any legislative body upon compliance with the requirements of this Act is
hereby affirmed, recognized and guaranteed. (emphasis supplied)

Second, the law defines "initiative" as "the power of the people to propose amendments to the
constitution or to propose and enact legislations through an election called for the purpose," and
"plebiscite" as "the electoral process by which an initiative on the Constitution is approved or
rejected by the people.

Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section
5(b) states that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every legislative
district must be represented by at least three per centum (3%) of the registered voters therein." It
also states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.

Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he
proposition in an initiative on the Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to
defeat its intent which it itself concedes is to implement people's initiative to propose amendments to
the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the
policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be
expected for laws are not always written in impeccable English. Rightly, the Constitution does not
require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose
Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to
refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished
Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately.
But the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative
intention can be ascertained. The same is equally true with reference to awkward, slovenly, or
ungrammatical expressions, that is, such expressions and words will be construed as carrying the
meaning the legislature intended that they bear, although such a construction necessitates a
departure from the literal meaning of the words used.

In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the
Constitution simply because it lacks a sub-title on the subject should be given the weight of helium.
Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and
sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are
entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14

All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or
spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly
disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the
law is its body but its spirit is its soul. 15

II

COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee
Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative
to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A.
No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to
promulgate such rules and regulations as may be necessary to carry out the purposes of this Act."
By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez
v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to
determine whether there is undue delegation of legislative power, viz:

xxx xxx xxx

Although Congress may delegate to another branch of the Government the power to fill details in the
execution, enforcement or administration of a law, it is essential, to forestall a violation of the
principle of separation of powers, that said law: (a) be complete in itself — it must set forth therein
the policy to be executed, carried out or implemented by the delegate — and (b) to fix standard —
the limits of which are sufficiently determinate or determinable — to which the delegate must
conform in the performance of his functions. Indeed, without a statutory declaration of policy, which
is the essence of every law, and, without the aforementioned standard, there would be no means to
determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of
his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law,
but, also — and this is worse — to unmake it, by adopting measures inconsistent with the end
sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers
and the system of checks and balances, and, consequently, undermining the very foundation of our
republican system.

Section 68 of the Revised Administrative Code does not meet these well-settled requirements for a
valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any
policy to be carried out or implemented by the President. Neither does it give a standard sufficiently
precise to avoid the evil effects above referred to.

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in
promulgating the law's implementing rules and regulations of the law. As aforestated, section 2
spells out the policy of the law; viz: "The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon compliance with the requirements of
this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the
standards to canalize the delegated power to the COMELEC to promulgate rules and regulations
from overflowing. Thus, the law states the number of signatures necessary to start a people's
initiative, 18 directs how initiative proceeding is commenced, 19 what the COMELEC should do upon
filing of the petition for initiative, 20 how a proposition is approved, 21 when a plebiscite may be
held, 22 when the amendment takes effect 23 and what matters may not be the subject of any
initiative. 24 By any measure, these standards are adequate.

Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out
the boundaries of the delegates' authority by defining the legislative policy and indicating the
circumstances under which it is to be pursued and effected. The purpose of the sufficient standard is
to prevent a total transference of legislative power from the lawmaking body to the delegate." 25 In
enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power to enact the law
implementing people's initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will
show that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to the
people's initiative to amend the Constitution. The debates 26 in the Constitutional Commission make
it clear that the rules of procedure to enforce the people's initiative can be delegated, thus:

MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the legislature to set
forth certain procedures to carry out the initiative. . . ?

MR. DAVIDE. It can.

xxx xxx xxx

MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking
another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right
would be subject to legislation, provided the legislature cannot determine anymore the percentage of
the requirement.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of
the procedures to be proposed by the legislative body must diminish or impair the right conceded
here.

MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be
legislated?

MR. DAVIDE. Yes.

In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In
response to questions of Commissioner Romulo, Davide explained the extent of the power of the
legislature over the process: it could for instance, prescribe the 'proper form before (the amendment)
is submitted to the people,' it could authorize another body to check the proper form. It could also
authorize the COMELEC, for instance, to check the authenticity of the signatures of petitioners.
Davide concluded: 'As long as it will not destroy the substantive right to initiate. In other words, none
of the procedures to be proposed by the legislative body must diminish or impair the right conceded
here.'" Quite clearly, the prohibition against the legislature is to impair the substantive right of the
people to initiate amendments to the Constitution. It is not, however, prohibited from legislating the
procedure to enforce the people's right of initiative or to delegate it to another body like the
COMELEC with proper standard.

A survey of our case law will show that this Court has prudentially refrained from invalidating
administrative rules on the ground of lack of adequate legislative standard to guide their
promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly
pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare
the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United
States, 29 viz:

xxx xxx xxx

It is true that the Act does not in terms establish a particular standard to which orders of the military
commander are to conform, or require findings to be made as a prerequisite to any order. But the
Executive Order, the Proclamations and the statute are not to be read in isolation from each other.
They were parts of a single program and must be judged as such. The Act of March 21, 1942, was
an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations
themselves followed a standard authorized by the Executive Order — the necessity of protecting
military resources in the designated areas against espionage and sabotage.

In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20 look at the
law cannot miss them. They were not written by our legislators in invisible ink. The policy and
standards can also be found in no less than section 2, Article XVII of the Constitution on
Amendments or Revisions. There is thus no reason to hold that the standards provided for in R.A.
No. 6735 are insufficient for in other cases we have upheld as adequate more general standards
such as "simplicity and dignity," 30 "public interest," 31 "public welfare," 32 "interest of law and
order," 33 "justice and equity,"34 "adequate and efficient instruction," 35 "public safety," 36 "public
policy", 37 "greater national interest", 38 "protect the local consumer by stabilizing and subsidizing
domestic pump rates", 39 and "promote simplicity, economy and efficiency in government." 40 A due
regard and respect to the legislature, a co-equal and coordinate branch of government, should
counsel this Court to refrain from refusing to effectuate laws unless they are clearly unconstitutional.

III

It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas.
The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at
bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to
Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas
did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by
the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition,
the case at bar was filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the
People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for
prohibition with prayer for temporary restraining order and/or writ of preliminary injunction.

The petition on its face states no cause of action against the Pedrosas. The only allegation against
the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the
signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an
organization was not impleaded as a respondent. Petitioners then prayed that we order the
Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the
Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a
signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift
the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions
for contempt against them without equivocation.

One need not draw a picture to impart the proposition that in soliciting signatures to start a people's
initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their
solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the
Constitution which provides that ". . . amendments to this Constitution may likewise be directly
proposed by the people through initiative. . ." This right springs from the principle proclaimed in
section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides
in the people and all government authority emanates from them." The Pedrosas are part of the
people and their voice is part of the voice of the people. They may constitute but a particle of our
sovereignty but no power can trivialize them for sovereignty is indivisible.
But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and
their organizations to effective and reasonable participation at all levels of social, political and
economic decision-making shall not be abridged. The State shall by law, facilitate the establishment
of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution
strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the
Constitution, the Pedrosas are participating in the political decision-making process of our people.
The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a
question mark on their right.

Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an
exercise of their freedom of speech and expression and their right to petition the government for
redress of grievances. We have memorialized this universal right in all our fundamental laws from
the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that
freedom of speech is a preferred right, the matrix of other important rights of our people. Undeniably,
freedom of speech enervates the essence of the democratic creed of think and let think. For this
reason, the Constitution encourages speech even if it protects the speechless.

It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to
amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC
Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To
be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the
predicate of progress and we should not fear change. Mankind has long recognized the truism that
the only constant in life is change and so should the majority.

IV

In a stream of cases, this Court has rhapsodized people power as expanded in the 1987
Constitution. On October 5, 1993, we observed that people's might is no longer a myth but an article
of faith in our Constitution. 41 On September 30, 1994, we postulated that people power can be
trusted to check excesses of government and that any effort to trivialize the effectiveness of people's
initiatives ought to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a
matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate
exercise." 43 Just a few days ago, or on March 11, 1997, by a unanimous decision, 44 we allowed a
recall election in Caloocan City involving the mayor and ordered that he submits his right to continue
in office to the judgment of the tribunal of the people. Thus far, we have succeeded in transforming
people power from an opaque abstraction to a robust reality. The Constitution calls us to encourage
people empowerment to blossom in full. The Court cannot halt any and all signature campaigns to
amend the Constitution without setting back the flowering of people empowerment. More important,
the Court cannot seal the lips of people who are pro-change but not those who are anti-change
without concerting the debate on charter change into a sterile talkaton. Democracy is enlivened by a
dialogue and not by a monologue for in a democracy nobody can claim any infallibility.

Melo and Mendoza, JJ., concur.

VITUG, J., concurring and dissenting:

The COMELEC should have dismissed, outrightly, the Delfin Petition.

It does seem to me that there is no real exigency on the part of the Court to engross, let alone to
commit, itself on all the issues raised and debated upon by the parties. What is essential at this time
would only be to resolve whether or not the petition filed with the COMELEC, signed by Atty. Jesus
S. Delfin in his capacity as a "founding member of the Movement for People's Initiative" and seeking
through a people initiative certain modifications on the 1987 Constitution, can properly be regarded
and given its due course. The Constitution, relative to any proposed amendment under this method,
is explicit. Section 2, Article XVII, thereof provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives,
the petition would rather have much of its burden passed on, in effect, to the COMELEC. The
petition would require COMELEC to schedule "signature gathering all over the country," to cause the
necessary publication of the petition "in newspapers of general and local circulation," and to instruct
"Municipal Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in
establishing signing stations at the time and on the dates designated for the purpose.

I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made
permanent under the ponencia should be held to cover only the Delfin petition and must not be so
understood as having intended or contemplated to embrace the signature drive of the Pedrosas. The
grant of such a right is clearly implicit in the constitutional mandate on people initiative.

The distinct greatness of a democratic society is that those who reign are the governed themselves.
The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has
taught us that the vitality of government lies not so much in the strength of those who lead as in the
consent of those who are led. The role of free speech is pivotal but it can only have its true meaning
if it comes with the correlative end of being heard.

Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the
Court, I most respectfully submit, to yet refrain from resolving the question of whether or not
Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on
right of the people to directly propose constitutional amendments. Any opinion or view formulated by
the Court at this point would at best be only a non-binding, albeit possibly persuasive, obiter dictum.

I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued
by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for
constitutional amendments.

FRANCISCO, J., dissenting and concurring:

There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and
well-written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is
inadequate to cover the system of initiative on amendments to the Constitution.

To begin with, sovereignty under the constitution, resides in the people and all government authority
emanates from them.1 Unlike our previous constitutions, the present 1987 Constitution has given
more significance to this declaration of principle for the people are now vested with power not only to
propose, enact or reject any act or law passed by Congress or by the local legislative body, but to
propose amendments to the constitution as well.2 To implement these constitutional edicts,
Congress in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative and
Referendum Act". This law, to my mind, amply covers an initiative on the constitution. The contrary
view maintained by petitioners is based principally on the alleged lack of sub-title in the law on
initiative to amend the constitution and on their allegation that:

Republic Act No. 6735 provides for the effectivity of the law after publication in print media. [And]
[t]his indicates that Republic Act No. 6735 covers only laws and not constitutional amendments,
because constitutional amendments take effect upon ratification not after publication.3

which allegation manifests petitioners' selective interpretation of the law, for under Section 9 of
Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b)
thereof is clear in providing that:

The proposition in an initiative on the constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every
part of the statute must be construed together with the other parts and kept subservient to the
general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be
interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a
whole.5

In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to
propose amendments to the constitution or to propose and enact legislations through an election
called for the purpose".6 The same section, in enumerating the three systems of initiative, included
an "initiative on the constitution which refers to a petition proposing amendments to the
constitution"7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by
which an initiative on the constitution is approved or rejected by the people" And as to the material
requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following:

A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the
total number of the registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein. Initiative on the
constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution
and only once every five years thereafter.

These provisions were inserted, on purpose, by Congress the intent being to provide for the
implementation of the right to propose an amendment to the Constitution by way of initiative. "A legal
provision", the Court has previously said, "must not be construed as to be a useless surplusage, and
accordingly, meaningless, in the sense of adding nothing to the law or having no effect whatsoever
thereon". 8 That this is the legislative intent is further shown by the deliberations in Congress, thus:

. . . More significantly, in the course of the consideration of the Conference Committee Report on the
disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was noted:

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

I move that we approve the consolidated bill.

MR. ALBANO, Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few questions?

THE SPEAKER PRO TEMPORE. What does the sponsor say?

MR. ROCO. Willingly, Mr. Speaker.

THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate
version there was a provision for local initiative and referendum, whereas the House version has
none.

MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas
in the House version, we provided purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and referendum both in the
constitutional amendment and national legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision of the
Constitution to enact the enabling law, so that we shall have a system which can be done every five
years. Is it five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it
is every five years." (Id. [Journal and Record of the House of Representatives], Vol. VIII, 8 June
1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279, 292-293 [1994]; emphasis supplied)

. . . The Senate version of the Bill may not have comprehended initiatives on the Constitution. When
consolidated, though, with the House version of the Bill and as approved and enacted into law, the
proposal included initiative on both the Constitution and ordinary laws.9

Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction
as what petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the
enactment.

At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any
action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996
[Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private
respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would
appear that proof of procurement of the required percentage of registered voters at the time the
petition for initiative is filed, is a jurisdictional requirement.

Thus:

A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the
total number of registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein. Initiative on the
Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution
and only once every five (5) years thereafter.

Here private respondents' petition is unaccompanied by the required signatures. This defect
notwithstanding, it is without prejudice to the refiling of their petition once compliance with the
required percentage is satisfactorily shown by private respondents. In the absence, therefore, of an
appropriate petition before the Commission on Elections, any determination of whether private
respondents' proposal constitutes an amendment or revision is premature.

ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an
"inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I,
however, register my concurrence with the dismissal, in the meantime, of private respondents'
petition for initiative before public respondent Commission on Elections until the same be supported
by proof of strict compliance with Section 5 (b) of R.A. No. 6735.

Melo and Mendoza, JJ., concur.

PANGANIBAN, J., concurring and dissenting:

Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:

(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the
"initiatory" Delfin Petition.

(2) While the Constitution allows amendments to "be directly proposed by the people through
initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned."

(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of
initiative on amendments to the Constitution, is void."

I concur with the first item above. Until and unless an initiatory petition can show the required
number of signatures — in this case, 12% of all the registered voters in the Philippines with at least
3% in every legislative district — no public funds may be spent and no government resources may
be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any
petition absent such signatures. However, I dissent most respectfully from the majority's two other
rulings. Let me explain.

Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be
amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by
all the voters of the country acting together. This decision will effectively but unnecessarily curtail,
nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the
majority holds the right hostage to congressional discretion on whether to pass a new law to
implement it, when there is already one existing at present. This right to amend through initiative, it
bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.

With all due respect, I find the majority's position all too sweeping and all too extremist. It is
equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him
of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby
preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the
Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed,
there is a right way to do the right thing at the right time and for the right reason.

Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300
Are Sufficient to Implement Constitutional Initiatives

While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by
the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an
initiative on the Constitution.1 I completely agree with the inspired and inspiring opinions of Mr.
Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on
initiative, sufficiently implements the right of the people to initiate amendments to the Constitution.
Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this
Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on
Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to effectuate their
purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and
in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of people's initiatives ought to
be rejected."

No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735
wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may
be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its
Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to
govern the conduct of initiative on the Constitution and initiative and referendum on national and
local laws," not by the incumbent Commission on Elections but by one then composed of Acting
Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores,
Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution
2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them,
other than an honest, sincere and exemplary effort to give life to a cherished right of our people.

The majority argues that while Resolution 2300 is valid in regard to national laws and local
legislations, it is void in reference to constitutional amendments. There is no basis for such
differentiation. The source of and authority for the Resolution is the same law, RA 6735.

I respectfully submit that taken together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient
authority to implement, effectuate and realize our people's power to amend the Constitution.
 Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled

I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this
Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from
exercising their right of initiative. In fact, I believe that such restraining order as against private
respondents should not have been issued, in the first place. While I agree that the Comelec should
be stopped from using public funds and government resources to help them gather signatures, I
firmly believe that this Court has no power to restrain them from exercising their right of initiative.
The right to propose amendments to the Constitution is really a species of the right of free speech
and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking
freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may
disagree with what you say, but I will defend to the death your right to say it." After all, freedom is not
really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we
hate."5

Epilogue

By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like
referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three
are institutionalized legacies of the world-admired EDSA people power. Like elections and
plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights
of our people to be used as their final weapons against political excesses, opportunism, inaction,
oppression and misgovernance; as well as their reserved instruments to exact transparency,
accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and
abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully
nurtured and zealously protected.

WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT
Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity,
but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining
order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen
Pedrosa from exercising their right to free speech in proposing amendments to the Constitution.

Melo and Mendoza, JJ., concur.

Separate Opinions

PUNO, J., concurring and dissenting:

I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it
orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that
R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the
people's initiative to amend the Constitution. I likewise submit that the petition with respect to the
Pedrosas has no leg to stand on and should be dismissed. With due respect:

First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate
amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735
should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for
the intent of the legislature is the law and the controlling factor in its interpretation.1 Stated
otherwise, intent is the essence of the law, the spirit which gives life to its enactment.2

Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative
to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the
history of the law which was a consolidation of House Bill No. 215053 and Senate Bill No.
17.4 Senate Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and
the Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and
Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the
Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to
propose amendments to the Constitution. In checkered contrast, House Bill No. 21505 5 expressly
included people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco
emphasized in his sponsorship remarks:6

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ROCO

At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the
proposed measure.

1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935
Constitution saw the application of the principle of separation of powers.

2. While under the parliamentary system of the 1973 Constitution the principle remained applicable,
the 1981 amendments to the Constitution of 1973 ensured presidential dominance over the
Batasang Pambansa.

Constitutional history then saw the shifting and sharing of legislative powers between the Legislature
and the Executive departments. Transcending changes in the exercise of legislative power is the
declaration in the Philippine Constitution that the Philippines is a republican state where sovereignty
resides in the people and all sovereignty emanates from them.

3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to
institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution
recognizes the power of the people, through the system of initiative and referendum.

As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers
since reserve powers are given to the people expressly. Section 32 of the same Article mandates
Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its
legislative powers with the people.

Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the power to
directly propose amendments to the Constitution through initiative, upon petition of at least 12
percent of the total number of registered voters.

Stating that House Bill No. 21505 is the Committee's response to the duty imposed on Congress to
implement the exercise by the people of the right to initiative and referendum, Mr. Roco recalled the
beginnings of the system of initiative and referendum under Philippine Law. He cited Section 99 of
the Local Government Code which vests in the barangay assembly the power to initiate legislative
processes, decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all of
which are variations of the power of initiative and referendum. He added that the holding of barangay
plebiscites and referendum are likewise provided in Sections 100 and 101 of the same Code.

Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the subject which he
will later submit to the Secretary of the House be incorporated as part of his sponsorship speech.

He then cited examples of initiative and referendum similar to those contained in the instant Bill
among which are the constitutions of states in the United States which recognize the right of
registered voters to initiate the enactment of any statute or to project any existing law or parts
thereof in a referendum. These states, he said, are Alaska, Alabama, Montana, Massachusets,
Dakota, Oklahoma, Oregon, and practically all other states.

Mr. Roco explained that in certain American states, the kind of laws to which initiative and
referendum apply is also without limitation, except for emergency measures, which are likewise
incorporated in House Bill No. 21505. He added that the procedure provided by the Bill from the
filing of the petition, the requirements of a certain percentage of supporters to present a proposition,
to the submission to electors are substantially similar to the provisions in American laws. Although
an infant in Philippine political structure, the system of initiative and referendum, he said, is a tried
and tested system in other jurisdictions, and the Bill is patterned after American experience.

He further explained that the bill has only 12 sections, and recalled that the Constitutional
Commissioners saw the system of the initiative and referendum as an instrument which can be used
should the legislature show itself to be indifferent to the needs of the people. This is the reason, he
claimed, why now is an opportune time to pass the Bill even as he noted the felt necessity of the
times to pass laws which are necessary to safeguard individual rights and liberties.

At this juncture Mr. Roco explained the process of initiative and referendum as advocated in House
Bill No. 21505. He stated that:

1. Initiative means that the people, on their own political judgment, submit a Bill for the consideration
of the general electorate.

2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the Constitution
once every five years; the initiative to amend statutes approved by Congress; and the initiative to
amend local ordinances.

3. The instant Bill gives a definite procedure and allows the Commission on Elections (COMELEC)
to define rules and regulations on the power of initiative.

4. Referendum means that the legislators seek the consent of the people on measures that they
have approved.

5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of plebiscite by
presenting a petition therefor, but under certain limitations, such as the signing of said petition by at
least 10 percent of the total of registered voters at which every legislative district is represented by at
least three percent of the registered voters thereof. Within 30 days after receipt of the petition, the
COMELEC shall determine the sufficiency of the petition, publish the same, and set the date of the
referendum within 45 to 90-day period.

6. When the matter under referendum or initiative is approved by the required number of votes, it
shall become effective 15 days following the completion of its publication in the Official Gazette.
In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the
people's call for initiative and referendum and urged the Body to approve House Bill No. 21505.

At this juncture, Mr. Roco also requested that the prepared text of his speech together with the
footnotes be reproduced as part of the Congressional Records.

The same sentiment as to the bill's intent to implement people's initiative to amend the Constitution
was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his
sponsorship remarks, viz:7

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ESCUDERO

Mr. Escudero first pointed out that the people have been clamoring for a truly popular democracy
ever since, especially in the so-called parliament of the streets. A substantial segment of the
population feels, he said, that the form of democracy is there, but not the reality or substance of it
because of the increasingly elitist approach of their representatives to the country's problem.

Whereupon, Mr. Escudero pointed out that the Constitution has provided a means whereby the
people can exercise the reserved power of initiative to propose amendments to the Constitution, and
requested that Sections 1 and 32, Article VI; Section 3, Article X; and Section 2, Article XVII of the
Constitution be made part of his sponsorship remarks.

Mr. Escudero also stressed that an implementing law is needed for the aforecited Constitutional
provisions. While the enactment of the Bill will give way to strong competition among cause-oriented
and sectoral groups, he continued, it will hasten the politization of the citizenry, aid the government
in forming an enlightened public opinion, and produce more responsive legislation. The passage of
the Bill will also give street parliamentarians the opportunity to articulate their ideas in a democratic
forum, he added.

Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that it can be
initially used for the Agrarian Reform Law. He said that the passage of House Bill No. 21505 will
show that the Members can set aside their personal and political consideration for the greater good
of the people.

The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a
Bicameral Conference Committee.8 In the meeting of the Committee on June 6, 1989,9 the
members agreed that the two (2) bills should be consolidated and that the consolidated version
should include people's initiative to amend the Constitution as contemplated by House Bill No.
21505. The transcript of the meeting states:

xxx xxx xxx

CHAIRMAN GONZALES. But at any rate, as I have said, because this is new in our political system,
the Senate decided on a more cautious approach and limiting it only to the local government units
because even with that stage where . . . at least this has been quite popular, ano? It has been
attempted on a national basis. Alright. There has not been a single attempt. Now, so, kami limitado
doon. And, second, we consider also that it is only fair that the local legislative body should be given
a chance to adopt the legislation bill proposed, right? Iyong sinasabing indirect system of initiative. If
after all, the local legislative assembly or body is willing to adopt it in full or in toto, there ought to be
any reason for initiative, ano for initiative. And, number 3, we feel that there should be some
limitation on the frequency with which it should be applied. Number 4, na the people, thru initiative,
cannot enact any ordinance that is beyond the scope of authority of the local legislative body,
otherwise, my God, mag-aassume sila ng power that is broader and greater than the grant of
legislative power to the Sanggunians. And Number 5, because of that, then a proposition which has
been the result of a successful initiative can only carry the force and effect of an ordinance and
therefore that should not deprive the court of its jurisdiction to declare it null and void for want of
authority. Ha, di ba? I mean it is beyond powers of local government units to enact. Iyon ang main
essence namin, so we concentrated on that. And that is why . . . so ang sa inyo naman includes iyon
sa Constitution, amendment to the Constitution eh . . . national laws. Sa amin, if you insist on that,
alright, although we feel na it will in effect become a dead statute. Alright, and we can agree, we can
agree. So ang mangyayari dito, and magiging basic nito, let us not discuss anymore kung alin and
magiging basic bill, ano, whether it is the Senate Bill or whether it is the House bill. Logically it
should be ours sapagkat una iyong sa amin eh. It is one of the first bills approved by the Senate
kaya ang number niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if you insist, really
iyong features ng national at saka constitutional, okay. ____ gagawin na natin na consolidation of
both bills.

HON. ROCO. Yes, we shall consolidate.

CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so. 10

When the consolidated bill was presented to the House for approval, then Congressman Roco upon
interpellation by Congressman Rodolfo Albano, again confirmed that it covered people's initiative to
amend the Constitution. The record of the House Representative states: 11

xxx xxx xxx

THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized.

MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate
Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally,
Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact
in the bill. The Senators ironically provided for local initiative and referendum and the House
Representatives correctly provided for initiative and referendum on the Constitution and on national
legislation.

I move that we approve the consolidated bill.

MR. ALBANO. Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few questions?

THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate
version there was a provision for local initiative and referendum, whereas the House version has
none.
MR. ROCO. In fact, the Senate version provide purely for local initiative and referendum, whereas in
the House version, we provided purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding therefore, that the two provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and referendum both in the
constitutional amendment and national legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision of the
Constitution whereby it mandates this Congress to enact the enabling law, so that we shall have a
system which can be done every five years. Is it five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987 Constitution, it
is every five years.

MR. ALBANO. For every five years, Mr. Speaker?

MR. ROCO. Within five years, we cannot have multiple initiatives and referenda.

MR. ALBANO. Therefore, basically, there was no substantial difference between the two versions?

MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier, ironically was
about local, provincial and municipal legislation.

MR. ALBANO. And the two bills were consolidated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. Thank you, Mr. Speaker.

APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)

THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on Senate
Bill No. 17 and House Bill No. 21505.

Is there any objection? (Silence. The Chair hears none; the motion is approved.

Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to amend
the Constitution, it is our bounden duty to interpret the law as it was intended by the legislature. We
have ruled that once intent is ascertained, it must be enforced even if it may not be consistent with
the strict letter of the law and this ruling is as old as the mountain. We have also held that where a
law is susceptible of more than one interpretation, that interpretation which will most tend to
effectuate the manifest intent of the legislature will be adopted. 12

The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to
implement the people's initiative to amend the Constitution. To be sure, we need not torture the text
of said law to reach the conclusion that it implements people's initiative to amend the Constitution.
R.A. No. 6735 is replete with references to this prerogative of the people.

First, the policy statement declares:

Sec. 2. Statement of Policy. — The power of the people under a system of initiative and referendum
to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances,
or resolutions passed by any legislative body upon compliance with the requirements of this Act is
hereby affirmed, recognized and guaranteed. (emphasis supplied)

Second, the law defines "initiative" as "the power of the people to propose amendments to the
constitution or to propose and enact legislations through an election called for the purpose," and
"plebiscite" as "the electoral process by which an initiative on the Constitution is approved or
rejected by the people.

Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section
5(b) states that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every legislative
district must be represented by at least three per centum (3%) of the registered voters therein." It
also states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.

Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he
proposition in an initiative on the Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to
defeat its intent which it itself concedes is to implement people's initiative to propose amendments to
the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the
policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be
expected for laws are not always written in impeccable English. Rightly, the Constitution does not
require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose
Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to
refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished
Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately.
But the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative
intention can be ascertained. The same is equally true with reference to awkward, slovenly, or
ungrammatical expressions, that is, such expressions and words will be construed as carrying the
meaning the legislature intended that they bear, although such a construction necessitates a
departure from the literal meaning of the words used.

In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the
Constitution simply because it lacks a sub-title on the subject should be given the weight of helium.
Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and
sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are
entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14
All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or
spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly
disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the
law is its body but its spirit is its soul. 15

II

COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee
Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative
to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A.
No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to
promulgate such rules and regulations as may be necessary to carry out the purposes of this Act."
By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez
v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to
determine whether there is undue delegation of legislative power, viz:

xxx xxx xxx

Although Congress may delegate to another branch of the Government the power to fill details in the
execution, enforcement or administration of a law, it is essential, to forestall a violation of the
principle of separation of powers, that said law: (a) be complete in itself — it must set forth therein
the policy to be executed, carried out or implemented by the delegate — and (b) to fix standard —
the limits of which are sufficiently determinate or determinable — to which the delegate must
conform in the performance of his functions. Indeed, without a statutory declaration of policy, which
is the essence of every law, and, without the aforementioned standard, there would be no means to
determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of
his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law,
but, also — and this is worse — to unmake it, by adopting measures inconsistent with the end
sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers
and the system of checks and balances, and, consequently, undermining the very foundation of our
republican system.

Section 68 of the Revised Administrative Code does not meet these well-settled requirements for a
valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any
policy to be carried out or implemented by the President. Neither does it give a standard sufficiently
precise to avoid the evil effects above referred to.

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in
promulgating the law's implementing rules and regulations of the law. As aforestated, section 2
spells out the policy of the law; viz: "The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon compliance with the requirements of
this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the
standards to canalize the delegated power to the COMELEC to promulgate rules and regulations
from overflowing. Thus, the law states the number of signatures necessary to start a people's
initiative, 18 directs how initiative proceeding is commenced, 19 what the COMELEC should do upon
filing of the petition for initiative, 20 how a proposition is approved, 21 when a plebiscite may be
held, 22 when the amendment takes effect 23 and what matters may not be the subject of any
initiative. 24 By any measure, these standards are adequate.

Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out
the boundaries of the delegates' authority by defining the legislative policy and indicating the
circumstances under which it is to be pursued and effected. The purpose of the sufficient standard is
to prevent a total transference of legislative power from the lawmaking body to the delegate." 25 In
enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power to enact the law
implementing people's initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will
show that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to the
people's initiative to amend the Constitution. The debates 26 in the Constitutional Commission make
it clear that the rules of procedure to enforce the people's initiative can be delegated, thus:

MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the legislature to set
forth certain procedures to carry out the initiative. . . ?

MR. DAVIDE. It can.

xxx xxx xxx

MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking
another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right
would be subject to legislation, provided the legislature cannot determine anymore the percentage of
the requirement.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of
the procedures to be proposed by the legislative body must diminish or impair the right conceded
here.

MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be
legislated?

MR. DAVIDE. Yes.

In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In
response to questions of Commissioner Romulo, Davide explained the extent of the power of the
legislature over the process: it could for instance, prescribe the 'proper form before (the amendment)
is submitted to the people,' it could authorize another body to check the proper form. It could also
authorize the COMELEC, for instance, to check the authenticity of the signatures of petitioners.
Davide concluded: 'As long as it will not destroy the substantive right to initiate. In other words, none
of the procedures to be proposed by the legislative body must diminish or impair the right conceded
here.'" Quite clearly, the prohibition against the legislature is to impair the substantive right of the
people to initiate amendments to the Constitution. It is not, however, prohibited from legislating the
procedure to enforce the people's right of initiative or to delegate it to another body like the
COMELEC with proper standard.

A survey of our case law will show that this Court has prudentially refrained from invalidating
administrative rules on the ground of lack of adequate legislative standard to guide their
promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly
pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare
the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United
States, 29 viz:

xxx xxx xxx

It is true that the Act does not in terms establish a particular standard to which orders of the military
commander are to conform, or require findings to be made as a prerequisite to any order. But the
Executive Order, the Proclamations and the statute are not to be read in isolation from each other.
They were parts of a single program and must be judged as such. The Act of March 21, 1942, was
an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations
themselves followed a standard authorized by the Executive Order — the necessity of protecting
military resources in the designated areas against espionage and sabotage.

In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20 look at the
law cannot miss them. They were not written by our legislators in invisible ink. The policy and
standards can also be found in no less than section 2, Article XVII of the Constitution on
Amendments or Revisions. There is thus no reason to hold that the standards provided for in R.A.
No. 6735 are insufficient for in other cases we have upheld as adequate more general standards
such as "simplicity and dignity," 30 "public interest," 31 "public welfare," 32 "interest of law and
order," 33 "justice and equity,"34 "adequate and efficient instruction," 35 "public safety," 36 "public
policy", 37 "greater national interest", 38 "protect the local consumer by stabilizing and subsidizing
domestic pump rates", 39 and "promote simplicity, economy and efficiency in government." 40 A due
regard and respect to the legislature, a co-equal and coordinate branch of government, should
counsel this Court to refrain from refusing to effectuate laws unless they are clearly unconstitutional.

III

It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas.
The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at
bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to
Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas
did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by
the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition,
the case at bar was filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the
People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for
prohibition with prayer for temporary restraining order and/or writ of preliminary injunction.

The petition on its face states no cause of action against the Pedrosas. The only allegation against
the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the
signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an
organization was not impleaded as a respondent. Petitioners then prayed that we order the
Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the
Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a
signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift
the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions
for contempt against them without equivocation.

One need not draw a picture to impart the proposition that in soliciting signatures to start a people's
initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their
solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the
Constitution which provides that ". . . amendments to this Constitution may likewise be directly
proposed by the people through initiative. . ." This right springs from the principle proclaimed in
section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides
in the people and all government authority emanates from them." The Pedrosas are part of the
people and their voice is part of the voice of the people. They may constitute but a particle of our
sovereignty but no power can trivialize them for sovereignty is indivisible.
But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and
their organizations to effective and reasonable participation at all levels of social, political and
economic decision-making shall not be abridged. The State shall by law, facilitate the establishment
of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution
strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the
Constitution, the Pedrosas are participating in the political decision-making process of our people.
The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a
question mark on their right.

Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an
exercise of their freedom of speech and expression and their right to petition the government for
redress of grievances. We have memorialized this universal right in all our fundamental laws from
the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that
freedom of speech is a preferred right, the matrix of other important rights of our people. Undeniably,
freedom of speech enervates the essence of the democratic creed of think and let think. For this
reason, the Constitution encourages speech even if it protects the speechless.

It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to
amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC
Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To
be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the
predicate of progress and we should not fear change. Mankind has long recognized the truism that
the only constant in life is change and so should the majority.

IV

In a stream of cases, this Court has rhapsodized people power as expanded in the 1987
Constitution. On October 5, 1993, we observed that people's might is no longer a myth but an article
of faith in our Constitution. 41 On September 30, 1994, we postulated that people power can be
trusted to check excesses of government and that any effort to trivialize the effectiveness of people's
initiatives ought to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a
matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate
exercise." 43 Just a few days ago, or on March 11, 1997, by a unanimous decision, 44 we allowed a
recall election in Caloocan City involving the mayor and ordered that he submits his right to continue
in office to the judgment of the tribunal of the people. Thus far, we have succeeded in transforming
people power from an opaque abstraction to a robust reality. The Constitution calls us to encourage
people empowerment to blossom in full. The Court cannot halt any and all signature campaigns to
amend the Constitution without setting back the flowering of people empowerment. More important,
the Court cannot seal the lips of people who are pro-change but not those who are anti-change
without concerting the debate on charter change into a sterile talkaton. Democracy is enlivened by a
dialogue and not by a monologue for in a democracy nobody can claim any infallibility.

Melo and Mendoza, JJ., concur.

VITUG, J., concurring and dissenting:

The COMELEC should have dismissed, outrightly, the Delfin Petition.

It does seem to me that there is no real exigency on the part of the Court to engross, let alone to
commit, itself on all the issues raised and debated upon by the parties. What is essential at this time
would only be to resolve whether or not the petition filed with the COMELEC, signed by Atty. Jesus
S. Delfin in his capacity as a "founding member of the Movement for People's Initiative" and seeking
through a people initiative certain modifications on the 1987 Constitution, can properly be regarded
and given its due course. The Constitution, relative to any proposed amendment under this method,
is explicit. Section 2, Article XVII, thereof provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives,
the petition would rather have much of its burden passed on, in effect, to the COMELEC. The
petition would require COMELEC to schedule "signature gathering all over the country," to cause the
necessary publication of the petition "in newspapers of general and local circulation," and to instruct
"Municipal Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in
establishing signing stations at the time and on the dates designated for the purpose.

I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made
permanent under the ponencia should be held to cover only the Delfin petition and must not be so
understood as having intended or contemplated to embrace the signature drive of the Pedrosas. The
grant of such a right is clearly implicit in the constitutional mandate on people initiative.

The distinct greatness of a democratic society is that those who reign are the governed themselves.
The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has
taught us that the vitality of government lies not so much in the strength of those who lead as in the
consent of those who are led. The role of free speech is pivotal but it can only have its true meaning
if it comes with the correlative end of being heard.

Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the
Court, I most respectfully submit, to yet refrain from resolving the question of whether or not
Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on
right of the people to directly propose constitutional amendments. Any opinion or view formulated by
the Court at this point would at best be only a non-binding, albeit possibly persuasive, obiter dictum.

I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued
by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for
constitutional amendments.

FRANCISCO, J., dissenting and concurring:

There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and
well-written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is
inadequate to cover the system of initiative on amendments to the Constitution.

To begin with, sovereignty under the constitution, resides in the people and all government authority
emanates from them.1 Unlike our previous constitutions, the present 1987 Constitution has given
more significance to this declaration of principle for the people are now vested with power not only to
propose, enact or reject any act or law passed by Congress or by the local legislative body, but to
propose amendments to the constitution as well.2 To implement these constitutional edicts,
Congress in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative and
Referendum Act". This law, to my mind, amply covers an initiative on the constitution. The contrary
view maintained by petitioners is based principally on the alleged lack of sub-title in the law on
initiative to amend the constitution and on their allegation that:

Republic Act No. 6735 provides for the effectivity of the law after publication in print media. [And]
[t]his indicates that Republic Act No. 6735 covers only laws and not constitutional amendments,
because constitutional amendments take effect upon ratification not after publication.3

which allegation manifests petitioners' selective interpretation of the law, for under Section 9 of
Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b)
thereof is clear in providing that:

The proposition in an initiative on the constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every
part of the statute must be construed together with the other parts and kept subservient to the
general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be
interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a
whole.5

In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to
propose amendments to the constitution or to propose and enact legislations through an election
called for the purpose".6 The same section, in enumerating the three systems of initiative, included
an "initiative on the constitution which refers to a petition proposing amendments to the
constitution"7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by
which an initiative on the constitution is approved or rejected by the people" And as to the material
requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following:

A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the
total number of the registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein. Initiative on the
constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution
and only once every five years thereafter.

These provisions were inserted, on purpose, by Congress the intent being to provide for the
implementation of the right to propose an amendment to the Constitution by way of initiative. "A legal
provision", the Court has previously said, "must not be construed as to be a useless surplusage, and
accordingly, meaningless, in the sense of adding nothing to the law or having no effect whatsoever
thereon". 8 That this is the legislative intent is further shown by the deliberations in Congress, thus:

. . . More significantly, in the course of the consideration of the Conference Committee Report on the
disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was noted:

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

I move that we approve the consolidated bill.

MR. ALBANO, Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few questions?

THE SPEAKER PRO TEMPORE. What does the sponsor say?

MR. ROCO. Willingly, Mr. Speaker.

THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate
version there was a provision for local initiative and referendum, whereas the House version has
none.

MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas
in the House version, we provided purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and referendum both in the
constitutional amendment and national legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision of the
Constitution to enact the enabling law, so that we shall have a system which can be done every five
years. Is it five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it
is every five years." (Id. [Journal and Record of the House of Representatives], Vol. VIII, 8 June
1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279, 292-293 [1994]; emphasis supplied)

. . . The Senate version of the Bill may not have comprehended initiatives on the Constitution. When
consolidated, though, with the House version of the Bill and as approved and enacted into law, the
proposal included initiative on both the Constitution and ordinary laws.9

Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction
as what petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the
enactment.

At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any
action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996
[Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private
respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would
appear that proof of procurement of the required percentage of registered voters at the time the
petition for initiative is filed, is a jurisdictional requirement.

Thus:

A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the
total number of registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein. Initiative on the
Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution
and only once every five (5) years thereafter.

Here private respondents' petition is unaccompanied by the required signatures. This defect
notwithstanding, it is without prejudice to the refiling of their petition once compliance with the
required percentage is satisfactorily shown by private respondents. In the absence, therefore, of an
appropriate petition before the Commission on Elections, any determination of whether private
respondents' proposal constitutes an amendment or revision is premature.

ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an
"inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I,
however, register my concurrence with the dismissal, in the meantime, of private respondents'
petition for initiative before public respondent Commission on Elections until the same be supported
by proof of strict compliance with Section 5 (b) of R.A. No. 6735.

Melo and Mendoza, JJ., concur.

PANGANIBAN, J., concurring and dissenting:

Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:

(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the
"initiatory" Delfin Petition.

(2) While the Constitution allows amendments to "be directly proposed by the people through
initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned."

(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of
initiative on amendments to the Constitution, is void."

I concur with the first item above. Until and unless an initiatory petition can show the required
number of signatures — in this case, 12% of all the registered voters in the Philippines with at least
3% in every legislative district — no public funds may be spent and no government resources may
be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any
petition absent such signatures. However, I dissent most respectfully from the majority's two other
rulings. Let me explain.

Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be
amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by
all the voters of the country acting together. This decision will effectively but unnecessarily curtail,
nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the
majority holds the right hostage to congressional discretion on whether to pass a new law to
implement it, when there is already one existing at present. This right to amend through initiative, it
bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.

With all due respect, I find the majority's position all too sweeping and all too extremist. It is
equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him
of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby
preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the
Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed,
there is a right way to do the right thing at the right time and for the right reason.

Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300
Are Sufficient to Implement Constitutional Initiatives

While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by
the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an
initiative on the Constitution.1 I completely agree with the inspired and inspiring opinions of Mr.
Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on
initiative, sufficiently implements the right of the people to initiate amendments to the Constitution.
Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this
Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on
Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to effectuate their
purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and
in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of people's initiatives ought to
be rejected."

No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735
wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may
be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its
Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to
govern the conduct of initiative on the Constitution and initiative and referendum on national and
local laws," not by the incumbent Commission on Elections but by one then composed of Acting
Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores,
Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution
2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them,
other than an honest, sincere and exemplary effort to give life to a cherished right of our people.

The majority argues that while Resolution 2300 is valid in regard to national laws and local
legislations, it is void in reference to constitutional amendments. There is no basis for such
differentiation. The source of and authority for the Resolution is the same law, RA 6735.

I respectfully submit that taken together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient
authority to implement, effectuate and realize our people's power to amend the Constitution.
 Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled

I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this
Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from
exercising their right of initiative. In fact, I believe that such restraining order as against private
respondents should not have been issued, in the first place. While I agree that the Comelec should
be stopped from using public funds and government resources to help them gather signatures, I
firmly believe that this Court has no power to restrain them from exercising their right of initiative.
The right to propose amendments to the Constitution is really a species of the right of free speech
and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking
freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may
disagree with what you say, but I will defend to the death your right to say it." After all, freedom is not
really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we
hate."5

Epilogue

By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like
referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three
are institutionalized legacies of the world-admired EDSA people power. Like elections and
plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights
of our people to be used as their final weapons against political excesses, opportunism, inaction,
oppression and misgovernance; as well as their reserved instruments to exact transparency,
accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and
abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully
nurtured and zealously protected.

WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT
Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity,
but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining
order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen
Pedrosa from exercising their right to free speech in proposing amendments to the Constitution.

Melo and Mendoza, JJ., concur.

Footnotes

1 Commissioner Blas Ople.

2 Commissioner Jose Suarez.

3 I Record of the Constitutional Commission, 371, 378.

4 Section 1, Article XV of the 1935 Constitution and Section 1(1), Article XVI of the 1973
Constitution.

5 Annex "A" of Petition, Rollo, 15.

6 Later identified as the People's Initiative for Reforms, Modernization and Action, or PIRMA for
brevity.
7 These sections read:

Sec. 4. The term of office of the Senators shall be six years and shall commence, unless otherwise
provided by law, at noon on the thirtieth day of June next following their election.

No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of his service for the full
term for which he was elected.

xxx xxx xxx

Sec. 7. The Members of the House of Representatives shall be elected for a term of three years
which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next
following their election.

No Member of the House of Representatives shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption
in the continuity of his service for the full term for which he was elected.

8 The section reads:

Sec. 4. The President and the Vice-President shall be elected by direct vote of the people for a term
of six years which shall begin at noon on the thirtieth day of June next following the day of the
election and shall end at noon of the same date six years thereafter. The President shall not be
eligible for any reelection. No person who has succeeded as President and has served as such for
more than four years shall be qualified for election to the same office at any time.

No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the
office for any length or time shall not be considered as an interruption in the continuity of the service
for the full term for which he was elected.

9 The section reads:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected.

10 Rollo, 19.

11 Annex "B" of Petition, Rollo, 25.

12 Order of 12 December 1996, Annex "B-1" of Petition, Rollo, 27.

13 Id.

14 Citing Araneta v. Dinglasan, 84 Phil. 368 [1949]; Sanidad v. COMELEC, 73 SCRA 333 [1976].

15 Rollo, 68.
16 Rollo, 100.

17 Rollo, 130.

18 A Member of the 1986 Constitutional Commission.

19 Section 26, Article II, Constitution.

20 Citing Commissioner Ople of the Constitutional Commission, I Record of the Constitutional

Commission, 405.

21 Rollo, 239.

22 Rollo, 304.

23 Rollo, 568.

24 These were submitted on the following dates:

(a) Private respondent Delfin — 31 January 1997 (Rollo, 429);

(b) Private respondents Alberto and Carmen Pedrosa — 10 February 1997 (Id., 446);

(c) Petitioners — 12 February 1997 (Id., 585);

(d) IBP — 12 February 1997 (Id., 476);

(e) Senator Roco — 12 February 1997 (Id., 606);

(f) DIK and MABINI — 12 February 1997 (Id., 465);

(g) COMELEC — 12 February 1997 (Id., 489);

(h) LABAN — 13 February 1997 (Id., 553).

25 Rollo, 594.

26 Annex "D" of Roco's Motion for Intervention in this case, Rollo, 184.

27 Rollo, 28.

28 232 SCRA 110, 134 [1994].

29 II The Constitution of the Republic of the Philippines, A Commentary 571 [1988].

30 I Record of the Constitutional Commission 370-371.

31 Id., 371.
32 Id., 386.

33 Id., 391-392. (Emphasis supplied).

34 Id., 386.

35 Id., 392.

36 Id., 398-399.

37 Id., 399. Emphasis supplied.

38 Id., 402-403.

39 Id., 401-402.

40 Id., 410.

41 Id., 412.

42 II Record of the Constitutional Commission 559-560.

43 The Congress originally appeared as The National Assembly. The change came about as a
logical consequence of the amended Committee Report No. 22 of the Committee on Legislative
which changed The National Assembly to "The Congress of the Philippines" in view of the approval
of the amendment to adopt the bicameral system (II Record of the Constitutional Commission 102-
105). The proposed new Article on the Legislative Department was, after various amendments
approved on Second and Third Readings on 9 October 1986 (Id., 702-703)

44 V Record of the Constitutional Commission 806.

45 See footnote No. 42.

46 As Stated by Commissioner Bernas in his interpellation of Commissioner Suarez, footnote 28.

47 Entitled "Initiative and Referendum Act of 1987," introduced by then Congressmen Raul Roco,
Raul del Mar and Narciso Monfort.

48 Entitled "An Act Implementing the Constitutional Provisions on Initiative and Referendum and for
Other Purposes," introduced by Congressmen Salvador Escudero.

49 Entitled "An Act Providing for a System of Initiative and Referendum, and the Exceptions
Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact
Resolutions and Ordinances or Approve or Reject Any Ordinance or Resolution Passed By the Local
Legislative Body," introduced by Senators Gonzales, Romulo, Pimentel, Jr., and Lina, Jr.

50 IV Record of the Senate, No. 143, pp. 1509-1510.

51 VIII Journal and Record of the House of Representatives, 957-961.

52 That section reads:

Sec. 1. Statement of Policy. The power of the people under a system of initiative and referendum to
directly propose and enact resolutions and ordinances or approve or reject, in whole or in part, any
ordinance or resolution passed by any local legislative body upon compliance with the requirements
of this Act is hereby affirmed, recognized and guaranteed.

53 It must be pointed out that Senate Bill No. 17 and House Bill No. 21505, as approved on Third
Reading, did not contain any subtitles.

54 If some confusion attended the preparation of the subtitles resulting in the leaving out of the more
important and paramount system of initiative on amendments to the Constitution, it was because
there was in the Bicameral Conference Committee an initial agreement for the Senate panel to draft
that portion on local initiative and for the House of Representatives panel to draft that portion
covering national initiative and initiative on the Constitution; eventually, however, the Members
thereof agreed to leave the drafting of the consolidated bill to their staff. Thus:

CHAIRMAN GONZALES.

. . . All right, and we can agree, we can agree. So ang mangyayari dito, ang magiging basic nito, let
us not discuss anymore kung alin ang magiging basic bill, ano, whether it is the Senate Bill or
whether it is the House Bill. Logically it should be ours sapagkat una iyong sa amin, eh. It is one of
the first bills approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na nating
pag-usapan. Now, if you insist, really iyong features ng national at saka constitutional, okay. Pero
gagawin na nating consolidation of both bills. (TSN, proceedings of the Bicameral Conference
Committee on 6 June 1989 submitted by Nora, R, pp. 1-4 — 1-5).

xxx xxx xxx

HON. ROCO. So how do we proceed from this? The staff will consolidate.

HON. GONZALES. Gumawa lang ng isang draft. Submit it to the Chairman, kami na ang bahalang
magconsult sa aming mga members na kung okay,

HON. ROCO. Within today?

HON. GONZALES. Within today and early tomorrow. Hanggang Huwebes lang tayo, eh.

HON. AQUINO. Kinakailangang palusutin natin ito. Kung mabigyan tayo ng kopya bukas and you
are not objecting naman kayo naman ganoon din.

HON. ROCO. Editing na lang because on a physical consolidation nga ito, eh. Yung mga provisions
naman namin wala sa inyo. (TSN, proceedings of Bicameral Conference Committee of 6 June 1989,
submitted by E.S. Bongon, pp. III-4 — III-5).

55 Sec. 5(a & c), Sec. 8, Section 9(a).

56 Sections 13, 14, 15 and 16.

57 It would thus appear that the Senate's "cautious approach" in the implementation of the system of
initiative as a mode of proposing amendments to the Constitution, as expressed by Senator
Gonzales in the course of his sponsorship of Senate Bill No. 17 in the Bicameral Conference
Committee meeting and in his sponsorship of the Committee's Report, might have insidiously
haunted the preparation of the consolidated version of Senate Bill No. 17 and House Bill No. 21505.
In the first he said:

Senate Bill No. 17 recognizes the initiatives and referendum are recent innovations in our political
system. And recognizing that, it has adopted a cautious approach by: first, allowing them only when
the local legislative body had refused to act; second, not more frequently than once a year; and,
third, limiting them to the national level. (I Record of the Senate, No. 33, p. 871).

xxx xxx xxx

First, as I have said Mr. President, and I am saying for the nth time, that we are introducing a novel
and new system in politics. We have to adopt first a cautious approach. We feel it is prudent and
wise at this point in time, to limit those powers that may be the subject of initiatives and referendum
to those exercisable or within the authority of the local government units. (Id., p. 880).

In the second he stated:

But at any rate, as I have said, because this is new in our political system, the Senate decided on
a more cautious approach and limiting it only to the local general units. (TSN of the proceedings of
the Bicameral Conference Committee on 6 June 1989, submitted by stenographer Nora R, pp. 1-2 to
1-3).

In the last he declared:

The initiatives and referendum are new tools of democracy; therefore, we have decided to
be cautious in our approach. Hence, 1) we limited initiative and referendum to the local government
units; 2) that initiative can only be exercised if the local legislative cannot be exercised more
frequently that once every year. (IV Records of the Senate, No. 143, pp. 15-9-1510).

58 Section 20, RA. No. 6735.

59 People v. Rosenthal, 68 Phil. 328 [1939]; ISAGANI A. CRUZ, Philippine Political Law 86 [1996]
(hereafter CRUZ).

60 People v. Vera, 65 Phil. 56 [1937]; CRUZ, supra, 87.

61 Pelaez v. Auditor General, 122 Phil. 965, 974 [1965].

62 Edu v. Ericta, 35 SCRA 481,497 [1970].

63 Sec. 7, COMELEC Resolution No. 2300.

64 Sec. 28, id.

65 Sec. 29, id.

66 Sec. 30, id.

PUNO, J., concurring and dissenting::

1 Agpalo, Statutory Construction, 1986 ed., p. 38, citing, inter alia, US v. Tamparong 31 Phil. 321;
Hernani v. Export Control Committee, 100 Phil. 973; People v. Purisima, 86 SCRA 542.

2 Ibid, citing Torres v. Limjap, 56 Phil. 141.

3 Prepared and sponsored by the House Committee on Suffrage and Electoral Reforms on the basis
of H.B. No. 497 introduced by Congressmen Raul Roco, Raul del Mar and Narciso Monfort and H.B.
No. 988 introduced by Congressman Salvador Escudero.

4 Introduced by Senators Neptali Gonzales, Alberto Romulo, Aquilino Pimentel, Jr., and Jose Lina,
Jr.

5 It was entitled "An Act Providing a System of Initiative and Referendum and Appropriating Funds
therefor.

6 Journal No. 85, February 14, 1989, p. 121.

7 Ibid.

8 The Senate Committee was chaired by Senator Neptali Gonzales with Senators Agapito Aquino
and John Osmena as members. The House Committee was chaired by Congressman Magdaleno
M. Palacol with Congressmen Raul Roco, Salvador H. Escudero III and Joaquin Chipeco, Jr., as
members.

9 Held at Constancia Room, Ciudad Fernandina, Greenhills, San Juan, Metro Manila.

10 See Compliance submitted by intervenor Roco dated January 28, 1997.

11 Record No. 137, June 8, 1989, pp. 960-961.

12 Agpalo, op cit., p. 38 citing US v. Toribio, 15 Phil 7 (1910); US v. Navarro, 19 Phil 134 (1911).

13 Francisco, Statutory Construction, 3rd ed., (1968) pp. 145-146 citing Crawford, Statutory
Construction, pp. 337-338.

14 Black, Handbook on the Construction and Interpretation of the Laws (2nd ed), pp. 258-259. See
also Commissioner of Custom v. Relunia, 105 Phil 875 (1959); People v. Yabut, 58 Phil 499 (1933).

15 Alcantara, Statutes, 1990 ed., p. 26 citing Dwarris on Statutes, p. 237.

16 Entitled In re: Rules and Regulations Governing the Conduct of Initiative on the Constitution, and
Initiative and Referendum on National and Local Laws and promulgated on January 16, 1991 by the
COMELEC with Commissioner Haydee B. Yorac as Acting Chairperson and Commissioners Alfredo
E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao.

17 15 SCRA 569.

18 Sec. 5(b), R.A. No. 6735.

19 Sec. 5(b), R.A. No. 6735.

20 Sec. 7, R.A. No. 6735.

21 Sec. 9(b), R.A. No. 6735.

22 Sec. 8, R.A. No. 6735 in relation to Sec. 4, Art. XVII of the Constitution.

23 Sec. 9(b), R.A. No. 6735.

24 Sec. 10, R.A. No. 6735.

25 Cruz, Philippine Political Law, 1995 ed., p. 98.

26 See July 8, 1986 Debates of the Concom, p. 399.

27 1995 ed., p. 1207.

28 Cruz, op cit., p. 99.

29 320 US 99.

30 Balbuena v. Secretary of Education, 110 Phil 150 (1910).

31 People v. Rosenthal, 68 Phil 328 (1939).

32 Calalang v. Williams, 70 Phil 726 (1940).

33 Rubi v. Provincial Board of Mindoro, 39 Phil 669 (1919).

34 International Hardwood v. Pangil Federation of Labor, 70 Phil 602 (1940).

35 Phil. Association of Colleges and Universities v. Secretary of Education, 97 Phil 806 (1955).

36 Edu v. Ericta, 35 SCRA 481 (1990); Agustin v. Edu, 88 SCRA 195 (1979).

37 Pepsi Cola Bottling Co. vs. Municipality of Tanawan Leyte, 69 SCRA 460 (1976).

38 Maceda v. Macaraig, 197 SCRA 771 (1991).

39 Osmena v. Orbos, 220 SCRA 703 (1993).

40 Chiongbian v. Orbos, 245 SCRA 253 (1995).

41 Garcia v. COMELEC, et al., G.R. No. 111511, October 5, 1993.

42 Garcia, et al. v. COMELEC, et al., G.R. No. 111230, September 30, 1994.

43 Subic Bay Metropolitan Authority v. COMELEC, et al., G.R. No. 125416, September 26, 1996.
44 Malonzo vs. COMELEC, et al., G.R. No. 127066, March 11, 1997.

FRANCISCO, J., concurring and dissenting:

1 Article II, Section 1, 1987 Constitution.

2 Article VI, Section 32, and Article XVII, Section 2, 1987 Constitution.

3 Petition, p. 5.

4 Paras v. Commission on Elections, G.R. No. 123619, December 4, 1996.

5 Tamayo v. Gsell, 35 Phil. 953, 980.

6 Section 3 (a), Republic Act No 6735.

7 Section 3(a) [a.1], Republic Act No 6735.

8 Uytengsu v. Republic, 95 Phil. 890, 893

9 Petition in Intervention filed by Sen. Raul Roco, pp. 15-16.

PANGANIBAN, J., concurring and dissenting:

1 Apart from its text on "national initiative" which could be used by analogy, RA 6735 contains
sufficient provisions covering initiative on the Constitution, which are clear enough and speak for
themselves, like:

Sec. 2. Statement of Policy. — The power of the people under a system of initiative and referendum
to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances,
or resolution passed by any legislative body upon compliance with the requirements of this Act is
hereby affirmed, recognized and guaranteed.

Sec. 3. Definition of Terms. — For purposes of this Act, the following terms shall mean:

(a) "Initiative" is the power of the people to propose amendments to the Constitution or to propose
and enact legislation's through an election called for the purpose.

There are three (3) systems of initiative, namely:

a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;

a.2 Initiative on statutes which refers to a petition proposing to enact a national legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial,
city, municipal, or barangay law, resolution or ordinance.

xxx xxx xxx

(e) "Plebiscite" is the electoral process by which an initiative on the Constitution is approved or
rejected by the people

(f) "Petition" is the written instrument containing the proposition and the required number of
signatories. It shall be in a form to be determined by and submitted to the Commission on Elections,
hereinafter referred to as the Commission

xxx xxx xxx

Sec. 5 Requirements. — . . .

(b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12 %)
of the total number of registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein. Initiative on the
Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution
and only once every five (5) years thereafter.

Sec. 9. Effectivity of Initiative or Referendum Proposition. —

xxx xxx xxx

(b) The proposition in an initiative on the Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

xxx xxx xxx

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or
repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided herein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition in not more than one hundred (100) words which shall be
legibly written or printed at the top of every page of the petition.

xxx xxx xxx

Sec. 19. Applicability of the Omnibus Election Code. — The Omnibus Election Code and other
election laws, not inconsistent with the provisions of this Act, shall apply to all initiatives and
referenda.

Sec. 20. Rules and Regulations. — The Commission is hereby empowered to promulgate such rules
and regulations as may be necessary to carry out the purposes of this Act. (Emphasis supplied)
2 G.R. No. 125416, September 26, 1996.

3 237 SCRA 279, 282, September 30, 1994.

4 Sec. 20, R.A. 6735.

5 United States vs. Rosika Schwimmer, 279 U.S. 644, 655 (1929).

The Lawphil Project - Arellano Law Foundation

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G.R. No. L-34150

Republic of the Philippines
SUPREME COURT
Manila

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), Tañada 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.

Separate Opinions

MAKALINTAL, J., reserves his vote —

I reserve my vote. The resolution in question is voted down by a sufficient majority of the Court on
just one ground, which to be sure achieves the result from the legal and constitutional viewpoint. I
entertain grave doubts as to the validity of the premises postulated and conclusions reached in
support of the dispositive portion of the decision. However, considering the urgent nature of this
case, the lack of time to set down at length my opinion on the particular issue upon which the
decision is made to rest, and the fact that a dissent on the said issue would necessarily be
inconclusive unless the other issues raised in the petition are also considered and ruled upon — a
task that would be premature and pointless at this time — I limit myself to this reservation.

REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:

We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable, forthright and
vigorous style. Like him, we do not express our individual views on the wisdom of the proposed
constitutional amendment, which is not in issue here because it is a matter that properly and
exclusively addresses itself to the collective judgment of the people.

We must, however, articulate two additional objections of constitutional dimension which, although
they would seem to be superfluous because of the reach of the basic constitutional infirmity
discussed in extenso in the main opinion, nevertheless appear to us to be just as fundamental in
character and scope.

Assuming that the Constitutional Convention has power to propose piecemeal amendments and
submit each separately to the people for ratification, we are nonetheless persuaded that (1) that
there is no proper submission of title proposed amendment in question within the meaning and
intendment of Section 1 of Article XV of the Constitution, and (2) that the forthcoming election
is not the proper election envisioned by the same provision of the Constitution.

Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on

Elections1 and Philippine Constitution Association vs. Commission on Elections,2 expounded his
view, with which we essentially agree, on the minimum requirements that must be met in order that
there can be a proper submission to the people of a proposed constitutional amendment. This is
what he said:

... amendments must be fairly laid before the people for their blessing or spurning. The people are
not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity
to mull over the original provisions, compare them with the proposed amendments, and try to reach
a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or
possibly insidious influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform citizen of the provisions to be
amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we
are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as intended by the framers of
the Constitution. What the Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within its structural framework
to enlighten the people, educate them with respect to their act of ratification or rejection. For we have
earlier stated, one thing is submission and another is ratification. There must be fair submission,
intelligent consent or rejection." .

The second constitutional objection was given expression by one of the writers of this concurring
opinion, in the following words:
I find it impossible to believe that it was ever intended by its framers that such amendment should be
submitted and ratified by just "a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification", if the concentration of the people's attention thereon
is to be diverted by other extraneous issues, such as the choice of local and national officials. The
framers of the Constitution, aware of the fundamental character thereof, and of the need of giving it
as much stability as is practicable, could have only meant that any amendments thereto should be
debated, considered and voted upon an election wherein the people could devote undivided
attention to the subject.4

True it is that the question posed by the proposed amendment, "Do you or do you not want the 18-
year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not to be so simple after all.

A number of doubts or misgivings could conceivably and logically assail the average voter. Why
should the voting age be lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old so that there is no need of an educational qualification to entitle him to
vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having
this particular proposed amendment ratified at this particular time? Do some of the members of the
Convention have future political plans which they want to begin to subserve by the approval this year
of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should
now also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to
render compulsory military service under the colors? Will the age of contractual consent be reduced
to 18 years? If I vote against this amendment, will I not be unfair to my own child who will be 18
years old, come 1973? .

The above are just samplings from here, there and everywhere — from a domain (of searching
questions) the bounds of which are not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot be had except as the questions are
debated fully, pondered upon purposefully, and accorded undivided attention.

Scanning the contemporary scene, we say that the people are not, and by election time will not be,
sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment.
They have not been afforded ample time to deliberate thereon conscientiously. They have been and
are effectively distracted from a full and dispassionate consideration of the merits and demerits of
the proposed amendment by their traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom of the proposed amendment.

Upon the above disquisition, it is our considered view that the intendment of the words, "at an
election at which the amendments are submitted to the people for their ratification," embodied in
Section 1 of Article XV of the Constitution, has not been met.

FERNANDO, J., concurring and dissenting:

There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by
clarity and vigor, its manifestation of fealty to the rule of law couched in eloquent language, that
commands assent. As the Constitution occupies the topmost rank in the hierarchy of legal norms,
Congress and Constitutional Convention alike, no less than this Court, must bow to its supremacy.
Thereby constitutionalism asserts itself. With the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not extend as far as the acceptance of the
conclusion reached. The question presented is indeed novel, not being controlled by constitutional
prescription, definite and certain. Under the circumstances, with the express recognition in the
Constitution of the powers of the Constitutional Convention to propose amendments, I cannot
discern any objection to the validity of its action there being no legal impediment that would call for
its nullification. Such an approach all the more commends itself to me considering that what was
sought to be done is to refer the matter to the people in whom, according to our Constitution,
sovereignty resides. It is in that sense that, with due respect, I find myself unable to join my brethren.

I. It is understandable then why the decisive issue posed could not be resolved by reliance on,
implicit in the petition and the answer of intervenors, such concepts as legislative control of the
constitutional convention referred to by petitioner on the one hand or, on the other, the theory of
conventional sovereignty favored by intervenors. It is gratifying to note that during the oral argument
of petitioner and counsel for respondents and intervenors, there apparently was a retreat from such
extreme position, all parties, as should be the case, expressly avowing the primacy of the
Constitution, the applicable provision of which as interpreted by this Court, should be controlling on
both Congress and the Convention. It cannot be denied though that in at least one American state,
that is Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised
by a constitutional convention are dependent on a legislative grant, in the absence of any authority
conferred directly by the fundamental law. The result is a convention that is subordinate to the
lawmaking body. Its field of competence is circumscribed. It has to look to the latter for the
delimitation of its permissible scope of activity. It is thus made subordinate to the legislature.
Nowhere has such a view been more vigorously expressed than in the Pennsylvania case of Wood's
Appeal.1 Its holding though finds no support under our constitutional provision.

It does not thereby follow that while free from legislative control, a constitutional convention may lay
claim to an attribute sovereign in character. The Constitution is quite explicit that it is to the people,
and to the people alone, in whom sovereignty resides.2 Such a prerogative is therefore withheld
from a convention. It is an agency entrusted with the responsibility of high import and significance it
is true; it is denied unlimited legal competence though. That is what sovereignty connotes. It has to
yield to the superior force of the Constitution. There can then be no basis for the exaggerated
pretension that it is an alter ego of the people. It is to be admitted that there are some American
state decisions, the most notable of which is Sproule v. Fredericks,3 a Mississippi case, that dates
back to 1892, that yield a different conclusion. The doctrine therein announced cannot bind us. Our
Constitution makes clear that the power of a constitutional convention is not sovereign. It is
appropriately termed constituent, limited as it is to the purpose of drafting a constitution or proposing
revision or amendments to one in existence, subject in either case to popular approval.

The view that commends itself for acceptance is that legislature and constitutional convention, alike
recognized by the Constitution, are coordinate, there being no superiority of one over the other.
Insofar as the constituent power of proposing amendments to the Constitution is concerned, a
constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which
can be the only source of valid restriction on its competence. It is true it is to the legislative body that
the call to a convention must proceed, but once convened, it cannot in any wise be interfered with,
much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate,
and paramount task assigned to it. A convention then is to be looked upon as if it were one of the
three coordinate departments which under the principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly subject to its jurisdiction. A succinct
statement of the appropriate principle that should govern the relationship between a constitutional
convention and a legislative body under American law is that found in Orfield's work. Thus: "The
earliest view seems to have been that a convention was absolute. The convention was sovereign
and subject to no restraint. On the other hand, Jameson, whose views have been most frequently
cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the
restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd
— that a convention, though not sovereign, is a body independent of the legislature; it is bound by
the existing constitution, but not by the acts of the legislature, as to the extent of its constituent
power. This view has become increasingly prevalent in the state decisions."4

2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion
of the Court, that any limitation on the power the Constitutional, Convention must find its source. I
turn to its Article XV. It reads: "The Congress in joint session assembled, by a vote of three fourths of
all the Members of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification."

Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal
and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the
Congress of the Philippines in the mode therein provided, and a constitutional convention that may
be called into being. Once assembled, a constitutional convention, like the Congress of the
Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may
determine what amendments it would have the people ratify and thereafter take all the steps
necessary so that the approval or disapproval of the electorate may be obtained, the convention
likewise, to my mind, should be deemed possessed of all the necessary authority to assure that
whatever amendments it seeks to introduce would be submitted to the people at an election called
for that purpose. It would appear to me that to view the convention as being denied a prerogative
which is not withheld from Congress as a constituent body would be to place it in an inferior
category. Such a proposition I do not find acceptable. Congress and constitutional convention are
agencies for submitting proposals under the fundamental law. A power granted to one should not be
denied the other. No justification for such a drastic differentiation either in theory or practice exists.

Such a conclusion has for me the added reinforcement that to require ordinary legislation before the
convention could be enabled to have its proposals voted on by the people would be to place a power
in the legislative and executive branches that could, whether by act or omission, result in the
frustration of the amending process. I am the first to admit that such likelihood is remote, but if such
a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable
constitutional provision requires otherwise. Considering that a constitutional convention is not
precluded from imposing additional restrictions on the powers of either the executive or legislative
branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article
XV in such a way that would not sanction such restraint on the authority that must be recognized as
vested in a constitutional convention. There is nothing in such a view that to my mind would collide
with a reasonable interpretation of Article XV. It certainly is one way by which freed from pernicious
abstractions, it would be easier to accommodate a constitution to the needs of an unfolding future.
That is to facilitate its being responsive to the challenge that time inevitably brings in its wake.

From such an approach then, I am irresistibly led to the conclusion that the challenged resolution
was well within the power of the convention. That would be to brush aside the web of unreality spun
from a too-restrictive mode of appraising the legitimate scope of its competence. That would be, for
me, to give added vigor and life to the conferment of authority vested in it, attended by such grave
and awesome responsibility.

3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such
amendment shall be valid when submitted and thereafter approved by the majority of the votes cast
by the people at an election is a bar to the proposed submission. It is the conclusion arrived at by my
brethren that there is to be only one election and that therefore the petition must be sustained as
only when the convention has finished its work should all amendments proposed be submitted for
ratification. That is not for me, and I say this with respect, the appropriate interpretation. It is true that
the Constitution uses the word "election" in the singular, but that is not decisive. No undue reliance
should be accorded rules of grammar; they do not exert a compelling force in constitutional
interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic
of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a
mode of construction does not commend itself. The words used in the Constitution are not inert; they
derive vitality from the obvious purposes at which they are aimed. Petitioner's stress on linguistic
refinement, while not implausible does not, for me, carry the day.

It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not
such as was contemplated in this article. I do not find such contention convincing. The fact that the
Constitutional Convention did seek to consult the wishes of the people by the proposed submission
of a tentative amendatory provision is an argument for its validity. It might be said of course that until
impressed with finality, an amendment is not to be passed upon by the electorate. There is
plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs
it though would not, for me, be satisfied. From its silence I deduce the inference that there is no
repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will.
In that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent
but silently vocal. What I deem the more important consideration is that while a public official, as an
agent, has to locate his source of authority in either Constitution or statute, the people, as the
principal, can only be limited in the exercise of their sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way of thinking be inconsistent with the
fundamental principle that it is in the people, and the people alone, that sovereignty resides.

4. The constitutional Convention having acted within the scope of its authority, an action to restrain
or prohibit respondent Commission on Elections from conducting the plebiscite does not lie. It should
not be lost sight of that the Commission on Elections in thus being charged with such a duty does
not act in its capacity as the constitutional agency to take charge of all laws relative to the conduct of
election. That is a purely executive function vested in it under Article X of the Constitution.5 It is not
precluded from assisting the Constitutional Convention if pursuant to its competence to amend the
fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to the
electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional
Convention Act, it is not to turn a deaf ear to a summons from the Convention to aid it in the
legitimate discharge of its functions.6

The aforesaid considerations, such as they are, but which for me have a force that I mind myself
unable to overcome, leave me no alternative but to dissent from my brethren, with due
acknowledgement of course that from their basic premises, the conclusion arrived at by them cannot
be characterized as in any wise bereft of a persuasive quality of a high order.

Separate Opinions

MAKALINTAL, J., reserves his vote —

I reserve my vote. The resolution in question is voted down by a sufficient majority of the Court on
just one ground, which to be sure achieves the result from the legal and constitutional viewpoint. I
entertain grave doubts as to the validity of the premises postulated and conclusions reached in
support of the dispositive portion of the decision. However, considering the urgent nature of this
case, the lack of time to set down at length my opinion on the particular issue upon which the
decision is made to rest, and the fact that a dissent on the said issue would necessarily be
inconclusive unless the other issues raised in the petition are also considered and ruled upon — a
task that would be premature and pointless at this time — I limit myself to this reservation.

REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:

We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable, forthright and
vigorous style. Like him, we do not express our individual views on the wisdom of the proposed
constitutional amendment, which is not in issue here because it is a matter that properly and
exclusively addresses itself to the collective judgment of the people.

We must, however, articulate two additional objections of constitutional dimension which, although
they would seem to be superfluous because of the reach of the basic constitutional infirmity
discussed in extenso in the main opinion, nevertheless appear to us to be just as fundamental in
character and scope.

Assuming that the Constitutional Convention has power to propose piecemeal amendments and
submit each separately to the people for ratification, we are nonetheless persuaded that (1) that
there is no proper submission of title proposed amendment in question within the meaning and
intendment of Section 1 of Article XV of the Constitution, and (2) that the forthcoming election
is not the proper election envisioned by the same provision of the Constitution.

Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on

Elections1 and Philippine Constitution Association vs. Commission on Elections,2 expounded his
view, with which we essentially agree, on the minimum requirements that must be met in order that
there can be a proper submission to the people of a proposed constitutional amendment. This is
what he said:

... amendments must be fairly laid before the people for their blessing or spurning. The people are
not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity
to mull over the original provisions, compare them with the proposed amendments, and try to reach
a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or
possibly insidious influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform citizen of the provisions to be
amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we
are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as intended by the framers of
the Constitution. What the Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within its structural framework
to enlighten the people, educate them with respect to their act of ratification or rejection. For we have
earlier stated, one thing is submission and another is ratification. There must be fair submission,
intelligent consent or rejection." .

The second constitutional objection was given expression by one of the writers of this concurring
opinion, in the following words:

I find it impossible to believe that it was ever intended by its framers that such amendment should be
submitted and ratified by just "a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification", if the concentration of the people's attention thereon
is to be diverted by other extraneous issues, such as the choice of local and national officials. The
framers of the Constitution, aware of the fundamental character thereof, and of the need of giving it
as much stability as is practicable, could have only meant that any amendments thereto should be
debated, considered and voted upon an election wherein the people could devote undivided
attention to the subject.4

True it is that the question posed by the proposed amendment, "Do you or do you not want the 18-
year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not to be so simple after all.

A number of doubts or misgivings could conceivably and logically assail the average voter. Why
should the voting age be lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old so that there is no need of an educational qualification to entitle him to
vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having
this particular proposed amendment ratified at this particular time? Do some of the members of the
Convention have future political plans which they want to begin to subserve by the approval this year
of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should
now also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to
render compulsory military service under the colors? Will the age of contractual consent be reduced
to 18 years? If I vote against this amendment, will I not be unfair to my own child who will be 18
years old, come 1973? .

The above are just samplings from here, there and everywhere — from a domain (of searching
questions) the bounds of which are not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot be had except as the questions are
debated fully, pondered upon purposefully, and accorded undivided attention.

Scanning the contemporary scene, we say that the people are not, and by election time will not be,
sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment.
They have not been afforded ample time to deliberate thereon conscientiously. They have been and
are effectively distracted from a full and dispassionate consideration of the merits and demerits of
the proposed amendment by their traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom of the proposed amendment.

Upon the above disquisition, it is our considered view that the intendment of the words, "at an
election at which the amendments are submitted to the people for their ratification," embodied in
Section 1 of Article XV of the Constitution, has not been met.

FERNANDO, J., concurring and dissenting:

There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by
clarity and vigor, its manifestation of fealty to the rule of law couched in eloquent language, that
commands assent. As the Constitution occupies the topmost rank in the hierarchy of legal norms,
Congress and Constitutional Convention alike, no less than this Court, must bow to its supremacy.
Thereby constitutionalism asserts itself. With the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not extend as far as the acceptance of the
conclusion reached. The question presented is indeed novel, not being controlled by constitutional
prescription, definite and certain. Under the circumstances, with the express recognition in the
Constitution of the powers of the Constitutional Convention to propose amendments, I cannot
discern any objection to the validity of its action there being no legal impediment that would call for
its nullification. Such an approach all the more commends itself to me considering that what was
sought to be done is to refer the matter to the people in whom, according to our Constitution,
sovereignty resides. It is in that sense that, with due respect, I find myself unable to join my brethren.

I. It is understandable then why the decisive issue posed could not be resolved by reliance on,
implicit in the petition and the answer of intervenors, such concepts as legislative control of the
constitutional convention referred to by petitioner on the one hand or, on the other, the theory of
conventional sovereignty favored by intervenors. It is gratifying to note that during the oral argument
of petitioner and counsel for respondents and intervenors, there apparently was a retreat from such
extreme position, all parties, as should be the case, expressly avowing the primacy of the
Constitution, the applicable provision of which as interpreted by this Court, should be controlling on
both Congress and the Convention. It cannot be denied though that in at least one American state,
that is Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised
by a constitutional convention are dependent on a legislative grant, in the absence of any authority
conferred directly by the fundamental law. The result is a convention that is subordinate to the
lawmaking body. Its field of competence is circumscribed. It has to look to the latter for the
delimitation of its permissible scope of activity. It is thus made subordinate to the legislature.
Nowhere has such a view been more vigorously expressed than in the Pennsylvania case of Wood's
Appeal.1 Its holding though finds no support under our constitutional provision.

It does not thereby follow that while free from legislative control, a constitutional convention may lay
claim to an attribute sovereign in character. The Constitution is quite explicit that it is to the people,
and to the people alone, in whom sovereignty resides.2 Such a prerogative is therefore withheld
from a convention. It is an agency entrusted with the responsibility of high import and significance it
is true; it is denied unlimited legal competence though. That is what sovereignty connotes. It has to
yield to the superior force of the Constitution. There can then be no basis for the exaggerated
pretension that it is an alter ego of the people. It is to be admitted that there are some American
state decisions, the most notable of which is Sproule v. Fredericks,3 a Mississippi case, that dates
back to 1892, that yield a different conclusion. The doctrine therein announced cannot bind us. Our
Constitution makes clear that the power of a constitutional convention is not sovereign. It is
appropriately termed constituent, limited as it is to the purpose of drafting a constitution or proposing
revision or amendments to one in existence, subject in either case to popular approval.

The view that commends itself for acceptance is that legislature and constitutional convention, alike
recognized by the Constitution, are coordinate, there being no superiority of one over the other.
Insofar as the constituent power of proposing amendments to the Constitution is concerned, a
constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which
can be the only source of valid restriction on its competence. It is true it is to the legislative body that
the call to a convention must proceed, but once convened, it cannot in any wise be interfered with,
much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate,
and paramount task assigned to it. A convention then is to be looked upon as if it were one of the
three coordinate departments which under the principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly subject to its jurisdiction. A succinct
statement of the appropriate principle that should govern the relationship between a constitutional
convention and a legislative body under American law is that found in Orfield's work. Thus: "The
earliest view seems to have been that a convention was absolute. The convention was sovereign
and subject to no restraint. On the other hand, Jameson, whose views have been most frequently
cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the
restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd
— that a convention, though not sovereign, is a body independent of the legislature; it is bound by
the existing constitution, but not by the acts of the legislature, as to the extent of its constituent
power. This view has become increasingly prevalent in the state decisions."4
2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion
of the Court, that any limitation on the power the Constitutional, Convention must find its source. I
turn to its Article XV. It reads: "The Congress in joint session assembled, by a vote of three fourths of
all the Members of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification."

Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal
and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the
Congress of the Philippines in the mode therein provided, and a constitutional convention that may
be called into being. Once assembled, a constitutional convention, like the Congress of the
Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may
determine what amendments it would have the people ratify and thereafter take all the steps
necessary so that the approval or disapproval of the electorate may be obtained, the convention
likewise, to my mind, should be deemed possessed of all the necessary authority to assure that
whatever amendments it seeks to introduce would be submitted to the people at an election called
for that purpose. It would appear to me that to view the convention as being denied a prerogative
which is not withheld from Congress as a constituent body would be to place it in an inferior
category. Such a proposition I do not find acceptable. Congress and constitutional convention are
agencies for submitting proposals under the fundamental law. A power granted to one should not be
denied the other. No justification for such a drastic differentiation either in theory or practice exists.

Such a conclusion has for me the added reinforcement that to require ordinary legislation before the
convention could be enabled to have its proposals voted on by the people would be to place a power
in the legislative and executive branches that could, whether by act or omission, result in the
frustration of the amending process. I am the first to admit that such likelihood is remote, but if such
a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable
constitutional provision requires otherwise. Considering that a constitutional convention is not
precluded from imposing additional restrictions on the powers of either the executive or legislative
branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article
XV in such a way that would not sanction such restraint on the authority that must be recognized as
vested in a constitutional convention. There is nothing in such a view that to my mind would collide
with a reasonable interpretation of Article XV. It certainly is one way by which freed from pernicious
abstractions, it would be easier to accommodate a constitution to the needs of an unfolding future.
That is to facilitate its being responsive to the challenge that time inevitably brings in its wake.

From such an approach then, I am irresistibly led to the conclusion that the challenged resolution
was well within the power of the convention. That would be to brush aside the web of unreality spun
from a too-restrictive mode of appraising the legitimate scope of its competence. That would be, for
me, to give added vigor and life to the conferment of authority vested in it, attended by such grave
and awesome responsibility.

3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such
amendment shall be valid when submitted and thereafter approved by the majority of the votes cast
by the people at an election is a bar to the proposed submission. It is the conclusion arrived at by my
brethren that there is to be only one election and that therefore the petition must be sustained as
only when the convention has finished its work should all amendments proposed be submitted for
ratification. That is not for me, and I say this with respect, the appropriate interpretation. It is true that
the Constitution uses the word "election" in the singular, but that is not decisive. No undue reliance
should be accorded rules of grammar; they do not exert a compelling force in constitutional
interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic
of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a
mode of construction does not commend itself. The words used in the Constitution are not inert; they
derive vitality from the obvious purposes at which they are aimed. Petitioner's stress on linguistic
refinement, while not implausible does not, for me, carry the day.

It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not
such as was contemplated in this article. I do not find such contention convincing. The fact that the
Constitutional Convention did seek to consult the wishes of the people by the proposed submission
of a tentative amendatory provision is an argument for its validity. It might be said of course that until
impressed with finality, an amendment is not to be passed upon by the electorate. There is
plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs
it though would not, for me, be satisfied. From its silence I deduce the inference that there is no
repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will.
In that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent
but silently vocal. What I deem the more important consideration is that while a public official, as an
agent, has to locate his source of authority in either Constitution or statute, the people, as the
principal, can only be limited in the exercise of their sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way of thinking be inconsistent with the
fundamental principle that it is in the people, and the people alone, that sovereignty resides.

4. The constitutional Convention having acted within the scope of its authority, an action to restrain
or prohibit respondent Commission on Elections from conducting the plebiscite does not lie. It should
not be lost sight of that the Commission on Elections in thus being charged with such a duty does
not act in its capacity as the constitutional agency to take charge of all laws relative to the conduct of
election. That is a purely executive function vested in it under Article X of the Constitution.5 It is not
precluded from assisting the Constitutional Convention if pursuant to its competence to amend the
fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to the
electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional
Convention Act, it is not to turn a deaf ear to a summons from the Convention to aid it in the
legitimate discharge of its functions.6

The aforesaid considerations, such as they are, but which for me have a force that I mind myself
unable to overcome, leave me no alternative but to dissent from my brethren, with due
acknowledgement of course that from their basic premises, the conclusion arrived at by them cannot
be characterized as in any wise bereft of a persuasive quality of a high order.

Footnotes

1 Under Section 36, Rule 138 as amended, no one may appear as amicus curiae unless invited or
allowed, by the Court.

REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:

1 L-28196, Nov. 9, 1967, 21 SCRA 774, 816-817.

2 L-28224, Nov. 9, 1967, 21 SCRA 774, 816-817.

3 Per Justice J.B.L. Reyes, concurred by Justices Arsenio P. Dizon, Calixto O. Zaldivar, Fred Ruiz
Castro and Eugenio Angeles.

4 21 SCRA 821.
FERNANDO, J., concurring and dissenting:

1 Wood's Appeal, 75 Pa. 59 (1874) cited in Malcolm and Laurel. Cases in Constitutional Law, pp. 1,
4-5 (1936). It was therein stated: "In a governmental and proper sense, law is the highest act of a
people's sovereignty while their government and Constitution remain unchanged. It is the supreme
will of the people expressed in the forms and by the authority of their Constitution. It is their own
appointed mode through which they govern themselves, and by which they bind themselves. So long
as their frame of government is unchanged in its grant of all legislative power, these laws are
supreme over all subjects unforbidden by the instrument itself. The calling of a convention, and
regulating its action by law, is not forbidden in the Constitution. It is a conceded manner, through
which the people may exercise the rights reserved in the bill of rights. ... The right of the people to
restrain their delegates by law cannot be denied, unless the power to call a convention by law, and
the right of self protection be also denied."

2 According to Sec. 1 of Art. II: "Sovereignty resides in the people and all government authority
emanates from them." .

3 11 So. 472. The following excerpt appears in the opinion: "We have spoken of the constitutional
convention as a sovereign body, and that characterization perfectly defines the correct view, in our
opinion, of the real nature of that august assembly. It is the highest legislative body known to
freemen in a representative government. It is supreme in its sphere. It wields the powers of
sovereignty, specially delegated to it, for the purpose and the occasion, by the whole electoral body,
for the good of the whole commonwealth. The sole limitation upon its powers is that no change in the
form of government shall be done or attempted. The spirit of republicanism must breathe through
every part of the framework, but the particular fashioning of the parts of this framework is confided to
the wisdom the faithfulness, and the patriotism of this great convocation, representing the people in
their sovereignty." The Sproule decision was cited with approval four years later by the Mississippi
Supreme Court anew in Dickson v. State, 20 So. 841. A 1908 decision of the Southern State of
Oklahoma, State v. Scales, 97 P. 584, admitted the controversial character of the Sproule dictum.

4 Orfield on The Amending of the Federal Constitution, 45-46 (1942).

5 According to Sec. 2 of Article X of the Constitution: "The Commission on Elections shall have
exclusive charge of its enforcement and administration of all laws relative to the conduct of elections
and shall exercise all other functions which may be conferred upon it by law." Cf. Abcede v. Imperial,
103 Phil. 136 (1958).

6 "According to Sec. 14 of the 1971 Constitutional Convention Act (1970):"Administration and

Technical Assistance. -- All government entities, agencies and instrumentalities, including the
Senate and House of Representatives, shall place at the disposal of the Convention such personnel
premises, and furniture thereof as can, in their judgment be spared without detriment to public
service, without cost, refund or additional pay."

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G.R. No. 174153

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED

VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.

x--------------------------------------------------------x

ALTERNATIVE LAW GROUPS, INC., Intervenor.

x ------------------------------------------------------ x

ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,

BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.

x------------------------------------------------------ x

ATTY. PETE QUIRINO QUADRA, Intervenor.

x--------------------------------------------------------x

BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA

represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by
its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene
Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas,
MIGRANTE represented by its Chairperson Concepcion Bragas-Regalado, GABRIELA
represented by its Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY
represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson
Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer
Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and
Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR.
REGINALD PAMUGAS of Health Action for Human Rights, Intervenors.

x--------------------------------------------------------x

LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-
BARAQUEL, Intervenors.

x--------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor.

x ------------------------------------------------------- x

TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.

x---------------------------------------------------------x

LUWALHATI RICASA ANTONINO, Intervenor.

x ------------------------------------------------------- x

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS

C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.

x ------------------------------------------------------- x

RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.

x -------------------------------------------------------- x

PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR.

VICTORINO F. BALAIS, Intervenors.

x -------------------------------------------------------- x

SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR,

JR., Intervenor.

x ------------------------------------------------------- x

SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.

x ------------------------------------------------------- x

JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L.
SALVADOR, and RANDALL TABAYOYONG, Intervenors.

x -------------------------------------------------------- x

INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE

CHAPTERS, Intervenors.

x --------------------------------------------------------x

SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R.

OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
LACSON, Intervenors.
x -----------------------------------------------------x

JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.

x -----------------------------------------------------x

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter
Doe,, Respondent.

DECISION

CARPIO, J.:

The Case

These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on
Elections ("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution.

Antecedent Facts

On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B.
Aumentado ("Lambino Group"), with other groups 1 and individuals, commenced gathering signatures
for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group
filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under
Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act
("RA 6735").

The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at
least twelve per centum (12%) of all registered voters, with each legislative district represented by at
least three per centum (3%) of its registered voters. The Lambino Group also claimed that
COMELEC election registrars had verified the signatures of the 6.3 million individuals.

The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of
Article VI (Legislative Department)4 and Sections 1-4 of Article VII (Executive Department)5 and by
adding Article XVIII entitled "Transitory Provisions."6 These proposed changes will shift the present
Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The Lambino
Group prayed that after due publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION,
CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL
TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS
TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating
modifications in the proposed Article XVIII (Transitory Provisions) of their initiative. 7

The Ruling of the COMELEC

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 intervenors 10 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 States 15 which
allow initiative petitions, the unbending requirement is that the people must first see the full text
of the proposed amendments before they sign to signify their assent, and that the people
must sign on an initiative petition that contains the full text of the proposed amendments.16

The rationale for this requirement has been repeatedly explained in several decisions of various
courts. Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts,
affirmed by the First Circuit Court of Appeals, declared:

[A] signature requirement would be meaningless if the person supplying the signature has
not first seen what it is that he or she is signing. Further, and more importantly, loose
interpretation of the subscription requirement can pose a significant potential for fraud. A person
permitted to describe orally the contents of an initiative petition to a potential signer, without the
signer having actually examined the petition, could easily mislead the signer by, for example,
omitting, downplaying, or even flatly misrepresenting, portions of the petition that might not be to the
signer's liking. This danger seems particularly acute when, in this case, the person giving the
description is the drafter of the petition, who obviously has a vested interest in seeing that it
gets the requisite signatures to qualify for the ballot.17 (Boldfacing and underscoring supplied)

Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:

The purposes of "full text" provisions that apply to amendments by initiative commonly are described
in similar terms. x x x (The purpose of the full text requirement is to provide sufficient
information so that registered voters can intelligently evaluate whether to sign the initiative
petition."); x x x (publication of full text of amended constitutional provision required because it is
"essential for the elector to have x x x the section which is proposed to be added to or subtracted
from. If he is to vote intelligently, he must have this knowledge. Otherwise in many instances he
would be required to vote in the dark.") (Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of
that which is proposed" and failure to do so is "deceptive and misleading" which renders the
initiative void.19

Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the
full text of the proposed amendments. However, the deliberations of the framers of our Constitution
clearly show that the framers intended to adopt the relevant American jurisprudence on people's
initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the
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 Barangay:
District: 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 Signature Verification
Number
Last Name, First MM/DD/YY
Name, M.I.
1
2
3
4
5
6
7
8
9
10

_________________
Barangay Official
(Print Name and Sign)

_________________
Witness
(Print Name and Sign)

__________________
Witness
(Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed
changes in the signature sheet. Neither does the signature sheet state that the text of the
proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral
arguments before this Court on 26 September 2006.

The signature sheet merely asks a question whether the people approve a shift from the Bicameral-
Presidential to the Unicameral-Parliamentary system of government. The signature sheet does not
show to the people the draft of the proposed changes before they are asked to sign the
signature sheet. Clearly, the signature sheet is not the "petition" that the framers of the Constitution
envisioned when they formulated the initiative clause in Section 2, Article XVII of the Constitution.

Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to
August 2006, the Lambino Group circulated, together with the signature sheets, printed copies of the
Lambino Group's draft petition which they later filed on 25 August 2006 with the COMELEC. When
asked if his group also circulated the draft of their amended petition filed on 30 August 2006 with the
COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty. Lambino changed
his answer and stated that what his group circulated was the draft of the 30 August 2006 amended
petition, not the draft of the 25 August 2006 petition.

The Lambino Group would have this Court believe that they prepared the draft of the 30 August
2006 amended petition almost seven months earlier in February 2006 when they started
gathering signatures. Petitioner Erico B. Aumentado's "Verification/Certification" of the 25 August
2006 petition, as well as of the 30 August 2006 amended petition, filed with the COMELEC, states
as follows:

I have caused the preparation of the foregoing [Amended] Petition in my personal capacity as a
registered voter, for and on behalf of the Union of Local Authorities of the Philippines, as
shown by ULAP Resolution No. 2006-02 hereto attached, and as representative of the mass of
signatories hereto. (Emphasis supplied)

The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition.
However, the "Official Website of the Union of Local Authorities of the Philippines"22 has posted the
full text of Resolution No. 2006-02, which provides:

RESOLUTION NO. 2006-02

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE

COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM
AS A MODE OF AMENDING THE 1987 CONSTITUTION

WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a
common stand on the approach to support the proposals of the People's Consultative Commission
on Charter Change;

WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President
Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint Declaration for
Constitutional Reforms signed by the members of the ULAP and the majority coalition of the House
of Representatives in Manila Hotel sometime in October 2005;

WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency to
recommend amendments to the 1987 Constitution has submitted its final report sometime in
December 2005;

WHEREAS, the ULAP is mindful of the current political developments in Congress which militates
against the use of the expeditious form of amending the 1987 Constitution;

WHEREAS, subject to the ratification of its institutional members and the failure of Congress to
amend the Constitution as a constituent assembly, ULAP has unanimously agreed to pursue the
constitutional reform agenda through People's Initiative and Referendum without prejudice to other
pragmatic means to pursue the same;

WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE 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 Commission 24 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.

xxxx

MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1

refers to "amendments." Does it not cover the word "revision" as defined by Commissioner
Padilla when he made the distinction between the words "amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by
Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not
"revision."

MR. MAAMBONG: Thank you.31 (Emphasis supplied)

There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear
distinction between "amendment" and "revision" of the Constitution. The framers intended, and
wrote, that only Congress or a constitutional convention may propose revisions to the Constitution.
The framers intended, and wrote, that a people's initiative may propose only amendments to the
Constitution. Where the intent and language of the Constitution clearly withhold from the people the
power to propose revisions to the Constitution, the people cannot propose revisions even as they
are empowered to propose amendments.

This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden
v. Jordan,32 the Supreme Court of California ruled:

The initiative power reserved by the people by amendment to the Constitution x x x applies
only to the proposing and the adopting or rejecting of 'laws and amendments to the
Constitution' and does not purport to extend to a constitutional revision. x x x x It is thus clear
that a revision of the Constitution may be accomplished only through ratification by the people of a
revised constitution proposed by a convention called for that purpose as outlined hereinabove.
Consequently if the scope of the proposed initiative measure (hereinafter termed 'the measure') now
before us is so broad that if such measure became law a substantial revision of our present state
Constitution would be effected, then the measure may not properly be submitted to the electorate
until and unless it is first agreed upon by a constitutional convention, and the writ sought by
petitioner should issue. x x x x (Emphasis supplied)

Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33

It is well established that when a constitution specifies the manner in which it may be amended or
revised, it can be altered by those who favor amendments, revision, or other change only through
the use of one of the specified means. The constitution itself recognizes that there is a difference
between an amendment and a revision; and it is obvious from an examination of the measure here
in question that it is not an amendment as that term is generally understood and as it is used in
Article IV, Section 1. The document appears to be based in large part on the revision of the
constitution drafted by the 'Commission for Constitutional Revision' authorized by the 1961
Legislative Assembly, x x x and submitted to the 1963 Legislative Assembly. It failed to receive in the
Assembly the two-third's majority vote of both houses required by Article XVII, Section 2, and hence
failed of adoption, x x x.

While differing from that document in material respects, the measure sponsored by the plaintiffs is,
nevertheless, a thorough overhauling of the present constitution x x x.

To call it an amendment is a misnomer.

Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the
people through the initiative. If a revision, it is subject to the requirements of Article XVII, Section
2(1); if a new constitution, it can only be proposed at a convention called in the manner provided in
Article XVII, Section 1. x x x x
Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose
amendments to the Constitution since the Constitution itself limits initiatives to amendments. There
can be no deviation from the constitutionally prescribed modes of revising the Constitution. A
popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the
specific modes prescribed in the Constitution itself.

As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34

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.40 Qualitatively, the proposed changes alter substantially the basic plan of
government, from presidential to parliamentary, and from a bicameral to a unicameral legislature.

A change in the structure of government is a revision of the Constitution, as when the three great co-
equal branches of government in the present Constitution are reduced into two. This alters the
separation of powers in the Constitution. A shift from the present Bicameral-Presidential system
to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and
executive branches is a radical change in the structure of government.

The abolition alone of the Office of the President as the locus of Executive Power alters the
separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone
of one chamber of Congress alters the system of checks-and-balances within the legislature and
constitutes a revision of the Constitution.

By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a
Unicameral-Parliamentary system, involving the abolition of the Office of the President and the
abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the
face alone of the Lambino Group's proposed changes, it is readily apparent that the changes
will radically alter the framework of government as set forth in the Constitution. Father Joaquin
Bernas, S.J., a leading member of the Constitutional Commission, writes:

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

In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution
to shift from a bicameral to a unicameral legislature. The issue turned on whether the initiative
"was defective and unauthorized where [the] proposed amendment would x x x affect several other
provisions of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside
the scope of the initiative clause, ruled as follows:

The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a
Unicameral Legislature affects not only many other provisions of the Constitution but provides
for a change in the form of the legislative branch of government, which has been in existence in
the United States Congress and in all of the states of the nation, except one, since the earliest
days. It would be difficult to visualize a more revolutionary change. The concept of a House and
a Senate is basic in the American form of government. It would not only radically change the
whole pattern of government in this state and tear apart the whole fabric of the Constitution,
but would even affect the physical facilities necessary to carry on government.

xxxx

We conclude with the observation that if such proposed amendment were adopted by the people at
the General Election and if the Legislature at its next session should fail to submit further
amendments to revise and clarify the numerous inconsistencies and conflicts which would result, or
if after submission of appropriate amendments the people should refuse to adopt them, simple
chaos would prevail in the government of this State. The same result would obtain from an
amendment, for instance, of Section 1 of Article V, to provide for only a Supreme Court and Circuit
Courts-and there could be other examples too numerous to detail. These examples point unerringly
to the answer.

The purpose of the long and arduous work of the hundreds of men and women and many sessions
of the Legislature in bringing about the Constitution of 1968 was to eliminate inconsistencies and
conflicts and to give the State a workable, accordant, homogenous and up-to-date document. All of
this could disappear very quickly if we were to hold that it could be amended in the manner proposed
in the initiative petition here.43 (Emphasis supplied)

The rationale of the Adams decision applies with greater force to the present petition. The Lambino
Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to
merge the executive and legislative departments. The initiative in Adams did not even touch the
executive department.

In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that
would be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's
present initiative, no less than 105 provisions of the Constitution would be affected based on
the count of Associate Justice Romeo J. Callejo, Sr.44 There is no doubt that the Lambino Group's
present initiative seeks far more radical changes in the structure of government than the initiative
in Adams.

The Lambino Group theorizes that the difference between "amendment" and "revision" is only one
of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts
and proposes changes to the Constitution, substantive changes are called "revisions"
because members of the deliberative body work full-time on the changes. However, the same
substantive changes, when proposed through an initiative, are called "amendments" because the
changes are made by ordinary people who do not make an "occupation, profession, or
vocation" out of such endeavor.

Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:

99. With this distinction in mind, we note that the constitutional provisions expressly provide for both
"amendment" and "revision" when it speaks of legislators and constitutional delegates, while the
same provisions expressly provide only for "amendment" when it speaks of the people. It would
seem that the apparent distinction is based on the actual experience of the people, that on one hand
the common people in general are not expected to work full-time on the matter of correcting the
constitution because that is not their occupation, profession or vocation; while on the other hand, the
legislators and constitutional convention delegates are expected to work full-time on the same matter
because that is their occupation, profession or vocation. Thus, the difference between the words
"revision" and "amendment" pertain only to the process or procedure of coming up with the
corrections, for purposes of interpreting the constitutional provisions.

100. Stated otherwise, the difference between "amendment" and "revision" cannot
reasonably be in the substance or extent of the correction. x x x x (Underlining in the original;
boldfacing supplied)

The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the
same proposed changes that the Lambino Group wrote in the present initiative, the changes would
constitute a revision of the Constitution. Thus, the Lambino Group concedes that the proposed
changes in the present initiative constitute a revision if Congress or a constitutional
convention had drafted the changes. However, since the Lambino Group as private individuals
drafted the proposed changes, the changes are merely amendments to the Constitution. The
Lambino Group trivializes the serious matter of changing the fundamental law of the land.

The express intent of the framers and the plain language of the Constitution contradict the
Lambino Group's theory. Where the intent of the framers and the language of the Constitution are
clear and plainly stated, courts do not deviate from such categorical intent and language.45 Any
theory espousing a construction contrary to such intent and language deserves scant consideration.
More so, if such theory wreaks havoc by creating inconsistencies in the form of government
established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting
inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's position. Any
theory advocating that a proposed change involving a radical structural change in government does
not constitute a revision justly deserves rejection.

The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have
attempted to advance without any success. In Lowe v. Keisling,46 the Supreme Court of
Oregon rejected this theory, thus:

Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by
initiative. His theory is that Article XVII, section 2 merely provides a procedure by which the
legislature can propose a revision of the constitution, but it does not affect proposed
revisions initiated by the people.

Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the constitution
that cannot be enacted through the initiative process. They assert that the distinction between
amendment and revision is determined by reviewing the scope and subject matter of the proposed
enactment, and that revisions are not limited to "a formal overhauling of the constitution." They argue
that this ballot measure proposes far reaching changes outside the lines of the original instrument,
including profound impacts on existing fundamental rights and radical restructuring of the
government's relationship with a defined group of citizens. Plaintiffs assert that, because the
proposed ballot measure "will refashion the most basic principles of Oregon constitutional law," the
trial court correctly held that it violated Article XVII, section 2, and cannot appear on the ballot
without the prior approval of the legislature.

We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions
instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of
the constitution may not be accomplished by initiative, because of the provisions of Article XVII,
section 2. After reviewing Article XVII, section1, relating to proposed amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a
means of amending the Oregon Constitution, but it contains no similar sanction for its use as a
means of revising the constitution." x x x x

It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the
constitution which provides the means for constitutional revision and it excludes the idea that an
individual, through the initiative, may place such a measure before the electorate." x x x x

Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to
constitutional revisions proposed by initiative. (Emphasis supplied)

Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the
framers and the plain language of the Constitution.

We can visualize amendments and revisions as a spectrum, at one end green for amendments and
at the other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties
arise in determining whether there is an amendment or revision. The present initiative is indisputably
located at the far end of the red spectrum where revision begins. The present initiative seeks a
radical overhaul of the existing separation of powers among the three co-equal departments of
government, requiring far-reaching amendments in several sections and articles of the Constitution.

Where the proposed change applies only to a specific provision of the Constitution without affecting
any other section or article, the change may generally be considered an amendment and not a
revision. For example, a change reducing the voting age from 18 years to 15 years47 is an
amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media
companies from 100 percent to 60 percent is an amendment and not a revision.48 Also, a change
requiring a college degree as an additional qualification for election to the Presidency is an
amendment and not a revision.49

The changes in these examples do not entail any modification of sections or articles of the
Constitution other than the specific provision being amended. These changes do not also affect the
structure of government or the system of checks-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.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez,
Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr.,
JJ., concur.

____________________

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED

VOTERS V. COMMISSION ON ELECTIONS ET AL.

SEPARATE CONCURRING OPINION

PANGANIBAN, CJ.:

Without the rule of law, there can be no lasting prosperity and certainly no liberty.

Beverley McLachlin 1
Chief Justice of Canada

After a deep reflection on the issues raised and a careful evaluation of the parties' respective
arguments -- both oral and written -- as well as the enlightened and enlightening Opinions submitted
by my esteemed colleagues, I am fully convinced that the present Petition must be dismissed.

I write, however, to show that my present disposition is completely consistent with my previous
Opinions and votes on the two extant Supreme Court cases involving an initiative to change the
Constitution.

In my Separate Opinion in Santiago v. Comelec,2 I opined "that taken together and interpreted
properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), Republic Act 6735 and
Comelec Resolution 2300 provide more than sufficient

__________________

'SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.'

"With all due respect, I find the majority's position all too sweeping and all too extremist. It is
equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him
of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby
preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the
Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed,
there is a right way to do the right thing at the right time and for the right reason.
Taken Together and Interpreted Properly,
the Constitution, R.A. 6735 and Comelec Resolution
2300 Are Sufficient to Implement Constitutional Initiatives

"While R.A. 6735 may not be a perfect law, it was — as the majority openly concedes — intended by
the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an
initiative on the Constitution. I completely agree with the inspired and inspiring opinions of Mr.
Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on
initiative, sufficiently implements the right of the people to initiate amendments to the Constitution.
Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this
Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections,
that "provisions for initiative . . . are (to be) liberally construed to effectuate their purposes, to
facilitate and not hamper the exercise by the voters of the rights granted thereby"; and in Garcia vs.
Comelec, that any "effort to trivialize the effectiveness of people's initiatives ought to be rejected."

"No law can completely and absolutely cover all administrative details. In recognition of this, R.A.
6735 wisely empowered the Commission on Election "to promulgate such rules and regulations as
may be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued
its Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to
govern the conduct of initiative on the Constitution and initiative and referendum on national and
local laws," not by the incumbent Commission on Elections but by one then composed of Acting
Chairperson Haydee B. Yorac, Comms. Alfredo

authority to implement, effectuate and realize our people's power to amend the Constitution."

__________________

E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All
of these Commissioners who signed Resolution 2300 have retired from the Commission, and thus
we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort to
give life to a cherished right of our people.

"The majority argues that while Resolution 2300 is valid in regard to national laws and local
legislations, it is void in reference to constitutional amendments. There is no basis for such
differentiation. The source of and authority for the Resolution is the same law, R.A. 6735.

"I respectfully submit that taken together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), R.A. 6735 and Comelec Resolution 2300 provide more than sufficient
authority to implement, effectuate and realize our people's power to amend the Constitution.

Petitioner Delfin and the Pedrosa

Spouses Should Not Be Muzzled

"I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this
Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from
exercising their right of initiative. In fact, I believe that such restraining order as against private
respondents should not have been issued, in the first place. While I agree that the Comelec should
be stopped from using public funds and government resources to help them gather signatures, I
firmly believe that this Court has no power to restrain them from exercising their right of initiative.
The right to propose amendments to the Constitution is really a species of the right of free speech
and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking
freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, 'I may
disagree with what you say, but I will defend to the death your right to say it.' After all, freedom is not
really for the thought we agree with, but as Justice Holmes wrote, 'freedom for the thought that we
hate.'

Epilogue

"By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like
referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three
are institutionalized legacies of the world-admired EDSA people power. Like elections and
plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights
of our people to be used as

Six months after, in my Separate Opinion in People's Initiative for Reform, Modernization and Action
(PIRMA) v. Comelec,3 I joined the rest of the members of the Court in ruling "by a unanimous vote,
that no grave abuse of discretion could be attributed to the Comelec in dismissing the petition filed
by

__________________

Constitution x x x." While concededly, petitioners in this case were not direct parties in Santiago,
nonetheless the Court's injunction against the Comelec covered ANY petition, not just the Delfin
petition which was the immediate subject of said case. As a dissenter in Santiago, I believed, and
still do, that the majority gravely erred in rendering such a sweeping injunction, but I cannot
fault the Comelec for complying with the ruling even if it, too, disagreed with said
decision's ratio decidendi. Respondent Comelec was directly enjoined by the highest Court
of the land. It had no choice but to obey. Its obedience cannot constitute grave abuse of
discretion. Refusal to act on the PIRMA petition was the only recourse open to the Comelec. Any
other mode of action would have constituted defiance of the Court and would have been struck down
as grave abuse of discretion and contumacious disregard of this Court's supremacy as the final
arbiter of justiciable controversies.

Second Issue:
Sufficiency of RA 6735

"I repeat my firm legal position that RA 6735 is adequate to cover initiatives on the
Constitution, and that whatever administrative details may have been omitted in said law are
satisfactorily provided by Comelec Resolution 2300. The promulgation of Resolution 2300 is
sanctioned by Section 2, Article IX-C of the Constitution, which vests upon the Comelec the power to
"enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall." The Omnibus Election Code likewise empowers the
electoral body to "promulgate rules and regulations implementing the provisions of this Code or other
laws which the Commission is required to enforce and administer x x x." Finally and most relevantly,
Section 20 of Ra 6735 specifically authorizes Comelec "to promulgate rules and regulations as may
be necessary to carry out the purposes of this Act."

"In my dissent in Santiago, I wrote that "there is a right way to do the right thing at the right
time and for the right reason." Let me explain further.

The Right Thing

"A people's initiative is direct democracy in action. It is the right thing that citizens may avail
themselves of to articulate their will. It is a new and treasured feature of the Filipino constitutional
system. Even the majority implicitly conceded its value and worth in our legal firmament when it
implored Congress "not to tarry any longer in complying with the constitutional mandate to provide
for implementation of the right (of initiative) of the people x x x." Hence, in the en banc case of Subic
Bay Metropolitan Authority vs. Comelec, [G.R. No. 125416, September 26, 1996], this Court
unanimously held that "(l)ike elections, initiative and referendum are powerful and valuable modes of
expressing popular

PIRMA therein," since the Commission had "only complied" with the Santiago Decision.

__________________

sovereignty. And this Court as a matter of policy and doctrine will exert every effort to nurture,
protect and promote their legitimate exercise."

The Right Way

"From the outset, I have already maintained the view that "taken together and interpreted properly
and liberally, the Constitution (particularly Art. XVII, Sec. 2), RA 6735 and Comelec Resolution 2300
provide more than sufficient authority to implement, effectuate and realize our people's power to
amend the Constitution." Let me now demonstrate the adequacy of RA 6735 by outlining, in concrete
terms, the steps to be taken – the right way – to amend the Constitution through a people's initiative.

"Pursuant to Section 3(f) of the law, the Comelec shall prescribe the form of the petition which shall
contain the proposition and the required number of signatories. Under Sec. 5(c) thereof, the petition
shall state the following:

'c.1 contents or text of the [provision or provisions] sought to be x x x amended, x x x;

c.2 the proposition [in full text];

c.3 the reason or reasons therefor [fully and clearly explained];

c.4 that it is not one of exceptions provided herein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition in not more than one hundred (100) words which shall be
legibly written or printed at the top of every page of the petition.'

"Section 8(f) of Comelec Resolution 2300 additionally requires that the petition include a formal
designation of the duly authorized representatives of the signatories.

"Being a constitutional requirement, the number of signatures becomes a condition precedent to the
filing of the petition, and is jurisdictional. Without such requisite signatures, the Commission
shall motu proprio reject the petition.

"Where the initiators have substantially complied with the above requirements, they may thence file
the petition with the Comelec which is tasked to determine the sufficiency thereof and to verify the
signatures on the basis of the registry list of voters, voters' affidavits and voters' identification cards.
In deciding whether the petition is sufficient, the Comelec shall also determine if the proposition is
proper for an initiative, i.e., if it consists of an amendment, not a revision, of the Constitution. Any
decision of the electoral body may be appealed to the Supreme Court within thirty (30) days from
notice.

I added "that my position upholding the adequacy of RA 6735 and the validity of Comelec Resolution
2300 will not ipso

__________________

"Within thirty (30) days from receipt of the petition, and after the determination of its sufficiency, the
Comelec shall publish the same in Filipino and English at least twice in newspapers of general and
local circulation, and set the date of the plebiscite. The conduct of the plebiscite should not be earlier
than sixty (60) days, but not later than ninety (90) days after certification by the Comelec of the
sufficiency of the petition. The proposition, if approved by a majority of the votes cast in the
plebiscite, becomes effective as of the day of the plebiscite.

"From the foregoing, it should be clear that my position upholding the adequacy of RA 6735 and the
validity of Comelec Resolution 2300 will not ipso facto validate the PIRMA petition and automatically
lead to a plebiscite to amend the Constitution. Far from it. Among others, PIRMA must still
satisfactorily hurdle the following searching issues:

1. Does the proposed change – the lifting of the term limits of elective officials -- constitute a mere
amendment and not a revision of the Constitution?

2. Which registry of voters will be used to verify the signatures in the petition? This question is
relevant considering that under RA 8189, the old registry of voters used in the 1995 national
elections was voided after the barangay elections on May 12, 1997, while the new list may be used
starting only in the elections of May 1998.

3. Does the clamor for the proposed change in the Constitution really emanate from the people who
signed the petition for initiative? Or it is the beneficiaries of term extension who are in fact
orchestrating such move to advance their own political self-interest?

4. Are the six million signatures genuine and verifiable? Do they really belong to qualified warm
bodies comprising at least 12% of the registered voters nationwide, of which every legislative district
is represented by at least 3% of the registered voters therein?

"I shall expound on the third question in the next section, The Right Reason. Question Nos. 1 and 2
above, while important, are basically legal in character and can be determined by argumentation and
memoranda. However, Question No. 4 involves not only legal issues but gargantuan hurdles of
factual determination. This to my mind is the crucible, the litmus test, of a people's petition for
initiative. If herein petitioners, led by PIRMA, succeed in proving -- not just alleging -- that six million
voters of this country indeed want to amend the Constitution, what power on earth can stop them?
Not this Court, not the Comelec, not even the President or Congress.

facto validate the PIRMA petition and automatically lead to a plebiscite to amend the Constitution.
Far from it." I stressed that PIRMA must show the following, among others:

__________________

"It took only one million people to stage a peaceful revolution at EDSA, and the very rafters and
foundations of the martial law society trembled, quaked and crumbled. On the other hand, PIRMA
and its co-petitioners are claiming that they have gathered six million signatures. If, as claimed by
many, these six million signatures are fraudulent, then let them be exposed and damned for all
history in a signature-verification process conducted under our open system of legal advocacy.

"More than anything else, it is the truth that I, as a member of this Court and as a citizen of this
country, would like to seek: Are these six million signatures real? By insisting on an entirely new
doctrine of statutory inadequacy, the majority effectively suppressed the quest for that truth.

The Right Reason

"As mentioned, the third question that must be answered, even if the adequacy of RA 6735 and the
validity of Comelec Resolution 2300 were upheld by the majority is: Does the clamor for the
proposed change to the Constitution really emanate from the people who signed the petition for
initiative? Or is it the beneficiaries of term extension who are in fact orchestrating such move to
advance their own political self-interests? In other words, is PIRMA's exercise of the right to initiative
being done in accordance with our Constitution and our laws? Is such attempted exercise
legitimate?

"In Garcia vs. Commission on Elections, we described initiative, along with referendum, as the
'ultimate weapon of the people to negate government malfeasance and misfeasance.' In Subic
Bay, we specified that 'initiative is entirely the work of the electorate x x x a process of lawmaking by
the people themselves without the participation and against the wishes of their elected
representatives.' As ponente of Subic Bay, I stand foursquare on this principle: The right to
amend through initiative belongs only to the people – not to the government and its
minions. This principle finds clear support from utterances of many constitutional commissioners
like those quoted below:

"[Initiative is] a reserve power of the sovereign people, when they are dissatisfied with the National
Assembly x x x [and] precisely a fallback position of the people in the event that they are
dissatisfied." -- Commissioner Ople

"[Initiative is] a check on a legislative that is not responsive [and resorted to] only if the legislature is
not as responsive to the vital and urgent needs of people." -- Commissioner Gascon

(1) The proposed change -- the lifting of term limits of elective officials -- "constitute[s] a mere
amendment and not a revision of the Constitution."

_________________

"[Initiative is an] extraordinary power given to the people [and] reserved for the people [which] should
not be frivolously resorted to." -- Commissioner Romulo

"Indeed, if the powers-that-be desire to amend the Constitution, or even to revise it, our Charter itself
provides them other ways of doing so, namely, by calling a constitutional convention or constituting
Congress into a constituent assembly. These are officialdom's weapons. But initiative belongs to the
people.

"In the present case, are PIRMA and its co-petitioners legitimate people's organizations or are they
merely fronts for incumbents who want to extend their terms? This is a factual question which,
unfortunately, cannot be judicially answered anymore, because the Supreme Court majority ruled
that the law that implements it, RA 6735, is inadequate or insufficient insofar as initiatives to the
Constitutions are concerned. With such ruling, the majority effectively abrogated a constitutional right
of our people. That is why in my Separate Opinion in Santiago, I exclaimed that such precipitate
action "is equivalent to burning the whole house to exterminate the rats, and to killing the patient to
relieve him of pain." I firmly maintain that to defeat PIRMA's effort, there is no need to "burn" the
constitutional right to initiative. If PIRMA's exercise is not "legitimate," it can be exposed as such in
the ways I have discussed – short of abrogating the right itself. On the other hand, if PIRMA's
position is proven to be legitimate – if it hurdles the four issues I outlined earlier – by all means, we
should allow and encourage it. But the majority's theory of statutory inadequacy has pre-empted –
unnecessarily and invalidly, in my view – any judicial determination of such legitimacy or illegitimacy.
It has silenced the quest for truth into the interstices of the PIRMA petition.

The Right Time

"The Constitution itself sets a time limitation on when changes thereto may be proposed. Section 2
of Article XVII precludes amendments "within five years following [its] ratification x x x nor oftener
than once every five years thereafter." Since its ratification, the 1987 Constitution has never been
amended. Hence, the five-year prohibition is now inoperative and amendments may theoretically be
proposed at any time.

"Be that as it may, I believe – given the present circumstances – that there is no more time to lift
term limits to enable incumbents to seek reelection in the May 11, 1998 polls. Between today and
the next national

(2) The "six million signatures are genuine and verifiable"; and they "really belong to qualified warm
bodies comprising at

__________________

elections, less than eight (8) months remain. Santiago, where the single issue of the sufficiency of
RA 6735 was resolved, took this Court three (3) months, and another two (2) months to decide the
motion for reconsideration. The instant case, where the same issue is also raised by the petitioners,
took two months, not counting a possible motion for reconsideration. These time spans could not be
abbreviated any further, because due process requires that all parties be given sufficient time to file
their pleadings.

"Thus, even if the Court were to rule now in favor of the adequacy of RA 6735 – as I believe it should
– and allow the Comelec to act on the PIRMA petition, such eight-month period will not be enough to
tackle the four weighty issues I mentioned earlier, considering that two of them involve tedious
factual questions. The Comelec's decision on any of these issues can still be elevated to this Court
for review, and reconsiderations on our decisions on each of those issues may again be sought.

"Comelec's herculean task alone of verifying each of the six million signatures is enormously time-
consuming, considering that any person may question the authenticity of each and every signature,
initially before the election registrar, then before the Comelec on appeal and finally, before this Court
in a separate proceeding. Moreover, the plebiscite itself – assuming such stage can be reached –
may be scheduled only after sixty (60) but not more than ninety (90) days, from the time the
Comelec and this Court, on appeal, finally declare the petition to be sufficient.

"Meanwhile, under Comelec Resolution 2946, political parties, groups organizations or coalitions
may start selecting their official candidates for President, Vice President and Senators on November
27, 1997; the period for filing certificates of candidacy is from January 11 to February 9, 1998; the
election period and campaign for national officials start on February 10, 1998, while the campaign
period for other elective officials, on March 17, 1998. This means, by the time PIRMA's proposition is
ready – if ever – for submission directly to the voters at large, it will have been overcome by the
elections. Time will simply run out on PIRMA, if the intention is to lift term limits in time for the 1998
elections.

"That term limits may no longer be lifted prior to the 1998 elections via a people's initiative does not
detract one whit from (1) my firm conviction that RA 6735 is sufficient and adequate to implement
this constitutional right and, more important, (2) my faith in the power of the people to initiate
changes in local and national laws and the Constitution. In fact, I think the Court can deliberate on
these two items even more serenely and wisely now that the debates will be free from the din and
distraction of the 1998 elections. After all, jurisprudence is not merely for the here and now but, more
so, for the hereafter and the morrow. Let me therefore stress, by way of epilogue, my unbending
credo in favor of our people's right to initiative.

least 12% of the registered voters nationwide, of which every legislative district is represented by at
least 3% of the registered voters therein."

__________________

Epilogue

"I believe in democracy – in our people's natural right to determine our own destiny.

"I believe in the process of initiative as a democratic method of enabling our people to express their
will and chart their history. Initiative is an alternative to bloody revolution, internal chaos and civil
strife. It is an inherent right of the people – as basic as the right to elect, the right to self-
determination and the right to individual liberties. I believe that Filipinos have the ability and the
capacity to rise above themselves, to use this right of initiative wisely and maturely, and to choose
what is best for themselves and their posterity.

"Such beliefs, however, should not be equated with a desire to perpetuate a particular official or
group of officials in power. Far from it. Such perpetuation is anathema to democracy. My firm
conviction that there is an adequate law implementing the constitutional right of initiative does
not ipso facto result in the victory of the PIRMA petition or of any proposed constitutional change.
There are, after all, sufficient safeguards to guarantee the proper use of such constitutional right and
to forestall its misuse and abuse. First, initiative cannot be used to revise the Constitution, only to
amend it. Second, the petitioners' signatures must be validated against an existing list of voters
and/or voters' identification cards. Third, initiative is a reverse power of and by the people, not of
incumbent officials and their machinators. Fourth and most important of all, the signatures must be
verified as real and genuine; not concocted, fictitious or fabricated. The only legal way to do this is to
enable the Commission on Elections to conduct a nationwide verification process as mandated by
the Constitution and the law. Such verification, it bears stressing, is subject to review by this Court.

"There were, by the most generous estimate, only a million people who gathered at EDSA in 1986,
and yet they changed the history of our country. PIRMA claims six times that number, not just from
the National Capital Region but from all over the country. Is this claim through the invention of its
novel theory of statutory insufficiency, the Court's majority has stifled the only legal method of
determining whether PIRMA is real or not, whether there is indeed a popular clamor to lift term limits
of elected officials, and whether six million voters want to initiate amendments to their most basic
law. In suppressing a judicial answer to such questions, the Court may have unwittingly yielded to
PIRMA the benefit of the legal presumption of legality and regularity. In its misplaced zeal to
exterminate the rats, it burned down the whole house. It unceremoniously divested the people of a
basic constitutional right.

In both Opinions, I concluded that we must implement "the right thing [initiative] in the right way at
the right time and for the right reason."

In the present case, I steadfastly stand by my foregoing Opinions in Santiago and PIRMA. Tested
against them, the present Petition of Raul Lambino and Erico Aumentado must be
DISMISSED. Unfortunately, the right thing is being rushed in the wrong way and for
the wrong reasons. Let me explain.

No Grave Abuse

of Discretion by Comelec

As in PIRMA, I find no grave abuse of discretion in Comelec's dismissal of the Lambino Petition.
After all, the Commission merely followed the holding in Santiago permanently

____________________

"In the ultimate, the mission of the judiciary is to discover truth and to make it prevail. This mission is
undertaken not only to resolve the vagaries of present events but also to build the pathways of
tomorrow. The sum total of the entire process of adversarial litigation is the verity of facts and the
application of law thereto. By the majority cop-out in this mission of discovery, our country and our
people have been deprived not only of a basic constitutional right, as earlier noted, but also of the
judicial opportunity to verify the truth."

enjoining the poll body "from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been validly enacted to provide for
the implementation of the system."

Indeed, the Comelec did not violate the Constitution, the laws or any jurisprudence.4 Neither
can whim, caprice, arbitrariness or personal bias be attributed to the Commission.5 Quite the
contrary, it prudently followed this Court's jurisprudence in Santiago and PIRMA. Even assuming
arguendo that Comelec erred in ruling on a very difficult and unsettled question of law, this Court still
cannot attribute grave abuse of discretion to the poll body with respect to that action. 6

The present Lambino Petition is in exactly the same situation as that of PIRMA in 1997. The
differences pointed out by Justice Reynato S. Puno are, with due respect, superficial. It is argued
that, unlike the present Lambino Petition, PIRMA did not contain verified signatures. These are
distinctions that do not make a difference. Precisely, Justice Puno is urging a remand, because the
verification issue is "contentious" and remains unproven by petitioners. Clearly, both the
PIRMA and the Lambino Petitions contain unverified signatures. Therefore, they both deserve
the same treatment: DISMISSAL.

Besides, the only reason given in the unanimous Resolution on PIRMA v. Comelec was that the
Commission had "only complied" with this Court's Decision in Santiago, the same reason given by
Comelec in this case. The Separate Opinions in PIRMA gave no other reason. No one argued,
even remotely, that the PIRMA Petition should have been dismissed because the signatures
were unverified.
To stress, I adhere to my Opinion in PIRMA that, "[b]eing a constitutional requirement, the number of
signatures becomes a condition precedent to the filing of the petition, and is jurisdictional. 7 Without
those signatures, the Comelec shall motu proprio reject the petition."

So, until and unless Santiago is revisited and changed by this Court or the legal moorings of the
exercise of the right are substantially changed, the Comelec cannot be faulted for acting in
accord with this Court's pronouncements. Respondent Commission has no discretion, under
any guise, to refuse enforcement of any final decision of this Court.8 The refusal of the poll
body to act on the Lambino Petition was its only recourse. Any other mode of action would appear
not only presumptuous, but also contemptuous. It would have constituted defiance of the Court and
would have surely been struck down as grave abuse of discretion and contumacious disregard of the
supremacy of this Court as the final arbiter of justiciable controversies.

Even assuming further that this Court rules, as I believe it should (for the reasons given in my
Opinions in Santiago and PIRMA), that Republic Act 6735 is indeed sufficient to implement an
initiative to amend the Constitution, still, no grave abuse of discretion can be attributed to the
Comelec for merely following prevailing jurisprudence extant at the time it rendered its ruling in
question.

Only Amendments, Not Revisions

I reiterate that only amendments, not revisions, may be the proper subject of an initiative to
change the Constitution. This principle is crystal clear from even a layperson's reading of the basic
law.9

I submit that changing the system of government from presidential to parliamentary and the form of
the legislature from bicameral to unicameral contemplates an overhaul of the structure of
government. The ponencia has amply demonstrated that the merger of the legislative and the
executive branches under a unicameral-parliamentary system, "[b]y any legal test and under any
jurisdiction," will "radically alter the framework of government as set forth in the Constitution."
Indeed, the proposed changes have an overall implication on the entire Constitution; they effectively
rewrite its most important and basic provisions. The prolixity and complexity of the changes cannot
be categorized, even by semantic generosity, as "amendments."

In addition, may I say that of the three modes of changing the Constitution, revisions (or
amendments) may be proposed only through the first two: by Congress or by a constitutional
convention. Under the third mode -- people's initiative -- only amendments are allowed. Many of the
justices' Opinions have cited the historical, philosophical and jurisprudential bases of their respective
positions. I will not add to the woes of the reader by reiterating them here.

Suffice it to say that, to me, the practical test to differentiate an amendment from a revision is found
in the Constitution itself: a revision may be done only when the proposed change can be
drafted, defined, articulated, discussed and agreed upon after a mature and democratic
debate in a deliberative body like Congress or a Convention. The changes proposed must
necessarily be scrutinized, as their adoption or non-adoption must result from an informed
judgment.

Indeed, the constitutional bodies that drafted the 1935, the 1972 and the 1987 Constitutions had to
spend many months of purposeful discussions, democratic debates and rounds of voting before they
could agree on the wordings covering the philosophy, the underlying principles, and the structure of
government of our Republic.
Verily, even bills creating or changing the administrative structure of local governments take several
weeks or even months of drafting, reading, and debating before Congress can approve them. How
much more when it comes to constitutional changes?

A change in the form of government of our country from presidential-bicameral to parliamentary-

unicameral is monumental. Even the initiative proponents admit this fact. So, why should a revision
be rammed down our people's throats without the benefit of intelligent discussion in a deliberative
assembly?

Added to the constitutional mandate barring revisions is the provision of RA 6735 expressly
prohibiting petitions for initiative from "embracing more than one subject matter."10 The present
initiative covers at least two subjects: (1) the shift from a presidential to a parliamentary form of
government; and (2) the change from a bicameral to a unicameral legislature. 11 Thus, even under
Republic Act 6735 -- the law that Justice Puno and I hold to be sufficient and valid -- the Lambino
Petition deserves dismissal.

12 Percent and 3 Percent Thresholds

Not Proven by Petitioners

The litmus test of a people's petition for initiative is its ability to muster the constitutional
requirement that it be supported by at least 12 percent of the registered voters nationwide, of which
at least 3 percent of the registered voters in every legislative district must be represented. As pointed
out by Intervenors One Voice, Inc., et al., however, records show that there was a failure to meet the
minimum percentages required.12

Even Justice Puno concedes that the 12 percent and 3 percent constitutional requirements involve
"contentious facts," which have not been proven by the Lambino Petition. Thus, he is urging a
remand to the Comelec.

But a remand is both imprudent and futile. It is imprudent because the Constitution itself mandates
the said requisites of an initiative petition. In other words, a petition that does not show the
required percentages is fatally defective and must be dismissed, as the Delfin Petition was,
in Santiago.

Furthermore, as the ponencia had discussed extensively, the present Petition is void and
unconstitutional. It points out that the Petition dismally fails to comply with the constitutional
requirement that an initiative must be directly proposed by the people. Specifically, the ponencia has
amply established that petitioners were unable to show that the Lambino Petition contained, or
incorporated by attachment, the full text of the proposed changes.

So, too, a remand is futile. Even if the required percentages are proven before the Commission,
the Petition must still be dismissed for proposing a revision, not an amendment, in gross
violation of the Constitution. At the very least, it proposes more than one subject, in violation of
Republic Act 6735.

Summation

Petitioners plead with this Court to hear the voice of the people because, in the words of Justice
Puno who supports them, the "people's voice is sovereign in a democracy."
I, too, believe in heeding the people's voice. I reiterate my Separate Opinion in PIRMA that
"initiative is a democratic method of enabling our people to express their will and chart their history. x
x x. I believe that Filipinos have the ability and the capacity to rise above themselves, to use this
right of initiative wisely and maturely, and to choose what is best for themselves and their posterity."

This belief will not, however, automatically and blindly result in an initiative to change the
Constitution, because the present Petition violates the following:

· The Constitution (specifically Article XVII, which allows only amendments, not revisions, and
requires definite percentages of verified signatures)

· The law (specifically, Republic Act 6735, which prohibits petitions containing more than one
subject)

· Jurisprudence (specifically, PIRMA v. Comelec, which dismissed the Petition then under
consideration on the ground that, by following the Santiago ruling, the Comelec had not gravely
abused its discretion).

I submit further that a remand of the Lambino Petition is both imprudent and futile. More tellingly, it is
a cop-out, a hand-washing already discredited 2000 years ago. Instead of finger-pointing, I
believe we must confront the issues head on, because the people expect no less from this august
and venerable institution of supreme justice.

Epilogue

At bottom, the issue in this case is simply the Rule of Law.13 Initiative, like referendum and recall,
is a treasured feature of the Filipino constitutional system. It was born out of our world-admired and
often-imitated People Power, but its misuse and abuse must be resolutely rejected. Democracy
must be cherished, but mob rule vanquished.

The Constitution is a sacred social compact, forged between the government and the people,
between each individual and the rest of the citizenry. Through it, the people have solemnly
expressed their will that all of them shall be governed by laws, and their rights limited by agreed-
upon covenants to promote the common good. If we are to uphold the Rule of Law and reject the
rule of the mob, we must faithfully abide by the processes the Constitution has ordained in
order to bring about a peaceful, just and humane society. Assuming arguendo that six million
people allegedly gave their assent to the proposed changes in the Constitution, they are
nevertheless still bound by the social covenant -- the present Constitution -- which was ratified by
a far greater majority almost twenty years ago.14 I do not denigrate the majesty of the sovereign will;
rather, I elevate our society to the loftiest perch, because our government must remain as one of
laws and not of men.

Upon assuming office, each of the justices of the Supreme Court took a solemn oath to uphold the
Constitution. Being the protectors of the fundamental law as the highest expression of the sovereign
will, they must subject to the strictest scrutiny any attempt to change it, lest it be trivialized and
degraded by the assaults of the mob and of ill-conceived designs. The Court must single-
mindedly defend the Constitution from bogus efforts falsely attributed to the sovereign people.

The judiciary may be the weakest branch of government. Nonetheless, when ranged against
incessant voices from the more powerful branches of government, it should never cower in
submission. On the other hand, I daresay that the same weakness of the Court becomes its strength
when it speaks independently through decisions that rightfully uphold the supremacy of the
Constitution and the Rule of Law. The strength of the judiciary lies not in its lack of brute power,
but in its moral courage to perform its constitutional duty at all times against all odds. Its might is in
its being right.15

During the past weeks, media outfits have been ablaze with reports and innuendoes about alleged
carrots offered and sticks drawn by those interested in the outcome of this case. 16 There being no
judicial proof of these allegations, I shall not comment on them for the nonce, except to quote the
Good Book, which says, "There is nothing hidden that will not be revealed, and nothing secret that
will not be known and come to light." 17

Verily, the Supreme Court is now on the crossroads of history. By its decision, the Court and each of
its members shall be judged by posterity. Ten years, fifty years, a hundred years -- or even a
thousand years -- from now, what the Court did here, and how each justice opined and voted, will
still be talked about, either in shame or in pride. Indeed, the hand-washing of Pontius Pilate, the
abomination of Dred Scott, and the loathing of Javellana still linger and haunt to this day.

Let not this case fall into the same damnation. Rather, let this Court be known throughout the nation
and the world for its independence, integrity, industry and intelligence.

WHEREFORE, I vote to DISMISS the Petition.

ARTEMIO V. PANGANIBAN
Chief Justice

____________________

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED

VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, ET AL., Respondents.

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A. Q. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, JR. and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.

x ---------------------------------------------------------------------------------------- x

SEPARATE OPINION

YNARES-SANTIAGO, J.:

I agree with the opinion of our esteemed colleague, Justice Reynato Puno, that the Court's ruling
in Santiago v. COMELEC1 is not a binding precedent. However, it is my position that even
if Santiago were reversed and Republic Act No. 6735 (R.A. 6735) be held as sufficient law for the
purpose of people's initiative to amend the Constitution, the petition for initiative in this case must
nonetheless be dismissed.

There is absolutely no showing here that petitioners complied with R.A. 6735, even as they blindly
invoke the said law to justify their alleged people's initiative. Section 5(b) of R.A. 6735 requires that
"[a] petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%)
of the total number of registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein." On the other hand,
Section 5(c)2 of the same law requires that the petition should state, among others, the
proposition3 or the "contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed." If we were to apply Section 5(c) to an initiative to amend the Constitution, as
petitioners submit, the petition for initiative signed by the required number of voters should
incorporate therein a text of the proposed changes to the Constitution. However, such requirement
was not followed in the case at bar.

During the oral arguments, petitioner Lambino admitted that they printed a mere 100,000 copies of
the text of the proposed changes to the Constitution. According to him, these were subsequently
distributed to their agents all over the country, for attachment to the sheets of paper on which the
signatures were to be affixed. Upon being asked, however, if he in fact knew whether the text was
actually attached to the signature sheets which were distributed for signing, he said that he merely
assumed that they were. In other words, he could not tell the Court for certain whether their
representatives complied with this requirement.

The petition filed with the COMELEC, as well as that which was shown to this Court, indubitably
establish that the full text of the proposed changes was not attached to the signature sheets. All that
the signature sheets contained was the general proposition and abstract, which falls short of the full
text requirement of R.A. 6735.

The necessity of setting forth the text of the proposed constitutional changes in the petition for
initiative to be signed by the people cannot be seriously disputed. To begin with, Article XVII, Section
2 of the Constitution unequivocally states that "[a]mendments to this Constitution may likewise
be directly proposed by the people through initiative upon a petition of at least twelve per
centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein." Evidently, for the people
to propose amendments to the Constitution, they must, in the first instance, know exactly what they
are proposing. It is not enough that they merely possess a general idea of the proposed changes, as
the Constitution speaks of a "direct" proposal by the people.

Although the framers of the Constitution left the matter of implementing the constitutional right of
initiative to Congress, it might be noted that they themselves reasonably assumed that the draft of
the proposed constitutional amendments would be shown to the people during the process of
signature gathering. Thus –

MR. RODRIGO. Section 2 of the complete committee report provides: "upon petition of at least 10
percent of the registered voters." How will we determine that 10 percent has been achieved? How
will the voters manifest their desire, is it by signature?

MR. SUAREZ. Yes, by signatures.

MR. RODRIGO. Let us look at the mechanics. Let us say some voters want to propose a
constitutional amendment. Is the draft of the proposed constitutional amendment ready to be shown
to the people when they are asked to sign?

MR. SUAREZ. That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they
sign. Now, who prepares the draft?

MR. SUAREZ: The people themselves, Madam President.4

It may thus be logically assumed that even without Section 5(c) of R.A. 6735, the full text of the
proposed changes must necessarily be stated in or attached to the initiative petition. The signatories
to the petition must be given an opportunity to fully comprehend the meaning and effect of the
proposed changes to enable them to make a free, intelligent and well-informed choice on the matter.

Needless to say, the requirement of setting forth the complete text of the proposed changes in the
petition for initiative is a safeguard against fraud and deception. If the whole text of the proposed
changes is contained in or attached to the petition, intercalations and riders may be duly avoided.
Only then can we be assured that the proposed changes are truly of the people and that the
signatories have been fully apprised of its implications.

If a statutory provision is essential to guard against fraud, corruption or deception in the initiative and
referendum process, such provision must be viewed as an indispensable requirement and failure to
substantially comply therewith is fatal.5 The failure of petitioners in this case to comply with the full
text requirement resultantly rendered their petition for initiative fatally defective.

The petition for initiative is likewise irretrievably infirm because it violates the one subject rule under
Section 10(a) of R.A. 6735:

SEC. 10. Prohibited Measures.— The following cannot be the subject of an initiative or referendum
petition:

(a) No petition embracing more than one subject shall be submitted to the electorate; x x x

The one subject rule, as relating to an initiative to amend the Constitution, has the same object and
purpose as the one subject-one bill rule embodied in Article VI, Section 26(1)6 of the Constitution.7 To
elaborate, the one subject-one bill rule was designed to do away with the practice of inserting two or
more unrelated provisions in one bill, so that those favoring one provision would be compelled to
adopt the others. By this process of log-rolling, the adoption of both provisions could be
accomplished and ensured, when neither, if standing alone, could succeed on its own merits.

As applied to the initiative process, the one subject rule is essentially designed to prevent surprise
and fraud on the electorate. It is meant to safeguard the integrity of the initiative process by ensuring
that no unrelated riders are concealed within the terms of the proposed amendment. This in turn
guarantees that the signatories are fully aware of the nature, scope and purpose of the proposed
amendment.

Petitioners insist that the proposed changes embodied in their petition for initiative relate only to one
subject matter, that is – the shift from presidential to a parliamentary system of government.
According to petitioners, all of the other proposed changes are merely incidental to this main
proposal and are reasonably germane and necessary thereto.8 An examination of the text of the
proposed changes reveals, however, that this is not the case.

The proposed changes to the Constitution cover other subjects that are beyond the main proposal
espoused by the petitioners. Apart from a shift from the presidential to a parliamentary form of
government, the proposed changes include the abolition of one House of Congress,9 and the
convening of a constituent assembly to propose additional amendments to the Constitution. 10 Also
included within its terms is an omnibus declaration that those constitutional provisions under Articles
VI and VII, which are inconsistent with the unicameral-parliamentary form of government, shall be
deemed amended to conform thereto.

It is not difficult to see that while the proposed changes appear to relate only to a shift in the form of
government, it actually seeks to affect other subjects that are not reasonably germane to the
constitutional alteration that is purportedly sought. For one, a shift to a parliamentary system of
government does not necessarily result in the adoption of a unicameral legislature. A parliamentary
system can exist in many different "hybrid" forms of government, which may or may not embrace
unicameralism.11 In other words, the shift from presidential to parliamentary structure and from a
bicameral to a unicameral legislature is neither the cause nor effect of the other.

I also fail to see the relation of convening a constituent assembly with the proposed change in our
system of government. As a subject matter, the convening of a constituent assembly to amend the
Constitution presents a range of issues that is far removed from the subject of a shift in government.
Besides, the constituent assembly is supposed to convene and propose amendments to the
Constitution after the proposed change in the system of government has already taken place. This
only goes to show that the convening of the constituent assembly is not necessary to effectuate a
change to a parliamentary system of government.

The omnibus statement that all provisions under Articles VI and VII which are inconsistent with a
unicameral-parliamentary system of government shall be deemed amended is equally bothersome.
The statement does not specify what these inconsistencies and amendments may be, such that
everyone is left to guess the provisions that could eventually be affected by the proposed changes.
The subject and scope of these automatic amendments cannot even be spelled out with certainty.
There is thus no reasonable measure of its impact on the other constitutional provisions.

The foregoing proposed changes cannot be the subject of a people's initiative under Section 2,
Article XVII of the Constitution. Taken together, the proposed changes indicate that the intendment
is not simply to effect substantial amendments to the Constitution, but a revision thereof. The
distinction between an amendment and revision was explained by Dean Vicente G. Sinco, as
follows:

"Strictly speaking, the act of revising a constitution involves alterations of different portions of the
entire document. It may result in the rewriting either of the whole constitution, or the greater portion
of it, or perhaps only some of its important provisions. But whatever results the revision may
produce, the factor that characterizes it as an act of revision is the original intention and plan
authorized to be carried out. That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered or suppressed or whether the
whole document should be replaced with an entirely new one.

The act of amending a constitution, on the other hand, envisages a change of only a few specific
provisions. The intention of an act to amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather is to improve specific parts of the
existing constitution or to add to it provisions deemed essential on account of changed conditions or
to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect." 12

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

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

Otherwise stated, our experience of what constitutes amendment or revision under the past
constitutions is not determinative of what the two terms mean now, as related to the exercise of the
right to propose either amendments or revision. The changes introduced to both the Constitutions of
1935 and 1973 could have indeed been deemed an amendment or revision, but the authority for
effecting either would never have been questioned since the same belonged solely to
Congress. In contrast, the 1987 Constitution clearly limits the right of the people to directly propose
constitutional changes to amendments only. We must consequently not be swayed by examples of
constitutional changes effected prior to the present fundamental law, in determining whether such
changes are revisory or amendatory in nature.

In this regard, it should be noted that the distinction laid down by Justice Felix Q. Antonio
in Javellana v. Executive Secretary13 related to the procedure to be followed in ratifying a
completely new charter proposed by a constitutional convention. The authority or right of the
constitutional convention itself to effect such a revision was not put in issue in that case. As far as
determining what constitutes "amendments" for the purpose of a people's initiative, therefore, we
have neither relevant precedent nor prior experience. We must thus confine ourselves to Dean
Sinco's basic articulation of the two terms.

It is clear from Dean Sinco's explanation that a revision may either be of the whole or only part of the
Constitution. The part need not be a substantial part as a change may qualify as a revision even if it
only involves some of the important provisions. For as long as the intention and plan to be carried
out contemplate a consideration of all the provisions of the Constitution "to determine which should
be altered or suppressed, or whether the whole document should be replaced with an entirely new
one," the proposed change may be deemed a revision and not merely an amendment.

Thus, it is not by the sheer number alone of the proposed changes that the same may be considered
as either an amendment or revision. In so determining, another overriding factor is the "original
intention and plan authorized to be carried out" by the proposed changes. If the same relates to a re-
examination of the entire document to see which provisions remain relevant or if it has far-reaching
effects on the entire document, then the same constitutes a revision and not a mere amendment of
the Constitution.
From the foregoing, it is readily apparent that a combination of the quantitative and qualitative test is
necessary in assessing what may be considered as an amendment or revision. It is not enough that
we focus simply on the physical scope of the proposed changes, but also consider what it means in
relation to the entire document. No clear demarcation line can be drawn to distinguish the two terms
and each circumstance must be judged on the basis of its own peculiar conditions. The
determination lies in assessing the impact that the proposed changes may have on the entire
instrument, and not simply on an arithmetical appraisal of the specific provisions which it seeks to
affect.

In McFadden v. Jordan,14 the California Supreme Court laid down the groundwork for the
combination of quantitative and qualitative assessment of proposed constitutional changes, in order
to determine whether the same is revisory or merely amendatory. In that case, the McFadden court
found the proposed changes extensive since at least 15 of the 25 articles contained in the California
Constitution would either be repealed in their entirety or substantially altered, and four new topics
would be introduced. However, it went on to consider the qualitative effects that the proposed
initiative measure would have on California's basic plan of government. It observed that the proposal
would alter the checks and balances inherent in such plan, by delegating far-reaching and mixed
powers to an independent commission created under the proposed measure. Consequently, the
proposal in McFadden was not only deemed as broad and numerous in physical scope, but was also
held as having a substantive effect on the fundamental governmental plan of the State of California.

The dual aspect of the amendment/revision analysis was reiterated by the California Supreme Court
in Raven v. Deukmeijan.15 Proposition 115, as the initiative in that case was called, would vest in
the United States Supreme Court all judicial interpretative powers of the California courts over
fundamental criminal defense rights in that state. It was observed that although quantitatively, the
proposition did "not seem so extensive as to change directly the substantial entirety of the
Constitution by the deletion or alteration of numerous existing provisions," the same, nonetheless,
"would substantially alter the substance and integrity of the state Constitution as a document of
independent force and effect." Quoting Amador Valley Joint Union High School District v. State
Board of Equalization,16 the Raven court said:

". . . apart from a measure effecting widespread deletions, additions and amendments involving
many constitutional articles, 'even a relatively simple enactment may accomplish such far reaching
changes in the nature of our basic governmental plan as to amount to a revision also…[A]n
enactment which purported to vest all judicial power in the Legislature would amount to a revision
without regard either to the length or complexity of the measure or the number of existing articles or
sections affected by such change.'" (Underscoring supplied and citations omitted)

Thus, in resolving the amendment/revision issue, the California Court examines both the quantitative
and qualitative effects of a proposed measure on its constitutional scheme. Substantial changes in
either respect could amount to a revision.17

I am persuaded that we can approach the present issue in the same manner. The experience of the
courts in California is not far removed from the standards expounded on by Dean Sinco when he set
out to differentiate between amendment and revision. It is actually consistent, not only with our
traditional concept of the two terms, but also with the mindset of our constitutional framers when they
referred to the disquisition of Justice Antonio in Javellana.18 We must thus consider whether the
proposed changes in this case affect our Constitution in both its substantial physical entirety and in
its basic plan of government.
The question posed is: do the proposed changes, regardless of whether these are simple or
substantial, amount to a revision as to be excluded from the people's right to directly
propose amendments to the fundamental law?

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

It may thus be conceded that, quantitatively, the changes espoused by the proponents in this case
will affect only two (2) out of the eighteen (18) articles of the 1987 Constitution, namely, Article VI
(Legislative Department) and Article VII (Executive Department), as well as provisions that will
ensure the smooth transition from a presidential-bicameral system to a parliamentary-unicameral
structure of government. The quantitative effect of the proposed changes is neither broad nor
extensive and will not affect the substantial entirety of the 1987 Constitution.

However, it is my opinion that the proposed changes will have serious qualitative consequences on
the Constitution. The initiative petition, if successful, will undoubtedly alter, not only our basic
governmental plan, but also redefine our rights as citizens in relation to government. The proposed
changes will set into motion a ripple effect that will strike at the very foundation of our basic
constitutional plan. It is therefore an impermissible constitutional revision that may not be effected
through a people's initiative.

Petitioners' main proposal pertains to the shifting of our form of government from the presidential to
the parliamentary system. An examination of their proposal reveals that there will be a fusion of the
executive and legislative departments into one parliament that will be elected on the basis of
proportional representation. No term limits are set for the members of parliament except for those
elected under the party-list system whose terms and number shall be provided by law. There will be
a President who shall be the head of state, but the head of government is the Prime Minister. The
latter and his cabinet shall be elected from among the members of parliament and shall be
responsible to parliament for the program of government.

The preceding proposal indicates that, under the proposed system, the executive and legislature
shall be one and the same, such that parliament will be the paramount governing institution. What
this implies is that there will be no separation between the law-making and enforcement powers of
the state, that are traditionally delineated between the executive and legislature in a presidential
form of government. Necessarily, the checks and balances inherent in the fundamental plan of our
U.S.-style presidential system will be eliminated. The workings of government shall instead be
controlled by the internal political dynamics prevailing in the parliament.

Our present governmental system is built on the separation of powers among the three branches of
government. The legislature is generally limited to the enactment of laws, the executive to the
enforcement of laws and the judiciary to the application of laws. This separation is intended to
prevent a concentration of authority in one person or group that might lead to an irreversible error or
abuse in its exercise to the detriment of our republican institutions. In the words of Justice Laurel, the
doctrine of separation of powers is intended to secure action, to forestall overaction, to prevent
despotism and obtain efficiency.19
In the proposed parliamentary system, there is an obvious lack of formal institutional checks on the
legislative and executive powers of the state, since both the Prime Minister and the members of his
cabinet are drawn from parliament. There are no effective limits to what the Prime Minister and
parliament can do, except the will of the parliamentary majority. This goes against the central
principle of our present constitutional scheme that distributes the powers of government and
provides for counteraction among the three branches. Although both the presidential and
parliamentary systems are theoretically consistent with constitutional democracy, the underlying
tenets and resulting governmental framework are nonetheless radically different.

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

An amendment envisages an alteration of one or a few specific and separable provisions. The
guiding original intention of an amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific portions that may have become
obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and
plan contemplates a re-examination of the entire document, or of provisions of the document which
have over-all implications for the entire document, to determine how and to what extent they should
be altered.21 (Underscoring supplied)

The inclusion of a proposal to convene a constituent assembly likewise shows the intention of the
proponents to effect even more far-reaching changes in our fundamental law. If the original intent
were to simply shift the form of government to the parliamentary system, then there would have
been no need for the calling out of a constituent assembly to propose further amendments to the
Constitution. It should be noted that, once convened, a constituent assembly can do away and
replace any constitutional provision which may not even have a bearing on the shift to a
parliamentary system of government. The inclusion of such a proposal reveals the proponents' plan
to consider all provisions of the constitution, either to determine which of its provisions should be
altered or suppressed or whether the whole document should be replaced with an entirely new one.

Consequently, it is not true that only Articles VI and VII are covered by the alleged people's initiative.
The proposal to convene a constituent assembly, which by its terms is mandatory, will practically
jeopardize the future of the entire Constitution and place it on shaky grounds. The plan of the
proponents, as reflected in their proposed changes, goes beyond the shifting of government from the
presidential to the parliamentary system. Indeed, it could even extend to the "fundamental nature of
our state as a democratic and republican state."

To say that the proposed changes will affect only the constitution of government is therefore a
fallacy. To repeat, the combined effect of the proposed changes to Articles VI and VII and those
pertaining to the Transitory Provisions under Article XVIII indubitably establish the intent and plan of
the proponents to possibly affect even the constitutions of liberty and sovereignty. Indeed, no valid
reason exists for authorizing further amendments or revisions to the Constitution if the intention of
the proposed changes is truly what it purports to be.

There is no question here that only amendments to the Constitution may be undertaken through a
people's initiative and not a revision, as textually reflected in the Constitution itself. This conclusion is
inevitable especially from a comparative examination of Section 2 in relation to Sections 1 and 4 of
Article XVII, which state:
SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

SECTION 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall be authorized within five years
following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

xxxx

SECTION 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be
valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than
sixty days nor later than ninety days after the approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in
a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the
certification by the Commission of Elections of the sufficiency of the petition. (Underscoring supplied)

It is clear that the right of the people to directly propose changes to the Constitution is limited to
amendments and does not include a revision thereof. Otherwise, it would have been unnecessary to
provide for Section 2 to distinguish its scope from the rights vested in Congress under Section 1.
The latter lucidly states that Congress may propose both amendments and a revision of the
Constitution by either convening a constituent assembly or calling for a constitutional convention.
Section 2, on the other hand, textually commits to the people the right to propose only
amendments by direct action.

To hold, therefore, that Section 2 allows substantial amendments amounting to revision

obliterates the clear distinction in scope between Sections 1 and 2. The intention, as may be
seen from a cursory perusal of the above provisions, is to provide differing fields of application for
the three modes of effecting changes to the Constitution. We need not even delve into the intent of
the constitutional framers to see that the distinction in scope is definitely marked. We should thus
apply these provisions with a discerning regard for this distinction. Again, McFadden22 is instructive:

". . . The differentiation required is not merely between two words; more accurately it is between two
procedures and between their respective fields of application. Each procedure, if we follow
elementary principles of statutory construction, must be understood to have a substantial field of
application, not to be x x x a mere alternative procedure in the same field. Each of the two words,
then, must be understood to denote, respectively, not only a procedure but also a field of application
appropriate to its procedure. The people of this state have spoken; they made it clear when they
adopted article XVIII and made amendment relatively simple but provided the formidable bulwark of
a constitutional convention as a protection against improvident or hasty (or any other) revision, that
they understood that there was a real difference between amendment and revision. We find nothing
whatsoever in the language of the initiative amendment of 1911 (art. IV, § 1) to effect a breaking
down of that difference. On the contrary, the distinction appears to be x x x scrupulously preserved
by the express declaration in the amendment x x x that the power to propose and vote on
"amendments to the Constitution" is reserved directly to the people in initiative proceedings, while
leaving unmentioned the power and the procedure relative to constitutional revision, which revisional
power and procedure, it will be remembered, had already been specifically treated in section 2 of
article XVIII. Intervenors' contention--that any change less than a total one is but amendatory--would
reduce to the rubble of absurdity the bulwark so carefully erected and preserved. Each situation
involving the question of amendment, as contrasted with revision, of the Constitution must, we think,
be resolved upon its own facts."

Thus, our people too have spoken when they overwhelmingly ratified the 1987 Constitution, with the
provisions on amendments and revisions under Article XVII. The voice and will of our people cannot
be any clearer when they limited people's initiative to mere amendments of the fundamental law and
excluded revisions in its scope. In this regard, the task of the Court is to give effect to the people's
voice, as expressed unequivocally through the Constitution.

Article XVII on amendments and revisions is called a "constitution of sovereignty" because it defines
the constitutional meaning of "sovereignty of the people." It is through these provisions that the
sovereign people have allowed the expression of their sovereign will and have canalized their
powers which would otherwise be plenary. By approving these provisions, the sovereign people
have decided to limit themselves and future generations in the exercise of their sovereign
power.23 They are thus bound by the constitution and are powerless, whatever their numbers, to
change or thwart its mandates, except through the means prescribed by the Constitution itself.24

It is thus misplaced to argue that the people may propose revisions to the Constitution through
people's initiative because their representatives, whose power is merely delegated, may do
so. While Section 1 of Article XVII may be considered as a provision delegating the sovereign
powers of amendment and revision to Congress, Section 2, in contrast, is a self-limitation on
that sovereign power. In the words of Cooley:

x x x Although by their constitutions the people have delegated the exercise of sovereign powers to
the several departments, they have not thereby divested themselves of the sovereignty. They retain
in their own hands, so far as they have thought it needful to do so, a power to control the
governments they create, and the three departments are responsible to and subject to be ordered,
directed, changed or abolished by them. But this control and direction must be exercised in the
legitimate mode previously agreed upon. The voice of the people, acting in their sovereign capacity,
can be of legal force only when expressed at the times and under the conditions which they
themselves have prescribed and pointed out by the Constitution, or which, consistently with the
Constitution, have been prescribed and pointed out for them by statute; and if by any portion of the
people, however large, an attempt should be made to interfere with the regular working of the
agencies of government at any other time or in any other mode than as allowed by existing law,
either constitutional or statutory, it would be revolutionary in character, and must be resisted and
repressed by the officers who, for the time being, represent legitimate government. 25 (Underscoring
supplied)

Consequently, there is here no case of "the spring rising above its source." Nor is it one where the
people's sovereign power has been relegated to a lesser plane than that of Congress. In choosing to
exercise self-limitation, there is no absence or lack of even a fraction of the sovereign power of the
people since self-limitation itself is an expression of that sovereign power. The people have
chosen to delegate and limit their sovereign power by virtue of the Constitution and are bound by the
parameters that they themselves have ordained. Otherwise, if the people choose to defy their self-
imposed constitutional restraints, we will be faced with a revolutionary situation.26

It has repeatedly been emphasized that ours is a democratic and republican state.27 Even as we
affirm, however, that aspect of direct democracy, we should not forget that, first and foremost, we
are a constitutional democracy. To uphold direct democracy at the expense of the fundamental law
is to sanction, not a constitutional, but an extra-constitutional recourse. This is clearly beyond the
powers of the Court who, by sovereign mandate, is the guardian and keeper of the Constitution.

IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in G.R. No. 174153.

CONSUELO YNARES-SANTIAGO
Associate Justice

____________________

EN BANC

RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH 6,327,952 REGISTERED

VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-intervenors,
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, petitioners-intervenors,
SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-intervenor,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) AND
VICTORINO F. BALAIS, petitioners-intervenors,
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE AND CARLOS P. MEDINA, JR., oppositors-
intervenors,
ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor,
ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor,
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FROUM,
MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO
STUDENTS,LEONARDO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, AND DR.
REGINALD PAMUGAS, oppositors-intervenors,
LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA HONTIVEROS-
BARAQUEL, oppositors-intervenors,
LUWALHATI ANTONINO, oppositor-intervenor,
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.ESTRELLA, TOMAS
C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS AND AMADO GAT INCION, oppositors-intervenors,
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR. AND SENATORS SERGIO R.
OSMENA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCIRO-ESTRADA, JINGGOY ESTRADA,
ALFREDO S. LIM, AND PANFILO M. LACSON, oppositors-intervenors,
JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG PILIPINO, oppositors-intervenors,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER, oppositors-
intervenors,
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA A. LAT, ANTONIO L.
SALVADOR AND RANDALL C. TABAYOYONG, oppostors-intervenors,
SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT, MANUEL VILLAR,
JR., oppositor-intervenor;

G.R. NO. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND RENE A. Q.

SAGUISAG, petitioners,
vs.
COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN BENJAMIN S. ABALOS, SR.
AND COMMISSIONERS RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR. ROMEO
A. BRAWNER, RENE V. SARMIENTO AND JOHN DOE AND PETER DOE, respondents.

x ---------------------------------------------------------------------------------------- x

CONCURRING OPINION

SANDOVAL–GUTIERREZ, J.:

Vox populi vox Dei -- the voice of the people is the voice of God. Caution should be exercised in
choosing one's battlecry, lest it does more harm than good to one's cause. In its original context, the
complete version of this Latin phrase means exactly the opposite of what it is frequently taken to
mean. It originated from a holy man, the monk Alcuin, who advised Charlemagne, "nec audiendi qui
solent dicere vox populi vox Dei quum tumultuositas vulgi semper insaniae proxima sit," meaning,
"And those people should not be listened to who keep on saying, 'The voice of the people is
the voice of God,' since the riotousness of the crowd is always very close to
madness."1 Perhaps, it is by providence that the true meaning of the Latin phrase is revealed upon
petitioners and their allies – that they may reflect upon the sincerity and authenticity of their
"people's initiative."

History has been a witness to countless iniquities committed in the name of God. Wars were waged,
despotism tolerated and oppressions justified – all these transpired as man boasted of God's
imprimatur. Today, petitioners and their allies hum the same rallying call, convincing this Court that
the people's initiative is the "voice of the people" and, therefore, the "voice of God." After a
thorough consideration of the petitions, I have come to realize that man, with his ingenuity and
arrogance, has perfected the craft of imitating the voice of God. It is against this kind of genius that
the Court must guard itself.

The facts of the case are undisputed.

In 1996, the Movement for People's Initiative sought to exercise the power of initiative under Section
2, Article XVII of the Constitution which reads:

Section 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall be authorized within five years
following the ratification of this Constitution nor oftener than once every five years thereafter,

The Congress shall provide for the implementation of the exercise of this right.

The exercise was thwarted by a petition for prohibition filed with this Court by Senator Miriam
Defensor Santiago, et al., entitled "Miriam Defensor Santiago, Alexander Padilla and Maria Isabel
Ongpin, petitioners, v. Commission on Elections (COMELEC), Jesus Delfin, Alberto Pedrosa and
Carmen Pedrosa, in their capacities as founding members of the People's Initiative for Reforms,
Modernization and Action (PIRMA), respondents."2 The case was docketed as G.R. No. 127325. On
March 19, 1997, this Court rendered its Decision in favor of petitioners, holding that Republic Act No.
6735 (R.A. No. 6735), An Act Providing for a System of Initiative and Referendum and Appropriating
Funds Therefor, is "incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned." A majority of eight (8)
Justices fully concurred with this ruling, while five (5) subscribed to the opposite view. One (1)
opined that there is no need to rule on the adequacy of R.A. No. 6735.

On motion for reconsideration, two (2) of the eight (8) Justices reconsidered their positions. One (1)
filed an inhibition and the other one (1) joined the minority opinion. As a consequence, of the thirteen
(13) Justices who participated in the deliberation, six (6) voted in favor of the majority opinion, while
the other six (6) voted in favor of the minority opinion.3

A few months thereafter, or on September 23, 1997, the Court dismissed a similar case,
entitled People's Initiative for Reform, Modernization and Action (PIRMA) v. Commission on
Elections4 on the ground that the COMELEC did not commit grave abuse of discretion when it
dismissed PIRMA's Petition for Initiative to Propose Amendments to the Constitution "it appearing
that that it only complied with the dispositions in the Decision of the Court in G.R. no. 127325
(Santiago v. COMELEC) promulgated on March 19, 1997, and its Resolution of June 10,
1997." Seven (7) Justices voted that there was no need to re-examine its ruling, as regards the
issue of the sufficiency of R.A. No. 6735. Another Justice concurred, but on the different premise
that the case at bar is not the proper vehicle for such re-examination. Five (5) Justice opined
otherwise.

This time, another group known as Sigaw ng Bayan, in coordination with the Union of Local
Authorities of the Philippines (ULAP), have gathered signatures in support of the proposed
amendments to the Constitution, which entail a change in the form of government from bicameral-
presidential to unicameral-parliamentary, thus:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which
shall be composed of as many members as may be provided by law, to be apportioned among the
provinces, representative districts, and cities in accordance with the number of their respective
inhabitants, with at least three hundred thousand inhabitants per district, and on the basis of a
uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous,
compact and adjacent territory, and each province must have at least one member.

(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five
years old on the day of the election, a resident of his district for at least one year prior thereto, and
shall be elected by the qualified voters of his district for a term of five years without limitation as to
the number thereof, except those under the party-list system which shall be provided for by law and
whose number shall be equal to twenty per centum of the total membership coming from the
parliamentary districts.

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as
follows:

Section 1. There shall be a President who shall be the Head of State. The executive power shall be
exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be
elected by a majority of all the Members of Parliament from among themselves. He shall be
responsible to the Parliament for the program of government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a

unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled
"Transitory Provisions," which shall read, as follows:
Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their
term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the
1987 Constitution unless impeached by a vote of two thirds of all the members of the interim
parliament.

(2) In case of death, permanent disability, resignation or removal from office of the incumbent
President, the incumbent Vice President shall succeed as President. In case of death, permanent
disability, resignation or removal from office of both the incumbent President and Vice President, the
interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under
Article VII as amended.

Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby
be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are
hereby retained and renumbered sequentially as Section 2, ad seriatium up to 26, unless they are
inconsistent with the Parliamentary system of government, in which case, they shall be amended to
conform with a unicameral parliamentary form of government; provided, however, that any and all
references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress"
shall be changed to read "Parliament;" that any and all references therein to "Member(s) of
Congress," "Senator(s)" or "Member(s) of Parliament" and any and all references to the "President"
and/or "Acting President" shall be changed to read "Prime Minister."

Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the
exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby be
amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article
VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they
shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to
conform to a unicameral Parliamentary System of government; provided, however, that any and all
references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress"
shall be changed to read "Parliament;" that any and all references therein to "Member(s) of
Congress," "Senator(s)" or "Member(s) of the House of Representatives" shall be changed to read
as "Member(s) of Parliament" and any and all references to the "President" and/or "Acting President"
shall be changed to read "Prime Minister."

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

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the
thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He
shall initially convene the interim Parliament and shall preside over its sessions for the election of the
interim Prime Minister and until the Speaker shall have been elected by a majority vote of all the
members of the interim Parliament from among themselves.

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the
thirtieth day of June 2010.

(4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene
to propose amendments to, or revisions of, this Constitution consistent with the principles of local
autonomy, decentralization and a strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the
members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority
vote of the members thereof. The interim Prime Minister shall oversee the various ministries and
shall perform such powers and responsibilities as may be delegated to him by the incumbent
President."

(2) The interim Parliament shall provide for the election of the members of Parliament which shall be
synchronized and held simultaneously with the election of all local government officials. The duty
elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities
of the interim Prime Minister until the expiration of the term of the incumbent President and Vice
President.

Sigaw ng Bayan prepared signature sheets, and written on its upper right hand portion is the
abstract of the proposed amendments, quoted as follows:

Abstract: Do you approve of the amendment of Article VI and VII of the 1987 Constitution, changing
the form of government from the present bicameral-presidential to a unicameral-parliamentary
system of government, in order to achieve greater efficiency, simplicity and economy in government;
and providing an Article XVIII as Transitory Provisions for the orderly shift from one system to
another?

On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado, herein petitioners, filed with the
COMELEC a Petition for Initiative to Amend the Constitution.5 Five (5) days thereafter, they filed an
Amended Petition alleging that they are filing the petition in their own behalf and together with
some 6.3 million registered voters who have affixed their signatures on the signature sheets
attached thereto. They claimed that the signatures of registered voters appearing on the signature
sheets, constituting at least twelve per cent (12%) of all registered voters in the country, wherein
each legislative district is represented by at least three per cent (3%) of all the registered voters,
were verified by their respective city or municipal election officers.

Several organizations opposed the petition. 6

In a Resolution dated August 31, 2006, the COMELEC denied due course to the petition, citing as
basis this Court's ruling in Santiago, permanently enjoining it "from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of the system."

Hence, the present petition for certiorari and mandamus praying that this Court set aside the
COMELEC Resolution and direct the latter tocomply with Section 4, Article XVII of the Constitution,
which provides:

Sec. 4 x x x

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in
a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the
certification by the Commission on Elections of the sufficiency of the petition.

I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153 and grant the petition of Mar-len
Abigail Binay, et al. in G.R. No. 174299. Here, petitioners pray that the COMELEC Chairman and
Commissioners be required to show why they should not be punished for contempt7 of court for
disregarding the permanent injunction issued by this Court in Santiago.
 I
Respondent COMELEC did not act with grave abuse of discretion

Without necessarily brushing aside the other important issues, I believe the resolution of the present
petition hinges on this singular issue -- did the COMELEC commit grave abuse of discretion when it
denied Lambino, et al.'s petition for initiative to amend the Constitution on the basis of this Court's
Decision in Santiago v. COMELEC?

In other words, regardless of how the other remaining issues are resolved, still, the ultimate yardstick
is the attendance of "grave abuse of discretion" on the part of the COMELEC.

Jurisprudence teaches that an act of a court or tribunal may only be considered as committed in
grave abuse of discretion when the same was performed in a capricious or whimsical exercise of
judgment. The abuse of discretion must be so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by
reason of passion or personal hostility.8

The Resolution of respondent COMELEC denying due course to the petition for initiative on the
basis of a case (Santiago) decided by this Court cannot, in any way, be characterized as
"capricious or whimsical," "patent and gross," or "arbitrary and despotic." On the contrary, it
was the most prudent course to take. It must be stressed that in Santiago, this Court permanently
enjoins respondent COMELEC "from entertaining or taking cognizance of any petition for
initiative on amendments to the Constitution until a sufficient law shall have been validly
enacted." It being a fact that Congress has not enacted a sufficient law, respondent COMELEC has
no alternative but to adhere to Santiago. Otherwise, it is vulnerable to a citation for contempt. As
succinctly stated by Chief Justice Artemio V. Panganiban (then Associate Justice) in his Separate
Opinion in the subsequent case of PIRMA vs. COMELEC:9

x x x I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with said
decision's ratio decidendi. Respondent Comelec was directly enjoined by the highest Court of the
land. It had no choice but to obey. Its obedience cannot constitute grave abuse of discretion. Refusal
to act on the PIRMA petition was the only recourse open to the Comelec. Any other mode of action
would have constituted defiance of the Court and would have been struck down as grave abuse of
discretion and contumacious disregard of this Court's supremacy as the final arbiter of justiciable
controversies.

It need not be emphasized that in our judicial hierarchy, this Court reigns supreme. All courts,
tribunals and administrative bodies exercising quasi-judicial functions are obliged to conform to its
pronouncements. It has the last word on what the law is; it is the final arbiter of any justifiable
controversy. In other words, there is only one Supreme Court from whose decisions all other
courts should take their bearings.10 As a warning to lower court judges who would not adhere to
its rulings, this Court, in People v. Santos,11 held:

Now, if a judge of a lower Court feels, in the fulfillment of his mission of deciding cases, that the
application of a doctrine promulgated by this Superiority is against his way of reasoning, or against
his conscience, he may state his opinion on the matter, but rather than disposing of the case in
accordance with his personal views he must first think that it is his duty to apply the law as
interpreted by the Highest Court of the Land, and that any deviation from a principle laid down by the
latter would unavoidably cause, as a sequel, unnecessary inconveniences, delays and expenses to
the litigants. And if despite of what is here said, a Judge still believes that he cannot follow Our
rulings, then he has no other alternative than to place himself in the position that he could properly
avoid the duty of having to render judgment on the case concerned (Art. 9, C.C.), and he has only
one legal way to do that.

Clearly, respondent COMELEC did not gravely abuse its discretion in dismissing the petition of
Lambino, et al. for it merely followed this Court's ruling in Santiago.

Significantly, in PIRMA vs. COMELEC,12 a unanimous Court implicitly recognized that its ruling in
Santiago is the established doctrine and that the COMELEC did not commit grave abuse of
discretion in invoking it, thus:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to
the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that
it only complied with the dispositions of this Court in G.R. No. 127325 promulgated on March 19,
1997, and its resolution on June 10, 1997.

Indeed, I cannot characterize as a "grave abuse of discretion" the COMELEC's obedience and
respect to the pronouncement of this Court in Santiago.

II
The doctrine of stare decisis
bars the re-examination of Santiago

It cannot be denied that in Santiago, a majority of the members of this Court or eight (8) Justices (as
against five (5) Justices) concurred in declaring R.A. No. 6735 an insufficient law. When the motion
for reconsideration was denied via an equally-divided Court or a 6-6 vote, it does not mean that the
Decision was overturned. It only shows that the opposite view fails to muster enough votes to modify
or reverse the majority ruling. Therefore, the original Decision was upheld.13 In Ortigas and Company
Limited Partnership vs. Velasco,14 this Court ruled that the denial of a motion or reconsideration
signifies that the ground relied upon have been found, upon due deliberation, to be without
merit, as not being of sufficient weight to warrant a modification of the judgment or final
order.

With Santiago being the only impediment to the instant petition for initiative, petitioners persistently
stress that the doctrine of stare decisis does not bar its re-examination.

I am not convinced. The maxim stare decisis et non quieta movere translates "stand by the
decisions and disturb not what is settled."15 As used in our jurisprudence, it means that "once
this Court has laid down a principle of law as applicable to a certain state of facts, it would
adhere to that principle and apply it to all future cases in which the facts are substantially the
same as in the earlier controversy."16

There is considerable literature about whether this doctrine of stare decisis is a good or bad one, but
the doctrine is usually justified by arguments which focus on the desirability of stability and certainty
in the law and also by notions of justice and fairness. Justice Benjamin Cardozo in his treatise, The
Nature of the Judicial Process stated:

It will not do to decide the same question one way between one set of litigants and the opposite way
between another. 'If a group of cases involves the same point, the parties expect the same
decision. It would be a gross injustice to decide alternate cases on opposite principles. If a
case was decided against me yesterday when I was a defendant, I shall look for the same
judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and
wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence
to precedent must then be the rule rather than the exception if litigants are to have faith in the even-
handed administration of justice in the courts.17

That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering
the observation of American philosopher William K. Frankena as to what constitutes injustice:

The paradigm case of injustice is that in which there are two similar individuals in similar
circumstances and one of them is treated better or worse than the other. In this case, the cry of
injustice rightly goes up against the responsible agent or group; and unless that agent or group can
establish that there is some relevant dissimilarity after all between the individuals concerned and
their circumstances, he or they will be guilty as charged.18

Although the doctrine of stare decisis does not prevent re-examining and, if need be, overruling prior
decisions, "It is x x x a fundamental jurisprudential policy that prior applicable precedent usually must
be followed even though the case, if considered anew, might be decided differently by the current
justices. This policy x x x 'is based on the assumption that certainty, predictability and
stability in the law are the major objectives of the legal system; i.e., that parties should be
able to regulate their conduct and enter into relationships with reasonable assurance of the
governing rules of law.19 Accordingly, a party urging overruling a precedent faces a rightly onerous
task, the difficulty of which is roughly proportional to a number of factors, including the age of the
precedent, the nature and extent of public and private reliance on it, and its consistency or
inconsistency with other related rules of law. Here, petitioners failed to discharge their task.

Santiago v. COMELEC was decided by this Court on March 19, 1997 or more than nine (9) years
ago. During that span of time, the Filipino people, specifically the law practitioners, law professors,
law students, the entire judiciary and litigants have recognized this Court's Decision as a precedent.
In fact, the Santiago doctrine was applied by this Court in the subsequent case of PIRMA. Even the
legislature has relied on said Decision, thus, several bills have been introduced in both Houses of
Congress to cure the deficiency. I cannot fathom why it should be overturned or set aside merely on
the basis of the petition of Lambino, et al. Indeed, this Court's conclusion in Santiago that R.A. No.
6735 is incomplete, inadequate or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned remains a precedent and must be upheld.

III
The proposed constitutional changes constitute revisions and not mere amendments

Article XVII of the 1987 Constitution lays down the means for its amendment and revision. Thus:

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its members; or

(2) A Constitutional Convention.

Section 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of registered
votes, of which every legislative district must be represented by at least three per centum of the
registered voters therein. x x x. (Emphasis supplied)

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

The deliberations of the 1986 Constitutional Commission is explicit that Section 2, Article XVII covers
only amendments, thus:

The sponsor, Commissioner Suarez, is recognized.

MR. SUAREZ: Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that pursuant to the
mandate given us last night, we submitted this afternoon a complete Committee Report No. 7 which
embodies the proposed provision governing initiative. This is now covered by Section 2 of the
complete committee report. With the permission of the Members, may I quote Section 2:

The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the registered
voters.

This completes the blanks appearing in the original Committee Report No. 7. This proposal was
suggested on the theory that this matter of initiative which came about because of the extraordinary
developments this year, has to be separated from the traditional modes of amending the Constitution
as embodied in Section 1. The committee members felt that this system of initiative should be
limited to amendments to the Constitution and should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of the proposed Article on
Amendment or Revision.

xxx xxx xxx

MR. MAAMBONG: Madam President, will the distinguished proponent of the amendment yield to a
few questions?

MR. DAVIDE: With pleasure, Madam President.

MR. MAAMBONG: My first question, Commissioner Davide's proposed amendment on line I

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

MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section
1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision"

MR. MAAMBONG: Thank you.20

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

Succinctly, the proposals envision a change in the form of government, from bicameral-presidential
to unicameral-parliamentary; conversion of the present Congress of the Philippines to an Interim
National Assembly; change in the terms of Members of Parliament; and the election of a Prime
Minister who shall be vested with executive power.

Petitioners contend that the proposed changes are in the nature of amendments, hence, within the
coverage of a "people's initiative."

I disagree.

The noted constitutionalist, Father Joaquin G. Bernas, S.J., who was also a member of the 1986
Constitutional Commission, characterized an amendment and a revision to the Constitution as
follows:

An amendment envisages an alteration of one or a few specific and separable provisions. The
guiding original intention of an amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific portions that may have become
obsolete or that are judged to be dangerous. In revision however, the guiding original intention
and plan contemplates a re-examination of the entire document, or of provisions of the
document which have over-all implications for the document to determine how and to what
extent they should be altered.21

Obviously, both "revision" and amendment" connote change; any distinction between the two must
be based upon the degree of change contemplated. In Kelly v. Laing,22 the Supreme Court of
Michigan made the following comparison of the two terms:

"Revision" and "amendment" have the common characteristics of working changes in the charter,
and are sometimes used in exactly the same sense but there is an essential difference between
them.

"Revision" implies a reexamination of the whole law and a redraft without obligation to
maintain the form, scheme, or structure of the old. As applied to fundamental law, such as a
constitution or charter, it suggests a convention to examine the whole subject and to prepare and
submit a new instrument whether the desired changes from the old are few or many. Amendment
implies continuance of the general plan and purpose of the law, with corrections to better
accomplish its purpose. Basically, revision suggests fundamental change, while amendment is a
correction of detail.

Although there are some authorities which indicate that a change in a city's form of government may
be accomplished by a process of "amendment," the cases which so hold seem to involve statutes
which only distinguish between amendment and totally new charters. 23 However, as in Maine law,
where the statute authorizing the changes distinguishes between "charter amendment" and "charter
revision," it has been held that "(a) change in the form of government of a home rule city may
be made only by revision of the city charter, not by its amendment."24
In summary, it would seem that any major change in governmental form and scheme would probably
be interpreted as a "revision" and should be achieved through the more thorough process of
deliberation.

Although, at first glance, petitioners' proposed changes appear to cover isolated and specific
provisions only, however, upon careful scrutiny, it becomes clear that the proposed changes will
alter the very structure of our government and create multifarious ramifications. In other
words, the proposed changes will have a "domino effect" or, more appropriately, "ripple effect" on
other provisions of the Constitution.

At this juncture, it must be emphasized that the power reserved to the people to effect changes in
the Constitution includes the power to amend anysection in such a manner that the proposed
change, if approved, would "be complete within itself, relate to one subject and not
substantially affect any other section or article of the Constitution or require further
amendments to the Constitution to accomplish its purpose."25 This is clearly not the case here.

Firstly, a shift from a presidential to a parliamentary form of government affects the well-enshrined
doctrine of separation of powers of government, embodied in our Constitution, by providing for an
Executive, Legislative and Judiciary Branches. In a Parliamentary form of government, the Executive
Branch is to a certain degree, dependent on the direct or indirect support of the Parliament, as
expressed through a "vote of confidence." To my mind, this doctrine of separation of powers is
so interwoven in the fabric of our Constitution, that any change affecting such doctrine must
necessarily be a revision.

In McFadden vs. Jordan,26 the California Supreme Court ruled as follows:

It is thus clear that that a revision of the Constitution may be accomplished only through ratification
by the people of a revised constitution proposed by a convention called for that purpose x x x.
Consequently, if the scope of the proposed initiative measure now before us is so broad that
if such measure became law a substantial revision of our present state Constitution would be
effected, then the measure may not properly be submitted to the electorate until and unless it
is first agreed upon by a constitutional convention. x x x.

Secondly, the shift from a bicameral to a unicameral form of government is not a mere amendment,
but is in actuality a revision, as set forth in Adams v. Gunter27:

The proposal here to amend Section I of Article III of the 1968 Constitution to provide for a
Unicameral Legislature affects not only many other provisions of the Constitution but
provides for a change in the form of the legislative branch of government, which has been in
existence in the United States Congress and in all of the states of the nation, except one, since the
earliest days. It would be difficult to visualize a more revolutionary change. The concept of a
House and a Senate is basic in the American form of government. It would not only radically
change the whole pattern of the government in this state and tear apart the whole fabric of
the Constitution, but would even affect the physical facilities necessary to carry on
government.

Thirdly, the proposed changes, on their face, signify revisions rather than amendments, especially,
with the inclusion of the following "omnibus provision":

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-
Parliamnetary form of government, there shall be a new Article XVIII, entitled "Transitory Provisions"
which shall read, as follows:
xxxxxxxxx

Section 3. Upon the expiration of the term of the incumbent President and Vice-President, with the
exceptions of Section 1,2,3 and 4 of Article VII of the 1987 Constitution which are hereby amended x
x x x x x and all other Sections of Article VII shall be retained and numbered sequentially as Section
2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case
they shall be deemed amended so as to conform to a unicameral Parliamentary system of
government x x x x x x .

xxxxxxxxx

Section 4. (1) x x x

(3) Within forty-five days from ratification of these amendments, the Interim Parliament shall convene
to propose amendments to, or revisions of, this Constitution, consistent with the principles of local
autonomy, decentralization and a strong bureaucracy.

The above provisions will necessarily result in a "ripple effect" on the other provisions of the
Constitution to make them conform to the qualities of unicameral-parliamentary form of government.
With one sweeping stroke, these proposed provisions automatically revise some provisions of the
Constitution. In McFadden, the same practice was considered by the Court to be in the nature
of substantial revision, necessitating a constitutional convention. I quote the pertinent portion
of its ruling, thus:

There is in the measure itself, no attempt to enumerate the various and many articles and sections
of our present Constitution which would be affected, replaced or repealed. It purports only to add
one new article but its framers found it necessary to include the omnibus provision (subdivision (7) of
section XII) that "If any section, subsection, sentence, clause or phrase of the constitution is in
conflict with any of the provisions of this article, such section, subsection, sentence, clause, or
phrase is to the extent of such conflict hereby repealed. x x x Consequently, if the scope of the
proposed intitiative measure now before us is so broad that if such measure become law a
substantial revision of our present state Constitution would be be effected, then the measure may
not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional
convention.28

Undoubtedly, the changes proposed by the petitioners are not mere amendments which will only
affect the Articles or Sections sought to be changed. Rather, they are in the nature of revisions
which will affect considerable portions of the Constitution resulting in the alteration of our form of
government. The proposed changes cannot be taken in isolation since these are connected or
"interlocked" with the other provisions of our Constitution. Accordingly, it has been held that: "If the
changes attempted are so sweeping that it is necessary to include the provisions interlocking
them, then it is plain that the plan would constitute a recasting of the whole Constitution and
this, we think, it was intended to be accomplished only by a convention under Section 2
which has not yet been disturbed."29

I therefore conclude that since the proposed changes partake of the nature of a revision of the
Constitution, then they cannot be the subject of an initiative. On this matter, Father Bernas
expressed this insight:

But why limit initiative and referendum to simple amendments? The answer, which one can easily
glean from the rather long deliberation on initiative and referendum in the 1986 Constitutional
Commission, is practicality. In other words, who is to formulate the revision or how is it to be
formulated? Revision, as concretely being proposed now, is nothing less than a rebuilding of the
Philippine constitutional structure. Who were involved in formulating the structure? What debates
ensued? What records are there for future use in interpreting the provisions which may be found to
be unclear?

In a deliberative body like Congress or a Constitutional Convention, decisions are reached after
much purifying debate. And while the deliberations proceed, the public has the opportunity to get
involved. It is only after the work of an authorized body has been completed that it is presented to
the electorate for final judgment. Careful debate is important because the electorate tends to
accept what is presented to it even sight unseen.30

IV
R.A. No. 6735 is insufficient to implement the People's initiative

Section 2, Article XVII of the 1987 Constitution reads:

Section 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall be authorized within five years
following the ratification of this Constitution nor oftener than once every five years thereafter,

The Congress shall provide for the implementation of the exercise of this right.

On its face, Section 2 is not a self-executory provision. This means that an enabling law is
imperative for its implementation. Thus, Congress enacted R.A. No. 6735 in order to breathe life into
this constitutional provision. However, as previously narrated, this Court struck the law
in Santiago for being incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is concerned.

The passage of time has done nothing to change the applicability of R.A. No. 6735. Congress
neither amended it nor passed a new law to supply its deficiencies.

Notwithstanding so, this Court is being persuaded to take a 360-degree turn, enumerating three (3)
justifications why R.A. No. 6735 must be considered a sufficient law, thus:

1) The text of R.A. No. 6735 is replete with references to the right of people to initiate changes
to the Constitution;

2) The legislative history of R.A. No. 6735 reveals the clear intent of the lawmakers to use it as
instrument to implement the people's initiative; and

3) The sponsorship speeches by the authors of R.A. No. 6735 demonstrate the legislative
intent to use it as instrument to implement people's initiative.

I regret to say that the foregoing justifications are wanting.

A thorough reading of R.A. No. 6735 leads to the conclusion that it covers only initiatives
on national and local legislation. Its references to initiatives on the Constitution are few,
isolated and misplaced. Unlike in the initiatives on national and local legislation, where R.A. No.
6735 provides a detailed, logical, and exhaustive enumeration on their implementation, 31 however, as
regards initiative on the Constitution, the law merely:

(a) mentions the word "Constitution" in Section 2;32

(b) defines "initiative on the Constitution" and includes it in the enumeration of the three systems of
initiative in Section 3;33

(c) speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution
may be approved or rejected by the people;34

(d) reiterates the constitutional requirements as to the number of voters who should sign the
petition;35 and

(e) provides the date for the effectivity of the approved proposition.36

In other words, R.A. No. 6735 does not specify the procedure how initiative on the Constitution may
be accomplished. This is not the enabling law contemplated by the Constitution. As pointed out by
oppositor-intervenor Alternative Law Groups Inc., since the promulgation of the Decision in Santiago,
various bills have been introduced in both Houses of Congress providing for
a complete and adequate process for people's initiative, such as:

· Names, signatures and addresses of petitioners who shall be registered voters;

· A statement of the provision of the Constitution or any part thereof sought to be amended and the
proposed amendment;

· The manner of initiation - in a congressional district through a petition by any individual, group,
political party or coalition with members in the congressional district;

· The language used: the petition should be printed in English and translated in the local language;

· Signature stations to be provided for;

· Provisions pertaining to the need and manner of posting, that is, after the signatures shall have
been verified by the Commission, the verified signatures shall be posted for at least thirty days in the
respective municipal and city halls where the signatures were obtained;

· Provisions pertaining to protests allowed any protest as to the authenticity of the signatures to be
filed with the COMELEC and decided within sixty (60) days from the filing of said protest.

None of the above necessary details is provided by R.A. No. 6735, thus, demonstrating
its incompleteness and inadequacy.

V
Petitioners are not Proper Parties to
File the Petition for Initiative

VI
The Petition for Initiative Filed with the COMELEC Does not Comply with Section 2, Article
XVII of the Constitution and R.A. No. 6735
I shall discuss the above issues together since they are interrelated and inseparable. The
determination of whether petitioners are proper parties to file the petition for initiative in behalf of the
alleged 6.3 million voters will require an examination of whether they have complied with the
provisions of Section 2, Article XVII of the Constitution.

To reiterate, Section 2, Article XVII of the Constitution provides:

Section 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this section shall be authorized within
five years following the ratification of this Constitution nor oftener than once every five years
thereafter.

The Congress shall provide for the implementation of the exercise of this right. (Underscoring
supplied)

The mandate of the above constitutional provisions is definite and categorical. For a people's
initiative to prosper, the following requisites must be present:

1. It is "the people" themselves who must "directly propose" "amendments" to the Constitution;

2. The proposed amendments must be contained in "a petition of at least twelve per centum of
the total number of registered voters;" and

3. The required minimum of 12% of the total number of registered voters "must be represented by
at least three per centum of the registered voters" of "every legislative district."

In this case, however, the above requisites are not present.

The petition for initiative was filed with the COMELEC by petitioners Lambino and Aumentado, two
registered voters. As shown in the "Verification/Certification with Affidavit of Non-Forum
Shopping" contained in their petition, they alleged under oath that they have caused the preparation
of the petition in their personal capacity as registered voters "and as representatives" of the
supposed 6.3 million registered voters. This goes to show that the questioned petition was not
initiated directly by the 6.3 million people who allegedly comprised at least 12% of the total number
of registered voters, as required by Section 2. Moreover, nowhere in the petition itself could be
found the signatures of the 6.3 million registered voters. Only the signatures of petitioners
Lambino and Aumentado were affixed therein "as representatives" of those 6.3 million people.
Certainly, that is not the petition for people's initiative contemplated by the Constitution.

Petitioners Lambino and Aumentado have no authority whatsoever to file the petition "as
representatives" of the alleged 6.3 million registered voters. Such act of representation is
constitutionally proscribed. To repeat, Section 2 strictly requires that amendments to the
Constitution shall be "directly proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters." Obviously, the phrase
"directly proposed by the people" excludes any person acting as representative or agent of the
12% of the total number of registered voters. The Constitution has bestowed upon the people the
right to directly propose amendments to the Constitution. Such right cannot be usurped by anyone
under the guise of being the people's representative. Simply put, Section 2 does not recognize acts
of representation. For it is only "the people" (comprising the minimum of 12% of the total number of
registered voters, of which every legislative district must be represented by at least three per centum
of the registered voters therein) who are the proper parties to initiate a petition proposing
amendments to the Constitution. Verily, the petition filed with the COMELEC by herein petitioners
Lambino and Aumentado is not a people's initiative. Necessarily, it must fail.

Cororarilly, the plea that this Court should "hear" and "heed" "the people's voice" is baseless and
misleading. There is no people's voice to be heard and heeded as this petition for initiative is
not truly theirs, but only of petitioners Lambino and Aumentado and their allies.

VII
The issues at bar are not political questions.

Lambino and Aumentado, petitioners in G.R. No. 174153, vehemently argue that: (1) "the validity of
the exercise of the right of the sovereign people to amend the Constitution and their will, as
expressed by the fact that over six million registered voters indicated their support of the Petition for
initiative is a purely political question;" and (2) "[t]he power to propose amendments to the
Constitution is a right explicitly bestowed upon the sovereign people. Hence, the determination by
the people to exercise their right to propose amendments under the system of initiative is a
sovereign act and falls squarely within the ambit of a political question."

The "political question doctrine" was first enunciated by the US Supreme Court in Luther v.
Borden.37 Faced with the difficult question of whether the Supreme Court was the appropriate
institution to define the substantive content of republicanism, the US Supreme Court, speaking thru
Mr. Justice Roger B. Taney, concluded that "the sovereignty in every State resides in the people,
as to how and whether they exercised it, was under the circumstances of the case, a political
question to be settled by the political power." In other words, the responsibility of settling certain
constitutional questions was left to the legislative and executive branches of the government.

The Luther case arose from the so-called "Dorr Rebellion" in the State of Rhode Island. Due to
increased migration brought about by the Industrial Revolution, the urban population of Rhode Island
increased. However, under the 1663 Royal Charter which served as the State Constitution, voting
rights were largely limited to residents of the rural districts. This severe mal-apportionment of
suffrage rights led to the "Dorr Rebellion." Despairing of obtaining remedies for their
disenfranchisement from the state government, suffrage reformers invoked their rights under the
American Declaration of Independence to "alter or abolish" the government and to institute a new
one. The reformers proceeded to call for and hold an extralegal constitutional convention, drafted a
new State Constitution, submitted the document for popular ratification, and held elections under it.
The State government, however, refused to cede power, leading to an anomalous situation in that
for a few months in 1842, there were two opposing state governments contending for legitimacy and
possession of state of offices.

The Rhode Island militia, under the authority of martial law, entered and searched the house of
Martin Luther, a Dorr supporter. He brought suit against Luther Borden, a militiaman. Before the US
Supreme Court, Luther's counsel argued that since the State's archaic Constitution prevented a fair
and peaceful address of grievances through democratic processes, the people of Rhode Island had
instead chosen to exercise their inherent right in popular sovereignty of replacing what they saw as
an oppressive government. The US Supreme Court deemed the controversy as non-justiciable
and inappropriate for judicial resolution.

In Colgrove v. Green,38 Mr. Justice Felix Frankfurter, coined the phrase "political thicket" to describe
situations where Federal courts should not intervene in political questions which they have neither
the competence nor the commission to decide. In Colgrove, the US Supreme Court, with a narrow 4-
3 vote branded the apportionment of legislative districts in Illinois "as a political question and that
the invalidation of the districts might, in requiring statewide elections, create an evil greater
than that sought to be remedied."

While this Court has adopted the use of Frankfurter's "political thicket," nonetheless, it has sought to
come up with a definition of the term "political question." Thus, in Vera v. Avelino,39 this Court ruled
that properly, political questions are "those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government."
In Tañada and Macapagal v. Cuenco,40 the Court held that the term political question connotes, in
legal parlance, what it means in ordinary parlance, namely, a question of policy. It is concerned
with issues dependent upon the wisdom, not legality, of a particular measure.

In Aquino v. Enrile,41 this Court adopted the following guidelines laid down in Baker v. Carr42 in
determining whether a question before it is political, rather than judicial in nature, to wit:

1) there is a textually demonstrable constitutional commitment of the issue to a coordinate political

department; or

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

3) there is the sheer impossibility of deciding the matter without an initial policy determination of a
kind clearly for non-judicial discretion; or

4) there is the sheer impossibility of the Court's undertaking an independent resolution without
expressing lack of respect due the coordinate branches of government; or

5) there is an unusual need for unquestioning adherence to a political decision already made; or

6) there exists the potentiality of embarrassment arising from multifarious pronouncements by

various departments on one question.

None of the foregoing standards is present in the issues raised before this Court. Accordingly, the
issues are justiciable. What is at stake here is the legality and not the wisdom of the act
complained of.

Moreover, even assuming arguendo that the issues raised before this Court are political in nature, it
is not precluded from resolving them under its expanded jurisdiction conferred upon it by Section 1,
Article VIII of the Constitution, following Daza v. Singson.43 As pointed out in Marcos v.
Manglapus,44 the present Constitution limits resort to the political question doctrine and broadens the
scope of judicial power which the Court, under previous charters, would have normally and ordinarily
left to the political departments to decide.

CONCLUSION

In fine, considering the political scenario in our country today, it is my view that the so-called
people's initiative to amend our Constitution from bicameral-presidential to unicameral-parliamentary
is actually not an initiative of the people, but an initiative of some of our politicians. It has not been
shown by petitioners, during the oral arguments in this case, that the 6.3 million registered voters
who affixed their signatures understood what they signed. In fact, petitioners admitted that the
Constitutional provisions sought to be amended and the proposed amendments were not explained
to all those registered voters. Indeed, there will be no means of knowing, to the point of judicial
certainty, whether they really understood what petitioners and their group asked them to sign.

Let us not repeat the mistake committed by this Court in Javellana v. The Executive Secretary.45 The
Court then ruled that "This being the vote of the majority, there is no further judicial obstacle to the
new Constitution being considered in force and effect," although it had notice that the Constitution
proposed by the 1971 Constitutional Convention was not validly ratified by the people in accordance
with the 1935 Constitution. The Court concluded, among others, that the viva voce voting in the
Citizens' Assemblies "was and is null and void ab initio." That was during martial law when perhaps
majority of the justices were scared of the dictator. Luckily at present, we are not under a martial law
regime. There is, therefore, no reason why this Court should allow itself to be used as a legitimizing
authority by the so-called people's initiative for those who want to perpetuate themselves in power.

At this point, I can say without fear that there is nothing wrong with our present government
structure. Consequent1y, we must not change it. America has a presidential type of government.
Yet, it thrives ideally and has become a super power. It is then safe to conclude that what we
should change are some of the people running the government, NOT the SYSTEM.

According to petitioners, the proposed amendment would effect a more efficient, more economical
and more responsive government.

Is there hope that a new breed of politicians, more qualified and capable, may be elected as
members and leaders of the unicameral-parliament? Or will the present members of the Lower
House continue to hold their respective positions with limitless terms?

Will the new government be more responsive to the needs of the poor and the marginalized? Will it
be able to provide homes for the homeless, food for the hungry, jobs for the jobless and protection
for the weak?

This is a defining moment in our history. The issue posed before us is crucial with transcendental
significance. And history will judge us on how we resolve this issue – shall we allow the revision of
our Constitution, of which we are duty bound to guard and revere, on the basis of a doubtful people's
initiative?

Amending the Constitution involving a change of government system or structure is a herculean task
affecting the entire Filipino people and the future generations. Let us, therefore, entrust this duty to
more knowledgeable people elected as members of a Constitutional Convention.

Yes, the voice of the people is the voice of God. But under the circumstances in this case, the
voice of God is not audible.

WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R.
No. 174299.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

____________________

EN BANC
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED
VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

G.R. No. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners,
vs.
THE COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR.,
and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and JOHN DOE and PETER DOE, respondents.

x ---------------------------------------------------------------------------------------- x

SEPARATE CONCURRING OPINION

CALLEJO, SR., J.:

I am convinced beyond cavil that the respondent Commission on Elections (COMELEC) did not
commit an abuse of its discretion in dismissing the amended petition before it. The proposals of
petitioners incorporated in said amended petition are for the revision of the 1987 Constitution.
Further, the amended petition before the respondent COMELEC is insufficient in substance.

The Antecedents

On August 25, 2006, petitioners Raul L. Lambino and Erico B. Aumentado filed with the COMELEC
a petition entitled "IN THE MATTER OF PROPOSING AMENDMENTS TO THE 1987
CONSTITUTION THROUGH A PEOPLE'S INITIATIVE: A SHIFT FROM A BICAMERAL
PRESIDENTIAL TO A UNICAMERAL PARLIAMENTARY GOVERNMENT BY AMENDING
ARTICLES VI AND VII; AND PROVIDING TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM THE PRESIDENTIAL TO THE PARLIAMENTARY SYSTEM." The case was docketed
as EM (LD)-06-01. On August 30, 2006, petitioners filed an amended petition. For brevity, it is
referred to as the petition for initiative.

Petitioners alleged therein, inter alia, that they filed their petition in their own behalf and together with
those who have affixed their signatures to the signature sheets appended thereto who are Filipino
citizens, residents and registered voters of the Philippines, and they constitute at least twelve
percent (12%) of all the registered voters in the country, wherein each legislative district is
represented by at least three percent (3%) of all the registered voters therein.

Petitioners further alleged therein that the filing of the petition for initiative is based on their
constitutional right to propose amendments to the 1987 Constitution by way of people's initiative, as
recognized in Section 2, Article XVII thereof, which provides:

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right."

According to petitioners, while the above provision states that "(T)he Congress shall provide for the
implementation of the exercise of this right," the provisions of Section 5(b) and (c), along with
Section 7 of Republic Act (RA) 6735,1 are sufficient enabling details for the people's exercise of the
power. The said sections of RA 6735 state:

Sec. 5. Requirements. – (a) To exercise the power x x x

(b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of
the total number of registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein. Initiative on the
Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution
and only once every five (5) years thereafter.

(c) The petition shall state the following:

c.1. contents or text of the proposed law sought to be enacted, approved or rejected, amended or
repealed, as the case may be;

c.2. the proposition;

c.3. the reason or reasons therefor;

c.4. that it is not one of the exceptions provided herein;

c.5. signatures of the petitioners or registered voters; and

c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly written
or printed at the top of every page of the petition.

xxxx

Sec. 7. Verification of Signatures. – The Election Registrar shall verify the signatures on the basis of
the registry list of voters, voters' affidavits and voters identification cards used in the immediately
preceding election.

They also alleged that the COMELEC has the authority, mandate and obligation to give due course
to the petition for initiative, in compliance with the constitutional directive for the COMELEC to
"enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall."2

Petitioners incorporated in their petition for initiative the changes they proposed to be incorporated in
the 1987 Constitution and prayed that the COMELEC issue an order:

1. Finding the Petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution;

2. Directing the publication of the Petition in Filipino and English at least twice in newspapers of
general and local circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification
by this Honorable Commission of the sufficiency of this Petition, to allow the Filipino people to
express their sovereign will on the proposition.

Petitioners pray for such other reliefs deemed just and equitable in the premises.

The Ruling of the respondent COMELEC

On August 31, 2006, the COMELEC promulgated the assailed Resolution denying due course and
dismissing the petition for initiative. The COMELEC ruled that:

We agree with the petitioners that this Commission has the solemn Constitutional duty to enforce
and administer all laws and regulations relative to the conduct of, as in this case, initiative.

This mandate, however, should be read in relation to the other provisions of the Constitution
particularly on initiative.

Section 2, Article XVII of the 1987 Constitution provides:

"Sec. 2. Amendments to this Constitution may, likewise, be directly proposed by the people through
initiative, upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. x x x.

The Congress shall provide for the implementation of the exercise of this right."

The aforequoted provision of the Constitution being a non-self-executory provision needed an

enabling law for its implementation. Thus, in order to breathe life into the constitutional right of the
people under a system of initiative to directly propose, enact, approve or reject, in whole or in part,
the Constitution, laws, ordinances, or resolution, Congress enacted RA 6735.

However, the Supreme Court, in the landmark case of Santiago v. Commission on Elections struck
down the said law for being incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned

The Supreme Court, likewise, declared that this Commission should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the implementation of the system.

Thus, even if the signatures in the instant Petition appear to meet the required minimum per centum
of the total number of registered voters, of which every legislative district is represented by at least
three per centum of the registered voters therein, still the Petition cannot be given due course since
the Supreme Court categorically declared RA 6735 as inadequate to cover the system of initiative on
amendments to the Constitution.

This Commission is not unmindful of the transcendental importance of the right of the people under a
system of initiative. However, neither can we turn a blind eye to the pronouncement of the High
Court that in the absence of a valid enabling law, this right of the people remains nothing but an
"empty right," and that this Commission is permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution. (Citations omitted.)
Aggrieved, petitioners elevated the case to this Court on a petition
for certiorari and mandamus under Rule 65 of the Rules of Court.

The Petitioners' Case

In support of their petition, petitioners alleged, inter alia, that:

I.

THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF

DISCRETION IN REFUSING TO TAKE COGNIZANCE OF, AND TO GIVE DUE COURSE TO THE
PETITION FOR INITIATIVE, BECAUSE THE CITED SANTIAGO RULING OF 19 MARCH 1997
CANNOT BE CONSIDERED THE MAJORITY OPINION OF THE SUPREME COURT EN BANC,
CONSIDERING THAT UPON ITS RECONSIDERATION AND FINAL VOTING ON 10 JUNE 1997,
NO MAJORITY VOTE WAS SECURED TO DECLARE REPUBLIC ACT NO. 6735 AS
INADEQUATE, INCOMPLETE AND INSUFFICIENT IN STANDARD.

II.

THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735, REPUBLIC ACT NO. 8189 AND EXISTING
APPROPRIATION OF THE COMELEC PROVIDE FOR SUFFICIENT DETAILS AND AUTHORITY
FOR THE EXERCISE OF PEOPLE'S INITIATIVE, THUS, EXISTING LAWS TAKEN TOGETHER
ARE ADEQUATE AND COMPLETE.

III.

THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF

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

A.

THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT PETITION
FOR INITIATIVE FILED BY THE PETITIONERS.

1.

THE FRAMERS OF THE CONSTITUTION INTENDED TO GIVE THE PEOPLE THE POWER TO
PROPOSE AMENDMENTS AND THE PEOPLE THEMSELVES ARE NOW GIVING VIBRANT LIFE
TO THIS CONSTITUTIONAL PROVISION

2.

PRIOR TO THE QUESTIONED SANTIAGO RULING OF 19 MARCH 1997, THE RIGHT OF THE
PEOPLE TO EXERCISE THE SOVEREIGN POWER OF INITIATIVE AND RECALL HAS BEEN
INVARIABLY UPHELD

3.
THE EXERCISE OF THE INITIATIVE TO PROPOSE AMENDMENTS IS A POLITICAL QUESTION
WHICH SHALL BE DETERMINED SOLELY BY THE SOVEREIGN PEOPLE.

4.

BY SIGNING THE SIGNATURE SHEETS ATTACHED TO THE PETITION FOR INITIATIVE DULY
VERIFIED BY THE ELECTION OFFICERS, THE PEOPLE HAVE CHOSEN TO PERFORM THIS
SACRED EXERCISE OF THEIR SOVEREIGN POWER.

B.

THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT PETITION
FOR INITIATIVE FILED BY THE PETITIONERS

C.

THE PERMANENT INJUNCTION ISSUED IN SANTIAGO V. COMELEC ONLY APPLIES TO THE

DELFIN PETITION.

1.

IT IS THE DISPOSITIVE PORTION OF THE DECISION AND NOT OTHER STATEMENTS IN THE
BODY OF THE DECISION THAT GOVERNS THE RIGHTS IN CONTROVERSY.

IV.

THE HONORABLE PUBLIC RESPONDENT FAILED OR NEGLECTED TO ACT OR PERFORM A

DUTY MANDATED BY LAW.

A.

THE MINISTERIAL DUTY OF THE COMELEC IS TO SET THE INITIATIVE FOR PLEBISCITE.3

Petitioners Failed to Allege and Demonstrate All the Essential

Facts To Establish the Right to a Writ of Certiorari

Section 1, Rule 65 of the Rules of Court reads:

Sec. 1. Petition for certiorari. – When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or resolution
subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn
certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46.
A writ for certiorari may issue only when the following requirements are set out in the petition and
established:

(1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-judicial
functions;

(2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction; and

(3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. x x x 4

The Court has invariably defined "grave abuse of discretion," thus:

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, and it must be shown that the discretion was exercised arbitrarily or
despotically. For certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of
power, the very antithesis of the judicial prerogative in accordance with centuries of both civil law
and common law traditions.5

There is thus grave abuse of discretion on the part of the COMELEC when it acts in a capricious,
whimsical, arbitrary or despotic manner in the exercise of its judgment amounting to lack of
jurisdiction. Mere abuse of discretion is not enough.6 The only question involved is jurisdiction, either
the lack or excess thereof, and abuse of discretion warrants the issuance of the extraordinary
remedy of certiorari only when the same is grave, as when the power is exercised in an arbitrary or
despotic manner by reason of passion, prejudice or personal hostility. A writ of certiorari is a remedy
designed for the correction of errors of jurisdiction and not errors of judgment.7 An error of judgment
is one in which the court may commit in the exercise of its jurisdiction, which error is reversible only
by an appeal.8

In the present case, it appears from the assailed Resolution of the COMELEC that it denied the
petition for initiative solely in obedience to the mandate of this Court in Santiago v. Commission on
Elections.9 In said case, the Court En Banc permanently enjoined the COMELEC from entertaining
or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of the system. When the
COMELEC denied the petition for initiative, there was as yet no valid law enacted by Congress to
provide for the implementation of the system.

It is a travesty for the Court to declare the act of the COMELEC in denying due course to the petition
for initiative as "capricious, despotic, oppressive or whimsical exercise of judgment as is equivalent
to lack of jurisdiction." In fact, in so doing, the COMELEC merely followed or applied, as it ought to
do, the Court's ruling in Santiago to the effect that Section 2, Article XVII of the Constitution on the
system of initiative is a non self-executory provision and requires an enabling law for its
implementation. In relation thereto, RA 6735 was found by the Court to be "incomplete, inadequate,
or wanting in essential terms and conditions" to implement the constitutional provision on initiative.
Consequently, the COMELEC was "permanently enjoined from entertaining or taking cognizance of
any petition for initiative on amendments to the Constitution until a sufficient law shall have been
validly enacted to provide for the implementation of the system." The decision of the Court En Banc
interpreting RA 6735 forms part of the legal system of the Philippines.10 And no doctrine or principle
laid down by the Court En Banc may be modified or reversed except by the Court En
Banc,11 certainly not by the COMELEC. Until the Court En Banc modifies or reverses its decision, the
COMELEC is bound to follow the same.12 As succinctly held in Fulkerson v. Thompson:13
Whatever was before the Court, and is disposed of, is considered as finally settled. The inferior court
is bound by the judgment or decree as the law of the case, and must carry it into execution
according to the mandate. The inferior court cannot vary it, or judicially examine it for any other
purpose than execution. It can give no other or further relief as to any matter decided by the
Supreme Court even where there is error apparent; or in any manner intermeddle with it further than
to execute the mandate and settle such matters as have been remanded, not adjudicated by the
Supreme Court….

The principles above stated are, we think, conclusively established by the authority of adjudged
cases. And any further departure from them would inevitably mar the harmony of the whole judiciary
system, bring its parts into conflict, and produce therein disorganization, disorder, and incalculable
mischief and confusion. Besides, any rule allowing the inferior courts to disregard the adjudications
of the Supreme Court, or to refuse or omit to carry them into execution would be repugnant to the
principles established by the constitution, and therefore void.14

At this point, it is well to recall the factual context of Santiago as well as the pronouncement made by
the Court therein. Like petitioners in the instant case, in Santiago, Atty. Jesus Delfin, the People's
Initiative for Reforms, Modernization and Action (PIRMA), et al., invoked Section 2, Article XVII of
the Constitution as they filed with the COMELEC a "Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, By People's Initiative" (the Delfin petition). They asked the COMELEC to
issue an order fixing the time and date for signature gathering all over the country; causing the
necessary publications of said order and their petition in newspapers of general and local circulation
and instructing municipal election registrars in all regions all over the country and to assist
petitioners in establishing signing stations. Acting thereon, the COMELEC issued the order prayed
for.

Senator Miriam Santiago, et al. forthwith filed with this Court a petition for prohibition to enjoin the
COMELEC from implementing its order. The Court, speaking through Justice Hilario G. Davide, Jr.
(later Chief Justice), granted the petition as it declared:

1. RA 6735 "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative
on amendments to the Constitution is concerned";

2. COMELEC Resolution No. 2300 15 invalid insofar as it prescribed rules and regulations on the
conduct of initiative on amendments to the Constitution because the COMELEC is without authority
to promulgate the rules and regulations to implement the exercise of the right of the people to
directly propose amendments to the Constitution through the system of initiative; and

3. The Delfin petition insufficient as it did not contain the required number of signatures of registered
voters.

The Court concluded in Santiago that "the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the implementation of the system." The
dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered:

a) GRANTING the instant petition;

b) DECLARING RA 6735 inadequate to cover the system of initiative on amendments to the

Constitution, and to have failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing
rules and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the Delfin petition (UND-96-037).

The Temporary Restraining Order issued on December 18, 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against private respondents. 16

The Court reiterated its ruling in Santiago in another petition which was filed with the Court by
PIRMA and the spouses Alberto and Carmen Pedrosa (who were parties in Santiago) docketed
as PIRMA v. Commission on Elections.17 The said petitioners, undaunted by Santiago and claiming
to have gathered 5,793,213 signatures, filed a petition with the COMELEC praying, inter alia, that
COMELEC officers be ordered to verify all the signatures collected in behalf of the petition and, after
due hearing, that it (COMELEC) declare the petition sufficient for the purpose of scheduling a
plebiscite to amend the Constitution. Like the Delfin petition in Santiago, the PIRMA petition
proposed to submit to the people in a plebiscite the amendment to the Constitution on the lifting of
the term limits of elected officials.

The opinion of the minority that there was no doctrine enunciated by the Court in PIRMA has no
basis. The COMELEC, in its Resolution dated July 8, 1997, dismissed the PIRMA petition citing the
permanent restraining order issued against it by the Court in Santiago. PIRMA and the spouses
Pedrosa forthwith elevated the matter to the Court alleging grave abuse of discretion on the part of
the COMELEC in refusing to exercise jurisdiction over, and thereby dismissing, their petition for
initiative to amend the Constitution.

The Court dismissed outright, by a unanimous vote, the petition filed by PIRMA and the spouses
Albert Pedrosa. The Court declared that the COMELEC merely complied with the dispositions in the
decision of the Court in Santiago and, hence, cannot be held to have committed a grave abuse of its
discretion in dismissing the petition before it:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to
the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that
it only complied with the dispositions in the Decision of this Court in G.R. No. 127325, promulgated
on March 19, 1997, and its Resolution of June 10, 1997.

The Court next considered the question of whether there was need to resolve the second issue
posed by the petitioners, namely, that the Court re-examine its ruling as regards R.A. 6735. On this
issue, the Chief Justice and six (6) other members of the Court, namely, Regalado, Davide, Romero,
Bellosillo, Kapunan and Torres, JJ., voted that there was no need to take it up. Vitug, J., agreed that
there was no need for re-examination of said second issue since the case a bar is not the proper
vehicle for that purpose. Five (5) other members of the Court, namely, Melo, Puno, Francisco,
Hermosisima and Panganiban, JJ., opined that there was need for such a re-examination. x x x

WHEREFORE, the petition is DISMISSED.18 (Underscoring supplied.)

In the present case, the Office of the Solicitor General (OSG) takes the side of petitioners and
argues that the COMELEC should not have applied the ruling in Santiago to the petition for initiative
because the permanent injunction therein referred only to the Delfin petition. The OSG buttresses
this argument by pointing out that the Temporary Restraining Order dated December 18, 1996 that
was made permanent in the dispositive portion referred only to the Delfin petition.
The OSG's attempt to isolate the dispositive portion from the body of the Court's decision
in Santiago is futile. It bears stressing that the dispositive portion must not be read separately but in
connection with the other portions of the decision of which it forms a part. To get to the true intent
and meaning of a decision, no specific portion thereof should be resorted to but the same must be
considered in its entirety. Hence, a resolution or ruling may and does appear in other parts of the
decision and not merely in the fallo thereof.19

The pronouncement in the body of the decision in Santiago permanently enjoining the COMELEC
"from entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted to provide for the implementation of
the system" is thus as much a part of the Court's decision as its dispositive portion. The ruling of
this Court is of the nature of an in rem judgment barring any and all Filipinos from filing a
petition for initiative on amendments to the Constitution until a sufficient law shall have been
validly enacted. Clearly, the COMELEC, in denying due course to the present petition for initiative
on amendments to the Constitution conformably with the Court's ruling in Santiago did not commit
grave abuse of discretion. On the contrary, its actuation is in keeping with the salutary principle of
hierarchy of courts. For the Court to find the COMELEC to have abused its discretion when it
dismissed the amended petition based on the ruling of this Court in Santiago would be sheer judicial
apostasy.

As eloquently put by Justice J.B.L. Reyes, "there is only one Supreme Court from whose decisions
all other courts should take their bearings."20 This truism applies with equal force to the COMELEC
as a quasi-judicial body for, after all, judicial decisions applying or interpreting laws or the
Constitution "assume the same authority as the statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria which must control the
actuations not only of those called upon to abide thereby but also of those duty bound to enforce
obedience thereto."21

Petitioners Cannot Ascribe

Grave Abuse of Discretion on
the COMELEC Based on the
Minority Opinion in Santiago

It is elementary that the opinion of the majority of the members of the Court, not the opinion of the
minority, prevails. As a corollary, the decision of the majority cannot be modified or reversed by the
minority of the members of the Court.

However, to eschew the binding effect of Santiago, petitioners argue, albeit unconvincingly, that the
Court's declaration therein on the inadequacy, incompleteness and insufficiency of RA 6735 to
implement the system of initiative to propose constitutional amendments did not constitute the
majority opinion. This contention is utterly baseless.

Santiago was concurred in, without any reservation, by eight Justices,22 or the majority of the
members of the Court, who actually took part in the deliberations thereon. On the other hand, five
Justices,23 while voting for the dismissal of the Delfin petition on the ground of insufficiency,
dissented from the majority opinion as they maintained the view that RA 6735 was sufficient to
implement the system of initiative.

Given that a clear majority of the members of the Court, eight Justices, concurred in the decision
in Santiago, the pronouncement therein that RA 6735 is "incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on amendments to the Constitution is concerned"
constitutes a definitive ruling on the matter.
In the Resolution dated June 10, 1997, the motions for reconsideration of the Santiago decision
were denied with finality as only six Justices, or less than the majority, voted to grant the same. The
Resolution expressly stated that the motion for reconsideration failed "to persuade the requisite
majority of the Court to modify or reverse the Decision of 19 March 1977." 24 In fine, the
pronouncement in Santiago as embodied in the Decision of March 19, 1997 remains the definitive
ruling on the matter.

It bears stressing that in PIRMA, petitioners prayed for the Court to resolve the issue posed by them
and to re-examine its ruling as regards RA 6735. By a vote of seven members of the Court, including
Justice Justo P. Torres, Jr. and Justice Jose C. Vitug, the Court voted that there was no need to
resolve the issue. Five members of the Court opined that there was a need for the re-examination of
said ruling. Thus, the pronouncement of the Court in Santiago remains the law of the case and
binding on petitioners.

If, as now claimed by the minorty, there was no doctrine enunciated by the Court in Santiago, the
Court should have resolved to set aside its original resolution dismissing the petition and to grant the
motion for reconsideration and the petition. But the Court did not. The Court positively and
unequivocally declared that the COMELEC merely followed the ruling of the Court in Santiago in
dismissing the petition before it. No less than Senior Justice Reynato S. Puno concurred with the
resolution of the Court. It behooved Justice Puno to dissent from the ruling of the Court on the
motion for reconsideration of petitioners precisely on the ground that there was no doctrine
enunciated by the Court in Santiago. He did not. Neither did Chief Justice Artemio V. Panganiban,
who was a member of the Court.

That RA 6735 has failed to validly implement the people's right to directly propose constitutional
amendments through the system of initiative had already been conclusively settled in Santiago as
well as in PIRMA. Heeding these decisions, several lawmakers, including no less than Solicitor
General Antonio Eduardo Nachura when he was then a member of the House of
Representatives,25 have filed separate bills to implement the system of initiative under Section 2,
Article XVII of the Constitution.

In the present Thirteenth (13th) Congress, at least seven (7) bills are pending. In the Senate, the
three (3) pending bills are: Senate Bill No. 119 entitled An Act Providing for People's Initiative to
Amend the Constitution introduced by Senator Luisa "Loi" P. Ejercito Estrada; Senate Bill No. 2189
entitled An Act Providing for People's Initiative to Amend the Constitution introduced by Senator
Miriam Defensor Santiago; and Senate Bill No. 2247 entitled An Act Providing for a System of
People's Initiative to Propose Amendments to the Constitution introduced by Senator Richard
Gordon.

In the House of Representatives, there are at least four (4) pending bills: House Bill No. 05281 filed
by Representative Carmen Cari, House Bill No. 05017 filed by Representative Imee Marcos, House
Bill No. 05025 filed by Representative Roberto Cajes, and House Bill No. 05026 filed by
Representative Edgardo Chatto. These House bills are similarly entitled An Act Providing for
People's Initiative to Amend the Constitution.

The respective explanatory notes of the said Senate and House bills uniformly recognize that there
is, to date, no law to govern the process by which constitutional amendments are introduced by the
people directly through the system of initiative. Ten (10) years after Santiago and absent the
occurrence of any compelling supervening event, i.e., passage of a law to implement the system of
initiative under Section 2, Article XVII of the Constitution, that would warrant the re-examination of
the ruling therein, it behooves the Court to apply to the present case the salutary and well-
recognized doctrine of stare decisis. As earlier shown, Congress and other government agencies
have, in fact, abided by Santiago. The Court can do no less with respect to its own ruling.

Contrary to the stance taken by petitioners, the validity or constitutionality of a law cannot be made
to depend on the individual opinions of the members who compose it – the Supreme Court, as an
institution, has already determined RA 6735 to be "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned" and
therefore the same remains to be so regardless of any change in the Court's composition. 26 Indeed, it
is vital that there be stability in the courts in adhering to decisions deliberately made after ample
consideration. Parties should not be encouraged to seek re-examination of determined principles
and speculate on fluctuation of the law with every change in the expounders of it.27

Proposals to Revise the Constitution,

As in the Case of the Petitioners'
Proposal to Change the Form of
Government, Cannot be Effected
Through the System of Initiative,
Which by Express Provision of
Section 2, Article XVII of the
Constitution, is Limited to Amendments

Even granting arguendo the Court, in the present case, abandons its pronouncement
in Santiago and declares RA 6735, taken together with other extant laws, sufficient to implement the
system of initiative, still, the amended petition for initiative cannot prosper. Despite the denomination
of their petition, the proposals of petitioners to change the form of government from the present
bicameral-presidential to a unicameral-parliamentary system of government are actually for
the revision of the Constitution.

Petitioners propose to "amend" Articles VI and VII of the Constitution in this manner:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

"Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament
which shall be composed of as many members as may be provided by law, to be apportioned
among the provinces, representative districts, and cities in accordance with the number of their
respective inhabitants, with at least three hundred thousand inhabitants per district, and on the basis
of a uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous,
compact and adjacent territory, and each province must have at least one member.

"(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five
years old on the day of the election, a resident of his district for at least one year prior thereto, and
shall be elected by the qualified voters of his district for a term of five years without limitation as to
the number thereof, except those under the party-list system which shall be provided for by law and
whose number shall be equal to twenty per centum of the total membership coming from the
parliamentary districts."

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as
follows:

"Section 1. There shall be a President who shall be the Head of State. The executive power shall be
exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be
elected by a majority of all the Members of Parliament from among themselves. He shall be
responsible to the Parliament for the program of government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a

unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled
"Transitory Provisions," which shall read as follows:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their
term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the
1987 Constitution unless impeached by a vote of two thirds of all the members of the interim
parliament.,

(2) In case of death, permanent disability, resignation or removal from office of the incumbent
President, the incumbent Vice President shall succeed as President. In case of death, permanent
disability, resignation or removal from office of both the incumbent President and Vice President, the
interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under
Article VII as amended.

Section 2. "Upon the expiration of the term of the incumbent President and Vice President, with the
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby
be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are
hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are
inconsistent with the Parliamentary system of government, in which case, they shall be amended to
conform with a unicameral parliamentary form of government; provided, however, that any and all
references therein to "Congress," "Senate," "House of Representatives" and "House of Congress,"
"Senator[s] or "Member[s] of the House of Representatives" and "House of Congress" shall be
changed to read "Parliament"; that any and all references therein to "Member[s] of the House of
Representatives" shall be changed to read as "Member[s] of Parliament" and any and all references
to the "President" and or "Acting President" shall be changed to read "Prime Minister."

Section 3. "Upon the expiration of the term of the incumbent President and Vice President, with the
exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended
and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article VII shall
be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be
inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to
a unicameral Parliamentary System of government; provided, however, that any and all references
therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be
changed to read "Parliament"; that any and all references therein to "Member[s] of Congress,"
"Senator[s]" or "Member[s] of the House of Parliament" and any and all references to the "President"
and of "Acting President" shall be changed to read "Prime Minister."

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

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the
thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He
shall initially convene the interim Parliament and shall preside over its session for the election of the
interim Prime Minister and until the Speaker shall have been elected by a majority vote of all the
members of the interim Parliament from among themselves.
(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the
thirtieth day of June 2010.

(4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene
to propose amendments to, or revisions of, this Constitution consistent with the principles of local
autonomy, decentralization and a strong bureaucracy.

"Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the
members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority
vote of the members thereof. The interim Prime Minister shall oversee the various ministries and
shall perform such powers and responsibilities as may be delegated to him by the incumbent
President."

(2) The interim Parliament shall provide for the election of the members of Parliament, which shall be
synchronized and held simultaneously with the election of all local government officials. [Thereafter,
the Vice-President, as Member of Parliament, shall immediately convene the Parliament and shall
initially preside over its session for the purpose of electing the Prime Minister, who shall be elected
by a majority vote of all its members, from among themselves.] The duly-elected Prime Minister shall
continue to exercise and perform the powers, duties and responsibilities of the interim Prime Minister
until the expiration of the term of the incumbent President and Vice President. 28

Petitioners claim that the required number of signatures of registered voters have been complied
with, i.e., the signatories to the petition constitute twelve percent (12%) of all the registered voters in
the country, wherein each legislative district is represented by at least three percent (3%) of all the
registered voters therein. Certifications allegedly executed by the respective COMELEC Election
Registrars of each municipality and city verifying these signatures were attached to the petition for
initiative. The verification was allegedly done on the basis of the list of registered voters contained in
the official COMELEC list used in the immediately preceding election.

The proposition, as formulated by petitioners, to be submitted to the Filipino people in a plebiscite to

be called for the said purpose reads:

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION,
CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL
TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS
TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE
OTHER?29

According to petitioners, the proposed amendment of Articles VI and VII would effect a more
efficient, more economical and more responsive government. The parliamentary system would
allegedly ensure harmony between the legislative and executive branches of government, promote
greater consensus, and provide faster and more decisive governmental action.

Sections 1 and 2 of Article XVII pertinently read:

Article XVII

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

SECTION 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall be authorized within five years
following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

It can be readily gleaned that the above provisions set forth different modes and procedures for
proposals for the amendment and revision of the Constitution:

1. Under Section 1, Article XVII, any amendment to, or revision of, the Constitution may be proposed
by –

a. Congress, upon a vote of three-fourths of all its members; or

b. A constitutional convention.

2. Under Section 2, Article XVII, amendments to the Constitution may be likewise directly proposed
by the people through initiative.

The framers of the Constitution deliberately adopted the terms "amendment" and "revision" and
provided for their respective modes and procedures for effecting changes of the Constitution fully
cognizant of the distinction between the two concepts. Commissioner Jose E. Suarez, the Chairman
of the Committee on Amendments and Transitory Provisions, explained:

MR. SUAREZ. One more point, and we will be through.

We mentioned the possible use of only one term and that is, "amendment." However, the Committee
finally agreed to use the terms – "amendment" or "revision" when our attention was called by the
honorable Vice-President to the substantial difference in the connotation and significance between
the said terms. As a result of our research, we came up with the observations made in the famous –
or notorious – Javellana doctrine, particularly the decision rendered by Honorable Justice Makasiar,
wherein he made the following distinction between "amendment" and "revision" of an existing
Constitution: "Revision" may involve a rewriting of the whole Constitution. On the other hand, the act
of amending a constitution envisages a change of specific provisions only. The intention of an act to
amend is not the change of the entire Constitution, but only the improvement of specific parts or the
addition of provisions deemed essential as a consequence of new conditions or the elimination of
parts already considered obsolete or unresponsive to the needs of the times.

The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new
fundamental Charter embodying new political, social and economic concepts.

So, the Committee finally came up with the proposal that these two terms should be employed in the
formulation of the Article governing amendments or revisions to the new Constitution.30

Further, the framers of the Constitution deliberately omitted the term "revision" in Section 2, Article
XVII of the Constitution because it was their intention to reserve the power to propose a revision of
the Constitution to Congress or the constitutional convention. Stated in another manner, it was their
manifest intent that revision thereof shall not be undertaken through the system of initiative. Instead,
the revision of the Constitution shall be done either by Congress or by a constitutional convention.

It is significant to note that, originally, the provision on the system of initiative was included in Section
1 of the draft Article on Amendment or Revision proposed by the Committee on Amendments and
Transitory Provisions. The original draft provided:

SEC. 1. Any amendment to, or revision of, this Constitution may be proposed:

(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article __ Section __ of the
Constitution.31

However, after deliberations and interpellations, the members of the Commission agreed to remove
the provision on the system of initiative from Section 1 and, instead, put it under a separate
provision, Section 2. It was explained that the removal of the provision on initiative from the other
"traditional modes" of changing the Constitution was precisely to limit the former (system of initiative)
to amendments to the Constitution. It was emphasized that the system of initiative should not extend
to revision.

MR. SUAREZ. Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7
which embodies the proposed provision governing the matter of initiative. This is now covered by
Section 2 of the complete committee report. With the permission of the Members, may I quote
Section 2:

The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the registered
voters.

This completes the blanks appearing in the original Committee Report No. 7. This proposal was
suggested on the theory that this matter of initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional modes of amending the Constitution
as embodied in Section 1. The committee members felt that this system of initiative should be limited
to amendments to the Constitution and should not extend to the revision of the entire Constitution,
so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision.
x x x32

The intention to exclude "revision" of the Constitution as a mode that may be undertaken through the
system of initiative was reiterated and made clear by Commissioner Suarez in response to a
suggestion of Commissioner Felicitas Aquino:

MR. SUAREZ. Section 2 must be interpreted together with the provisions of Section 4, except that in
Section 4, as it is presently drafted, there is no take-off date for the 60-day and 90-day periods.
MS. AQUINO. Yes. In other words, Section 2 is another alternative mode of proposing amendments
to the Constitution which would further require the process of submitting it in a plebiscite, in which
case it is not self-executing.

MR. SUAREZ. No, not unless we settle and determine the take-off period.

MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a
separate section in the Article on Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of
setting it up as another separate section as if it were a self-executing provision?

MR SUAREZ. We would be amenable except that, as we clarified a while ago, this process of
initiative is limited to the matter of amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense conveyed by the Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes
(a) and (b) in Section 1 to include the process of revision; whereas, the process of initiation to
amend, which is given to the public, would only apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned by the Committee.33

Then Commissioner Hilario P. Davide, Jr. (later Chief Justice) also made the clarification with
respect to the observation of Commissioner Regalado Maambong:

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers
to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he
made the distinction between the words "amendments" and "revision"?

MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section
1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision."34

After several amendments, the Commission voted in favor of the following wording of Section 2:

AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE

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

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT.

Sections 1 and 2, Article XVII as eventually worded read:

Article XVII

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(3) The Congress, upon a vote of three-fourths of all its Members; or

(4) A constitutional convention.

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative, upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

The final text of Article XVII on Amendments or Revisions clearly makes a substantial differentiation
not only between the two terms but also between two procedures and their respective fields of
application. Ineluctably, the system of initiative under Section 2, Article XVII as a mode of effecting
changes in the Constitution is strictly limited to amendments – not to a revision – thereof.

As opined earlier, the framers of the Constitution, in providing for "amendment" and "revision" as
different modes of changing the fundamental law, were cognizant of the distinction between the two
terms. They particularly relied on the distinction made by Justice Felix Antonio in his concurring
opinion in Javellana v. Executive Secretary,35 the controversial decision which gave imprimatur to the
1973 Constitution of former President Ferdinand E. Marcos, as follows:

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

Other elucidation on the distinction between "amendment" and "revision" is enlightening. For
example, Dean Vicente G. Sinco, an eminent authority on political law, distinguished the two terms
in this manner:

Strictly speaking, the act of revising a constitution involves alterations of different portions of the
entire document. It may result in the rewriting either of the whole constitution, or the greater portion
of it, or perhaps only some of its important provisions. But whatever results the revisions may
produce, the factor that characterizes it as an act of revision is the original intention and plan
authorized to be carried out. That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered or suppressed or whether the
whole document should be replaced with an entirely new one.

The act of amending a constitution, on the other hand, envisages a change of only a few specific
provisions. The intention of an act to amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather is to improve the specific parts of
the existing constitution or to add to it provisions deemed essential on account of changed
conditions or to suppress portions of it that seemed obsolete, or dangerous, or misleading in their
effect.37

In the United States, the Supreme Court of Georgia in Wheeler v. Board of Trustees38 had the
occasion to make the distinction between the two terms with respect to Ga.L. 1945, an instrument
which "amended" the 1877 Constitution of Georgia. It explained the term "amendment:"
"Amendment" of a statute implies its survival and not destruction. It repeals or changes some
provision, or adds something thereto. A law is amended when it is in whole or in part permitted to
remain, and something is added to or taken from it, or it is in some way changed or altered to make
it more complete or perfect, or to fit it the better to accomplish the object or purpose for which it was
made, or some other object or purpose.39

On the other hand, the term "revision" was explained by the said US appellate court:

x x x When a house is completely demolished and another is erected on the same location, do you
have a changed, repaired and altered house, or do you have a new house? Some of the materials
contained in the old house may be used again, some of the rooms may be constructed the same,
but this does not alter the fact that you have altogether another or a new house. We conclude that
the instrument as contained in Ga.L. 1945, pp. 8 to 89, inclusive, is not an amendment to the
constitution of 1877; but on the contrary it is a completely revised or new constitution. 40

Fairly recently, Fr. Joaquin Bernas, SJ, a member of the Constitutional Commission, expounded on
the distinction between the two terms thus:

An amendment envisages an alteration of one or a few specific and separable provisions. The
guiding original intention of an amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific portions that may have become
obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and
plan contemplate a re-examination of the entire document – or of provisions of the document (which
have overall implications for the entire document or for the fundamental philosophical underpinnings
of the document) – to determine how and to what extent it should be altered. Thus, for instance, a
switch from the presidential system to a parliamentary system would be a revision because of its
overall impact on the entire constitutional structure. So would a switch from a bicameral system to a
unicameral system because of its effect on other important provisions of the Constitution.

It is thus clear that what distinguishes revision from amendment is not the quantum of change in the
document. Rather, it is the fundamental qualitative alteration that effects revision. Hence, I must
reject the puerile argument that the use of the plural form of "amendments" means that a revision
can be achieved by the introduction of a multiplicity of amendments!41

Given that revision necessarily entails a more complex, substantial and far-reaching effects on the
Constitution, the framers thereof wisely withheld the said mode from the system of initiative. It should
be recalled that it took the framers of the present Constitution four months from June 2, 1986 until
October 15, 1986 to come up with the draft Constitution which, as described by the venerable
Justice Cecilia Muñoz Palma, the President of the Constitutional Commission of 1986, "gradually
and painstakingly took shape through the crucible of sustained sometimes passionate and often
exhilarating debates that intersected all dimensions of the national life."42

Evidently, the framers of the Constitution believed that a revision thereof should, in like manner, be a
product of the same extensive and intensive study and debates. Consequently, while providing for a
system of initiative where the people would directly propose amendments to the Constitution, they
entrusted the formidable task of its revision to a deliberative body, the Congress or Constituent
Assembly.

The Constitution is the fundamental law of the state, containing the principles upon which the
government is founded, and regulating the division of sovereign powers, directing to what persons
each of those powers is to be confided and the manner in which it is to be exercised.43 The
Philippines has followed the American constitutional legal system in the sense that the
term constitution is given a more restricted meaning, i.e., as a written organic instrument, under
which governmental powers are both conferred and circumscribed.44

The Constitution received its force from the express will of the people. An overwhelming
16,622,111, out of 21,785,216 votes cast during the plebiscite, or 76.30% ratified the present
Constitution on February 2, 1987.45 In expressing that will, the Filipino people have incorporated
therein the method and manner by which the same can be amended and revised, and when the
electorate have incorporated into the fundamental law the particular manner in which the same may
be altered or changed, then any course which disregards that express will is a direct violation of the
fundamental law.46

Further, these provisions having been incorporated in the Constitution, where the validity of a
constitutional amendment or revision depends upon whether such provisions have been complied
with, such question presents for consideration and determination a judicial question, and the courts
are the only tribunals vested with power under the Constitution to determine such question. 47

Earlier, it was mentioned that Article XVII, by the use of the terms "amendment" and "revision,"
clearly makes a differentiation not only between the two terms but also between two procedures and
their respective fields of application. On this point, the case of McFadden v. Jordan48 is instructive. In
that case, a "purported initiative amendment" (referred to as the proposed measure) to the State
Constitution of California, then being proposed to be submitted to the electors for ratification, was
sought to be enjoined. The proposed measure, denominated as "California Bill of Rights," comprised
a single new article with some 208 subsections which would repeal or substantially alter at least 15
of the 25 articles of the California State Constitution and add at least four new topics. Among the
likely effects of the proposed measure were to curtail legislative and judicial functions, legalize
gaming, completely revise the taxation system and reduce the powers of cities, counties and courts.
The proposed measure also included diverse matters as ministers, mines, civic centers, liquor
control and naturopaths.

The Supreme Court of California enjoined the submission of the proposed measure to the electors
for ratification because it was not an "amendment" but a "revision" which could only be proposed by
a convention. It held that from an examination of the proposed measure itself, considered in relation
to the terms of the California State Constitution, it was clear that the proposed initiative enactment
amounted substantially to an attempted revision, rather than amendment, thereof; and that inasmuch
as the California State Constitution specifies (Article XVIII §2 thereof) that it may be revised by
means of constitutional convention but does not provide for revision by initiative measure, the
submission of the proposed measure to the electorate for ratification must be enjoined.

As piercingly enunciated by the California State Supreme Court in McFadden, the differentiation
required (between amendment and revision) is not merely between two words; more accurately it is
between two procedures and between their respective fields of application. Each procedure, if we
follow elementary principles of statutory construction, must be understood to have a substantial field
of application, not to be a mere alternative procedure in the same field. Each of the two words, then,
must be understood to denote, respectively, not only a procedure but also a field of application
appropriate to its procedure.49

Provisions regulating the time and mode of effecting organic changes are in the nature of safety-
valves – they must not be so adjusted as to discharge their peculiar function with too great facility,
lest they become the ordinary escape-pipes of party passion; nor, on the other hand, must they
discharge it with such difficulty that the force needed to induce action is sufficient also to explode the
machine. Hence, the problem of the Constitution maker is, in this particular, one of the most difficult
in our whole system, to reconcile the requisites for progress with the requisites for safety.50
Like in McFadden, the present petition for initiative on amendments to the Constitution is, despite its
denomination, one for its revision. It purports to seek the amendment only of Articles VI and VII of
the Constitution as well as to provide transitory provisions. However, as will be shown shortly, the
amendment of these two provisions will necessarily affect other numerous provisions of the
Constitution particularly those pertaining to the specific powers of Congress and the President.
These powers would have to be transferred to the Parliament and the Prime Minister and/or
President, as the case may be. More than one hundred (100) sections will be affected or altered
thereby:

1. Section 19 of Article III (Bill of Rights) on the power of Congress to impose the death penalty for
compelling reasons involving heinous crimes;

2. Section 2 of Article V (Suffrage) on the power of Congress to provide for securing the secrecy and
sanctity of the ballot as well as a system for absentee voting;

3. All 32 Sections of Article VI on the Legislative Department;

4. All 23 Sections of Article VII on the Executive Department;

5. The following Sections of Article VIII (Judicial Department):

- Section 2 on power of Congress to define, prescribe and apportion the jurisdiction of various
courts;

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

- Section 8 on the composition of Judicial Bar Council (JBC) which includes representatives of
Congress as ex officio members and on the power of the President to appoint the regular members
of the JBC;

- Section 9 on the power of the President to appoint the members of the Supreme Court and judges
of lower courts;

- Section 16 on duty of Supreme Court to make annual report to the President and Congress.

6. The following Sections of Article IX (Constitutional Commissions);

- (B) Section 3 on duty of Civil Service Commission to make annual report to the President and
Congress;

- (B) Section 5 on power of Congress to provide by law for the standardization of compensation of
government officials;

- (B) Section 8 which provides in part that "no public officer shall accept, without the consent of
Congress, any present, emolument, etc. x x x"

- (C) Section 1 on the power of the President to appoint the Chairman and Commissioners of the
Commission on Elections with the consent of the Commission on Appointments;

- (C) Section 2 (7) on the power of the COMELEC to recommend to Congress measures to minimize
election spending x x x;
- (C) Section 2 (8) on the duty of the COMELEC to recommend to the President the removal of any
officer or employee it has deputized, or the imposition of any other disciplinary action x x x;

- (C) Section 2 (9) on the duty of the COMELEC to submit to the President and Congress a report on
the conduct of election, plebiscite, etc.;

- (C) Section 5 on the power of the President, with the favorable recommendation of the COMELEC,
to grant pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules and
regulations;

- (C) Section 7 which recognizes as valid votes cast in favor of organization registered under party-
list system;

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

- (D) Section 1 (2) on the power of the President to appoint the Chairman and Commissioners of the
Commission on Audit (COA) with the consent of the Commission of Appointments;

- Section 4 on duty of the COA to make annual report to the President and Congress.

7. The following Sections of Article X (Local Government):

- Section 3 on the power of Congress to enact a local government code;

- Section 4 on the power of the President to exercise general supervision over local government
units (LGUs);

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

- Section 11 on the power of Congress to create special metropolitan political subdivisions;

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

- Section 16 on the power of the President to exercise general supervision over autonomous
regions;

- Section 18 on the power of Congress to enact organic act for each autonomous region as well as
the power of the President to appoint the representatives to the regional consultative commission;

- Section 19 on the duty of the first Congress elected under the Constitution to pass the organic act
for autonomous regions in Muslim Mindanao and the Cordilleras.

8. The following Sections of Article XI (Accountability of Public Officers):

- Section 2 on the impeachable officers (President, Vice-President, etc.);

- Section 3 on impeachment proceedings (exclusive power of the House to initiate complaint and
sole power of the Senate to try and decide impeachment cases);
- Section 9 on the power of the President to appoint the Ombudsman and his deputies;

- Section 16 which provides in part that "x x x no loans or guaranty shall be granted to the President,
Vice-President, etc.

- Section 17 on mandatory disclosure of assets and liabilities by public officials including the
President, Vice-President, etc.

9. The following Sections of Article XII (National Economy and Patrimony):

- Section 2 on the power of Congress to allow, by law, small-scale utilization of natural resources
and power of the President to enter into agreements with foreign-owned corporations and duty to
notify Congress of every contract;

- Section 3 on the power of Congress to determine size of lands of public domain;

- Section 4 on the power of Congress to determine specific limits of forest lands;

- Section 5 on the power of Congress to provide for applicability of customary laws;

- Section 9 on the power of Congress to establish an independent economic and planning agency to
be headed by the President;

- Section 10 on the power of Congress to reserve to Filipino citizens or domestic corporations(at

least 60% Filipino-owned) certain areas of investment;

- Section 11 on the sole power of Congress to grant franchise for public utilities;

- Section 15 on the power of Congress to create an agency to promote viability of cooperatives;

- Section 16 which provides that Congress shall not, except by general law, form private
corporations;

- Section 17 on the salaries of the President, Vice-President, etc. and the power of Congress to
adjust the same;

- Section 20 on the power of Congress to establish central monetary authority.

10. The following Sections of Article XIII (Social Justice and Human Rights):

- Section 1 on the mandate of Congress to give highest priority to enactment of measures that
protect and enhance the right of people x x x

- Section 4 on the power of Congress to prescribe retention limits in agrarian reform;

- Section 18 (6) on the duty of the Commission on Human Rights to recommend to Congress
effective measures to promote human rights;

- Section 19 on the power of Congress to provide for other cases to fall within the jurisdiction of the
Commission on Human Rights.
11. The following Sections of Article XIV (Education, Science and Technology, etc.):

- Section 4 on the power of Congress to increase Filipino equity participation in educational

institutions;

- Section 6 which provides that subject to law and as Congress may provide, the Government shall
sustain the use of Filipino as medium of official communication;

- Section 9 on the power of Congress to establish a national language commission;

- Section 11 on the power of Congress to provide for incentives to promote scientific research.

12. The following Sections of Article XVI (General Provisions):

- Section 2 on the power of Congress to adopt new name for the country, new national anthem, etc.;

- Section 5 (7) on the tour of duty of the Chief of Staff which may be extended by the President in
times of war or national emergency declared by Congress;

- Section 11 on the power of Congress to regulate or prohibit monopolies in mass media;

- Section 12 on the power of Congress to create consultative body to advise the President on
indigenous cultural communities.

13. The following Sections of Article XVII (Amendments or Revisions):

- Section 1 on the amendment or revision of Constitution by Congress;

- Section 2 on the duty of Congress to provide for the implementation of the system of initiative;

- Section 3 on the power of Congress to call constitutional convention to amend or revise the
Constitution.

14. All 27 Sections of Article XVIII (Transitory Provisions).

The foregoing enumeration negates the claim that "the big bulk of the 1987 Constitution will not be
affected."51 Petitioners' proposition, while purportedly seeking to amend only Articles VI and VII of the
Constitution and providing transitory provisions, will, in fact, affect, alter, replace or repeal other
numerous articles and sections thereof. More than the quantitative effects, however, the revisory
character of petitioners' proposition is apparent from the qualitative effects it will have on the
fundamental law.

I am not impervious to the commentary of Dean Vicente G. Sinco that the revision of a constitution,
in its strict sense, refers to a consideration of the entire constitution and the procedure for effecting
such change; while amendment refers only to particular provisions to be added to or to be altered in
a constitution.52

For clarity and accuracy, however, it is necessary to reiterate below Dean Sinco's more
comprehensive differentiation of the terms:
Strictly speaking, the act of revising a constitution involves alterations of different portions of the
entire document. It may result in the rewriting either of the whole constitution, or the greater portion
of it, or perhaps only some of its important provisions. But whatever results the revisions may
produce, the factor that characterizes it as an act of revision is the original intention and plan
authorized to be carried out. That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered or suppressed or whether the
whole document should be replaced with an entirely new one.

The act of amending a constitution, on the other hand, envisages a change of only a few specific
provisions. The intention of an act to amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather is to improve the specific parts of
the existing constitution or to add to it provisions deemed essential on account of changed
conditions or to suppress portions of it that seemed obsolete, or dangerous, or misleading in their
effect.53

A change in the form of government from bicameral-presidential to unicameral-parliamentary,

following the above distinction, entails a revision of the Constitution as it will involve "alteration of
different portions of the entire document" and "may result in the rewriting of the whole constitution, or
the greater portion of it, or perhaps only some of its important provisions."

More importantly, such shift in the form of government will, without doubt, fundamentally change the
basic plan and substance of the present Constitution. The tripartite system ordained by our
fundamental law divides governmental powers into three distinct but co-equal branches: the
legislative, executive and judicial. Legislative power, vested in Congress which is a bicameral body
consisting of the House of Representatives and the Senate, is the power to make laws and to alter
them at discretion. Executive power, vested in the President who is directly elected by the people, is
the power to see that the laws are duly executed and enforced. Judicial power, vested in the
Supreme Court and the lower courts, is the power to construe and apply the law when controversies
arise concerning what has been done or omitted under it. This separation of powers furnishes a
system of checks and balances which guards against the establishment of an arbitrary or tyrannical
government.

Under a unicameral-parliamentary system, however, the tripartite separation of power is dissolved

as there is a fusion between the executive and legislative powers. Essentially, the President
becomes a mere "symbolic head of State" while the Prime Minister becomes the head of
government who is elected, not by direct vote of the people, but by the members of the Parliament.
The Parliament is a unicameral body whose members are elected by legislative districts. The Prime
Minister, as head of government, does not have a fixed term of office and may only be removed by a
vote of confidence of the Parliament. Under this form of government, the system of checks and
balances is emasculated.

Considering the encompassing scope and depth of the changes that would be effected, not to
mention that the Constitution's basic plan and substance of a tripartite system of government and the
principle of separation of powers underlying the same would be altered, if not entirely destroyed,
there can be no other conclusion than that the proposition of petitioners Lambino, et al. would
constitute a revision of the Constitution rather than an amendment or "such an addition or change
within the lines of the original instrument as will effect an improvement or better carry out the
purpose for which it was framed."54 As has been shown, the effect of the adoption of the petitioners'
proposition, rather than to "within the lines of the original instrument" constitute "an improvement or
better carry out the purpose for which it was framed," is to "substantially alter the purpose and to
attain objectives clearly beyond the lines of the Constitution as now cast." 55
To paraphrase McFadden, petitioners' contention that any change less than a total one is
amendatory would reduce to the rubble of absurdity the bulwark so carefully erected and preserved.
A case might, conceivably, be presented where the question would be occasion to undertake to
define with nicety the line of demarcation; but we have no case or occasion here.

As succinctly by Fr. Joaquin Bernas, "a switch from the presidential system to a parliamentary
system would be a revision because of its overall impact on the entire constitutional structure. So
would a switch from a bicameral system to a unicameral system because of its effect on other
important provisions of the Constitution. It is thus clear that what distinguishes revision from
amendment is not the quantum of change in the document. Rather, it is the fundamental qualitative
alteration that effects revision."56

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

The Petition for Initiative on

Amendments to the Constitution
is, on its Face, Insufficient in
Form and Substance

Again, even granting arguendo RA 6735 is declared sufficient to implement the system of initiative
and that COMELEC Resolution No. 2300, as it prescribed rules and regulations on the conduct of
initiative on amendments to the Constitution, is valid, still, the petition for initiative on amendments to
the Constitution must be dismissed for being insufficient in form and substance.

Section 5 of RA 6735 requires that a petition for initiative on the Constitution must state the
following:

1. Contents or text of the proposed law sought to be enacted, approved or rejected, amended or
repealed, as the case may be;

2. The proposition;

3. The reason or reasons therefor;

4. That it is not one of the exceptions provided herein;

5. Signatures of the petitioners or registered voters; and

6. An abstract or summary proposition in not more than one hundred (100) words which shall be
legibly written or printed at the top of every page of the petition.

Section 7 thereof requires that the signatures be verified in this wise:

SEC. 7. Verification of Signatures. – The Election Registrar shall verify the signatures on the basis of
the registry list of voters, voters' affidavits and voters' identification cards used in the immediately
preceding election.

The law mandates upon the election registrar to personally verify the signatures. This is a solemn
and important duty imposed on the election registrar which he cannot delegate to any other person,
even to barangay officials. Hence, a verification of signatures made by persons other than the
election registrars has no legal effect.

In patent violation of the law, several certifications submitted by petitioners showed that the
verification of signatures was made, not by the election registrars, but by barangay officials. For
example, the certification of the election officer in Lumbatan, Lanao del Sur reads in full:

LOCAL ELECTION OFFICER'S CERTIFICATION57

THIS IS TO CERTIFY that based on the verifications made by the Barangay Officials in this
City/Municipality, as attested to by two (2) witnesses from the same Barangays, which is part of the
2nd Legislative District of the Province of Lanao del Sur, the names appearing on the attached
signature sheets relative to the proposed initiative on Amendments to the 1987 Constitution, are
those of bonafide resident of the said Barangays and correspond to the names found in the official
list of registered voters of the Commission on Elections and/or voters' affidavit and/or voters'
identification cards.

It is further certified that the total number of signatures of the registered voters for the
City/Municipality of LUMBATAN, LANAO DEL SUR as appearing in the affixed signatures sheets is
ONE THOUSAND ONE HUNDRED EIGHTY (1,180).

April 2, 2006

IBRAHIM M. MACADATO
Election Officer

(Underscoring supplied)

The ineffective verification in almost all the legislative districts in the Autonomous Region of Muslim
Mindanao (ARMM) alone is shown by the certifications, similarly worded as above-quoted, of the
election registrars of Buldon, Maguindanao;58 Cotabato City (Special Province);59 Datu Odin Sinsuat,
Maguindanao;60 Matanog, Maguindanao;61 Parang, Maguindanao;62 Kabantalan, Maguindanao;63 Upi,
Maguinadano;64 Barira, Maguindanao;65 Sultan, Mastura;66 Ampatuan, Maguindanao;67 Buluan,
Maguindanao;68 Datu Paglas, Maguindanao;69 Datu Piang, Maguindanao;70 Shariff Aguak,
Maguindanao;71 Pagalungan, Maguindanao;72 Talayan, Maguindanao;73 Gen. S.K. Pendatun,
Maguindanao;74 Mamasapano, Maguindanao;75 Talitay, Maguindanao;76 Guindulungan,
Maguindanao;77 Datu Saudi Ampatuan, Maguindanao;78 Datu Unsay, Maguindanao;79 Pagagawan,
Maguindanao;80 Rajah Buayan, Maguindanao;81 Indanan, Sulu;82 Jolo, Sulu;83 Maimbung, Sulu;84 Hadji
Panglima, Sulu;85 Pangutaran, Sulu;86 Parang, Sulu;87 Kalingalan Caluang, Sulu;88 Luuk,
Sulu;89 Panamao, Sulu;90 Pata, Sulu;91 Siasi, Sulu;92 Tapul, Sulu;93 Panglima Estino, Sulu;94 Lugus,
Sulu;95 and Pandami, Sulu. 96

Section 7 of RA 6735 is clear that the verification of signatures shall be done by the election
registrar, and by no one else, including the barangay officials. The foregoing certifications submitted
by petitioners, instead of aiding their cause, justify the outright dismissal of their petition for initiative.
Because of the illegal verifications made by barangay officials in the above-mentioned legislative
districts, it necessarily follows that the petition for initiative has failed to comply with the requisite
number of signatures, i.e., at least twelve percent (12%) of the total number of registered voters, of
which every legislative district must be represented by at least three percent (3%) of the registered
voters therein.
Petitioners cannot disclaim the veracity of these damaging certifications because they themselves
submitted the same to the COMELEC and to the Court in the present case to support their
contention that the requirements of RA 6735 had been complied with and that their petition for
initiative is on its face sufficient in form and substance. They are in the nature of judicial admissions
which are conclusive and binding on petitioners.97 This being the case, the Court must forthwith order
the dismissal of the petition for initiative for being, on its face, insufficient in form and substance. The
Court should make the adjudication entailed by the facts here and now, without further proceedings,
as it has done in other cases.98

It is argued by petitioners that, assuming arguendo that the COMELEC is correct in relying
on Santiago that RA 6735 is inadequate to cover initiative to the Constitution, this cannot be used to
legitimize its refusal to heed the people's will. The fact that there is no enabling law should not
prejudice the right of the sovereign people to propose amendments to the Constitution, which right
has already been exercised by 6,327,952 voters. The collective and resounding act of the particles
of sovereignty must not be set aside. Hence, the COMELEC should be ordered to comply with
Section 4, Article XVII of the 1987 Constitution via a writ of mandamus. The submission of
petitioners, however, is unpersuasive.

Mandamus is a proper recourse for citizens who act to enforce a public right and to compel the
persons of a public duty most especially when mandated by the Constitution.99 However, under
Section 3, Rule 65 of the 1997 Rules of Court, for a petition for mandamus to prosper, it must be
shown that the subject of the petition is a ministerial act or duty and not purely discretionary on the
part of the board, officer or person, and that petitioner has a well-defined, clear and certain right to
warrant the grant thereof. A purely ministerial act or duty is one which an officer or tribunal performs
in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority,
without regard to or the exercise of his own judgment upon the propriety or impropriety of the act
done. If the law imposes a duty upon a public official and gives him the right to decide how or when
the duty should be performed, such duty is discretionary and not ministerial. The duty is ministerial
only when the discharge of the same requires neither the exercise of an official discretion nor
judgment.100

To stress, in a petition for mandamus, petitioner must show a well defined, clear and certain right to
warrant the grant thereof.101 In this case, petitioners failed to establish their right to a writ
of mandamus as shown by the foregoing disquisitions.

Remand of the Case to the

COMELEC is Not Authorized by
RA 6735 and COMELEC Resolution No. 2300

The dissenting opinion posits that the issue of whether or not the petition for initiative has complied
with the requisite number of signatures of at least twelve percent (12%) of the total number of
registered voters, of which every legislative district must be represented by at least three percent
(3%) of the registered voters therein, involves contentious facts. The dissenting opinion cites the
petitioners' claim that they have complied with the same while the oppositors-intervenors have
vigorously refuted this claim by alleging, inter alia, that the signatures were not properly verified or
were not verified at all. Other oppositors-intervenors have alleged that the signatories did not fully
understand what they have signed as they were misled into signing the signature sheets.

According to the dissenting opinion, the sufficiency of the petition for initiative and its compliance
with the requirements of RA 6735 on initiative and its implementing rules is a question that should be
resolved by the COMELEC at the first instance. It thus remands the case to the COMELEC for
further proceedings.
To my mind, the remand of the case to the COMELEC is not warranted. There is nothing in RA
6735, as well as in COMELEC Resolution No. 2300, granting that it is valid to implement the former
statute, that authorizes the COMELEC to conduct any kind of hearing, whether full-blown or trial-type
hearing, summary hearing or administrative hearing, on a petition for initiative.

Section 41 of COMELEC Resolution No. 2300 provides that "[a]n initiative shall be conducted under
the control and supervision of the Commission in accordance with Article III hereof." Pertinently,
Sections 30, 31 and 32 of Article III of the said implementing rules provide as follows:

Sec. 30. Verification of signatures. – The Election Registrar shall verify the signatures on the basis of
the registry list of voters, voters' affidavits and voters' identification cards used in the immediately
preceding election.

Sec. 31. Determination by the Commission. – The Commission shall act on the findings of the
sufficiency or insufficiency of the petition for initiative or referendum.

If it should appear that the required number of signatures has not been obtained, the petition shall be
deemed defeated and the Commission shall issue a declaration to that effect.

If it should appear that the required number of signatures has been obtained, the Commission shall
set the initiative or referendum in accordance with the succeeding sections.

Sec. 32. Appeal. – The decision of the Commission on the findings of the sufficiency and
insufficiency of the petition for initiative or referendum may be appealed to the Supreme Court within
thirty (30) days from notice hereof.

Clearly, following the foregoing procedural rules, the COMELEC is not authorized to conduct any
kind of hearing to receive any evidence for or against the sufficiency of the petition for initiative.
Rather, the foregoing rules require of the COMELEC to determine the sufficiency or insufficiency of
the petition for initiative on its face. And it has already been shown, by the annexes submitted by the
petitioners themselves, their petition is, on its face, insufficient in form and substance. The remand of
the case to the COMELEC for reception of evidence of the parties on the contentious factual issues
is, in effect, an amendment of the abovequoted rules of the COMELEC by this Court which the Court
is not empowered to do.

The Present Petition Presents a

Justiciable Controversy; Hence,
a Non-Political Question. Further,
the People, Acting in their Sovereign
Capacity, Have Bound Themselves
to Abide by the Constitution

Political questions refer to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government. 102 A political question has two
aspects: (1) those matters that are to be exercised by the people in their primary political capacity;
and (2) matters which have been specifically designated to some other department or particular
office of the government, with discretionary power to act.103

In his concurring and dissenting opinion in Arroyo v. De Venecia,104 Senior Associate Justice
Reynato S. Puno explained the doctrine of political question vis-à-vis the express mandate of the
present Constitution for the courts to determine whether or not there has been a grave abuse of
discretion on the part of any branch or instrumentality of the Government:

In the Philippine setting, there is more compelling reason for courts to categorically reject the political
question defense when its interposition will cover up abuse of power. For Section 1, Article VIII of
our Constitution was intentionally cobbled to empower courts "... to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government." This power is new and was not granted to our courts in
the 1935 and 1972 Constitutions. It was also not xeroxed from the US Constitution or any foreign
state constitution. The CONCOM [Constitutional Commission] granted this enormous power to our
courts in view of our experience under martial law where abusive exercises of state power were
shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent
former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking
powers of the judiciary vis-à-vis the Executive and the Legislative departments of government. In
cases involving the proclamation of martial law and suspension of the privilege of habeas corpus, it
is now beyond dubiety that the government can no longer invoke the political question defense.

xxxx

To a great degree, it diminished its [political question doctrine] use as a shield to protect other
abuses of government by allowing courts to penetrate the shield with new power to review acts of
any branch or instrumentality of the government ". . . to determine whether or not there has been
grave abuse of discretion amounting to lack or excess of jurisdiction."

Even if the present petition involves the act, not of a governmental body, but of purportedly more
than six million registered voters who have signified their assent to the proposal to amend the
Constitution, the same still constitutes a justiciable controversy, hence, a non-political question.
There is no doubt that the Constitution, under Article XVII, has explicitly provided for the manner or
method to effect amendments thereto, or revision thereof. The question, therefore, of whether there
has been compliance with the terms of the Constitution is for the Court to pass upon. 105

In the United States, in In re McConaughy,106 the State Supreme Court of Minnesota exercised
jurisdiction over the petition questioning the result of the general election holding that "an
examination of the decisions shows that the courts have almost uniformly exercised the authority to
determine the validity of the proposal, submission, or ratification of constitutional amendments." The
cases cited were Dayton v. St. Paul,107 Rice v. Palmer,108 Bott v. Wurtz,109 State v. Powell,110 among
other cases.

There is no denying that "the Philippines is a democratic and republican State. Sovereignty resides
in the people and all government authority emanates from them."111 However, I find to be tenuous the
asseveration that "the argument that the people through initiative cannot propose substantial
amendments to change the Constitution turns sovereignty in its head. At the very least, the
submission constricts the democratic space for the exercise of the direct sovereignty of the
people."112 In effect, it is theorized that despite the unambiguous text of Section 2, Article XVII of the
Constitution withholding the power to revise it from the system of initiative, the people, in their
sovereign capacity, can conveniently disregard the said provision.

I strongly take exception to the view that the people, in their sovereign capacity, can disregard the
Constitution altogether. Such a view directly contravenes the fundamental constitutional theory that
while indeed "the ultimate sovereignty is in the people, from whom springs all legitimate authority";
nonetheless, "by the Constitution which they establish, they not only tie up the hands of their official
agencies, but their own hands as well; and neither the officers of the state, nor the whole people as
an aggregate body, are at liberty to take action in opposition to this fundamental law."113 The
Constitution, it should be remembered, "is the protector of the people, placed on guard by them to
save the rights of the people against injury by the people."114 This is the essence of constitutionalism:

Through constitutionalism we placed limits on both our political institutions and ourselves, hoping
that democracies, historically always turbulent, chaotic and even despotic, might now become
restrained, principled, thoughtful and just. So we bound ourselves over to a law that we made and
promised to keep. And though a government of laws did not displace governance by men, it did
mean that now men, democratic men, would try to live by their word. 115

Section 2, Article XVII of the Constitution on the system of initiative is limited only to proposals to
amend to the Constitution, and does not extend to its revision. The Filipino people have bound
themselves to observe the manner and method to effect the changes of the Constitution. They opted
to limit the exercise of the right to directly propose amendments to the Constitution through initiative,
but did not extend the same to the revision thereof. The petition for initiative, as it proposes to effect
the revision thereof, contravenes the Constitution. The fundamental law of the state prescribes the
limitations under which the electors of the state may change the same, and, unless such course is
pursued, the mere fact that a majority of the electors are in favor of a change and have so expressed
themselves, does not work a change. Such a course would be revolutionary, and the Constitution of
the state would become a mere matter of form.116

The very term Constitution implies an instrument of a permanent and abiding nature, and the
provisions contained therein for its revision indicated the will of the people that the underlying
principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like
permanent and abiding nature.117

The Filipino people have incorporated the safety valves of amendment and revision in Article XVII of
the Constitution. The Court is mandated to ensure that these safety valves embodied in the
Constitution to guard against improvident and hasty changes thereof are not easily trifled with. To be
sure, by having overwhelmingly ratified the Constitution, the Filipino people believed that it is "a good
Constitution" and in the words of the learned Judge Cooley:

x x x should be beyond the reach of temporary excitement and popular caprice or passion. It is
needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the
people, or the thought evolved in excitement or hot blood, but the sober second thought, which
alone, if the government is to be safe, can be allowed efficiency. Changes in government are to be
feared unless the benefit is certain. As Montaign says: "All great mutations shake and disorder a
state. Good does not necessarily succeed evil; another evil may succeed and worse. 118

Indisputably, the issues posed in the present case are of transcendental importance. Accordingly, I
have approached and grappled with them with full appreciation of the responsibilities involved in the
present case, and have given to its consideration the earnest attention which its importance
demands. I have sought to maintain the supremacy of the Constitution at whatever hazard. I share
the concern of Chief Justice Day in Koehler v. Hill:119 "it is for the protection of minorities that
constitutions are framed. Sometimes constitutions must be interposed for the protection of majorities
even against themselves. Constitutions are adopted in times of public repose, when sober reason
holds her citadel, and are designed to check the surging passions in times of popular excitement.
But if courts could be coerced by popular majorities into a disregard of their provisions, constitutions
would become mere 'ropes of sand,' and there would be an end of social security and of
constitutional freedom. The cause of temperance can sustain no injury from the loss of this
amendment which would be at all comparable to the injury to republican institutions which a violation
of the constitution would inflict. That large and respectable class of moral reformers which so justly
demands the observance and enforcement of law, cannot afford to take its first reformatory step by a
violation of the constitution. How can it consistently demand of others obedience to a constitution
which it violates itself? The people can in a short time re-enact the amendment. In the manner of a
great moral reform, the loss of a few years is nothing. The constitution is the palladium of republican
freedom. The young men coming forward upon the stage of political action must be educated to
venerate it; those already upon the stage must be taught to obey it. Whatever interest may be
advanced or may suffer, whoever or whatever may be 'voted up or voted down,' no sacrilegious
hand must be laid upon the constitution."120

WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R.
No. 174299.

ROMEO J. CALLEJO, SR.

Associate Justice

____________________

EN BANC

G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.) and

G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs. COMMISSION ON ELECTIONS, ET
AL.).

x ---------------------------------------------------------------------------------------- x

SEPARATE OPINION

AZCUNA, J.:

"Why, friends, you go to do you know not what."

-- Shakespeare, Julius Caesar, Act III, Sc. 2.

Article XVII of the Constitution states:

AMENDMENTS OR REVISIONS

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its members; or

(2) A constitutional convention.

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
votes therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.

Sec. 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional
convention, or by a majority vote of all its Members, submit to the electorate the question of calling
such a convention.

Sec. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid
when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty
days nor later than ninety days after the approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in
a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the
certification by the Commission on Elections of the sufficiency of the petition.

This Article states the procedure for changing the Constitution.

Constitutions have three parts – the Constitution of Liberty, which states the fundamental rights of
the people; the Constitution of Government, which establishes the structure of government, its
branches and their operation; and the Constitution of Sovereignty, which provides how the
Constitution may be changed.

Article XVII is the Constitution of Sovereignty.

As a result, the powers therein provided are called constituent powers. So when Congress acts
under this provision, it acts not as a legislature exercising legislative powers. It acts as a constituent
body exercising constituent powers.

The rules, therefore, governing the exercise of legislative powers do not apply, or do not apply
strictly, to the actions taken under Article XVII.

Accordingly, since Article XVII states that Congress shall provide for the implementation of the
exercise of the people's right directly to propose amendments to the Constitution through initiative,
the act of Congress pursuant thereto is not strictly a legislative action but partakes of a constituent
act.

As a result, Republic Act No. 6735, the act that provides for the exercise of the people of the right to
propose a law or amendments to the Constitution is, with respect to the right to propose
amendments to the Constitution, a constituent measure, not a mere legislative one.

The consequence of this special character of the enactment, insofar as it relates to proposing
amendments to the Constitution, is that the requirements for statutory enactments, such as
sufficiency of standards and the like, do not and should not strictly apply. As long as there is a
sufficient and clear intent to provide for the implementation of the exercise of the right, it should be
sustained, as it is simply a compliance of the mandate placed on Congress by the Constitution.

Seen in this light, the provisions of Republic Act No. 6735 relating to the procedure for proposing
amendments to the Constitution, can and should be upheld, despite shortcomings perhaps in
legislative headings and standards.

For this reason, I concur in the view that Santiago v. Comelec1 should be re-examined and, after
doing so, that the pronouncement therein regarding the insufficiency or inadequacy of the measure
to sustain a people's initiative to amend the Constitution should be reconsidered in favor of allowing
the exercise of this sovereign right.

And applying the doctrine stated in Senarillos v. Hermosisima,2 penned by Justice J.B.L. Reyes, in
relation to Article 8 of the Civil Code, that a decision of this Court interpreting a law forms part of the
law interpreted as of the time of its enactment, Republic Act No. 6735 should be deemed sufficient
and adequate from the start.

This next point to address, there being a sufficient law, is whether the petition for initiative herein
involved complies with the requirements of that law as well as those stated in Article XVII of the
Constitution.

True it is that ours is a democratic state, as explicitated in the Declaration of Principles, to

emphasize precisely that there are instances recognized and provided for in the Constitution where
our people directly exercise their sovereign powers, new features set forth in this People Power
Charter, namely, the powers of recall, initiative and referendum.

Nevertheless, this democratic nature of our polity is that of a democracy under the rule of law. This
equally important point is emphasized in the very Preamble to the Constitution, which states:

". . . the blessings of . . . democracy under the rule of law . . . ."

Such is the case with respect to the power to initiate changes in the Constitution. The power is
subject to limitations under the Constitution itself, thus: The power could not be exercised for the first
five years after the Constitution took effect and thereafter can only be exercised once every five
years; the power only extends to proposing amendments but not revisions; and the power needs an
act of Congress providing for its implementation, which act is directed and mandated.

The question, therefore, arises whether the proposed changes in the Constitution set forth in the
petition for initiative herein involved are mere amendments or rather are revisions.

Revisions are changes that affect the entire Constitution and not mere parts of it.

The reason why revisions are not allowed through direct proposals by the people through initiative is
a practical one, namely, there is no one to draft such extensive changes, since 6.3 million people
cannot conceivably come up with a single extensive document through a direct proposal from each
of them. Someone would have to draft it and that is not authorized as it would not be a direct
proposal from the people. Such indirect proposals can only take the form of proposals from
Congress as a Constituent Assembly under Article XVII, or a Constitutional Convention created
under the same provision. Furthermore, there is a need for such deliberative bodies for revisions
because their proceedings and debates are duly and officially recorded, so that future cases of
interpretations can be properly aided by resort to the record of their proceedings.

Even a cursory reading of the proposed changes contained in the petition for initiative herein
involved will show on its face that the proposed changes constitute a revision of the Constitution.
The proposal is to change the system of government from that which is bicameral-presidential to one
that is unicameral-parliamentary.

While purportedly only Articles VI, VII, and XVIII are involved, the fact is, as the petition and text of
the proposed changes themselves state, every provision of the Constitution will have to be examined
to see if they conform to the nature of a unicameral-parliamentary form of government and changed
accordingly if they do not so conform to it. For example, Article VIII on Judicial Department cannot
stand as is, in a parliamentary system, for under such a system, the Parliament is supreme, and thus
the Court's power to declare its act a grave abuse of discretion and thus void would be an anomaly.

Now, who is to do such examination and who is to do such changes and how should the changes be
worded? The proposed initiative does not say who nor how.

Not only, therefore, is the proposed initiative, on this score, a prohibited revision but it also suffers
from being incomplete and insufficient on its very face.

It, therefore, in that form, cannot pass muster the very limits contained in providing for the power
under the Constitution.

Neither does it comply with Republic Act No. 6735, which states in Section 10 that not more than
one subject shall be proposed as an amendment or amendments to the Constitution. The petition
herein would propose at the very least two subjects – a unicameral legislature and a parliamentary
form of government. Again, for this clear and patent violation of the very act that provides for the
exercise of the power, the proposed initiative cannot lie.

This does not mean, however, that all is lost for petitioners.

For the proposed changes can be separated and are, in my view, separable in nature – a unicameral
legislature is one; a parliamentary form of government is another. The first is a mere amendment
and contains only one subject matter. The second is clearly a revision that affects every article and
every provision in the Constitution to an extent not even the proponents could at present fully
articulate. Petitioners Lambino, et al. thus go about proposing changes the nature and extent of
which they do not as yet know exactly what.

The proposal, therefore, contained in the petition for initiative, regarding a change in the legislature
from a bicameral or two-chamber body to that of a unicameral or one-chamber body, is sustainable.
The text of the changes needed to carry it out are perfunctory and ministerial in nature. Once it is
limited to this proposal, the changes are simply one of deletion and insertions, the wordings of which
are practically automatic and non-discretionary.

As an example, I attach to this opinion an Appendix "A" showing how the Constitution would read if
we were to change Congress from one consisting of the Senate and the House of Representatives
to one consisting only of the House of Representatives. It only affects Article VI on the Legislative
Department, some provisions on Article VII on the Executive Department, as well as Article XI on the
Accountability of Public Officers, and Article XVIII on Transitory Provisions. These are mere
amendments, substantial ones indeed but still only amendments, and they address only one subject
matter.

Such proposal, moreover, complies with the intention and rationale behind the present initiative,
which is to provide for simplicity and economy in government and reduce the stalemates that often
prevent needed legislation.

For the nonce, therefore, I vote to DISMISS the petition, without prejudice to the filing of an
appropriate initiative to propose amendments to the Constitution to change Congress into a
unicameral body. This is not say that I favor such a change. Rather, such a proposal would come
within the purview of an initiative allowed under Article XVII of the Constitution and its implementing
Republic Act, and should, therefore, be submitted to our people in a plebiscite for them to decide in
their sovereign capacity. After all is said and done, this is what democracy under the rule of law is
about.

ADOLFO S. AZCUNA
Associate Justice

____________________

EN BANC

G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED

VOTERS
vs.
THE COMMISSION ON ELECTIONS

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG

vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and NICODEMO T. FERRER, and John Doe and Peter Doe

x ---------------------------------------------------------------------------------------- x

"It is a Constitution we are expounding…"1

– Chief Justice John Marshall

DISSENTING OPINION

PUNO, J.:

The petition at bar is not a fight over molehills. At the crux of the controversy is the critical
understanding of the first and foremost of our constitutional principles — "the Philippines is a
democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them."2 Constitutionalism dictates that this creed must be respected with deeds; our
belief in its validity must be backed by behavior.

This is a Petition for Certiorari and Mandamus to set aside the resolution of respondent Commission
on Elections (COMELEC) dated August 31, 2006, denying due course to the Petition for Initiative
filed by petitioners Raul L. Lambino and Erico B. Aumentado in their own behalf and together with
some 6.3 million registered voters who have affixed their signatures thereon, and praying for the
issuance of a writ of mandamus to compel respondent COMELEC to set the date of the plebiscite for
the ratification of the proposed amendments to the Constitution in accordance with Section 2, Article
XVII of the 1987 Constitution.

First, a flashback of the proceedings of yesteryears. In 1996, the Movement for People's
Initiative sought to exercise the sovereign people's power to directly propose amendments to the
Constitution through initiative under Section 2, Article XVII of the 1987 Constitution. Its founding
member, Atty. Jesus S. Delfin, filed with the COMELEC on December 6, 1996, a "Petition to Amend
the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" (Delfin Petition). It
proposed to amend Sections 4 and 7 of Article VI, Section 4 of Article VII, and Section 8 of Article X
of the 1987 Constitution by deleting the provisions on the term limits for all elective officials.

The Delfin Petition stated that the Petition for Initiative would first be submitted to the people and
would be formally filed with the COMELEC after it is signed by at least twelve per cent (12%) of the
total number of registered voters in the country. It thus sought the assistance of the COMELEC in
gathering the required signatures by fixing the dates and time therefor and setting up
signature stations on the assigned dates and time. The petition prayed that the COMELEC issue
an Order (1) fixing the dates and time for signature gathering all over the country; (2) causing the
publication of said Order and the petition for initiative in newspapers of general and local circulation;
and, (3) instructing the municipal election registrars in all the regions of the Philippines to assist
petitioner and the volunteers in establishing signing stations on the dates and time designated for
the purpose.

The COMELEC conducted a hearing on the Delfin Petition.

On December 18, 1996, Senator Miriam Defensor Santiago, Alexander Padilla and Maria Isabel
Ongpin filed a special civil action for prohibition before this Court, seeking to restrain the COMELEC
from further considering the Delfin Petition. They impleaded as respondents the COMELEC, Delfin,
and Alberto and Carmen Pedrosa (Pedrosas) in their capacities as founding members of the
People's Initiative for Reforms, Modernization and Action (PIRMA) which was likewise engaged in
signature gathering to support an initiative to amend the Constitution. They argued that the
constitutional provision on people's initiative may only be implemented by a law passed by
Congress; that no such law has yet been enacted by Congress; that Republic Act No. 6735 relied
upon by Delfin does not cover the initiative to amend the Constitution; and that COMELEC
Resolution No. 2300, the implementing rules adopted by the COMELEC on the conduct of initiative,
was ultra vires insofar as the initiative to amend the Constitution was concerned. The case was
docketed as G.R. No. 127325, entitled Santiago v. Commission on Elections.3

Pending resolution of the case, the Court issued a temporary restraining order enjoining the
COMELEC from proceeding with the Delfin Petition and the Pedrosas from conducting a signature
drive for people's initiative to amend the Constitution.

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

This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no
longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should
not tarry any longer in complying with the constitutional mandate to provide for the implementation of
the right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing
rules and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-
037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent against the
Commission on Elections, but is LIFTED as against private respondents. 5

Eight (8) members of the Court, namely, then Associate Justice Hilario G. Davide, Jr. (ponente),
Chief Justice Andres R. Narvasa, and Associate Justices Florenz D. Regalado, Flerida Ruth P.
Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C. Hermosisima, Jr. and Justo P. Torres,
fully concurred in the majority opinion.

While all the members of the Court who participated in the deliberation 6 agreed that the Delfin
Petition should be dismissed for lack of the required signatures, five (5) members, namely,
Associate Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J. Francisco and
Artemio V. Panganiban, held that R.A. 6735 was sufficient and adequate to implement the people's
right to amend the Constitution through initiative, and that COMELEC Resolution No. 2300 validly
provided the details for the actual exercise of such right. Justice Jose C. Vitug, on the other hand,
opined that the Court should confine itself to resolving the issue of whether the Delfin Petition
sufficiently complied with the requirements of the law on initiative, and there was no need to rule
on the adequacy of R.A. 6735.

The COMELEC, Delfin and the Pedrosas filed separate motions for reconsideration of the Court's
decision.

After deliberating on the motions for reconsideration, six (6)7 of the eight (8) majority members
maintained their position that R.A. 6735 was inadequate to implement the provision on the initiative
on amendments to the Constitution. Justice Torres filed an inhibition, while Justice Hermosisima
submitted a Separate Opinion adopting the position of the minority that R.A. 6735 sufficiently covers
the initiative to amend the Constitution. Hence, of the thirteen (13) members of the Court who
participated in the deliberation, six (6) members, namely, Chief Justice Narvasa and Associate
Justices Regalado, Davide, Romero, Bellosillo and Kapunan voted to deny the motions for lack of
merit; and six (6) members, namely, Associate Justices Melo, Puno, Mendoza, Francisco,
Hermosisima and Panganiban voted to grant the same. Justice Vitug maintained his opinion that the
matter was not ripe for judicial adjudication. The motions for reconsideration were therefore denied
for lack of sufficient votes to modify or reverse the decision of March 19, 1997. 8

On June 23, 1997, PIRMA filed with the COMELEC a Petition for Initiative to Propose Amendments
to the Constitution (PIRMA Petition). The PIRMA Petition was supported by around five (5) million
signatures in compliance with R.A. 6735 and COMELEC Resolution No. 2300, and prayed that the
COMELEC, among others: (1) cause the publication of the petition in Filipino and English at least
twice in newspapers of general and local circulation; (2) order all election officers to verify the
signatures collected in support of the petition and submit these to the Commission; and (3) set the
holding of a plebiscite where the following proposition would be submitted to the people for
ratification:

Do you approve amendments to the 1987 Constitution giving the President the chance to be
reelected for another term, similarly with the Vice-President, so that both the highest officials of the
land can serve for two consecutive terms of six years each, and also to lift the term limits for all other
elective government officials, thus giving Filipino voters the freedom of choice, amending for that
purpose, Section 4 of Article VII, Sections 4 and 7 of Article VI and Section 8 of Article X,
respectively?

The COMELEC dismissed the PIRMA Petition in view of the permanent restraining order issued by
the Court in Santiago v. COMELEC.

PIRMA filed with this Court a Petition for Mandamus and Certiorari seeking to set aside the
COMELEC Resolution dismissing its petition for initiative. PIRMA argued that the Court's decision on
the Delfin Petition did not bar the COMELEC from acting on the PIRMA Petition as said ruling was
not definitive based on the deadlocked voting on the motions for reconsideration, and because there
was no identity of parties and subject matter between the two petitions. PIRMA also urged the Court
to reexamine its ruling in Santiago v. COMELEC.

The Court dismissed the petition for mandamus and certiorari in its resolution dated September
23, 1997. It explained:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to
the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that
it only complied with the dispositions in the Decision of this Court in G.R. No. 127325 promulgated
on March 19, 1997, and its Resolution of June 10, 1997.

The Court next considered the question of whether there was need to resolve the second issue
posed by the petitioners, namely, that the Court re-examine its ruling as regards R.A. 6735. On this
issue, the Chief Justice and six (6) other members of the Court, namely, Regalado, Davide, Romero,
Bellosillo, Kapunan and Torres, JJ., voted that there was no need to take it up. Vitug, J., agreed that
there was no need for re-examination of said second issue since the case at bar is not the proper
vehicle for that purpose. Five (5) other members of the Court, namely, Melo, Puno, Francisco,
Hermosisima, and Panganiban, JJ., opined that there was a need for such a re-examination x x x x9

In their Separate Opinions, Justice (later Chief Justice) Davide and Justice Bellosillo stated that the
PIRMA petition was dismissed on the ground of res judicata.
Now, almost a decade later, another group, Sigaw ng Bayan, seeks to utilize anew the system of
initiative to amend the Constitution, this time to change the form of government from bicameral-
presidential to unicameral-parliamentary system.

Let us look at the facts of the petition at bar with clear eyes.

On February 15, 2006, Sigaw ng Bayan, in coordination with Union of Local Authorities of the
Philippines (ULAP), embarked on a nationwide drive to gather signatures to support the move to
adopt the parliamentary form of government in the country through charter change. They proposed
to amend the Constitution as follows:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which
shall be composed of as many members as may be provided by law, to be apportioned among the
provinces, representative districts, and cities in accordance with the number of their respective
inhabitants, with at least three hundred thousand inhabitants per district, and on the basis of a
uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous,
compact and adjacent territory, and each province must have at least one member.

(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five
years old on the day of the election, a resident of his district for at least one year prior thereto, and
shall be elected by the qualified voters of his district for a term of five years without limitation as to
the number thereof, except those under the party-list system which shall be provided for by law and
whose number shall be equal to twenty per centum of the total membership coming from the
parliamentary districts.

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as
follows:

Section 1. There shall be a President who shall be the Head of State. The executive power shall be
exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be
elected by a majority of all the Members of Parliament from among themselves. He shall be
responsible to the Parliament for the program of government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a

unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled
"Transitory Provisions," which shall read, as follows:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their
term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the
1987 Constitution unless impeached by a vote of two thirds of all the members of the interim
parliament.

(2) In case of death, permanent disability, resignation or removal from office of the incumbent
President, the incumbent Vice President shall succeed as President. In case of death, permanent
disability, resignation or removal from office of both the incumbent President and Vice President, the
interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under
Article VII as amended.
Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby
be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are
hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are
inconsistent with the Parliamentary system of government, in which case, they shall be amended to
conform with a unicameral parliamentary form of government; provided, however, that any and all
references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress"
shall be changed to read "Parliament;" that any and all references therein to "Member(s) of
Congress," "Senator(s)" or "Member(s) of the House of Representatives" shall be changed to read
as "Member(s) of Parliament" and any and all references to the "President" and/or "Acting President"
shall be changed to read "Prime Minister."

Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the
exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended
and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article VII shall
be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be
inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to
a unicameral Parliamentary System of government; provided, however, that any all references
therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be
changed to read "Parliament;" that any and all references therein to "Member(s) of Congress,"
"Senator(s)" or "Member(s) of the House of Representatives" shall be changed to read as
"Member(s) of Parliament" and any and all references to the "President" and or "Acting President"
shall be changed to read "Prime Minister."

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

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the
thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He
shall initially convene the interim Parliament and shall preside over its sessions for the election of the
interim Prime Minister and until the Speaker shall have been elected by a majority vote of all the
members of the interim Parliament from among themselves.

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the
thirtieth day of June 2010.

(4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene
to propose amendments to, or revisions of, this Constitution consistent with the principles of local
autonomy, decentralization and a strong bureaucracy.

Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the
members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority
vote of the members thereof. The interim Prime Minister shall oversee the various ministries and
shall perform such powers and responsibilities as may be delegated to him by the incumbent
President."

(2) The interim Parliament shall provide for the election of the members of Parliament, which shall be
synchronized and held simultaneously with the election of all local government officials. The duly
elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities
of the interim Prime Minister until the expiration of the term of the incumbent President and Vice
President.10

Sigaw ng Bayan prepared signature sheets, on the upper portions of which were written the
abstract of the proposed amendments, to wit:

Abstract: Do you approve of the amendment of Articles VI and VII of the 1987 Constitution,
changing the form of government from the present bicameral-presidential to a unicameral-
parliamentary system of government, in order to achieve greater efficiency, simplicity and economy
in government; and providing an Article XVIII as Transitory Provisions for the orderly shift from one
system to another?

The signature sheets were distributed nationwide to affiliated non-government organizations and
volunteers of Sigaw ng Bayan, as well as to the local officials. Copies of the draft petition for initiative
containing the proposition were also circulated to the local officials and multi-sectoral groups.

Sigaw ng Bayan alleged that it also held barangay assemblies which culminated on March 24, 25
and 26, 2006, to inform the people and explain to them the proposed amendments to the
Constitution. Thereafter, they circulated the signature sheets for signing.

The signature sheets were then submitted to the local election officers for verification based on
the voters' registration record. Upon completion of the verification process, the respective local
election officers issued certifications to attest that the signature sheets have been verified. The
verified signature sheets were subsequently transmitted to the office of Sigaw ng Bayan for the
counting of the signatures.

On August 25, 2006, herein petitioners Raul L. Lambino and Erico B. Aumentado filed with the
COMELEC a Petition for Initiative to Amend the Constitution entitled "In the Matter of Proposing
Amendments to the 1987 Constitution through a People's Initiative: A Shift from a Bicameral
Presidential to a Unicameral Parliamentary Government by Amending Articles VI and VII; and
Providing Transitory Provisions for the Orderly Shift from the Presidential to the Parliamentary
System." They filed an Amended Petition on August 30, 2006 to reflect the text of the proposed
amendment that was actually presented to the people. They alleged that they were filing the petition
in their own behalf and together with some 6.3 million registered voters who have affixed their
signatures on the signature sheets attached thereto. Petitioners appended to the petition signature
sheets bearing the signatures of registered voters which they claimed to have been verified by the
respective city or municipal election officers, and allegedly constituting at least twelve per cent (12%)
of all registered voters in the country, wherein each legislative district is represented by at least three
per cent (3%) of all the registered voters therein.

As basis for the filing of their petition for initiative, petitioners averred that Section 5 (b) and (c),
together with Section 7 of R.A. 6735, provide sufficient enabling details for the people's exercise of
the power. Hence, petitioners prayed that the COMELEC issue an Order:

1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution;

2. Directing the publication of the petition in Filipino and English at least twice in newspapers of
general and local circulation; and

3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification
by the COMELEC of the sufficiency of the petition, to allow the Filipino people to express their
sovereign will on the proposition.
Several groups filed with the COMELEC their respective oppositions to the petition for
initiative, among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon
III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.,
Senate Minority Leader Aquilino Q. Pimentel, Jr., Senators Sergio Osmeña III, Jamby A.S. Madrigal,
Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada; Representatives
Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; Bayan, Kilusang
Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan,
League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby Santiago and Reginald
Pamugas; Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A.
Lat, Antonio L. Salvador, and Randall C. Tabayoyong.

On August 31, 2006, the COMELEC denied due course to the Petition for Initiative. It cited this
Court's ruling in Santiago v. COMELEC11 permanently enjoining the Commission from entertaining or
taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of the system.

Forthwith, petitioners filed with this Court the instant Petition for Certiorari and Mandamus praying
that the Court set aside the August 31, 2006 resolution of the COMELEC, direct respondent
COMELEC to comply with Section 4, Article XVII of the Constitution, and set the date of the
plebiscite. They state the following grounds in support of the petition:

I.

The Honorable public respondent COMELEC committed grave abuse of discretion in refusing to take
cognizance of, and to give due course to the petition for initiative, because the cited Santiago ruling
of 19 March 1997 cannot be considered the majority opinion of the Supreme Court en banc,
considering that upon its reconsideration and final voting on 10 June 1997, no majority vote was
secured to declare Republic Act No. 6735 as inadequate, incomplete and insufficient in standard.

II.

The 1987 Constitution, Republic Act No. 6735, Republic Act No. 8189 and existing appropriation of
the COMELEC provide for sufficient details and authority for the exercise of people's initiative, thus,
existing laws taken together are adequate and complete.

III.

The Honorable public respondent COMELEC committed grave abuse of discretion in refusing to take
cognizance of, and in refusing to give due course to the petition for initiative, thereby violating an
express constitutional mandate and disregarding and contravening the will of the people.

A.

Assuming in arguendo that there is no enabling law, respondent COMELEC cannot ignore the will of
the sovereign people and must accordingly act on the petition for initiative.

1.

The framers of the Constitution intended to give the people the power to propose amendments and
the people themselves are now giving vibrant life to this constitutional provision.
2.

Prior to the questioned Santiago ruling of 19 March 1997, the right of the people to exercise the
sovereign power of initiative and recall has been invariably upheld.

3.

The exercise of the initiative to propose amendments is a political question which shall be
determined solely by the sovereign people.

4.

By signing the signature sheets attached to the petition for initiative duly verified by the election
officers, the people have chosen to perform this sacred exercise of their sovereign power.

B.

The Santiago ruling of 19 March 1997 is not applicable to the instant petition for initiative filed by the
petitioners.

C.

The permanent injunction issued in Santiago vs. COMELEC only applies to the Delfin petition.

1.

It is the dispositive portion of the decision and not other statements in the body of the decision that
governs the rights in controversy.

IV.

The Honorable public respondent failed or neglected to act or perform a duty mandated by law.

A.

The ministerial duty of the COMELEC is to set the initiative for plebiscite.12

The oppositors-intervenors, ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L.

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

The Philippine Constitution Association, Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon,
Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; the
Integrated Bar of the Philippines Cebu City and Cebu Province Chapters; former President Joseph
Ejercito Estrada and Pwersa ng Masang Pilipino; and the Senate of the Philippines, represented by
Senate President Manuel Villar, Jr., also filed their respective motions for intervention and
Comments-in-Intervention.

The Trade Union Congress of the Philippines, Sulongbayan Movement Foundation, Inc., Ronald L.
Adamat, Rolando Manuel Rivera, Ruelo Baya, Philippine Transport and General Workers
Organization, and Victorino F. Balais likewise moved to intervene and submitted to the Court a
Petition-in-Intervention. All interventions and oppositions were granted by the Court.

The oppositors-intervenors essentially submit that the COMELEC did not commit grave abuse of
discretion in denying due course to the petition for initiative as it merely followed this Court's ruling
in Santiago v. COMELEC as affirmed in the case of PIRMA v. COMELEC, based on the principle
of stare decisis; that there is no sufficient law providing for the authority and the details for the
exercise of people's initiative to amend the Constitution; that the proposed changes to the
Constitution are actually revisions, not mere amendments; that the petition for initiative does not
meet the required number of signatories under Section 2, Article XVII of the 1987 Constitution; that it
was not shown that the people have been informed of the proposed amendments as there was
disparity between the proposal presented to them and the proposed amendments attached to the
petition for initiative, if indeed there was; that the verification process was done ex parte, thus
rendering dubious the signatures attached to the petition for initiative; and that petitioners Lambino
and Aumentado have no legal capacity to represent the signatories in the petition for initiative.

The Office of the Solicitor General (OSG), in compliance with the Court's resolution of September
5, 2006, filed its Comment to the petition. Affirming the position of the petitioners, the OSG prayed
that the Court grant the petition at bar and render judgment: (1) declaring R.A. 6735 as adequate to
cover or as reasonably sufficient to implement the system of initiative on amendments to the
Constitution and as having provided sufficient standards for subordinate legislation; (2) declaring as
valid the provisions of COMELEC Resolution No. 2300 on the conduct of initiative or amendments to
the Constitution; (3) setting aside the assailed resolution of the COMELEC for having been rendered
with grave abuse of discretion amounting to lack or excess of jurisdiction; and, (4) directing the
COMELEC to grant the petition for initiative and set the corresponding plebiscite pursuant to R.A.
6735, COMELEC Resolution No. 2300, and other pertinent election laws and regulations.

The COMELEC filed its own Comment stating that its resolution denying the petition for initiative is
not tainted with grave abuse of discretion as it merely adhered to the ruling of this Court in Santiago
v. COMELEC which declared that R.A. 6735 does not adequately implement the constitutional
provision on initiative to amend the Constitution. It invoked the permanent injunction issued by the
Court against the COMELEC from taking cognizance of petitions for initiative on amendments to the
Constitution until a valid enabling law shall have been passed by Congress. It asserted that the
permanent injunction covers not only the Delfin Petition, but also all other petitions involving
constitutional initiatives.

On September 26, 2006, the Court heard the case. The parties were required to argue on the
following issues:13

1. Whether petitioners Lambino and Aumentado are proper parties to file the present Petition in
behalf of the more than six million voters who allegedly signed the proposal to amend the
Constitution.

2. Whether the Petitions for Initiative filed before the Commission on Elections complied with Section
2, Article XVII of the Constitution.
3. Whether the Court's decision in Santiago v. COMELEC (G.R. No. 127325, March 19, 1997) bars
the present petition.

4. Whether the Court should re-examine the ruling in Santiago v. COMELEC that there is no
sufficient law implementing or authorizing the exercise of people's initiative to amend the
Constitution.

5. Assuming R.A. 6735 is sufficient, whether the Petitions for Initiative filed with the COMELEC have
complied with its provisions.

5.1 Whether the said petitions are sufficient in form and substance.

5.2 Whether the proposed changes embrace more than one subject matter.

6. Whether the proposed changes constitute an amendment or revision of the Constitution.

6.1 Whether the proposed changes are the proper subject of an initiative.

7. Whether the exercise of an initiative to propose amendments to the Constitution is a political

question to be determined solely by the sovereign people.

8. Whether the Commission on Elections committed grave abuse of discretion in dismissing the
Petitions for Initiative filed before it.

With humility, I offer the following views to these issues as profiled:

Petitioners Lambino and Aumentado are proper parties to file the present Petition in behalf of
the more than six million voters who allegedly signed the proposal to amend the
Constitution.

Oppositors-intervenors contend that petitioners Lambino and Aumentado are not the proper parties
to file the instant petition as they were not authorized by the signatories in the petition for initiative.

The argument deserves scant attention. The Constitution requires that the petition for initiative
should be filed by at least twelve per cent (12%) of all registered voters, of which every legislative
district must be represented by at least three per cent (3%) of all the registered voters therein. The
petition for initiative filed by Lambino and Aumentado before the COMELEC was accompanied by
voluminous signature sheets which prima facie show the intent of the signatories to support the
filing of said petition. Stated above their signatures in the signature sheets is the following:

x x x My signature herein which shall form part of the petition for initiative to amend the Constitution
signifies my support for the filing thereof.14

There is thus no need for the more than six (6) million signatories to execute separate documents to
authorize petitioners to file the petition for initiative in their behalf.

Neither is it necessary for said signatories to authorize Lambino and Aumentado to file the petition
for certiorari and mandamus before this Court. Rule 65 of the 1997 Rules of Civil Procedure provides
who may file a petition for certiorari and mandamus. Sections 1 and 3 of Rule 65 read:
SECTION 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court x x x x.

SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting
from an office, trust, or station x x x and there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court
x x x x.

Thus, any person aggrieved by the act or inaction of the respondent tribunal, board or officer may
file a petition for certiorari or mandamus before the appropriate court. Certainly, Lambino and
Aumentado, as among the proponents of the petition for initiative dismissed by the COMELEC, have
the standing to file the petition at bar.

II

The doctrine of stare decisis does not bar the reexamination of Santiago.

The latin phrase stare decisis et non quieta movere means "stand by the thing and do not disturb
the calm." The doctrine started with the English Courts.15 Blackstone observed that at the beginning
of the 18th century, "it is an established rule to abide by former precedents where the same points
come again in litigation."16 As the rule evolved, early limits to its application were recognized: (1)
it would not be followed if it were "plainly unreasonable;" (2) where courts of equal authority
developed conflicting decisions; and, (3) the binding force of the decision was the "actual principle or
principles necessary for the decision; not the words or reasoning used to reach the decision."17

The doctrine migrated to the United States. It was recognized by the framers of the U.S.
Constitution.18 According to Hamilton, "strict rules and precedents" are necessary to prevent
"arbitrary discretion in the courts." 19 Madison agreed but stressed that "x x x once the precedent
ventures into the realm of altering or repealing the law, it should be rejected."20 Prof. Consovoy
well noted that Hamilton and Madison "disagree about the countervailing policy considerations that
would allow a judge to abandon a precedent."21 He added that their ideas "reveal a deep internal
conflict between the concreteness required by the rule of law and the flexibility demanded in error
correction. It is this internal conflict that the Supreme Court has attempted to deal with for
over two centuries."22

Indeed, two centuries of American case law will confirm Prof. Consovoy's observation although stare
decisis developed its own life in the United States. Two strains of stare decisis have been isolated
by legal scholars.23 The first, known as vertical stare decisis deals with the duty of lower courts to
apply the decisions of the higher courts to cases involving the same facts. The second, known
as horizontal stare decisis requires that high courts must follow its own precedents. Prof.
Consovoy correctly observes that vertical stare decisis has been viewed as
an obligation, while horizontal stare decisis, has been viewed as a policy, imposing choice but not
a command.24 Indeed, stare decisis is not one of the precepts set in stone in our Constitution.

It is also instructive to distinguish the two kinds of horizontal stare decisis — constitutional stare
decisis and statutory stare decisis.25 Constitutional stare decisis involves judicial interpretations
of the Constitution while statutory stare decisis involves interpretations of statutes. The distinction
is important for courts enjoy more flexibility in refusing to apply stare decisis in constitutional
litigations. Justice Brandeis' view on the binding effect of the doctrine in constitutional litigations still
holds sway today. In soothing prose, Brandeis stated: "Stare decisis is not . . . a universal and
inexorable command. The rule of stare decisis is not inflexible. Whether it shall be followed or
departed from, is a question entirely within the discretion of the court, which is again called upon
to consider a question once decided." 26 In the same vein, the venerable Justice Frankfurter opined:
"the ultimate touchstone of constitutionality is the Constitution itself and not what we have said
about it."27 In contrast, the application of stare decisis on judicial interpretation of statutes is more
inflexible. As Justice Stevens explains: "after a statute has been construed, either by this Court or
by a consistent course of decision by other federal judges and agencies, it acquires a meaning that
should be as clear as if the judicial gloss had been drafted by the Congress itself." 28 This stance
reflects both respect for Congress' role and the need to preserve the courts' limited resources.

In general, courts follow the stare decisis rule for an ensemble of reasons,29 viz: (1) it legitimizes
judicial institutions; (2) it promotes judicial economy; and, (3) it allows for predictability.
Contrariwise, courts refuse to be bound by the stare decisis rule where30 (1) its application
perpetuates illegitimate and unconstitutional holdings; (2) it cannot accommodate changing social
and political understandings; (3) it leaves the power to overturn bad constitutional law solely in the
hands of Congress; and, (4) activist judges can dictate the policy for future courts while judges that
respect stare decisis are stuck agreeing with them.

In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and
reversed its decisions in 192 cases.31 The most famous of these reversals is Brown v. Board of
Education32 which junked Plessy v. Ferguson's33 "separate but equal doctrine." Plessy upheld as
constitutional a state law requirement that races be segregated on public transportation. In Brown,
the U.S. Supreme Court, unanimously held that "separate . . . is inherently unequal." Thus, by
freeing itself from the shackles of stare decisis, the U.S. Supreme Court freed the colored Americans
from the chains of inequality. In the Philippine setting, this Court has likewise refused to be
straitjacketed by the stare decisis rule in order to promote public welfare. In La Bugal-B'laan Tribal
Association, Inc. v. Ramos,34 we reversed our original ruling that certain provisions of the Mining Law
are unconstitutional. Similarly, in Secretary of Justice v. Lantion,35 we overturned our first ruling
and held, on motion for reconsideration, that a private respondent is bereft of the right to notice and
hearing during the evaluation stage of the extradition process.

An examination of decisions on stare decisis in major countries will show that courts are
agreed on the factors that should be considered before overturning prior rulings. These are
workability, reliance, intervening developments in the law and changes in fact. In addition,
courts put in the balance the following determinants: closeness of the voting, age of the prior
decision and its merits.36

The leading case in deciding whether a court should follow the stare decisis rule in constitutional
litigations is Planned Parenthood v. Casey.37 It established a 4-pronged test. The court should (1)
determine whether the rule has proved to be intolerable simply in defying practical workability; (2)
consider whether the rule is subject to a kind of reliance that would lend a special hardship to the
consequences of overruling and add inequity to the cost of repudiation; (3) determine
whether related principles of law have so far developed as to have the old rule no more than a
remnant of an abandoned doctrine; and, (4) find out whether facts have so changed or come to be
seen differently, as to have robbed the old rule of significant application or justification.

Following these guidelines, I submit that the stare decisis rule should not bar the
reexamination of Santiago. On the factor of intolerability, the six (6) justices in Santiago held
R.A. 6735 to be insufficient as it provided no standard to guide COMELEC in issuing its
implementing rules. The Santiago ruling that R.A. 6735 is insufficient but without striking it down as
unconstitutional is an intolerable aberration, the only one of its kind in our planet. It improperly
assails the ability of legislators to write laws. It usurps the exclusive right of legislators to determine
how far laws implementing constitutional mandates should be crafted. It is elementary that courts
cannot dictate on Congress the style of writing good laws, anymore than Congress can tell courts
how to write literate decisions. The doctrine of separation of powers forbids this Court to invade the
exclusive lawmaking domain of Congress for courts can construe laws but cannot construct
them. The end result of the ruling of the six (6) justices that R.A. 6735 is insufficient is intolerable for
it rendered lifeless the sovereign right of the people to amend the Constitution via an initiative.

On the factor of reliance, the ruling of the six (6) justices in Santiago did not induce any
expectation from the people. On the contrary, the ruling smothered the hope of the people that they
could amend the Constitution by direct action. Moreover, reliance is a non-factor in the case at bar
for it is more appropriate to consider in decisions involving contracts where private rights are
adjudicated. The case at bar involves no private rights but the sovereignty of the people.

On the factor of changes in law and in facts, certain realities on ground cannot be blinked away.
The urgent need to adjust certain provisions of the 1987 Constitution to enable the country to
compete in the new millennium is given. The only point of contention is the mode to effect the
change - - - whether through constituent assembly, constitutional convention or people's initiative.
Petitioners claim that they have gathered over six (6) million registered voters who want to amend
the Constitution through people's initiative and that their signatures have been verified by registrars
of the COMELEC. The six (6) justices who ruled that R.A. 6735 is insufficient to implement the
direct right of the people to amend the Constitution through an initiative cannot waylay the
will of 6.3 million people who are the bearers of our sovereignty and from whom all
government authority emanates. New developments in our internal and external social, economic,
and political settings demand the reexamination of the Santiago case. The stare decisis rule is no
reason for this Court to allow the people to step into the future with a blindfold.

III

A reexamination of R.A. 6735 will show that it is sufficient to implement the people's initiative.

Let us reexamine the validity of the view of the six (6) justices that R.A. 6735 is insufficient to
implement Section 2, Article XVII of the 1987 Constitution allowing amendments to the Constitution
to be directly proposed by the people through initiative.

When laws are challenged as unconstitutional, courts are counseled to give life to the intent of
legislators. In enacting R.A. 6735, it is daylight luminous that Congress intended the said law to
implement the right of the people, thru initiative, to propose amendments to the Constitution by direct
action. This all-important intent is palpable from the following:

First. The text of R.A. 6735 is replete with references to the right of the people to initiate changes to
the Constitution:

The policy statement declares:

Sec. 2. Statement of Policy. -- The power of the people under a system of initiative and referendum
to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances,
or resolutions passed by any legislative body upon compliance with the requirements of this Act is
hereby affirmed, recognized and guaranteed. (emphasis supplied)
It defines "initiative" as "the power of the people to propose amendments to the Constitution or
to propose and enact legislations through an election called for the purpose," and "plebiscite" as
"the electoral process by which an initiative on the Constitution is approved or rejected by the
people."

It provides the requirements for a petition for initiative to amend the Constitution, viz:

(1) That "(a) petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every legislative
district must be represented by at least three per centum (3%) of the registered voters therein;"38 and

(2) That "(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification
of the 1987 Constitution and only once every five (5) years thereafter." 39

It fixes the effectivity date of the amendment under Section 9(b) which provides that "(t)he
proposition in an initiative on the Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite."

Second. The legislative history of R.A. 6735 also reveals the clear intent of the lawmakers to use it
as the instrument to implement people's initiative. No less than former Chief Justice Hilario G.
Davide, Jr., the ponente in Santiago, concedes:40

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose
amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill
No. 17 x x x x The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill
No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate and by
the House of Representatives. This approved bill is now R.A. No. 6735.

Third. The sponsorship speeches by the authors of R.A. 6735 similarly demonstrate beyond doubt
this intent. In his sponsorship remarks, the late Senator Raul Roco (then a Member of the House of
Representatives) emphasized the intent to make initiative as a mode whereby the people can
propose amendments to the Constitution. We quote his relevant remarks:41

SPONSORSHIP REMAKRS OF REP. ROCO

MR. ROCO. Mr. Speaker, with the permission of the committee, we wish to speak in support of
House Bill No. 497, entitled: INITIATIVE AND REFERENDUM ACT OF 1987, which later on may be
called Initiative and Referendum Act of 1989.

As a background, we want to point out the constitutional basis of this particular bill. The grant of
plenary legislative power upon the Philippine Congress by the 1935, 1973 and 1987 Constitutions,
Mr. Speaker, was based on the principle that any power deemed to be legislative by usage and
tradition is necessarily possessed by the Philippine Congress unless the Organic Act has lodged it
elsewhere. This was a citation from Vera vs. Avelino (1946).

The presidential system introduced by the 1935 Constitution saw the application of the principle of
separation of powers. While under the parliamentary system of the 1973 Constitution the principle
remained applicable, Amendment 6 or the 1981 amendments to the 1973 Constitution ensured
presidential dominance over the Batasang Pambansa.
Our constitutional history saw the shifting and sharing of legislative power between the legislature
and the executive.

Transcending such changes in the exercise of legislative power is the declaration in the Philippine
Constitution that he Philippines is a Republican State where sovereignty resides in the people and
all government authority emanates from them.

In a Republic, Mr. Speaker, the power to govern is vested in its citizens participating through the
right of suffrage and indicating thereby their choice of lawmakers.

Under the 1987 Constitution, lawmaking power is still preserved in Congress. However, to
institutionalize direct action of the people as exemplified in the 1986 Revolution, there is a practical
recognition of what we refer to as people's sovereign power. This is the recognition of a system of
initiative and referendum.

Section 1, Article VI of the 1987 Constitution provides, and I quote:

The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and House of Representatives, except to the extent reserved to the people by the provision
on initiative and referendum.

In other words, Mr. Speaker, under the 1987 Constitution, Congress does not have plenary powers.
There is a reserved legislative power given to the people expressly.

Section 32, the implementing provision of the same article of the Constitution provides, and I quote:

The Congress shall, as early as possible, provide for a system of initiative and referendum, and the
exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject
any act or law or part thereof passed by the Congress or local legislative body after the registration
of a petition therefor signed by at least ten per centum of the total number of registered voters, or
which every legislative district must be represented by at least three per centum of the registered
voters thereof.

In other words, Mr. Speaker, in Section 1 of Article VI which describes legislative power, there are
reserved powers given to the people. In Section 32, we are specifically told to pass at the soonest
possible time a bill on referendum and initiative. We are specifically mandated to share the
legislative powers of Congress with the people.

Of course, another applicable provision in the Constitution is Section 2, Article XVII, Mr. Speaker.
Under the provision on amending the Constitution, the section reads, and I quote:

Amendments to this Constitution may likewise be directly proposed by the people through initiative
upon a petition of at least twelve per centum of the total number of registered voters, of which every
legislative district must be represented by at least three per centum of the registered voters therein.
No amendment under this section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.

We in Congress therefore, Mr. Speaker, are charged with the duty to implement the exercise by the
people of the right of initiative and referendum.
House Bill No. 21505, as reported out by the Committee on Suffrage and Electoral Reforms last
December 14, 1988, Mr. Speaker, is the response to such a constitutional duty.

Mr. Speaker, if only to allay apprehensions, allow me to show where initiative and referendum under
Philippine law has occurred.

Mr. Speaker, the system of initiative and referendum is not new. In a very limited extent, the system
is provided for in our Local Government Code today. On initiative, for instance, Section 99 of the
said code vests in the barangay assembly the power to initiate legislative processes, to hold
plebiscites and to hear reports of the sangguniang barangay. There are variations of initiative and
referendum. The barangay assembly is composed of all persons who have been actual residents of
the barangay for at least six months, who are at least 15 years of age and citizens of the Philippines.
The holding of barangay plebiscites and referendum is also provided in Sections 100 and 101 of the
same Code.

Mr. Speaker, for brevity I will not read the pertinent quotations but will just submit the same to the
Secretary to be incorporated as part of my speech.

To continue, Mr. Speaker these same principles are extensively applied by the Local Government
Code as it is now mandated by the 1987 Constitution.

In other jurisdictions, Mr. Speaker, we have ample examples of initiative and referendum similar to
what is now contained in House Bill No. 21505. As in the 1987 Constitutions and House Bill No.
21505, the various constitutions of the states in the United States recognize the right of registered
voters to initiate the enactment of any statute or to reject any existing law or parts thereof in a
referendum. These states are Alaska, Alabama, Montana, Massachusetts, Dakota, Oklahoma,
Oregon, and practically all other states.

In certain American states, the kind of laws to which initiative and referendum applies is also without
ay limitation, except for emergency measures, which is likewise incorporated in Section 7(b) of
House Bill No. 21505.

The procedure provided by the House bill – from the filing of the petition, the requirement of a certain
percentage of supporters to present a proposition to submission to electors – is substantially similar
to those of many American laws. Mr. Speaker, those among us who may have been in the United
States, particularly in California, during election time or last November during the election would
have noticed different propositions posted in the city walls. They were propositions submitted by the
people for incorporation during the voting. These were in the nature of initiative, Mr. Speaker.

Although an infant then in Philippine political structure, initiative and referendum is a tried and tested
system in other jurisdictions, and House Bill No. 21505 through the various consolidated bills is
patterned after American experience in a great respect.

What does the bill essentially say, Mr. Speaker? Allow me to try to bring our colleagues slowly
through the bill. The bill has basically only 12 sections. The constitutional Commissioners, Mr.
Speaker, saw this system of initiative and referendum as an instrument which can be used should
the legislature show itself indifferent to the needs of the people. That is why, Mr. Speaker, it may be
timely, since we seem to be amply criticized, as regards our responsiveness, to pass this bill on
referendum and initiative now. While indifference would not be an appropriate term to use at this
time, and surely it is not the case although we are so criticized, one must note that it is a felt
necessity of our times that laws need to be proposed and adopted at the soonest possible time to
spur economic development, safeguard individual rights and liberties, and share governmental
power with the people.

With the legislative powers of the President gone, we alone, together with the Senators when they
are minded to agree with us, are left with the burden of enacting the needed legislation.

Let me now bring our colleagues, Mr. Speaker, to the process advocated by the bill.

First, initiative and referendum, Mr. Speaker, is defined. Initiative essentially is what the term
connotes. It means that the people, on their own political judgment, submit fore the consideration
and voting of the general electorate a bill or a piece of legislation.

Under House Bill No. 21505, there are three kinds of initiative. One is an initiative to amend the
Constitution. This can occur once every five years. Another is an initiative to amend statutes that we
may have approved. Had this bill been an existing law, Mr. Speaker, it is most likely that an
overwhelming majority of the barangays in the Philippines would have approved by initiative the
matter of direct voting.

The third mode of initiative, Mr. Speaker, refers to a petition proposing to enact regional, provincial,
city, municipal or barangay laws or ordinances. It comes from the people and it must be submitted
directly to the electorate. The bill gives a definite procedure and allows the COMELEC to define
rules and regulations to give teeth to the power of initiative.

On the other hand, referendum, Mr. Speaker, is the power of the people to approve or reject
something that Congress has already approved.

For instance, Mr. Speaker, when we divide the municipalities or the barangays into two or three, we
must first get the consent of the people affected through plebiscite or referendum.

Referendum is a mode of plebiscite, Mr. Speaker. However, referendum can also be petitioned by
the people if, for instance, they do not life the bill on direct elections and it is approved subsequently
by the Senate. If this bill had already become a law, then the people could petition that a referendum
be conducted so that the acts of Congress can be appropriately approved or rebuffed.

The initial stage, Mr. Speaker, is what we call the petition. As envisioned in the bill, the initiative
comes from the people, from registered voters of the country, by presenting a proposition so that the
people can then submit a petition, which is a piece of paper that contains the proposition. The
proposition in the example I have been citing is whether there should be direct elections during the
barangay elections. So the petition must be filed in the appropriate agency and the proposition must
be clear stated. It can be tedious but that is how an effort to have direct democracy operates.

Section 4 of the bill gives requirements, Mr. Speaker. It will not be all that easy to have referendum
or initiative petitioned by the people. Under Section 4 of the committee report, we are given certain
limitations. For instance, to exercise the power of initiative or referendum, at least 10 percent of the
total number of registered voters, of which every legislative district is represented by at least 3
percent of the registered voters thereof, shall sign a petition. These numbers, Mr. Speaker, are not
taken from the air. They are mandated by the Constitution. There must be a requirement of 10
percent for ordinary laws and 3 percent representing all districts. The same requirement is mutatis
mutandis or appropriately modified and applied to the different sections. So if it is, for instance, a
petition on initiative or referendum for a barangay, there is a 10 percent or a certain number required
of the voters of the barangay. If it is for a district, there is also a certain number required of all towns
of the district that must seek the petition. If it is for a province then again a certain percentage of the
provincial electors is required. All these are based with reference to the constitutional mandate.

The conduct of the initiative and referendum shall be supervised and shall be upon the call of the
Commission on Elections. However, within a period of 30 days from receipt of the petition, the
COMELEC shall determine the sufficiency of the petition, publish the same and set the date of the
referendum which shall not be earlier than 45 days but not later than 90 days from the determination
by the commission of the sufficiency of the petition. Why is this so, Mr. Speaker? The petition must
first be determined by the commission as to its sufficiency because our Constitution requires that no
bill can be approved unless it contains one subject matter. It is conceivable that in the fervor of an
initiative or referendum, Mr. Speaker, there may be more than two topics sought to be approved and
that cannot be allowed. In fact, that is one of the prohibitions under this referendum and initiative bill.
When a matter under initiative or referendum is approved by the required number of votes, Mr.
Speaker, it shall become effective 15 days following the completion of its publication in the Official
Gazette. Effectively then, Mr. Speaker, all the bill seeks to do is to enlarge and recognize the
legislative powers of the Filipino people.

Mr. Speaker, I think this Congress, particularly this House, cannot ignore or cannot be insensitive to
the call for initiative and referendum. We should have done it in 1987 but that is past. Maybe we
should have done it in 1988 but that too had already passed, but it is only February 1989, Mr.
Speaker, and we have enough time this year at least to respond to the need of our people to
participate directly in the work of legislation.

For these reasons, Mr. Speaker, we urge and implore our colleagues to approve House Bill No.
21505 as incorporated in Committee Report No. 423 of the Committee on Suffrage and Electoral
Reforms.

In closing, Mr. Speaker, I also request that the prepared text of my speech, together with the
footnotes since they contain many references to statutory history and foreign jurisdiction, be
reproduced as part of the Record for future purposes.

Equally unequivocal on the intent of R.A. 6735 is the sponsorship speech of former
Representative Salvador Escudero III, viz:42

SPONSORSHIP REMARKS OF REP. ESCUDERO

MR. ESCUDERO. Thank you, Mr. Speaker.

Mr. Speaker and my dear colleagues: Events in recent years highlighted the need to heed the
clamor of the people for a truly popular democracy. One recalls the impatience of those who actively
participated in the parliament of the streets, some of whom are now distinguished Members of this
Chamber. A substantial segment of the population feel increasingly that under the system, the
people have the form but not the reality or substance of democracy because of the increasingly
elitist approach of their chosen Representatives to many questions vitally affecting their lives. There
have been complaints, not altogether unfounded, that many candidates easily forge their campaign
promises to the people once elected to office. The 1986 Constitutional Commission deemed it wise
and proper to provide for a means whereby the people can exercise the reserve power to legislate or
propose amendments to the Constitution directly in case their chose Representatives fail to live up to
their expectations. That reserve power known as initiative is explicitly recognized in three articles
and four sections of the 1987 Constitution, namely: Article VI Section 1; the same article, Section
312; Article X, Section 3; and Article XVII, Section 2. May I request that he explicit provisions of
these three articles and four sections be made part of my sponsorship speech, Mr. Speaker.
These constitutional provisions are, however, not self-executory. There is a need for an
implementing law that will give meaning and substance to the process of initiative and referendum
which are considered valuable adjuncts to representative democracy. It is needless to state that this
bill when enacted into law will probably open the door to strong competition of the people, like
pressure groups, vested interests, farmers' group, labor groups, urban dwellers, the urban poor and
the like, with Congress in the field of legislation.

Such probability, however, pales in significance when we consider that through this bill we can
hasten the politization of the Filipino which in turn will aid government in forming an enlightened
public opinion, and hopefully produce better and more responsive and acceptable legislations.

Furthermore, Mr. Speaker, this would give the parliamentarians of the streets and cause-oriented
groups an opportunity to articulate their ideas in a truly democratic forum, thus, the competition
which they will offer to Congress will hopefully be a healthy one. Anyway, in an atmosphere of
competition there are common interests dear to all Filipinos, and the pursuit of each side's
competitive goals can still take place in an atmosphere of reason and moderation.

Mr. Speaker and my dear colleagues, when the distinguished Gentleman from Camarines Sur and
this Representation filed our respective versions of the bill in 1987, we were hoping that the bill
would be approved early enough so that our people could immediately use the agrarian reform bill
as an initial subject matter or as a take-off point.

However, in view of the very heavy agenda of the Committee on Local Government, it took
sometime before the committee could act on these. But as they say in Tagalog, huli man daw at
magaling ay naihahabol din. The passage of this bill therefore, my dear colleagues, could be one of
our finest hours when we can set aside our personal and political consideration for the greater good
of our people. I therefore respectfully urge and plead that this bill be immediately approved.

Thank you, Mr. Speaker.

We cannot dodge the duty to give effect to this intent for the "[c]ourts have the duty to interpret
the law as legislated and when possible, to honor the clear meaning of statutes as revealed by its
language, purpose and history." 43

The tragedy is that while conceding this intent, the six (6) justices, nevertheless, ruled that "x x x
R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as
initiative on amendments to the Constitution is concerned" for the following reasons: (1) Section 2 of
the Act does not suggest an initiative on amendments to the Constitution; (2) the Act does not
provide for the contents of the petition for initiative on the Constitution; and (3) while the Act
provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and
Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution.

To say the least, these alleged omissions are too weak a reason to throttle the right of the
sovereign people to amend the Constitution through initiative. R.A. 6735 clearly expressed
the legislative policy for the people to propose amendments to the Constitution by direct action.
The fact that the legislature may have omitted certain details in implementing the people's initiative
in R.A. 6735, does not justify the conclusion that, ergo, the law is insufficient. What were omitted
were mere details and not fundamental policies which Congress alone can and has
determined. Implementing details of a law can be delegated to the COMELEC and can be the
subject of its rule-making power. Under Section 2(1), Article IX-C of the Constitution, the COMELEC
has the power to enforce and administer all laws and regulations relative to the conduct of initiatives.
Its rule-making power has long been recognized by this Court. In ruling R.A. 6735 insufficient but
without striking it down as unconstitutional, the six (6) justices failed to give due recognition to the
indefeasible right of the sovereign people to amend the Constitution.

IV

The proposed constitutional changes, albeit substantial, are mere amendments and can be
undertaken through people's initiative.

Oppositors-intervenors contend that Sections 1 and 2, Article XVII of the 1987 Constitution, only
allow the use of people's initiative to amend and not to revise the Constitution. They theorize that the
changes proposed by petitioners are substantial and thus constitute a revision which cannot be
done through people's initiative.

In support of the thesis that the Constitution bars the people from proposing substantial
amendments amounting to revision, the oppositors-intervenors cite the following deliberations
during the Constitutional Commission, viz:44

MR. SUAREZ: x x x x This proposal was suggested on the theory that this matter of initiative, which
came about because of the extraordinary developments this year, has to be separated from the
traditional modes of amending the Constitution as embodied in Section 1. The Committee members
felt that this system of initiative should not extend to the revision of the entire Constitution, so we
removed it from the operation of Section 1 of the proposed Article on Amendment or Revision.

xxxxxxxxxxxx

MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a
separate section in the Article on Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of
setting it up as another separate section as if it were a self-executing provision?

MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of
initiative is limited to the matter of amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the
Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes
(a) and (b) in Section 1 to include the process of revision; whereas the process of initiation to
amend, which is given to the public, would only apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned in the Committee.

Commissioner (later Chief Justice) Hilario G. Davide, Jr., espoused the same view:45

MR. DAVIDE. x x x x We are limiting the right of the people, by initiative, to submit a proposal for
amendment only, not for revision, only once every five years x x x x

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers
to "amendment." Does it cover the word "revision" as defined by Commissioner Padilla when he
made the distinction between the words "amendments" and "revision?"
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section
1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision."

Commissioner (now a distinguished Associate Justice of this Court) Adolfo S. Azcuna also clarified
this point46 -

MR. OPLE. To more closely reflect the intent of Section 2, may I suggest that we add to
"Amendments" "OR REVISIONS OF" to read: "Amendments OR REVISION OF this Constitution."

MR. AZCUNA. I think it was not allowed to revise the Constitution by initiative.

MR. OPLE. How is that again?

MR. AZCUNA. It was not our intention to allow a revision of the Constitution by initiative but merely
by amendments.

MR. BENGZON. Only by amendments.

MR. AZCUNA. I remember that was taken on the floor.

MR. RODRIGO. Yes, just amendments.

The oppositors-intervenors then point out that by their proposals, petitioners will "change the very
system of government from presidential to parliamentary, and the form of the legislature from
bicameral to unicameral," among others. They allegedly seek other major revisions like the inclusion
of a minimum number of inhabitants per district, a change in the period for a term of a Member of
Parliament, the removal of the limits on the number of terms, the election of a Prime Minister who
shall exercise the executive power, and so on and so forth. 47 In sum, oppositors-intervenors submit
that "the proposed changes to the Constitution effect major changes in the political structure and
system, the fundamental powers and duties of the branches of the government, the political rights of
the people, and the modes by which political rights may be exercised."48 They conclude that they are
substantial amendments which cannot be done through people's initiative. In other words, they posit
the thesis that only simple but not substantial amendments can be done through people's
initiative.

With due respect, I disagree. To start with, the words "simple" and "substantial" are not subject to
any accurate quantitative or qualitative test. Obviously, relying on the quantitative test, oppositors-
intervenors assert that the amendments will result in some one hundred (100) changes in the
Constitution. Using the same test, however, it is also arguable that petitioners seek to change
basically only two (2) out of the eighteen (18) articles of the 1987 Constitution, i.e. Article VI
(Legislative Department) and Article VII (Executive Department), together with the complementary
provisions for a smooth transition from a presidential bicameral system to a parliamentary
unicameral structure. The big bulk of the 1987 Constitution will not be affected including Articles
I (National Territory), II (Declaration of Principles and State Policies), III (Bill of Rights), IV
(Citizenship), V (Suffrage), VIII (Judicial Department), IX (Constitutional Commissions), X (Local
Government), XI (Accountability of Public Officers), XII (National Economy and Patrimony), XIII
(Social Justice and Human Rights), XIV (Education, Science and Technology, Arts, Culture, and
Sports), XV (The Family), XVI (General Provisions), and even XVII (Amendments or Revisions). In
fine, we stand on unsafe ground if we use simple arithmetic to determine whether the
proposed changes are "simple" or "substantial."
Nor can this Court be surefooted if it applies the qualitative test to determine whether the said
changes are "simple" or "substantial" as to amount to a revision of the Constitution. The well-
regarded political scientist, Garner, says that a good constitution should contain at least three (3)
sets of provisions: the constitution of liberty which sets forth the fundamental rights of the people
and imposes certain limitations on the powers of the government as a means of securing the
enjoyment of these rights; the constitution of government which deals with the framework of
government and its powers, laying down certain rules for its administration and defining the
electorate; and, the constitution of sovereignty which prescribes the mode or procedure for
amending or revising the constitution.49 It is plain that the proposed changes will basically affect
only the constitution of government. The constitutions of liberty and sovereignty remain
unaffected. Indeed, the proposed changes will not change the fundamental nature of our state
as "x x x a democratic and republican state."50 It is self-evident that a unicameral-parliamentary
form of government will not make our State any less democratic or any less republican in character.
Hence, neither will the use of the qualitative test resolve the issue of whether the proposed
changes are "simple" or "substantial."

For this reason and more, our Constitutions did not adopt any quantitative or qualitative test to
determine whether an "amendment" is "simple" or "substantial." Nor did they provide that
"substantial" amendments are beyond the power of the people to propose to change the
Constitution. Instead, our Constitutions carried the traditional distinction between
"amendment" and "revision," i.e., "amendment" means change, including complex changes while
"revision" means complete change, including the adoption of an entirely new covenant. The legal
dictionaries express this traditional difference between "amendment" and "revision." Black's Law
Dictionary defines "amendment" as "[a] formal revision or addition proposed or made to a statute,
constitution, pleading, order, or other instrument; specifically, a change made by addition, deletion,
or correction."51 Black's also refers to "amendment" as "the process of making such a
revision."52 Revision, on the other hand, is defined as "[a] reexamination or careful review for
correction or improvement."53 In parliamentary law, it is described as "[a] general and thorough
rewriting of a governing document, in which the entire document is open to
amendment."54 Similarly, Ballentine's Law Dictionary defines "amendment" – as "[a] correction or
revision of a writing to correct errors or better to state its intended purpose" 55 and "amendment of
constitution" as "[a] process of proposing, passing, and ratifying amendments to the x x x
constitution."56 In contrast, "revision," when applied to a statute (or constitution), "contemplates the
re-examination of the same subject matter contained in the statute (or constitution), and the
substitution of a new, and what is believed to be, a still more perfect rule."57

One of the most authoritative constitutionalists of his time to whom we owe a lot of intellectual
debt, Dean Vicente G. Sinco, of the University of the Philippines College of Law, (later President of
the U.P. and delegate to the Constitutional Convention of 1971) similarly spelled out the difference
between "amendment" and "revision." He opined: "the revision of a constitution, in its strict sense,
refers to a consideration of the entire constitution and the procedure for effecting such change;
while amendment refers only to particular provisions to be added to or to be altered in a
constitution."58

Our people were guided by this traditional distinction when they effected changes in our 1935
and 1973 Constitutions. In 1940, the changes to the 1935 Constitution which included the
conversion from a unicameral system to a bicameral structure, the shortening of the tenure of
the President and Vice-President from a six-year term without reelection to a four-year term with one
reelection, and the establishment of the COMELEC, together with the complementary constitutional
provisions to effect the changes, were considered amendments only, not a revision.

The replacement of the 1935 Constitution by the 1973 Constitution was, however, considered a
revision since the 1973 Constitution was "a completely new fundamental charter embodying new
political, social and economic concepts." 59 Among those adopted under the 1973 Constitution were:
the parliamentary system in place of the presidential system, with the leadership in legislation and
administration vested with the Prime Minister and his Cabinet; the reversion to a single-chambered
lawmaking body instead of the two-chambered, which would be more suitable to a parliamentary
system of government; the enfranchisement of the youth beginning eighteen (18) years of age
instead of twenty-one (21), and the abolition of literacy, property, and other substantial requirements
to widen the basis for the electorate and expand democracy; the strengthening of the judiciary, the
civil service system, and the Commission on Elections; the complete nationalization of the ownership
and management of mass media; the giving of control to Philippine citizens of all
telecommunications; the prohibition against alien individuals to own educational institutions, and the
strengthening of the government as a whole to improve the conditions of the masses.60

The 1973 Constitution in turn underwent a series of significant changes in 1976, 1980, 1981, and
1984. The two significant innovations introduced in 1976 were (1) the creation of
an interim Batasang Pambansa, in place of the interim National Assembly, and (2) Amendment No.
6 which conferred on the President the power to issue decrees, orders, or letters of instruction,
whenever the Batasang Pambansa fails to act adequately on any matter for any reason that in his
judgment requires immediate action, or there is grave emergency or threat or imminence thereof,
with such decrees, or letters of instruction to form part of the law of the land. In 1980, the retirement
age of seventy (70) for justices and judges was restored. In 1981, the presidential system with
parliamentary features was installed. The transfer of private land for use as residence to natural-born
citizens who had lost their citizenship was also allowed. Then, in 1984, the membership of the
Batasang Pambansa was reapportioned by provinces, cities, or districts in Metro Manila instead of
by regions; the Office of the Vice-President was created while the executive committee was
abolished; and, urban land reform and social housing programs were strengthened.61 These
substantial changes were simply considered as mere amendments.

In 1986, Mrs. Corazon C. Aquino assumed the presidency, and repudiated the 1973 Constitution.
She governed under Proclamation No. 3, known as the Freedom Constitution.

In February 1987, the new constitution was ratified by the people in a plebiscite and superseded
the Provisional or Freedom Constitution. Retired Justice Isagani Cruz underscored the outstanding
features of the 1987 Constitution which consists of eighteen articles and is excessively long
compared to the Constitutions of 1935 and 1973, on which it was largely based. Many of the original
provisions of the 1935 Constitution, particularly those pertaining to the legislative and executive
departments, have been restored because of the revival of the bicameral Congress of the
Philippines and the strictly presidential system. The independence of the judiciary has been
strengthened, with new provisions for appointment thereto and an increase in its authority, which
now covers even political questions formerly beyond its jurisdiction. While many provisions of the
1973 Constitution were retained, like those on the Constitutional Commissions and local
governments, still the new 1987 Constitution was deemed as a revision of the 1973 Constitution.

It is now contended that this traditional distinction between amendment and revision was
abrogated by the 1987 Constitution. It is urged that Section 1 of Article XVII gives the power to
amend or revise to Congress acting as a constituent assembly, and to a Constitutional Convention
duly called by Congress for the purpose. Section 2 of the same Article, it is said, limited the people's
right to change the Constitution via initiative through simple amendments. In other words,
the people cannot propose substantial amendments amounting to revision.

With due respect, I do not agree. As aforestated, the oppositors-intervenors who peddle the above
proposition rely on the opinions of some Commissioners expressed in the course of the debate on
how to frame the amendment/revision provisions of the 1987 Constitution. It is familiar learning,
however, that opinions in a constitutional convention, especially if inconclusive of an issue, are
of very limited value as explaining doubtful phrases, and are an unsafe guide (to the intent of the
people) since the constitution derives its force as a fundamental law, not from the action of the
convention but from the powers (of the people) who have ratified and adopted it.62 "Debates in the
constitutional convention 'are of value as showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law.'"63 Indeed, a careful perusal of the debates of
the Constitutional Commissioners can likewise lead to the conclusion that there was no
abandonment of the traditional distinction between "amendment" and "revision." For during
the debates, some of the commissioners referred to the concurring opinion of former Justice Felix Q.
Antonio in Javellana v. The Executive Secretary,64 that stressed the traditional distinction
between amendment and revision, thus:65

MR. SUAREZ: We mentioned the possible use of only one term and that is, "amendment." However,
the Committee finally agreed to use the terms – "amendment" or "revision" when our attention was
called by the honorable Vice-President to the substantial difference in the connotation and
significance between the said terms. As a result of our research, we came up with the observations
made in the famous – or notorious – Javellana doctrine, particularly the decision rendered by
Honorable Justice Makasiar,66 wherein he made the following distinction between "amendment" and
"revision" of an existing Constitution: "Revision" may involve a rewriting of the whole Constitution. On
the other hand, the act of amending a constitution envisages a change of specific provisions only.
The intention of an act to amend is not the change of the entire Constitution, but only the
improvement of specific parts or the addition of provisions deemed essential as a consequence of
new conditions or the elimination of parts already considered obsolete or unresponsive to the needs
of the times.

The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new
fundamental Charter embodying new political, social and economic concepts.

So, the Committee finally came up with the proposal that these two terms should be employed in the
formulation of the Article governing amendments or revisions to the new Constitution.

To further explain "revision," former Justice Antonio, in his concurring opinion, used an analogy –
"When a house is completely demolished and another is erected on the same location, do you have
a changed, repaired and altered house, or do you have a new house? Some of the material
contained in the old house may be used again, some of the rooms may be constructed the same,
but this does not alter the fact that you have altogether another or a new house." 67

Hence, it is arguable that when the framers of the 1987 Constitution used the word "revision," they
had in mind the "rewriting of the whole Constitution," or the "total overhaul of the
Constitution." Anything less is an "amendment" or just "a change of specific provisions only," the
intention being "not the change of the entire Constitution, but only the improvement of specific parts
or the addition of provisions deemed essential as a consequence of new conditions or the
elimination of parts already considered obsolete or unresponsive to the needs of the times." Under
this view, "substantial" amendments are still "amendments" and thus can be proposed by the
people via an initiative.

As we cannot be guided with certainty by the inconclusive opinions of the Commissioners on

the difference between "simple" and "substantial" amendments or whether "substantial"
amendments amounting to revision are covered by people's initiative, it behooves us to follow
the cardinal rule in interpreting Constitutions, i.e., construe them to give effect to the intention of
the people who adopted it. The illustrious Cooley explains its rationale well, viz:68

x x x the constitution does not derive its force from the convention which framed, but from the people
who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they
have looked for any dark or abstruse meaning in the words employed, but rather that they have
accepted them in the sense most obvious to the common understanding, and ratified the instrument
in the belief that that was the sense designed to be conveyed. These proceedings therefore are less
conclusive of the proper construction of the instrument than are legislative proceedings of the proper
construction of a statute; since in the latter case it is the intent of the legislature we seek, while in the
former we are endeavoring to arrive at the intent of the people through the discussion and
deliberations of their representatives. The history of the calling of the convention, the causes which
led to it, and the discussions and issues before the people at the time of the election of the
delegates, will sometimes be quite as instructive and satisfactory as anything to be gathered form
the proceedings of the convention.

Corollarily, a constitution is not to be interpreted on narrow or technical principles, but liberally and
on broad general lines, to accomplish the object of its establishment and carry out the great
principles of government – not to defeat them.69 One of these great principles is the sovereignty
of the people.

Let us now determine the intent of the people when they adopted initiative as a mode to amend the
1987 Constitution. We start with the Declaration of Principles and State Policies which Sinco
describes as "the basic political creed of the nation"70 as it "lays down the policies that government is
bound to observe."71 Section 1, Article II of the 1935 Constitution and Section 1, Article II of the 1973
Constitution, similarly provide that "the Philippines is a republican state. Sovereignty resides in
the people and all government authority emanates from them." In a republican state, the power of
the sovereign people is exercised and delegated to their representatives. Thus in Metropolitan
Transportation Service v. Paredes, this Court held that "a republican state, like the Philippines x x x
(is) derived from the will of the people themselves in freely creating a government 'of the people, by
the people, and for the people' – a representative government through which they have agreed to
exercise the powers and discharge the duties of their sovereignty for the common good and general
welfare."72

In both the 1935 and 1973 Constitutions, the sovereign people delegated to Congress or to a
convention, the power to amend or revise our fundamental law. History informs us how this
delegated power to amend or revise the Constitution was abused particularly during the
Marcos regime. The Constitution was changed several times to satisfy the power requirements of
the regime. Indeed, Amendment No. 6 was passed giving unprecedented legislative powers to then
President Ferdinand E. Marcos. A conspiracy of circumstances from above and below, however,
brought down the Marcos regime through an extra constitutional revolution, albeit a peaceful one
by the people. A main reason for the people's revolution was the failure of the representatives
of the people to effectuate timely changes in the Constitution either by acting as a
constituent assembly or by calling a constitutional convention. When the representatives of the
people defaulted in using this last peaceful process of constitutional change, the sovereign
people themselves took matters in their own hands. They revolted and replaced the 1973
Constitution with the 1987 Constitution.

It is significant to note that the people modified the ideology of the 1987 Constitution as it
stressed the power of the people to act directly in their capacity as sovereign people.
Correspondingly, the power of the legislators to act as representatives of the people in the
matter of amending or revising the Constitution was diminished for the spring cannot rise
above its source. To reflect this significant shift, Section 1, Article II of the 1987 Constitution
was reworded. It now reads: "the Philippines is a democratic and republican state. Sovereignty
resides in the people and all government authority emanates from them." The commissioners of the
1986 Constitutional Commission explained the addition of the word "democratic," in our first
Declaration of Principles, viz:

MR. NOLLEDO. I am putting the word "democratic" because of the provisions that we are now
adopting which are covering consultations with the people. For example, we have provisions on
recall, initiative, the right of the people even to participate in lawmaking and other instances that
recognize the validity of interference by the people through people's organizations x x x x 73

MR. OPLE. x x x x The Committee added the word "democratic" to "republican," and, therefore, the
first sentence states: "The Philippines is a republican and democratic state x x x x

May I know from the committee the reason for adding the word "democratic" to "republican"? The
constitutional framers of the 1935 and 1973 Constitutions were content with "republican." Was this
done merely for the sake of emphasis?

MR. NOLLEDO. x x x x "democratic" was added because of the need to emphasize people
power and the many provisions in the Constitution that we have approved related to recall,
people's organizations, initiative and the like, which recognize the participation of the people
in policy-making in certain circumstances x x x x

MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does meet a need x
xxx

MR. NOLLEDO. According to Commissioner Rosario Braid, "democracy" here is understood as

participatory democracy. 74 (emphasis supplied)

The following exchange between Commissioners Rene V. Sarmiento and Adolfo S. Azcuna is of the
same import:75

MR. SARMIENTO. When we speak of republican democratic state, are we referring to

representative democracy?

MR. AZCUNA. That is right.

MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and 1935
Constitutions which used the words "republican state" because "republican state" would refer to a
democratic state where people choose their representatives?

MR. AZCUNA. We wanted to emphasize the participation of the people in government.

MR. SARMIENTO. But even in the concept "republican state," we are stressing the participation of
the people x x x x So the word "republican" will suffice to cover popular representation.

MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in view of the
introduction of the aspects of direct democracy such as initiative, referendum or recall, it was
necessary to emphasize the democratic portion of republicanism, of representative democracy as
well. So, we want to add the word "democratic" to emphasize that in this new Constitution
there are instances where the people would act directly, and not through their
representatives. (emphasis supplied)

Consistent with the stress on direct democracy, the systems of initiative, referendum, and recall
were enthroned as polestars in the 1987 Constitution. Thus, Commissioner Blas F. Ople who
introduced the provision on people's initiative said:76

MR. OPLE. x x x x I think this is just the correct time in history when we should introduce an
innovative mode of proposing amendments to the Constitution, vesting in the people and their
organizations the right to formulate and propose their own amendments and revisions of the
Constitution in a manner that will be binding upon the government. It is not that I believe this kind of
direct action by the people for amending a constitution will be needed frequently in the future, but it
is good to know that the ultimate reserves of sovereign power still rest upon the people and
that in the exercise of that power, they can propose amendments or revision to the
Constitution. (emphasis supplied)

Commissioner Jose E. Suarez also explained the people's initiative as a safety valve, as a
peaceful way for the people to change their Constitution, by citing our experiences under the Marcos
government, viz:77

MR. SUAREZ. We agree to the difficulty in implementing this particular provision, but we are
providing a channel for the expression of the sovereign will of the people through this initiative
system.

MR. BENGZON. Is Section 1, paragraphs (a) and (b), not sufficient channel for expression of the will
of the people, particularly in the amendment or revision of the Constitution?

MR. SUAREZ. Under normal circumstances, yes. But we know what happened during the 20
years under the Marcos administration. So, if the National Assembly, in a manner of
speaking, is operating under the thumb of the Prime Minister or the President as the case may be,
and the required number of votes could not be obtained, we would have to provide for a safety
valve in order that the people could ventilate in a very peaceful way their desire for amendment to
the Constitution.

It is very possible that although the people may be pressuring the National Assembly to
constitute itself as a constituent assembly or to call a constitutional convention, the
members thereof would not heed the people's desire and clamor. So this is a third avenue that
we are providing for the implementation of what is now popularly known as people's power.
(emphasis supplied)

Commissioner Regalado E. Maambong opined that the people's initiative could avert a
revolution, viz:78

MR. MAAMBONG. x x x x the amending process of the Constitution could actually avert a
revolution by providing a safety valve in bringing about changes in the Constitution through pacific
means. This, in effect, operationalizes what political law authors call the "prescription of sovereignty."
(emphasis supplied)

The end result is Section 2, Article XVII of the 1987 Constitution which expressed the right of the
sovereign people to propose amendments to the Constitution by direct action or through initiative. To
that extent, the delegated power of Congress to amend or revise the Constitution has to be
adjusted downward. Thus, Section 1, Article VI of the 1987 Constitution has to be reminted and
now provides: "The legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives, except to the extent reserved to the people
by the provision on initiative and referendum."

Prescinding from these baseline premises, the argument that the people through initiative
cannot propose substantial amendments to change the Constitution turns sovereignty on its
head. At the very least, the submission constricts the democratic space for the exercise of the
direct sovereignty of the people. It also denigrates the sovereign people who they claim can only be
trusted with the power to propose "simple" but not "substantial" amendments to the Constitution.
According to Sinco, the concept of sovereignty should be strictly understood in its legal meaning as it
was originally developed in law.79 Legal sovereignty, he explained, is "the possession of unlimited
power to make laws. Its possessor is the legal sovereign. It implies the absence of any other party
endowed with legally superior powers and privileges. It is not subject to law 'for it is the author
and source of law.' Legal sovereignty is thus the equivalent of legal omnipotence."80

To be sure, sovereignty or popular sovereignty, emphasizes the supremacy of the people's will over
the state which they themselves have created. The state is created by and subject to the will of the
people, who are the source of all political power. Rightly, we have ruled that "the sovereignty of our
people is not a kabalistic principle whose dimensions are buried in mysticism. Its metes and bounds
are familiar to the framers of our Constitutions. They knew that in its broadest sense, sovereignty is
meant to be supreme, the jus summi imperu, the absolute right to govern." 81

James Wilson, regarded by many as the most brilliant, scholarly, and visionary lawyer in the United
States in the 1780s, laid down the first principles of popular sovereignty during the Pennsylvania
ratifying convention of the 1787 Constitution of the United States:82

There necessarily exists, in every government, a power from which there is no appeal, and which,
for that reason, may be termed supreme, absolute, and uncontrollable.

x x x x Perhaps some politician, who has not considered with sufficient accuracy our political
systems, would answer that, in our governments, the supreme power was vested in the constitutions
x x x x This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in
our governments, the supreme, absolute, and uncontrollable power remains in the people. As
our constitutions are superior to our legislatures, so the people are superior to our constitutions.
Indeed the superiority, in this last instance, is much greater; for the people possess over our
constitution, control in act, as well as right. (emphasis supplied)

I wish to reiterate that in a democratic and republican state, only the people is sovereign - - -
not the elected President, not the elected Congress, not this unelected Court. Indeed, the
sovereignty of the people which is indivisible cannot be reposed in any organ of government. Only
its exercise may be delegated to any of them. In our case, the people delegated to Congress
the exercise of the sovereign power to amend or revise the Constitution. If Congress, as
delegate, can exercise this power to amend or revise the Constitution, can it be argued that the
sovereign people who delegated the power has no power to substantially amend the Constitution by
direct action? If the sovereign people do not have this power to make substantial amendments to the
Constitution, what did it delegate to Congress? How can the people lack this fraction of a power to
substantially amend the Constitution when by their sovereignty, all power emanates from them? It
will take some mumbo jumbo to argue that the whole is lesser than its part. Let Sinco clinch the
point:83

But although possession may not be delegated, the exercise of sovereignty often is. It is delegated
to the organs and agents of the state which constitute its government, for it is only through this
instrumentality that the state ordinarily functions. However ample and complete this delegation
may be, it is nevertheless subject to withdrawal at any time by the state. On this point
Willoughby says:

Thus, States may concede to colonies almost complete autonomy of government and reserve to
themselves a right to control of so slight and so negative a character as to make its exercise a rare
and improbable occurrence; yet so long as such right of control is recognized to exist, and the
autonomy of the colonies is conceded to be founded upon a grant and continuing consent of the
mother countries the sovereignty of those mother countries over them is complete and they are to be
considered as possessing only administrative autonomy and not political independence.

At the very least, the power to propose substantial amendments to the Constitution is shared
with the people. We should accord the most benign treatment to the sovereign power of the
people to propose substantial amendments to the Constitution especially when the proposed
amendments will adversely affect the interest of some members of Congress. A contrary
approach will suborn the public weal to private interest and worse, will enable Congress (the
delegate) to frustrate the power of the people to determine their destiny (the principal).

All told, the teaching of the ages is that constitutional clauses acknowledging the right of the people
to exercise initiative and referendum are liberally and generously construed in favor of the
people.84 Initiative and referendum powers must be broadly construed to maintain maximum power
in the people.85 We followed this orientation in Subic Bay Metropolitan Authority v. Commission on
Elections.86 There is not an iota of reason to depart from it.

The issues at bar are not political questions.

Petitioners submit that "[t]he validity of the exercise of the right of the sovereign people to amend the
Constitution and their will, as expressed by the fact that over six million registered voters indicated
their support of the Petition for Initiative, is a purely political question which is beyond even the
very long arm of this Honorable Court's power of judicial review. Whether or not the 1987
Constitution should be amended is a matter which the people and the people alone must resolve in
their sovereign capacity."87 They argue that "[t]he power to propose amendments to the Constitution
is a right explicitly bestowed upon the sovereign people. Hence, the determination by the people to
exercise their right to propose amendments under the system of initiative is a sovereign act and falls
squarely within the ambit of a 'political question.'"88

The petitioners cannot be sustained. This issue has long been interred by Sanidad v. Commission
on Elections, viz:89

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

In the instant case, the Constitution sets in black and white the requirements for the exercise of the
people's initiative to amend the Constitution. The amendments must be proposed by the people
"upon a petition of at least twelve per centum of the total number of registered voters, of which every
legislative district must be represented by at least three per centum of the registered voters therein.
No amendment under this section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter."90 Compliance with these
requirements is clearly a justiciable and not a political question. Be that as it may, how the issue will
be resolved by the people is addressed to them and to them alone.

VI

Whether the Petition for Initiative filed before the COMELEC complied with Section 2, Article
XVII of the Constitution and R.A. 6735 involves contentious issues of fact which should first
be resolved by the COMELEC.

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

Oppositor-intervenor ONEVOICE, Inc., submitted to this Court a certification dated August 23, 2006
issued by Atty. Marlon S. Casquejo, Election Officer IV, Third District and OIC, First and Second
District, Davao City, stating that his office has not verified the signatures submitted by the
proponents of the people's initiative. The certification reads:

This is to CERTIFY that this office (First, Second and Third District, Davao City) HAS NOT
VERIFIED the signatures of registered voters as per documents submitted in this office by the
proponents of the People's Initiative. Consequently, NO ELECTION DOCUMENTS AND/OR
ORDER ISSUED BY HIGHER SUPERIORS used as basis for such verification of signatures.91

Senate Minority Leader Aquilino Pimentel, Jr., among others, further clarified that although Atty.
Casquejo and Reynne Joy B. Bullecer, Acting Election Officer IV, First District, Davao City, later
issued certifications stating that the Office of the City Election Officer has examined the list of
individuals appearing in the signature sheets,92 the certifications reveal that the office had verified
only the names of the signatories, but not their signatures. Oppositors-intervenors submit that not
only the names of the signatories should be verified, but also their signatures to ensure the identities
of the persons affixing their signatures on the signature sheets.

Oppositor-intervenor Luwalhati Antonino also alleged that petitioners failed to obtain the signatures
of at least three per cent (3%) of the total number of registered voters in the First Legislative District
of South Cotabato. For the First District of South Cotabato, petitioners submitted 3,182 signatures
for General Santos City, 2,186 signatures for Tupi, 3,308 signatures for Tampakan and 10,301
signatures for Polomolok, or 18,977 signatures out of 359,488 registered voters of said district.
Antonino, however, submitted to this Court a copy of the certification by Glory D. Rubio, Election
Officer III, Polomolok, dated May 8, 2006, showing that the signatures from Polomolok were not
verified because the Book of Voters for the whole municipality was in the custody of the Clerk of
Court of the Regional Trial Court, Branch 38, Polomolok, South Cotabato.93 Excluding the signatures
from Polomolok from the total number of signatures from the First District of South Cotabato would
yield only a total of 8,676 signatures which falls short of the three per cent (3%) requirement for the
district.

Former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino likewise submitted to this
Court a certification issued by Atty. Stalin A. Baguio, City Election Officer IV, Cagayan de Oro City,
stating that the list of names appearing on the signature sheets corresponds to the names of
registered voters in the city, thereby implying that they have not actually verified the signatures. 94

The argument against the sufficiency of the signatures is further bolstered by Alternative Law
Groups, Inc., which submitted copies of similarly worded certifications from the election officers from
Zamboanga del Sur95 and from Compostela Valley.96 Alternative Law Groups, Inc., further assails the
regularity of the verification process as it alleged that verification in some areas were conducted by
Barangay officials and not by COMELEC election officers. It filed with this Court copies of
certifications from Sulu and Sultan Kudarat showing that the verification was conducted by local
officials instead of COMELEC personnel.97

Petitioners, on the other hand, maintain that the verification conducted by the election officers
sufficiently complied with the requirements of the Constitution and the law on initiative.

Contravening the allegations of oppositors-intervenors on the lack of verification in Davao City and in
Polomolok, South Cotabato, petitioner Aumentado claimed that the same election officers cited by
the oppositors-intervenors also issued certifications showing that they have verified the signatures
submitted by the proponents of the people's initiative. He presented copies of the certifications
issued by Atty. Marlon S. Casquejo for the Second and Third Legislative Districts of Davao City
stating that he verified the signatures of the proponents of the people's initiative. His certification for
the Second District states:

This is to CERTIFY that this Office has examined the list of individuals as appearing in the Signature
Sheets of the Registered Voters of District II, Davao City, submitted on April 7, 2006 by MR.
NONATO BOLOS, Punong Barangay, Centro, Davao City for verification which consists of THIRTY
THOUSAND SIX HUNDRED SIXTY-TWO (30,662) signatures.

Anent thereto, it appears that of the THIRTY THOUSAND SIX HUNDRED SIXTY-TWO (30,662)
individuals, only TWENTY-TWO THOUSAND SIX HUNDRED SIXTY-EIGHT (22,668) individuals
were found to be REGISTERED VOTERS, in the Computerized List of Voters of SECOND
CONGRESSIONAL DISTRICT, DAVAO CITY.98

It was also shown that Atty. Casquejo had issued a clarificatory certification regarding the verification
process conducted in Davao City. It reads:
Regarding the verification of the signatures of registered voters, this Office has previously issued two
(2) separate certifications for the 2nd and 3rd Districts of Davao City on April 20, 2006 and April 26,
2006, respectively, specifically relating to the voters who supported the people's initiative. It was
stated therein that the names submitted, comprising 22,668 individual voters in the 2 nd District and
18,469 individual voters in the 3 rd District, were found [to] be registered voters of the respective
districts mentioned as verified by this Office based on the Computerized List of Voters.

It must be clarified that the August 23, 2006 Certification was issued in error and by mistake for the
reason that the signature verification has not been fully completed as of that date.

I hereby CERTIFY that this Office has examined the signatures of the voters as appearing in the
signature sheets and has compared these with the signatures appearing in the book of voters and
computerized list of voters x x x 99

Petitioner Aumentado also submitted a copy of the certification dated May 8, 2006 issued by
Polomolok Election Officer Glory D. Rubio to support their claim that said officer had conducted a
verification of signatures in said area. The certification states:

This is to certify further, that the total 68,359 registered voters of this municipality, as of the May 10,
2004 elections, 10,804 names with signatures were submitted for verification and out of which
10,301 were found to be legitimate voters as per official list of registered voters, which is equivalent
to 15.07% of the total number of registered voters of this Municipality.100

In addition to the lack of proper verification of the signatures in numerous legislative districts,
allegations of fraud and irregularities in the collection of signatures in Makati City were cited by
Senator Pimentel, among others, to wit:

(1) No notice was given to the public, for the benefit of those who may be concerned, by the Makati
COMELEC Office that signature sheets have already been submitted to it for "verification." The
camp of Mayor Binay was able to witness the "verification process" only because of their pro-active
stance;

(2) In District 1, the proponents of charter change submitted 43,405 signatures for verification.
36,219 alleged voters' signatures (83% of the number of signatures submitted) were rejected
outright. 7,186 signatures allegedly "passed" COMELEC's initial scrutiny. However, upon
examination of the signature sheets by Atty. Mar-len Abigail Binay, the said 7,186 signatures could
not be accounted for. Atty. Binay manually counted 2,793 signatures marked with the word "OK" and
3,443 signatures marked with a check, giving only 6,236 "apparently verified signatures." Before the
COMELEC officer issued the Certification, Atty. Binay already submitted to the said office not less
than 55 letters of "signature withdrawal," but no action was ever taken thereon;

(3) In District 2, 29,411 signatures were submitted for verification. 23,521 alleged voters' signatures
(80% of those submitted) were rejected outright. Of the 5,890 signatures which allegedly passed the
COMELEC's initial scrutiny, some more will surely fail upon closer examination;

(4) In the absence of clear, transparent, and uniform rules the COMELEC personnel did not know
how to treat the objections and other observations coming from the camp of Mayor Binay. The
oppositors too did not know where to go for their remedy when the COMELEC personnel merely
"listened" to their objections and other observations. As mentioned earlier, the COMELEC personnel
did not even know what to do with the many "letters of signature withdrawal" submitted to it;
(5) Signatures of people long dead, in prison, abroad, and other forgeries appear on the Sigaw ng
Bayan Signature Sheets. There is even a 15-year old alleged signatory;

(6) There are Signature Sheets obviously signed by one person;

(7) A Calara M. Roberto and a Roberto M. Calara both allegedly signed the Signature Sheets. 101

Also, there are allegations that many of the signatories did not understand what they have signed as
they were merely misled into signing the signature sheets. Opposed to these allegations are rulings
that a person who affixes his signature on a document raises the presumption that the person so
signing has knowledge of what the document contains. Courts have recognized that there is great
value in the stability of records, so to speak, that no one should commit herself or himself to
something in writing unless she or he is fully aware and cognizant of the effect it may have upon her
on him.102 In the same vein, we have held that a person is presumed to have knowledge of the
contents of a document he has signed.103 But as this Court is not a trier of facts, it cannot resolve the
issue.

In sum, the issue of whether the petitioners have complied with the constitutional requirement that
the petition for initiative be signed by at least twelve per cent (12%) of the total number of registered
voters, of which every legislative district must be represented by at least three per cent (3%) of the
registered voters therein, involves contentious facts. Its resolution will require presentation of
evidence and their calibration by the COMELEC according to its rules. During the oral
argument on this case, the COMELEC, through Director Alioden Dalaig of its Law
Department, admitted that it has not examined the documents submitted by the petitioners in
support of the petition for initiative, as well as the documents filed by the oppositors to buttress their
claim that the required number of signatures has not been met. The exchanges during the oral
argument likewise clearly show the need for further clarification and presentation of evidence to
prove certain material facts.104

The only basis used by the COMELEC to dismiss the petition for initiative was this Court's ruling
in Santiago v. COMELEC that R.A. 6735 was insufficient. It has yet to rule on the sufficiency of
the form and substance of the petition. I respectfully submit that this issue should be properly
litigated before the COMELEC where both parties will be given full opportunity to prove their
allegations.

For the same reasons, the sufficiency of the Petition for Initiative and its compliance with the
requirements of R.A. 6735 on initiative and its implementing rules is a question that should be
resolved by the COMELEC at the first instance, as it is the body that is mandated by the Constitution
to administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall.105

VII

COMELEC gravely abused its discretion when it denied due course to the Lambino and
Aumentado petition.

In denying due course to the Lambino and Aumentado petition, COMELEC relied on this Court's
ruling in Santiago permanently enjoining it from entertaining or taking cognizance of any petition for
initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to
provide for the implementation of the system.
Again, I respectfully submit that COMELEC's reliance on Santiago constitutes grave abuse of
discretion amounting to lack of jurisdiction. The Santiago case did not establish the firm
doctrine that R.A. 6735 is not a sufficient law to implement the constitutional provision allowing
people's initiative to amend the Constitution. To recapitulate, the records show that in the original
decision, eight (8) justices106 voted that R.A. 6735 was not a sufficient law; five (5) justices107 voted
that said law was sufficient; and one (1) justice 108 abstained from voting on the issue holding that
unless and until a proper initiatory pleading is filed, the said issue is not ripe for adjudication. 109

Within the reglementary period, the respondents filed their motion for reconsideration. On June 10,
1997, the Court denied the motion. Only thirteen (13) justices resolved the motion for Justice Torres
inhibited himself.110 Of the original majority of eight (8) justices, only six (6) reiterated their
ruling that R.A. 6735 was an insufficient law. Justice Hermosisima, originally part of the majority
of eight (8) justices, changed his vote and joined the minority of five (5) justices. He opined without
any equivocation that R.A. 6735 was a sufficient law, thus:

It is one thing to utter a happy phrase from a protected cluster; another to think under fire – to think
for action upon which great interests depend." So said Justice Oliver Wendell Holmes, and so I am
guided as I reconsider my concurrence to the holding of the majority that "R.A. No. 6735 is
inadequate to cover the system of initiative on amendments to the Constitution and to have failed to
provide sufficient standard for subordinate legislation" and now to interpose my dissent thereto.

xxx

WHEREFORE, I vote to dismiss the Delfin petition.

I vote, however, to declare R.A. No. 6735 as adequately providing the legal basis for the
exercise by the people of their right to amend the Constitution through initiative
proceedings and to uphold the validity of COMELEC Resolution No. 2300 insofar as it does not
sanction the filing of the initiatory petition for initiative proceedings to amend the Constitution without
the required names and/or signatures of at least 12% of all the registered voters, of which every
legislative district must be represented by at least 3% of the registered voters therein. (emphasis
supplied)

Justice Vitug remained steadfast in refusing to rule on the sufficiency of R.A. 6735. In fine, the final
vote on whether R.A. 6735 is a sufficient law was 6-6 with one (1) justice inhibiting himself and
another justice refusing to rule on the ground that the issue was not ripe for adjudication.

It ought to be beyond debate that the six (6) justices who voted that R.A. 6735 is an insufficient law
failed to establish a doctrine that could serve as a precedent. Under any alchemy of law, a
deadlocked vote of six (6) is not a majority and a non-majority cannot write a rule with precedential
value. The opinion of the late Justice Ricardo J. Francisco is instructive, viz:

As it stands, of the thirteen justices who took part in the deliberations on the issue of whether the
motion for reconsideration of the March 19, 1997 decision should be granted or not, only the
following justices sided with Mr. Justice Davide, namely: Chief Justice Narvasa, and Justices
Regalado, Romero, Bellosillo and Kapunan. Justices Melo, Puno, Mendoza, Hermosisima,
Panganiban and the undersigned voted to grant the motion; while Justice Vitug "maintained his
opinion that the matter was not ripe for judicial adjudication." In other words, only five, out of the
other twelve justices, joined Mr. Justice Davide's June 10, 1997 ponencia finding R.A. No. 6735
unconstitutional for its failure to pass the so called "completeness and sufficiency standards" tests.
The "concurrence of a majority of the members who actually took part in the deliberations" which
Article VII, Section 4(2) of the Constitution requires to declare a law unconstitutional was, beyond
dispute, not complied with. And even assuming, for the sake of argument, that the constitutional
requirement on the concurrence of the "majority" was initially reached in the March 19, 1997
ponencia, the same is inconclusive as it was still open for review by way of a motion for
reconsideration. It was only on June 10, 1997 that the constitutionality of R.A. No. 6735 was settled
with finality, sans the constitutionally required "majority." The Court's declaration, therefore, is
manifestly grafted with infirmity and wanting in force necessitating, in my view, the reexamination of
the Court's decision in G.R. No. 127325. It behooves the Court "not to tarry any longer" nor waste
this opportunity accorded by this new petition (G.R. No. 129754) to relieve the Court's
pronouncement from constitutional infirmity.

The jurisprudence that an equally divided Court can never set a precedent is well-settled. Thus, in
the United States, an affirmance in the Federal Supreme Court upon equal division of opinion is not
an authority for the determination of other cases, either in that Court or in the inferior federal courts.
In Neil v. Biggers,111 which was a habeas corpus state proceeding by a state prisoner, the U.S.
Supreme Court held that its equally divided affirmance of petitioner's state court conviction was
not an "actual adjudication" barring subsequent consideration by the district court on habeas corpus.
In discussing the non-binding effect of an equal division ruling, the Court reviewed the history of
cases explicating the disposition "affirmed by an equally divided Court:"

In this light, we review our cases explicating the disposition "affirmed by an equally divided Court."
On what was apparently the first occasion of an equal division, The Antelope, 10 Wheat, 66, 6 L.
Ed. 268 (1825), the Court simply affirmed on the point of division without much discussion. Id., at
126-127. Faced with a similar division during the next Term, the Court again affirmed, Chief Justice
Marshall explaining that "the principles of law which have been argued, cannot be settled; but the
judgment is affirmed, the court being divided in opinion upon it." Etting v. Bank of United States,
11 Wheat. 59, 78, 6 L. Ed. 419 (1826). As was later elaborated in such cases, it is the appellant or
petitioner who asks the Court to overturn a lower court's decree. "If the judges are divided, the
reversal cannot be had, for no order can be made. The judgment of the court below, therefore,
stands in full force. It is indeed, the settled practice in such case to enter a judgment of affirmance;
but this is only the most convenient mode of expressing the fact that the cause is finally disposed of
in conformity with the action of the court below, and that that court can proceed to enforce its
judgment. The legal effect would be the same if the appeal, or writ of error, were dismissed." Durant
v. Essex Co., 7 Wall. 107, 112, 19 L. Ed. 154 (1869). Nor is an affirmance by an equally divided
Court entitled to precedential weight. Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264, 80 S. Ct.
1463, 1464, 4 L. Ed. 2d 1708 (1960).xxx"

This doctrine established in Neil has not been overturned and has been cited with approval in a
number of subsequent cases,112 and has been applied in various state jurisdictions.

In the case of In the Matter of the Adoption of Erin G., a Minor Child,113 wherein a putative father
sought to set aside a decree granting petition for adoption of an Indian child on grounds of
noncompliance with the requirements of Indian Child Welfare Act (ICWA), the Supreme Court of
Alaska held that its decision in In re Adoption of T.N.F. (T.N.F.),114 which lacked majority opinion
supporting holding that an action such as the putative father's would be governed by the state's
one-year statute of limitations, was not entitled to stare decisis effect. In T.N.F., a majority of the
justices sitting did not agree on a common rationale, as two of four participating justices agreed
that the state's one-year statute of limitations applied, one justice concurred in the result only, and
one justice dissented. There was no "narrower" reasoning agreed upon by all three affirming
justices. The concurring justice expressed no opinion on the statute of limitations issue, and in
agreeing with the result, he reasoned that ICWA did not give the plaintiff standing to sue. 115 The two-
justice plurality, though agreeing that the state's one-year statute of limitations applied, specifically
disagreed with the concurring justice on the standing issue. 116 Because a majority of the participating
justices in T.N.F. did not agree on any one ground for affirmance, it was not accorded stare decisis
effect by the state Supreme Court.

The Supreme Court of Michigan likewise ruled that the doctrine of stare decisis does not apply to
plurality decisions in which no majority of the justices participating agree to the reasoning and as
such are not authoritative interpretations binding on the Supreme Court. 117

In State ex rel. Landis v. Williams,118 the Supreme Court of Florida, in an equally divided opinion
on the matter,119 held that chapter 15938, Acts of 1933 must be allowed to stand, dismissing a quo
warranto suit without prejudice. The Court held:

In a cause of original jurisdiction in this court a statute cannot be declared unconstitutional nor its
enforcement nor operation judicially interfered with, except by the concurrence of a majority of the
members of the Supreme Court sitting in the cause wherein the constitutionality of the statute is
brought in question or judicial relief sought against its enforcement. Section 4 of Article 5, state
Constitution.

Therefore in this case the concurrence of a majority of the members of this court in holding
unconstitutional said chapter 15938, supra, not having been had, it follows that the statute in
controversy must be allowed to stand and accordingly be permitted to be enforced as a
presumptively valid act of the Legislature, and that this proceeding in quo warranto must be
dismissed without prejudice. Spencer v. Hunt (Fla.) 147 So. 282. This decision is not to be
regarded as a judicial precedent on the question of constitutional law involved concerning the
constitutionality vel non of chapter 15938. State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So.
51.

Quo warranto proceeding dismissed without prejudice by equal division of the court on question of
constitutionality of statute involved.

In U.S. v. Pink,120 the Court held that the affirmance by the U.S. Supreme Court by an equally
divided vote of a decision of the New York Court of Appeals that property of a New York branch of
a Russian insurance company was outside the scope of the Russian Soviet government's decrees
terminating existence of insurance companies in Russia and seizing their assets, while conclusive
and binding upon the parties as respects the controversy in that action, did not constitute an
authoritative "precedent."

In Berlin v. E.C. Publications, Inc.,121 the U.S. Court of Appeals Second Circuit, in holding that
printed lyrics which had the same meter as plaintiffs' lyrics, but which were in form a parody of the
latter, did not constitute infringement of plaintiffs' copyrights, ruled that the prior case of Benny v.
Loew's, Inc.,122 which was affirmed by an equally divided court, was not binding upon it, viz:

Under the precedents of this court, and, as seems justified by reason as well as by authority, an
affirmance by an equally divided court is as between the parties, a conclusive determination and
adjudication of the matter adjudged; but the principles of law involved not having been agreed upon
by a majority of the court sitting prevents the case from becoming an authority for the determination
of other cases, either in this or in inferior courts.123

In Perlman v. First National Bank of Chicago,124 the Supreme Court of Illinois dismissed the
appeal as it was unable to reach a decision because two judges recused themselves and the
remaining members of the Court were so divided, it was impossible to secure the concurrence of
four judges as is constitutionally required. The Court followed the procedure employed by the U.S.
Supreme Court when the Justices of that Court are equally divided, i.e. affirm the judgment of the
court that was before it for review. The affirmance is a conclusive determination and adjudication as
between the parties to the immediate case, it is not authority for the determination of other cases,
either in the Supreme Court or in any other court. It is not "entitled to precedential weight." The legal
effect of such an affirmance is the same as if the appeal was dismissed. 125

The same rule is settled in the English Courts. Under English precedents,126 an affirmance by an
equally divided Court is, as between the parties, a conclusive determination and adjudication of the
matter adjudged; but the principles of law involved not having been agreed upon by a majority of the
court sitting prevents the case from becoming an authority for the determination of other cases,
either in that or in inferior courts.

After a tour of these cases, we can safely conclude that the prevailing doctrine is that, the affirmance
by an equally divided court merely disposes of the present controversy as between the parties and
settles no issue of law; the affirmance leaves unsettled the principle of law presented by the case
and is not entitled to precedential weight or value. In other words, the decision only has res judicata
and not stare decisis effect. It is not conclusive and binding upon other parties as respects the
controversies in other actions.

Let us now examine the patent differences between the petition at bar and the Delfin Petition in
the Santiago case which will prevent the Santiago ruling from binding the present petitioners. To
start with, the parties are different. More importantly, the Delfin Petition did not contain the
signatures of the required number of registered voters under the Constitution: the requirement that
twelve per cent (12%) of all the registered voters in the country wherein each legislative district is
represented by at least three per cent (3%) of all the registered voters therein was not complied with.
For this reason, we ruled unanimously that it was not the initiatory petition which the COMELEC
could properly take cognizance of. In contrast, the present petition appears to be accompanied by
the signatures of the required number of registered voters. Thus, while the Delfin Petition prayed
that an Order be issued fixing the time and dates for signature gathering all over the country, the
Lambino and Aumentado petition, prayed for the calling of a plebiscite to allow the Filipino people to
express their sovereign will on the proposition. COMELEC cannot close its eyes to these material
differences.

Plainly, the COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in
denying due course to the Lambino and Aumentado petition on the basis of its mistaken notion
that Santiago established the doctrine that R.A. 6735 was an insufficient law. As aforestressed, that
ruling of six (6) justices who do not represent the majority lacks precedential status and is non-
binding on the present petitioners.

The Court's dismissal of the PIRMA petition is of no moment. Suffice it to say that we dismissed the
PIRMA petition on the principle of res judicata. This was stressed by former Chief Justice Hilario G.
Davide Jr., viz:

The following are my reasons as to why this petition must be summarily dismissed:

First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v.
COMELEC (G.R. No. 127325, 19 March 1997) may plead ignorance of the fact that the former is
substantially identical to the latter, except for the reversal of the roles played by the principal parties
and inclusion of additional, yet not indispensable, parties in the present petition. But plainly, the
same issues and reliefs are raised and prayed for in both cases.

The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM, MODERNIZATION, AND
ACTION (PIRMA) and spouses ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-
described as "a non-stock, non-profit organization duly organized and existing under Philippine laws
with office address at Suite 403, Fedman Suites, 199 Salcedo Street, Legaspi Village, Makati City,"
with "ALBERTO PEDROSA and CARMEN PEDROSA" as among its "officers." In Santiago, the
PEDROSAS were made respondents as founding members of PIRMA which, as alleged in the body
of the petition therein, "proposes to undertake the signature drive for a people's initiative to amend
the Constitution." In Santiago then, the PEDROSAS were sued in their capacity as founding
members of PIRMA.

The decision in Santiago specifically declared that PIRMA was duly represented at the hearing of the
Delfin petition in the COMELEC. In short, PIRMA was intervenor-petitioner therein. Delfin alleged in
his petition that he was a founding member of the Movement for People's Initiative, and under
footnote no. 6 of the decision, it was noted that said movement was "[l]ater identified as the People's
Initiative for Reforms, Modernization and Action, or PIRMA for brevity." In their Comment to the
petition in Santiago, the PEDROSAS did not deny that they were founding members of PIRMA, and
by their arguments, demonstrated beyond a shadow of a doubt that they had joined Delfin or his
cause.

No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as well as
the others joining them, from the operation of the principle of res judicata, which needs no further
elaboration. (emphasis supplied)

Justice Josue N. Bellosillo adds:

The essential requisites of res judicata are: (1) the former judgment must be final; (2) it must have
been rendered by a court having jurisdiction over the subject matter and the parties; (3) it must be a
judgment on the merits; and (4) there must be between the first and second actions identity of
parties, identity of subject matter, and identity of causes of action.127

Applying these principles in the instant case, we hold that all the elements of res judicata are
present. For sure, our Decision in Santiago v. COMELEC, which was promulgated on 19 March
1997, and the motions for reconsideration thereof denied with finality on 10 June 1997, is
undoubtedly final. The said Decision was rendered by this Court which had jurisdiction over the
petition for prohibition under Rule 65. Our judgment therein was on the merits, i.e., rendered only
after considering the evidence presented by the parties as well as their arguments in support of their
respective claims and defenses. And, as between Santiago v. COMELEC case and COMELEC
Special Matter No. 97-001 subject of the present petition, there is identity of parties, subject matter
and causes of action.

Petitioners contend that the parties in Santiago v. COMELEC are not identical to the parties in the
instant case as some of the petitioners in the latter case were not parties to the former case.
However, a perusal of the records reveals that the parties in Santiago v. COMELEC included the
COMELEC, Atty. Jesus S. Delfin, spouses Alberto and Carmen Pedrosa, in their capacities as
founding members of PIRMA, as well as Atty. Pete Quirino-Quadra, another founding member of
PIRMA, representing PIRMA, as respondents. In the instant case, Atty. Delfin was never removed,
and the spouses Alberto and Carmen Pedrosa were joined by several others who were made parties
to the petition. In other words, what petitioners did was to make it appear that the PIRMA Petition
was filed by an entirely separate and distinct group by removing some of the parties involved in
Santiago v. COMELEC and adding new parties. But as we said in Geralde v. Sabido 128-

A party may not evade the application of the rule of res judicata by simply including additional parties
in the subsequent case or by not including as parties in the later case persons who were parties in
the previous suit. The joining of new parties does not remove the case from the operation of the rule
on res judicata if the party against whom the judgment is offered in evidence was a party in the first
action; otherwise, the parties might renew the litigation by simply joining new parties.

The fact that some persons or entities joined as parties in the PIRMA petition but were not parties in
Santiago v. COMELEC does not affect the operation of the prior judgment against those parties to
the PIRMA Petition who were likewise parties in Santiago v. COMELEC, as they are bound by such
prior judgment.

Needless to state, the dismissal of the PIRMA petition which was based on res judicata binds only
PIRMA but not the petitioners.

VIII

Finally, let the people speak.

"It is a Constitution we are expounding" solemnly intoned the great Chief Justice John
Marshall of the United States in the 1819 case of M'cCulloch v. Maryland.129 Our Constitution is not
a mere collection of slogans. Every syllable of our Constitution is suffused with significance and
requires our full fealty. Indeed, the rule of law will wither if we allow the commands of our
Constitution to underrule us.

The first principle enthroned by blood in our Constitution is the sovereignty of the people. We
ought to be concerned with this first principle, i.e., the inherent right of the sovereign people to
decide whether to amend the Constitution. Stripped of its abstractions, democracy is all about who
has the sovereign right to make decisions for the people and our Constitution clearly and
categorically says it is no other than the people themselves from whom all government authority
emanates. This right of the people to make decisions is the essence of sovereignty, and it
cannot receive any minimalist interpretation from this Court. If there is any principle in the
Constitution that cannot be diluted and is non-negotiable, it is this sovereign right of the people to
decide.

This Court should always be in lockstep with the people in the exercise of their
sovereignty. Let them who will diminish or destroy the sovereign right of the people to decide be
warned. Let not their sovereignty be diminished by those who belittle their brains to comprehend
changes in the Constitution as if the people themselves are not the source and author of our
Constitution. Let not their sovereignty be destroyed by the masters of manipulation who
misrepresent themselves as the spokesmen of the people.

Be it remembered that a petition for people's initiative that complies with the requirement that it "must
be signed by at least 12% of the total number of registered voters of which every legislative district is
represented by at least 3% of the registered voters therein" is but the first step in a long
journey towards the amendment of the Constitution. Lest it be missed, the case at bar involves but
a proposal to amend the Constitution. The proposal will still be debated by the people and at this
time, there is yet no fail-safe method of telling what will be the result of the debate. There will still be
a last step to the process of amendment which is the ratification of the proposal by a majority of
the people in a plebiscite called for the purpose. Only when the proposal is approved by a
majority of the people in the plebiscite will it become an amendment to the Constitution. All
the way, we cannot tie the tongues of the people. It is the people who decide for the people
are not an obscure footnote in our Constitution.
The people's voice is sovereign in a democracy. Let us hear them. Let us heed them. Let us not only
sing paens to the people's sovereignty. Yes, it is neither too soon nor too late to let the people
speak.

IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the resolution of the Commission on
Elections dated August 31, 2006, denying due course to the Petition for Initiative filed by Raul L.
Lambino and Erico B. Aumentado in their own behalf and together with some 6.3 million registered
voters who affixed their signatures thereon and to REMAND the petition at bar to the Commission on
Elections for further proceedings.

REYNATO S. PUNO
Associate Justice

____________________

EN BANC

G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED

VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent; TRADE UNION CONGRESS OF THE
PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA,
SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL
WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE
VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN
T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW
GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO
UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S
PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO
PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P.
ROSALES, MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI
ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.
ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T.
VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY
LEADER AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEÑA III, JAMBY A.S.
MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and
PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE
ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR
and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its
President, MANUEL VILLAR, JR., Oppositors-Intervenors;

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.
x ---------------------------------------------------------------------------------------- x

SEPARATE OPINION

QUISUMBING, J.:

1. With due respect to the main opinion written by J. Antonio T. Carpio, and the dissent of J. Reynato
S. Puno, I view the matter before us in this petition as one mainly involving a complex political
question.1 While admittedly the present Constitution lays down certain numerical requirements for
the conduct of a People's Initiative, such as the percentages of signatures – being 12% of the total
number of registered voters, provided each legislative district is represented by at least 3% – they
are not the main points of controversy. Stated in simple terms, what this Court must decide is
whether the Commission on Elections gravely abused its discretion when it denied the petition to
submit the proposed changes to the Constitution directly to the vote of the sovereign people in a
plebiscite. Technical questions, e.g. whether petitioners should have filed a Motion for
Reconsideration before coming to us, are of no moment in the face of the transcendental issue at
hand. What deserve our full attention are the issues concerning the applicable rules as well as
statutory and constitutional limitations on the conduct of the People's Initiative.

2. It must be stressed that no less than the present Constitution itself empowers the people to
"directly" propose amendments through their own "initiative." The subject of the instant petition is by
way of exercising that initiative in order to change our form of government from presidential to
parliamentary. Much has been written about the fulsome powers of the people in a democracy. But
the most basic concerns the idea that sovereignty resides in the people and that all government
authority emanates from them. Clearly, by the power of popular initiative, the people have the
sovereign right to change the present Constitution. Whether the initial moves are done by a
Constitutional Convention, a Constitutional Assembly, or a People's Initiative, in the end every
amendment -- however insubstantial or radical -- must be submitted to a plebiscite. Thus, it is the
ultimate will of the people expressed in the ballot, that matters. 2

3. I cannot fault the COMELEC, frankly, for turning down the petition of Messrs. Lambino, et al. For
the COMELEC was just relying on precedents, with the common understanding that, pursuant to the
cases of Santiago v. COMELEC3 and PIRMA v. COMELEC,4 the COMELEC had been permanently
enjoined from entertaining any petition for a people's initiative to amend the Constitution by no less
than this Court. In denying due course below to Messrs. Lambino and Aumentado's petition, I could
not hold the COMELEC liable for grave abuse of discretion when they merely relied on this Court's
unequivocal rulings. Of course, the Santiago and the PIRMA decisions could be reviewed and
reversed by this Court, as J. Reynato S. Puno submits now. But until the Court does so, the
COMELEC was duty bound to respect and obey this Court's mandate, for the rule of law to prevail.

4. Lastly, I see no objection to the remand to the COMELEC of the petition of Messrs. Lambino and
Aumentado and 6.327 million voters, for further examination of the factual requisites before a
plebiscite is conducted. On page 4 of the assailed Resolution of the respondent dated August 31,
2006, the COMELEC tentatively expressed its view that "even if the signatures in the instant Petition
appear to meet the required minimum per centum of the total number of registered voters", the
COMELEC could not give the Petition due course because of our view that R.A. No. 6735 was
inadequate. That, however, is now refuted by Mr. Justice Puno's scholarly ponencia. Now that we
have revisited the Santiago v. COMELEC decision, there is only one clear task for COMELEC. In my
view, the only doable option left for the COMELEC, once factual issues are heard and resolved, is to
give due course to the petition for the initiative to amend our Constitution so that the sovereign
people can vote on whether a parliamentary system of government should replace the present
presidential system.
5. I am therefore in favor of letting the sovereign people speak on their choice of the form of
government as a political question soonest. (This I say without fear of media opinion that our judicial
independence has been tainted or imperiled, for it is not.) Thus I vote for the remand of the petition.
Thereafter, as prayed for, COMELEC should forthwith certify the Petition as sufficient in form and
substance and call for the holding of a plebiscite within the period mandated by the basic law, not
earlier than sixty nor later than ninety days from said certification. Only a credible plebiscite itself,
conducted peacefully and honestly, can bring closure to the instant political controversy.

LEONARDO A. QUISUMBING
Associate Justice

____________________

EN BANC

G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED

VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

G. R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners,
vs.
HE COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR.,
and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, respondents.

x ---------------------------------------------------------------------------------------- x

DISSENTING OPINION

CORONA, J.:

The life of the law is not logic but experience.1 Our collective experience as a nation breathes life to
our system of laws, especially to the Constitution. These cases promise to significantly contribute to
our collective experience as a nation. Fealty to the primary constitutional principle that the
Philippines is not merely a republican State but a democratic one as well behooves this Court to
affirm the right of the people to participate directly in the process of introducing changes to their
fundamental law. These petitions present such an opportunity. Thus, this is an opportune time for
this Court to uphold the sovereign rights of the people.

I agree with the opinion of Mr. Justice Reynato Puno who has sufficiently explained the rationale for
upholding the people's initiative. However, I wish to share my own thoughts on certain matters I
deem material and significant.

Santiago Does Not Apply to This Case But Only to the 1997 Delfin Petition
The COMELEC denied the petition for initiative filed by petitioners purportedly on the basis of this
Court's ruling in Santiago v. COMELEC2 that: (1) RA 6753 was inadequate to cover the system of
initiative regarding amendments to the Constitution and (2) the COMELEC was permanently
enjoined from entertaining or taking cognizance of any petition for initiative regarding amendments to
the Constitution until a sufficient law was validly enacted to provide for the implementation of the
initiative provision.

However, Santiago should not apply to this case but only to the petition of Delfin in 1997. It would be
unreasonable to make it apply to all petitions which were yet unforeseen in 1997. The fact is
that Santiago was focused on the Delfin petition alone.

Those who oppose the exercise of the people's right to initiate changes to the Constitution via
initiative claim that Santiago barred any and all future petitions for initiative by virtue of the doctrines
of stare decisis and res judicata. The argument is flawed.

The ponencia of Mr. Justice Puno has amply discussed the arguments relating to stare decisis.
Hence, I will address the argument from the viewpoint of res judicata.

Res judicata is the rule that a final judgment rendered by a court of competent jurisdiction on the
merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an
absolute bar to a subsequent action involving the same claim, demand or cause of action. 3 It has the
following requisites: (1) the former judgment or order must be final; (2) it must have been rendered
by a court having jurisdiction of the subject matter and of the parties; (3) it must be a judgment or
order on the merits and (4) there must be identity of parties, of subject matter, and of cause of action
between the first and second actions.4

There is no identity of parties in Santiago and the instant case. While the COMELEC was also the
respondent in Santiago, the petitioners in that case and those in this case are different. More
significantly, there is no identity of causes of action in the two cases. Santiago involved amendments
to Sections 4 and 7 of Article VI, Section 4 of Article VII and Section 8 of Article X of the Constitution
while the present petition seeks to amend Sections 1to 7 of Article VI and Sections 1 to 4 of the 1987
Constitution. Clearly, therefore, the COMELEC committed grave abuse of discretion when it ruled
that the present petition for initiative was barred by Santiago and, on that ground, dismissed the
petition.

The present petition and that in Santiago are materially different from each other. They are not
based on the same facts. There is thus no cogent reason to frustrate and defeat the present direct
action of the people to exercise their sovereignty by proposing changes to their fundamental law.

People's Initiative Should Not

Be Subjected to Conditions

People's initiative is an option reserved by the people for themselves exclusively. Neither Congress
nor the COMELEC has the power to curtail or defeat this exclusive power of the people to change
the Constitution. Neither should the exercise of this power be made subject to any conditions, as
some would have us accept.

Oppositors to the people's initiative point out that this Court ruled in Santiago that RA 6735 was
inadequate to cover the system of initiative on amendments to the Constitution and, thus, no law
existed to enable the people to directly propose changes to the Constitution. This reasoning is
seriously objectionable.
The pronouncement on the insufficiency of RA 6735 was, to my mind, out of place. It was
unprecedented and dangerously transgressed the domain reserved to the legislature.

While the legislature is authorized to establish procedures for determining the validity and sufficiency
of a petition to amend the constitution,5 that procedure cannot unnecessarily restrict the initiative
privilege.6 In the same vein, this Court cannot unnecessarily and unreasonably restrain the people's
right to directly propose changes to the Constitution by declaring a law inadequate simply for lack of
a sub-heading and other grammatical but insignificant omissions. Otherwise, the constitutional intent
to empower the people will be severely emasculated, if not rendered illusory.

People's Right and Power to Propose Changes to the Constitution Directly Should not be
Unreasonably Curtailed

If Congress and a constitutional convention, both of which are mere representative bodies, can
propose changes to the Constitution, there is no reason why the supreme body politic itself – the
people – may not do so directly.

Resort to initiative to amend the constitution or enact a statute is an exercise of "direct democracy"
as opposed to "representative democracy." The system of initiative allows citizens to directly
propose constitutional amendments for the general electorate to adopt or reject at the polls,
particularly in a plebiscite. While representative government was envisioned to "refine and enlarge
the public views, by passing them through the medium of a chosen body of citizens, whose wisdom
may best discern the true interest of their country, and whose patriotism and love of justice will be
least likely to sacrifice it to temporary or partial considerations," 7 the exercise of "direct democracy"
through initiative reserves direct lawmaking power to the people by providing them a method to
make new laws via the constitution, or alternatively by enacting statutes.8 Efforts of the represented
to control their representatives through initiative have been described as curing the problems of
democracy with more democracy.9

The Constitution celebrates the sovereign right of the people and declares that "sovereignty resides
in the people and all government authority emanates from them." 10 Unless the present petition is
granted, this constitutional principle will be nothing but empty rhetoric, devoid of substance for those
whom it seeks to empower.

The right of the people to pass legislation and to introduce changes to the Constitution is a
fundamental right and must be jealously guarded.11 The people should be allowed to directly seek
redress of the problems of society and representative democracy with the constitutional tools they
have reserved for their use alone.

Accordingly, I vote to GRANT the petition in G.R. No. 174513.

RENATO C. CORONA
Associate Justice

____________________

EN BANC

G. R. No. 174153
RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED
VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO
MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC.,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and
VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD,
RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and
CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-
QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS
FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF
FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR.
REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA
HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and
AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and
SENATORS SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA,
JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO
ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES
CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR,
MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG,
SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR,
JR., Oppositors-Intervenors;

G.R. No. 174299 entitled

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.

x ---------------------------------------------------------------------------------------- x

SEPARATE OPINION

TINGA, J:

I join in full the opinion of Senior Associate Justice Puno. Its enviable sang-froid, inimitable lucidity,
and luminous scholarship are all so characteristic of the author that it is hardly a waste of pen and
ink to write separately if only to express my deep admiration for his disquisition. It is compelling
because it derives from the fundamental democratic ordinance that sovereignty resides in the
people, and it seeks to effectuate that principle through the actual empowerment of the sovereign
people. Justice Puno's opinion will in the short term engender reactions on its impact on present
attempts to amend the Constitution, but once the political passion of the times have been shorn, it
will endure as an unequivocal message to the taongbayan that they are to be trusted to chart the
course of their future.

Nothing that I inscribe will improve on Justice Puno's opinion. I only write separately to highlight a
few other points which also inform my vote to grant the petitions.
 I.

I agree with Justice Puno that Santiago v. COMELEC1 and PIRMA v. COMELEC2 had not acquired
value as precedent and should be reversed in any case. I add that the Court has long been mindful
of the rule that it necessitates a majority, and not merely a plurality, in order that a decision can
stand as precedent. That principle has informed the members of this Court as they deliberated and
voted upon contentious petitions, even if this consideration is not ultimately reflected on the final
draft released for promulgation.

The curious twist to Santiago and PIRMA is that for all the denigration heaped upon Rep. Act No.
6735 in those cases, the Court did not invalidate any provision of the statute. All the Court said then
was that the law was "inadequate". Since this "inadequate" law was not annulled by the Court, or
repealed by Congress, it remained part of the statute books. 3

I maintain that even if Rep. Act No. 6735 is truly "inadequate", the Court in Santiago should not have
simply let the insufficiency stand given that it was not minded to invalidate the law itself. Article 9 of
the Civil Code provides that "[n]o judge or court shall decline to render judgment by reason of the
silence, obscurity or insufficiency of the laws."4 As explained by the Court recently in Reyes v.
Lim,5 "[Article 9] calls for the application of equity, which[, in the revered Justice Cardozo's words,]
'fills the open spaces in the law.'"6 Certainly, any court that refuses to rule on an action premised on
Rep. Act No. 6735 on the ground that the law is "inadequate" would have been found in grave abuse
of discretion. The previous failure by the Court to "fill the open spaces" in Santiago further highlights
that decision's status as an unfortunate aberration.

I am mindful of the need to respect stare decisis, to the point of having recently decried a majority
ruling that was clearly minded to reverse several precedents but refused to explicitly say so. 7 Yet the
principle is not immutable.8 The passionate words of Chief Justice Panganiban in Osmeña v.
COMELEC9 bear quoting:

Before I close, a word about stare decisis. In the present case, the Court is maintaining the ad ban to
be consistent with its previous holding in NPC vs. Comelec. Thus, respondent urges reverence for
the stability of judicial doctrines. I submit, however, that more important than consistency and
stability are the verity, integrity and correctness of jurisprudence. As Dean Roscoe Pound explains,
"Law must be stable but it cannot stand still." Verily, it must correct itself and move in cadence with
the march of the electronic age. Error and illogic should not be perpetuated. After all, the Supreme
Court, in many cases, has deviated from stare decisis and reversed previous doctrines and
decisions.10 It should do no less in the present case.11

Santiago established a tenet that the Supreme Court may affirm a law as constitutional, yet declare
its provisions as inadequate to accomplish the legislative purpose, then barred the enforcement of
the law. That ruling is erroneous, illogical, and should not be perpetuated.

II.

Following Justice Puno's clear demonstration why Santiago should not be respected as precedent, I
agree that the COMELEC's failure to take cognizance of the petitions as mandated by Rep. Act No.
6735 constitutes grave abuse of discretion correctible through the petitions before this Court.

The Court has consistently held in cases such as Abes v. COMELEC12, Sanchez v. COMELEC13,
and Sambarani v. COMELEC14 that "the functions of the COMELEC under the Constitution are
essentially executive and administrative in nature".15 More pertinently, in Buac v. COMELEC16, the
Court held that the jurisdiction of the COMELEC relative to the enforcement and administration of a
law relative to a plebiscite fell under the jurisdiction of the poll body under its constitutional mandate
"to enforce and administer all laws and regulations relative to the conduct of a xxx plebiscite".17

Rep. Act No. 6735 is a law relative to the conduct of a plebiscite. The primary task of the COMELEC
under Rep. Act No. 6735 is to enforce and administer the said law, functions that are essentially
executive and administrative in nature. Even the subsequent duty of the COMELEC of determining
the sufficiency of the petitions after they have been filed is administrative in character. By any
measure, the COMELEC's failure to perform its executive and administrative functions under Rep.
Act No. 6735 constitutes grave abuse of discretion.

III.

It has been argued that the subject petitions for initiative are barred under Republic Act No. 6735 as
they allegedly embrace more than one subject. Section 10 of Rep. Act No. 6735 classifies as a
"prohibited measure," a petition submitted to the electorate that embraces more than one
subject.18 On this point, reliance is apparently placed on the array of provisions which are to be
affected by the amendments proposed in the initiative petition.

Section 10 of Rep. Act No. 6735 is a reflection of the long-enshrined constitutional principle that the
laws passed by Congress "shall embrace only one subject which shall be expressed in the title
thereof".19 The one-subject requirement under the Constitution is satisfied if all the parts of the
statute are related, and are germane to the subject matter expressed in the title, or as long as they
are not inconsistent with or foreign to the general subject and title.20 An act having a single general
subject, indicated in the title, may contain any number of provisions, no matter how diverse they may
be, so long as they are not inconsistent with or foreign to the general subject, and may be
considered in furtherance of such subject by providing for the method and means of carrying out the
general object.21

The precedents governing the one-subject, one-title rule under the Constitution should apply as well
in the interpretation of Section 10 of Rep. Act No. 6735. For as long as it can be established that an
initiative petition embraces a single general subject, the petition may be allowed no matter the
number of constitutional provisions proposed for amendment if the amendments are germane to the
subject of the petition.

Both the Sigaw ng Bayan and the Lambino initiative petitions expressly propose the changing of the
form of government from bicameral-presidential to unicameral-parliamentary. Such a proposal may
strike as comprehensive, necessitating as it will the reorganization of the executive and legislative
branches of government, nevertheless it ineluctably encompasses only a single general subject still.

The 1987 Constitution (or any constitution for that matter) is susceptible to division into several
general spheres. To cite the broadest of these spheres by way of example, Article III enumerates the
guaranteed rights of the people under the Bill of Rights; Articles VI, VII and VIII provide for the
organizational structure of government; while Articles II, XII, XIII & XIV, XV and XVI enunciate policy
principles of the State. What would clearly be prohibited under Section 10 of Rep. Act No. 6735 is an
initiative petition that seeks to amend provisions which do not belong to the same sphere. For
example, had a single initiative petition sought not only to change the form of government from
presidential to parliamentary but also to amend the Bill of Rights, said petition would arguably have
been barred under Section 10, as that petition ostensibly embraces more than one subject, with
each subject bearing no functional relation to the other. But that is not the case with the present
initiative petitions.
Neither can it be argued that the initiative petitions embrace more than one subject since the
proposed amendments seek to affect two separate branches of government. The very purpose of
the initiative petitions is to fuse the powers of the executive and legislative branches of government;
hence, the amendments intended to effect such general intent necessarily affects the two branches.
If it required that to propose a shift in government from presidential to parliamentary, the
amendments to Article VII (Executive Branch) have to be segregated to a different petition from that
which would propose amendments to Article VI (Legislative Branch), then the result would be two
initiative petitions ─ both subject to separate authentications, consideration and even plebiscites, all
to effect one general proposition. This scenario, which entertains the possibility that one petition
would ultimately fail while the other succeeds, could thus allow for the risk that the executive branch
could be abolished without transferring executive power to the legislative branch. An absurd result,
indeed.

I am not even entirely comfortable with the theoretical underpinnings of Section 10. The Constitution
indubitably grants the people the right to seek amendment of the charter through initiative, and
mandates Congress to "provide for the implementation of the exercise of this right." In doing so,
Congress may not restrict the right to initiative on grounds that are not provided for in the
Constitution. If for example the implementing law also provides that certain provisions of the
Constitution may not be amended through initiative, that prohibition should not be sustained.
Congress is tasked with the implementation, and not the restriction of the right to initiative.

The one-subject requirement under Section 10 is not provided for as a bar to amendment under the
Constitution. Arguments can be supplied for the merit of such a requirement, since it would afford a
measure of orderliness when the vital question of amending the Constitution arises. The one-subject
requirement does allow the voters focus when deliberating whether or not to vote for the
amendments. These factors of desirability nonetheless fail to detract from the fact that the one-
subject requirement imposes an additional restriction on the right to initiative not contemplated by
the Constitution. Short of invalidating the requirement, a better course of action would be to insist
upon its liberal interpretation. After all, the Court has consistently adhered to a liberal interpretation
of the one-subject, one-title rule.22 There is no cause to adopt a stricter interpretative rule with regard
to the one-subject rule under Section 10 of Rep. Act No. 6735.

IV.

During the hearing on the petitions, the argument was raised that provisions of the Constitution
amended through initiative would not have the benefit of a reference source from the record of a
deliberative body such as Congress or a constitutional convention. It was submitted that this
consideration influenced the Constitutional Commission as it drafted Section 2, Article XVII, which
expressly provided that only amendments, and not revisions, may be the subject of initiative
petitions.

This argument clearly proceeds from a premise that accords supreme value to the record of
deliberations of a constitutional convention or commission in the interpretation of the charter. Yet if
the absence of a record of deliberations stands as so serious a flaw as to invalidate or constrict
processes which change a constitution or its provisions, then the entire initiative process authorized
by the Constitution should be scarlet-marked as well.

Even if this position can be given any weight in the consideration of these petitions, I would like to
point out that resort to the records of deliberations is only one of many aids to constitutional
construction. For one, it should be abhorred if the provision under study is itself clear, plain, and free
from ambiguity. As the Court held in Civil Liberties Union v. Executive Secretary:23
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto
may be had only when other guides fail as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional convention "are of value as
showing the views of the individual members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did not talk . . . We think it safer to construe
the constitution from what appears upon its face."24

Even if there is need to refer to extrinsic sources in aid of constitutional interpretation, the
constitutional record does not provide the exclusive or definitive answer on how to interpret the
provision. The intent of a constitutional convention is not controlling by itself, and while the historical
discussion on the floor of the constitutional convention is valuable, it is not necessarily decisive. The
Court has even held in Vera v. Avelino25 that "the proceedings of the [constitutional] convention are
less conclusive of the proper construction of the fundamental law than are legislative proceedings of
the proper construction of a statute, since in the latter case it is the intent of the legislature that
courts seek, while in the former courts are endeavoring to arrive at the intent of the people through
the discussions and deliberations of their representatives."26 The proper interpretation of a
constitution depends more on how it was understood by the people adopting it than the framers'
understanding thereof.27

If there is fear in the absence of a constitutional record as guide for interpretation of any
amendments adopted via initiative, such absence would not preclude the courts from interpreting
such amendments in a manner consistent with how courts generally construe the Constitution. For
example, reliance will be placed on the other provisions of the Constitution to arrive at a harmonized
and holistic constitutional framework. The constitutional record is hardly the Rosetta Stone that
unlocks the meaning of the Constitution.

V.

I fully agree with Justice Puno that all issues relating to the sufficiency of the initiative petitions
should be remanded to the COMELEC. Rep. Act No. 6735 clearly reposes on the COMELEC the
task of determining the sufficiency of the petitions, including the ascertainment of whether twelve
percent (12%) of all registered voters, including three percent (3%) of registered voters in every
legislative district have indeed signed the initiative petitions.28 It should be remembered that the
COMELEC had dismissed the initiative petitions outright, and had yet to undertake the determination
of sufficiency as required by law.

It has been suggested to the end of leading the Court to stifle the initiative petitions that the Court
may at this juncture pronounce the initiative petitions as insufficient. The derivation of the factual
predicates leading to the suggestion is uncertain, considering that the trier of facts, the COMELEC in
this instance, has yet to undertake the necessary determination. Still, the premise has been floated
that petitioners have made sufficient admissions before this Court that purportedly established the
petitions are insufficient.

That premise is highly dubitable. Yet the more fundamental question that we should ask, I submit, is
whether it serves well on the Court to usurp trier of facts even before the latter exercises its
functions? If the Court, at this stage, were to declare the petitions as insufficient, it would be akin to
the Court pronouncing an accused as guilty even before the lower court trial had began.

Matugas v. COMELEC29 inveighs against the propriety of the Court uncharacteristically assuming the
role of trier of facts, and resolving factual questions not previously adjudicated by the lower courts or
tribunals:
[P]etitioner in this case cannot "enervate" the COMELEC's findings by introducing new evidence
before this Court, which in any case is not a trier of facts, and then ask it to substitute its own
judgment and discretion for that of the COMELEC.

The rule in appellate procedure is that a factual question may not be raised for the first time on
appeal, and documents forming no part of the proofs before the appellate court will not be
considered in disposing of the issues of an action. This is true whether the decision elevated for
review originated from a regular court or an administrative agency or quasi-judicial body, and
whether it was rendered in a civil case, a special proceeding, or a criminal case. Piecemeal
presentation of evidence is simply not in accord with orderly justice.30

Any present determination by the Court on the sufficiency of the petitions constitutes in effect a
trial de novo, the Justices of the Supreme Court virtually descending to the level of trial court judges.
This is an unbecoming recourse, and it simply is not done.

VI.

The worst position this Court could find itself in is to acquiesce to a plea that it make the choice
whether to amend the Constitution or not. This is a matter which should not be left to fifteen
magistrates who have not been elected by the people to make the choice for them.

A vote to grant the petitions is not a vote to amend the 1987 Constitution. It is merely a vote to allow
the people to directly exercise that option. In fact, the position of Justice Puno which I share would
not even guarantee that the Lambino and Sigaw ng Bayan initiative petitions would be submitted to
the people in a referendum. The COMELEC will still have to determine the sufficiency of the petition.
Among the questions which still have to be determined by the poll body in considering the sufficiency
of the petitions is whether twelve percent (12%) of all registered voters nationwide, including three
percent (3%) of registered voters in every legislative district, have indeed signed the initiative
petitions.31

And even should the COMELEC find the initiative petitions sufficient, the matter of whether the
Constitution should be amended would still depend on the choice of the electorate. The oppositors
are clearly queasy about some of the amendments proposed, or the imputed motives behind the
amendments. A referendum, should the COMELEC find the petitions as sufficient, would allow them
to convey their uneasiness to the public at large, as well as for the proponents of the amendment to
defend their proposal. The campaign period alone would allow the public to be involved in the
significant deliberation on the course our nation should take, with the ensuing net benefit of a more
informed, more politically aware populace. And of course, the choice on whether the Constitution
should be amended would lie directly with the people. The initiative process involves participatory
democracy at its most elemental; wherein the consequential debate would not be confined to the
august halls of Congress or the hallowed chambers of this Court, as it would spill over to the public
squares and town halls, the academic yards and the Internet blogosphere, the dining areas in the
homes of the affluent and the impoverished alike.

The prospect of informed and widespread discussion on constitutional change engaged in by a

people who are actually empowered in having a say whether these changes should be enacted,
gives fruition to the original vision of pure democracy, as formulated in Athens two and a half
millennia ago. The great hero of Athenian democracy, Pericles, was recorded as saying in his famed
Funeral Oration, "We differ from other states in regarding the man who keeps aloof from public life
not as 'private' but as useless; we decide or debate, carefully and in person all matters of
policy, and we hold, not that words and deeds go ill together, but that acts are foredoomed to
failure when undertaken undiscussed."32
Unfortunately, given the highly politicized charge of the times, it has been peddled that an act or vote
that assists the initiative process is one for the willful extinction of democracy or democratic
institutions. Such a consideration should of course properly play its course in the public debates and
deliberations attendant to the initiative process. Yet as a result of the harum-scarum, the temptation
lies heavy for a member of this Court perturbed with the prospect of constitutional change to relieve
those anxieties by simply voting to enjoin any legal procedure that initiates the amendment or
revision of the fundamental law, even at the expense of the people's will or what the Constitution
allows. A vote so oriented takes the conservative path of least resistance, even as it may gain the
admiration of those who do not want to see the Constitution amended.

Still, the biases we should enforce as magistrates are those of the Constitution and the elements of
democracy on which our rule of law is founded. Direct democracy, as embodied in the initiative
process, is but a culmination of the evolution over the centuries of democratic rights of choice and
self-governance. The reemergence of the Athenian democratic ideal after centuries of tyrannical
rules arrived very slowly, the benefits parceled out at first only to favored classes. The Magna Carta
granted limited rights to self-determination and self-governance only to a few English nobles; the
American Constitution was originally intended to give a meaningful voice only to free men, mostly
Caucasian, who met the property-holding requirements set by the states for voting. Yet even the
very idea of popular voting, limited as it may have already been within the first few years of the
American Union, met resistance from no less a revered figure as Alexander Hamilton, to whom the
progressive historian Howard Zinn attributes these disconcerting words:

The voice of the people has been said to be the voice of God; and however generally this maxim has
been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom
judge or determine right. Give therefore to the first class a distinct permanent share in the
government… Can a democratic assembly who annually revolve in the mass of the people be
supposed steadily to pursue the public good? Nothing but a permanent body can check the
imprudence of democracy…33

This utterly paternalistic and bigoted view has not survived into the present age of modern
democracy where a person's poverty, color, or gender no longer impedes the exercise of full
democratic rights. Yet a democracy that merely guarantees its citizens the right to live their lives
freely is incomplete if there is no corresponding allowance for a means by which the people have a
direct choice in determining their country's direction. Initiative as a mode of amending a constitution
may seem incompatible with representative democracy, yet it embodies an even purer form of
democracy. Initiative, which our 1987 Constitution saw fit to grant to the people, is a progressive
measure that is but a continuation of the line of evolution of the democratic ideal.

By allowing the sovereign people to directly propose and enact constitutional amendments, the
initiative process should be acknowledged as the purest implement of democratic rule under law.
This right granted to over sixty million Filipinos cannot be denied by the votes of less than eight
magistrates for reasons that bear no cogitation on the Constitution.

I VOTE to GRANT the petitions.

DANTE O. TINGA
Associate Justice

____________________

EN BANC
G. R. No. 174153

RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED

VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO
MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC.,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and
VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD,
RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and
CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-
QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS
FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF
FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR.
REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA
HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and
AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and
SENATORS SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA,
JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO
ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES
CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR,
MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG,
SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR,
JR., Oppositors-Intervenors;

G.R. No. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.

x ---------------------------------------------------------------------------------------- x

DISSENTING OPINION

CHICO-NAZARIO, J.:

"The people made the constitution, and the people can unmake it. It is the creature of their will, and
lives only by their will. But this supreme and irresistible power to make or unmake, resides only in
the whole body of the people; not in any subdivision of them."

-- Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264, 389, 5 L ed. 257, 287.

I express my concurrence in the discussions and conclusions presented in the persuasive and
erudite dissent of Justice Reynato S. Puno. However, I make some additional observations in
connection with my concurrence.
While it is but proper to accord great respect and reverence to the Philippine Constitution of 1987 for
being the supreme law of the land, we should not lose sight of the truth that there is an ultimate
authority to which the Constitution is also subordinate – the will of the people. No less than its very
first paragraph, the Preamble,1 expressly recognizes that the Constitution came to be because it was
ordained and promulgated by the sovereign Filipino people. It is a principle reiterated yet again in
Article II, Section 1, of the Constitution, which explicitly declares that "[t]he Philippines is a
democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them." Thus, the resolution of the issues and controversies raised by the instant
Petition should be guided accordingly by the foregoing principle.

If the Constitution is the expression of the will of the sovereign people, then, in the event that the
people change their will, so must the Constitution be revised or amended to reflect such change.
Resultantly, the right to revise or amend the Constitution inherently resides in the sovereign people
whose will it is supposed to express and embody. The Constitution itself, under Article XVII, provides
for the means by which the revision or amendment of the Constitution may be proposed and ratified.

Under Section 1 of the said Article, proposals to amend or revise the Constitution may be made (a)
by Congress, upon a vote of three-fourths of all its Members, or (b) by constitutional convention. The
Congress and the constitutional convention possess the power to propose amendments to, or
revisions of, the Constitution not simply because the Constitution so provides, but because the
sovereign people had chosen to delegate their inherent right to make such proposals to their
representatives either through Congress or through a constitutional convention.

On the other hand, the sovereign people, well-inspired and greatly empowered by the People Power
Revolution of 1986, reserved to themselves the right to directly propose amendments to the
Constitution through initiative, to wit –

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right. 2

The afore-quoted section does not confer on the Filipino people the right to amend the Constitution
because, as previously discussed, such right is inherent in them. The section only reduces into
writing this right to initiate amendments to the Constitution where they collectively and willfully
agreed in the manner by which they shall exercise this right: (a) through the filing of a petition; (b)
supported by at least twelve percent (12%) of the total number of registered voters nationwide; (c)
with each legislative district represented by at least three percent (3%) of the registered voters
therein; (d) subject to the limitation that no such petition may be filed within five years after the
ratification of the Constitution, and not oftener than once every five years thereafter; and (e) a
delegation to Congress of the authority to provide the formal requirements and other details for the
implementation of the right.

It is my earnest opinion that the right of the sovereign people to directly propose amendments to the
Constitution through initiative is more superior than the power they delegated to Congress or to a
constitutional convention to amend or revise the Constitution. The initiative process gives the
sovereign people the voice to express their collective will, and when the people speak, we must be
ready to listen. Article XVII, Section 2 of the Constitution recognizes and guarantees the sovereign
people's right to initiative, rather than limits it. The enabling law which Congress has been tasked to
enact must give life to the said provision and make the exercise of the right to initiative possible, not
regulate, limit, or restrict it in any way that would render the people's option of resorting to initiative to
amend the Constitution more stringent, difficult, and less feasible, as compared to the other
constitutional means to amend or revise the Constitution. In fact, it is worth recalling that under
Article VI, Section 1 of the Constitution, the legislative power of Congress is limited to the
extent reserved to the people by the provisions on initiative and referendum.

It is with this frame of mind that I review the issues raised in the instant Petitions, and which has led
me to the conclusions, in support of the dissent of Justice Puno, that (a) The Commission on
Election (COMELEC) had indeed committed grave abuse of discretion in summarily dismissing the
petition for initiative to amend the Constitution filed by herein petitioners Raul L. Lambino and Erico
B. Aumentado; (b) The Court should revisit the pronouncements it made in Santiago v. Commission
on Elections;3 (c) It is the sovereign people's inherent right to propose changes to the Constitution,
regardless of whether they constitute merely amendments or a total revision thereof; and (d) The
COMELEC should take cognizance of Lambino and Aumentado's petition for initiative and, in the
exercise of its jurisdiction, determine the factual issues raised by the oppositors before this Court.

The COMELEC had indeed committed grave abuse of discretion when it summarily dismissed
Lambino and Aumentado's petition for initiative entirely on the basis of the Santiago case which,
allegedly, permanently enjoined it from entertaining or taking cognizance of any petition for initiative
to amend the Constitution in the absence of a sufficient law.

After a careful reading, however, of the Santiago case, I believe in earnest that the permanent
injunction actually issued by this Court against the COMELEC pertains only to the petition for
initiative filed by Jesus S. Delfin, and not to all subsequent petitions for initiative to amend the
Constitution.

The Conclusion4 in the majority opinion in the Santiago case reads –

CONCLUSION

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.

It is clear from the fallo, as it is reproduced above, that the Court made permanent the Temporary
Restraining Order (TRO) it issued on 18 December 1996 against the COMELEC. The said TRO
enjoined the COMELEC from proceeding with the Delfin Petition, and Alberto and Carmen Pedrosa
from conducting a signature drive for people's initiative.5 It was this restraining order, more
particularly the portion thereof referring to the Delfin Petition, which was expressly made permanent
by the Court. It would seem to me that the COMELEC and all other oppositors to Lambino and
Aumentado's petition for initiative gave unwarranted significance and weight to the first paragraph of
the Conclusion in the Santiago case. The first and second paragraphs of the Conclusion,
preceding the dispositive portion, merely express the opinion of the ponente; while the
definite orders of the Court for implementation are found in the dispositive portion.

We have previously held that –

The dispositive portion or the fallo is what actually constitutes the resolution of the court and which is
the subject of execution, although the other parts of the decision may be resorted to in order to
determine the ratio decidendi for such a resolution. Where there is conflict between the dispositive
part and the opinion of the court contained in the text of the decision, the former must prevail over
the latter on the theory that the dispositive portion is the final order while the opinion is merely a
statement ordering nothing. Hence execution must conform more particularly to that ordained or
decreed in the dispositive portion of the decision.6

Is there a conflict between the first paragraph of the Conclusion and the dispositive portion of
the Santiago case? Apparently, there is. The first paragraph of the Conclusion states that the
COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition
for initiative on amendments to the Constitution until the enactment of a valid law. On the other hand,
the fallo only makes permanent the TRO7 against COMELEC enjoining it from proceeding with
the Delfin Petition. While the permanent injunction contemplated in the Conclusion encompasses
all petitions for initiative on amendments to the Constitution, the fallo is expressly limited to the Delfin
Petition. To resolve the conflict, the final order of the Court as it is stated in the dispositive portion or
the fallo should be controlling.

Neither can the COMELEC dismiss Lambino and Aumentado's petition for initiative on the basis of
this Court's Resolution, dated 23 September 1997, in the case of People's Initiative for Reform,
Modernization and Action (PIRMA) v. The Commission on Elections, et al.8 The Court therein found
that the COMELEC did not commit grave abuse of discretion in dismissing the PIRMA Petition for
initiative to amend the Constitution for it only complied with the Decision in the Santiago case.

It is only proper that the Santiago case should also bar the PIRMA Petition on the basis of res
judicata because PIRMA participated in the proceedings of the said case, and had knowledge of
and, thus, must be bound by the judgment of the Court therein. As explained by former Chief Justice
Hilario G. Davide, Jr. in his separate opinion to the Resolution in the PIRMA case –

First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v.
COMELEC (G.R. No. 127325, 19 March 1997) may plead ignorance of the fact that the former is
substantially identical to the latter, except for the reversal of the roles played by the principal parties
and inclusion of additional, yet not indispensable, parties in the present petition. But plainly, the
same issues and reliefs are raised and prayed for in both cases.

The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM, MODERNIZATION, AND
ACTION (PIRMA) and Spouses ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-
described as "a non-stock, non-profit organization duly organized and existing under Philippine laws
with office address at Suite 403, Fedman Suites, 199 Salcedo Street, Legaspi Village, Makati City,"
with "ALBERTO PEDROSA and CARMEN PEDROSA" as among its "officers." In Santiago, the
PEDROSAS were made respondents as founding members of PIRMA which, as alleged in the body
of the petition therein, "proposes to undertake the signature drive for a people's initiative to amend
the Constitution." In Santiago then, the PEDROSAS were sued in their capacity as founding
members of PIRMA.

The decision in Santiago specifically declared that PIRMA was duly represented at the hearing of the
Delfin petition in the COMELEC. In short, PIRMA was intervenor-petitioner therein. Delfin alleged in
his petition that he was a founding member of the Movement for People's Initiative, and under
footnote no. 6 of the decision, it was noted that said movement was "[l]ater identified as the People's
Initiative for Reforms, Modernization and Action, or PIRMA for brevity." In their Comment to the
petition in Santiago, the PEDROSA'S did not deny that they were founding members of PIRMA, and
by their arguments, demonstrated beyond a shadow of a doubt that they had joined Delfin or his
cause.

No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as well as
the others joining them, from the operation of the principle of res judicata, which needs no further
elaboration.9

While the Santiago case bars the PIRMA case because of res judicata, the same cannot be said to
the Petition at bar. Res judicata is an absolute bar to a subsequent action for the same cause; and
its requisites are: (a) the former judgment or order must be final; (b) the judgment or order must be
one on the merits; (c) it must have been rendered by a court having jurisdiction over the subject
matter and parties; and (d) there must be between the first and second actions, identity of parties, of
subject matter and of causes of action.10

Even though it is conceded that the first three requisites are present herein, the last has not been
complied with. Undoubtedly, the Santiago case and the present Petition involve different parties,
subject matter, and causes of action, and the former should not bar the latter.

In the Santiago case, the petition for initiative to amend the Constitution was filed by Delfin alone.
His petition does not qualify as the initiatory pleading over which the COMELEC can acquire
jurisdiction, being unsupported by the required number of registered voters, and actually imposing
upon the COMELEC the task of gathering the voters' signatures. In the case before us, the petition
for initiative to amend the Constitution was filed by Lambino and Aumentado, on behalf of the 6.3
million registered voters who affixed their signatures on the signature sheets attached thereto. Their
petition prays that the COMELEC issue an Order –

1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution;

2. Directing the publication of the petition in Filipino and English at least twice in newspapers of
general and local circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification
by the COMELEC of the sufficiency of the petition, to allow the Filipino people to express their
sovereign will on the proposition.

Although both cases involve the right of the people to initiate amendments to the Constitution, the
personalities concerned and the other factual circumstances attendant in the two cases differ. Also
dissimilar are the particular prayer and reliefs sought by the parties from the COMELEC, as well as
from this Court. For these reasons, I find that the COMELEC acted with grave abuse of discretion
when it summarily dismissed the petition for initiative filed by Lambino and Aumentado. It behooves
the COMELEC to accord due course to a petition which on its face complies with the rudiments of
the law. COMELEC was openly negligent in summarily dismissing the Lambino and Aumentado
petition. The haste by which the instant Petition was struck down is characteristic of bad faith, which,
to my mind, is a patent and gross evasion of COMELEC's positive duty. It has so obviously copped
out of its duty and responsibility to determine the sufficiency thereof and sought protection and
justification for its craven decision in the supposed permanent injunction issued against it by the
Court in the Santiago case. The COMELEC had seemingly expanded the scope and application of
the said permanent injunction, reading into it more than what it actually states, which is surprising,
considering that the Chairman and majority of the members of COMELEC are lawyers who should
be able to understand and appreciate, more than a lay person, the legal consequences and
intricacies of the pronouncements made by the Court in the Santiago case and the permanent
injunction issued therein.

No less than the Constitution itself, under the second paragraph of Article XVII, Section 4, imposes
upon the COMELEC the mandate to set a date for plebiscite after a positive determination of the
sufficiency of a petition for initiative on amendments to the Constitution, viz –

SEC. 4. x x x

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in
a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the
certification by the Commission on Elections of the sufficiency of the petition.

As a rule, the word "shall" commonly denotes an imperative obligation and is inconsistent with the
idea of discretion, and that the presumption is that the word "shall" when used, is mandatory. 11 Under
the above-quoted constitutional provision, it is the mandatory or imperative obligation of the
COMELEC to (a) determine the sufficiency of the petition for initiative on amendments to the
Constitution and issue a certification on its findings; and (b) in case such petition is found to be
sufficient, to set the date for the plebiscite on the proposed amendments not earlier than 60 days nor
later than 90 days after its certification. The COMELEC should not be allowed to shun its
constitutional mandate under the second paragraph of Article XVII, Section 4, through the summary
dismissal of the petition for initiative filed by Lambino and Aumentado, when such petition is
supported by 6.3 million signatures of registered voters. Should all of these signatures be authentic
and representative of the required percentages of registered voters for every legislative district and
the whole nation, then the initiative is a true and legitimate expression of the will of the people to
amend the Constitution, and COMELEC had caused them grave injustice by silencing their voice
based on a patently inapplicable permanent injunction.

II

We should likewise take the opportunity to revisit the pronouncements made by the Court in its
Decision in the Santiago case, especially as regards the supposed insufficiency or inadequacy of
Republic Act No. 6735 as the enabling law for the implementation of the people's right to initiative on
amendments to the Constitution.

The declaration of the Court that Republic Act No. 6735 is insufficient or inadequate actually gave
rise to more questions rather than answers, due to the fact that there has never been a judicial
precedent wherein the Court invalidated a law for insufficiency or inadequacy. The confusion over
such a declaration thereby impelled former Chief Justice Davide, Jr., the ponente in
the Santiago case, to provide the following clarification in his separate opinion to the Resolution in
the PIRMA case, thus –

Simply put, Santiago did, in reality, declare as unconstitutional that portion of R.A. No. 6735 relating
to Constitutional initiatives for failure to comply with the "completeness and sufficient standard tests"
with respect to permissible delegation of legislative power or subordinate legislation. However
petitioners attempt to twist the language in Santiago, the conclusion is inevitable; the portion of R.A.
No. 6735 was held to be unconstitutional.

It is important to note, however, that while the Decision in the Santiago case pronounced repeatedly
that Republic Act No. 6735 was insufficient and inadequate, there is no categorical declaration
therein that the said statute was unconstitutional. The express finding that Republic Act No. 6735 is
unconstitutional can only be found in the separate opinion of former Chief Justice Davide to the
Resolution in the PIRMA case, which was not concurred in by the other members of the Court.

Even assuming arguendo that the declaration in the Santiago case, that Republic Act No. 6735 is
insufficient and inadequate, is already tantamount to a declaration that the statute is unconstitutional,
it was rendered in violation of established rules in statutory construction, which state that –

[A]ll presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging
unconstitutionality must prove its invalidity beyond a reasonable doubt (Victoriano v. Elizalde Rope
Workers' Union, 59 SCRA 54 [19741). In fact, this Court does not decide questions of a
constitutional nature unless that question is properly raised and presented in appropriate cases and
is necessary to a determination of the case, i.e., the issue of constitutionality must be lis mota
presented (Tropical Homes v. National Housing Authority, 152 SCRA 540 [1987]).

First, the Court, in the Santiago case, could have very well avoided the issue of constitutionality of
Republic Act No. 6735 by ordering the COMELEC to dismiss the Delfin petition for the simple reason
that it does not constitute an initiatory pleading over which the COMELEC could acquire jurisdiction.
And second, the unconstitutionality of Republic Act No. 6735 has not been adequately shown. It was
by and large merely inferred or deduced from the way Republic Act No. 6735 was worded and the
provisions thereof arranged and organized by Congress. The dissenting opinions rendered by
several Justices in the Santiago case reveal the other side to the argument, adopting the more
liberal interpretation that would allow the Court to sustain the constitutionality of Republic Act No.
6735. It would seem that the majority in the Santiago case failed to heed the rule that all
presumptions should be resolved in favor of the constitutionality of the statute.

The Court, acting en banc on the Petition at bar, can revisit its Decision in the Santiago case and
again open to judicial review the constitutionality of Republic Act No. 6735; in which case, I shall cast
my vote in favor of its constitutionality, having satisfied the completeness and sufficiency of
standards tests for the valid delegation of legislative power. I fully agree in the conclusion made by
Justice Puno on this matter in his dissenting opinion 12 in the Santiago case, that reads –

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in
promulgating the law's implementing rules and regulations of the law. As aforestated, Section 2
spells out the policy of the law; viz: "The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon compliance with the requirements of
this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the
standards to canalize the delegated power to the COMELEC to promulgate rules and regulations
from overflowing. Thus, the law states the number of signatures necessary to start a people's
initiative, directs how initiative proceeding is commenced, what the COMELEC should do upon filing
of the petition for initiative, how a proposition is approved, when a plebiscite may be held, when the
amendment takes effect, and what matters may not be the subject of any initiative. By any measure,
these standards are adequate.

III

The dissent of Justice Puno has already a well-presented discourse on the difference between an
"amendment" and a "revision" of the Constitution. Allow me also to articulate my additional thoughts
on the matter.

Oppositors to Lambino and Aumentado's petition for initiative argue that the proposed changes
therein to the provisions of the Constitution already amount to a revision thereof, which is not
allowed to be done through people's initiative; Article XVII, Section 2 of the Constitution on people's
initiative refers only to proposals for amendments to the Constitution. They assert the traditional
distinction between an amendment and a revision, with amendment referring to isolated or
piecemeal change only, while revision as a revamp or rewriting of the whole instrument.13

However, as pointed out by Justice Puno in his dissent, there is no quantitative or qualitative test
that can establish with definiteness the distinction between an amendment and a revision, or
between a substantial and simple change of the Constitution.

The changes proposed to the Constitution by Lambino and Aumentado's petition for initiative
basically affect only Article VI on the Legislative Department and Article VII on the Executive
Department. While the proposed changes will drastically alter the constitution of our government by
vesting both legislative and executive powers in a unicameral Parliament, with the President as the
Head of State and the Prime Minister exercising the executive power; they would not essentially
affect the other 16 Articles of the Constitution. The 100 or so changes counted by the oppositors to
the other provisions of the Constitution are constituted mostly of the nominal substitution of one word
for the other, such as Parliament for Congress, or Prime Minister for President. As eloquently
pointed out in the dissent of Justice Puno, the changes proposed to transform our form of
government from bicameral-presidential to unicameral-parliamentary, would not affect the
fundamental nature of our state as a democratic and republican state. It will still be a representative
government where officials continue to be accountable to the people and the people maintain control
over the government through the election of members of the Parliament.

Furthermore, should the people themselves wish to change a substantial portion or even the whole
of the Constitution, what or who is to stop them? Article XVII, Section 2 of the Constitution which, by
the way it is worded, refers only to their right to initiative on amendments of the Constitution? The
delegates to the Constitutional Convention who, according to their deliberations, purposely limited
Article XVII, Section 2 of the Constitution to amendments? This Court which has the jurisdiction to
interpret the provision? Bearing in mind my earlier declaration that the will of the sovereign people is
supreme, there is nothing or no one that can preclude them from initiating changes to the
Constitution if they choose to do so. To reiterate, the Constitution is supposed to be the expression
and embodiment of the people's will, and should the people's will clamor for a revision of the
Constitution, it is their will which should prevail. Even the fact that the people ratified the 1987
Constitution, including Article XVII, Section 2 thereof, as it is worded, should not prevent the exercise
by the sovereign people of their inherent right to change the Constitution, even if such change would
be tantamount to a substantial amendment or revision thereof, for their actual exercise of the said
right should be a clear renunciation of the limitation which the said provision imposes upon it. It is the
inherent right of the people as sovereign to change the Constitution, regardless of the extent thereof.

IV

Lastly, I fail to see the injustice in allowing the COMELEC to give due course to and take cognizance
of Lambino and Aumentado's petition for initiative to amend the Constitution. I reiterate that it would
be a greater evil if one such petition which is ostensibly supported by the required number of
registered voters all over the country, be summarily dismissed.

Giving due course and taking cognizance of the petition would not necessarily mean that the same
would be found sufficient and set for plebiscite. The COMELEC still faces the task of reviewing the
petition to determine whether it complies with the requirements for a valid exercise of the right to
initiative. Questions raised by the oppositors to the petition, such as those on the authenticity of the
registered voters' signatures or compliance with the requisite number of registered voters for every
legislative district, are already factual in nature and require the reception and evaluation of evidence
of the parties. Such questions are best presented and resolved before the COMELEC since this
Court is not a trier of facts.

In view of the foregoing, I am of the position that the Resolution of the COMELEC dated 31 August
2006 denying due course to the Petition for Initiative filed by Lambino and Aumentado be reversed
and set aside for having been issued in grave abuse of discretion, amounting to lack of jurisdiction,
and that the Petition be remanded to the COMELEC for further proceedings.

In short, I vote to GRANT the petition for Initiative of Lambino and Aumentado.

MINITA V. CHICO-NAZARIO
Associate Justice

____________________

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED

VOTERS, petitioners, vs. The COMMISSION ON ELECTIONS, respondent.

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, petitioners
vs. COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, JR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, respondents.

x ---------------------------------------------------------------------------------------- x

SEPARATE OPINION
VELASCO, JR., J.:

Introduction

The fate of every democracy, of every government based on the Sovereignty of the people, depends
on the choices it makes between these opposite principles: absolute power on the one hand, and on
the other the restraints of legality and the authority of tradition.
—John Acton

In this thorny matter of the people's initiative, I concur with the erudite and highly persuasive opinion
of Justice Reynato S. Puno upholding the people's initiative and raise some points of my own.

The issue of the people's power to propose amendments to the Constitution was once discussed in
the landmark case of Santiago v. COMELEC.1 Almost a decade later, the issue is once again before
the Court, and I firmly believe it is time to reevaluate the pronouncements made in that case.

The issue of Charter Change is one that has sharply divided the nation, and its proponents and
opponents will understandably take all measures to advance their position and defeat that of their
opponents. The wisdom or folly of Charter Change does not concern the Court. The only thing that
the Court must review is the validity of the present step taken by the proponents of Charter Change,
which is the People's Initiative, as set down in Article XVII, Sec. 2 of the 1987 Constitution:

Amendments to this Constitution may likewise be directly proposed by the people through initiative
upon a petition of at least twelve per centum of the total number of registered voters, of which every
legislative district must be represented by at least three per centum of the registered voters therein.
No amendment under this section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

In the Santiago case, the Court discussed whether the second paragraph of that section had been
fulfilled. It determined that Congress had not provided for the implementation of the exercise of the
people's initiative, when it held that Republic Act No. 6735, or "The Initiative and Referendum Act,"
was "inadequate to cover the system of initiative on amendments to the Constitution, and to have
failed to provide sufficient standard for subordinate legislation."2

With all due respect to those Justices who made that declaration, I must disagree.

Republic Act No. 6735 is the proper law for proposing constitutional amendments and it
should not have been considered inadequate.

The decision in Santiago focused on what it perceived to be fatal flaws in the drafting of the law, in
the failings of the way the law was structured, to come to the conclusion that the law was
inadequate. The Court itself recognized the legislators' intent, but disregarded this intent. The law
was found wanting. The Court then saw the inclusion of the Constitution in RA 6735 as an
afterthought. However, it was included, and it should not be excluded by the Court via a strained
analysis of the law. The difficult construction of the law should not serve to frustrate the intent of the
framers of the 1987 Constitution: to give the people the power to propose amendments as they saw
fit. It is a basic precept in statutory construction that the intent of the legislature is the controlling
factor in the interpretation of a statute.3 The intent of the legislature was clear, and yet RA 6735 was
declared inadequate. It was not specifically struck down or declared unconstitutional, merely
incomplete. The Court focused on what RA 6735 was not, and lost sight of what RA 6735 was.

It is my view that the reading of RA 6735 in Santiago should have been more flexible. It is also a
basic precept of statutory construction that statutes should be construed not so much according to
the letter that killeth but in line with the purpose for which they have been enacted. 4 The reading of
the law should not have been with the view of its defeat, but with the goal of upholding it, especially
with its avowed noble purpose.

Congress has done its part in empowering the people themselves to propose amendments to the
Constitution, in accordance with the Constitution itself. It should not be the Supreme Court that
stifles the people, and lets their cries for change go unheard, especially when the Constitution itself
grants them that power.

The court's ruling in the Santiago case does not bar the present petition because the fallo in
the Santiago case is limited to the Delfin petition.

The Santiago case involved a petition for prohibition filed by Miriam Defensor-Santiago, et al.,
against the COMELEC, et al., which sought to prevent the COMELEC from entertaining the "Petition
to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" filed by Atty.
Jesus Delfin. In the body of the judgment, the Court made the following conclusion, viz:

This petition must then be granted and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition or initiative on amendments on the Constitution until
a sufficient law shall have been validly enacted to provide for the implementation of the system
(emphasis supplied).

We feel, however, that the system of initiative to propose amendments to the Constitution should no
longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should
not tarry any longer in complying with the constitutional mandate to provide for the implementation of
the right of the people under that system.

In the said case, the Court's fallo states as follows:

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R. A. 6735 inadequate to cover the system of initiative on amendments to the

Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolutions No. 2300 of the Commission on Elections
prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-
037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

The question now is if the ruling in Santiago is decisive in this case. It is elementary that when there
is conflict between the dispositive portion or fallo of the decision and the opinion of the court
contained in the text or body of the judgment, the former prevails over the latter. An order of
execution is based on the disposition, not on the body, of the decision.5 The dispositive portion is its
decisive resolution; thus, it is the subject of execution. The other parts of the decision may be
resorted to in order to determine the ratio decidendi for the disposition. Where there is conflict
between the dispositive part and the opinion of the court contained in the text or body of the
decision, the former must prevail over the latter on the theory that the dispositive portion is
the final order, while the opinion is merely a statement ordering nothing. Hence, the execution
must conform with that which is ordained or decreed in the dispositive portion of the decision.6

A judgment must be distinguished from an opinion. The latter is an informal expression of the views
of the court and cannot prevail against its final order or decision. While the two may be combined in
one instrument, the opinion forms no part of the judgment. So there is a distinction between the
findings and conclusions of a court and its Judgment. While they may constitute its decision and
amount to the rendition of a judgment, they are not the judgment itself. It is not infrequent that the
grounds of a decision fail to reflect the exact views of the court, especially those of concurring
justices in a collegiate court. We often encounter in judicial decisions lapses, findings, loose
statements and generalities which do not bear on the issues or are apparently opposed to the
otherwise sound and considered result reached by the court as expressed in the dispositive part, so
called, of the decision.7

Applying the foregoing argument to the Santiago case, it immediately becomes apparent that the
disposition in the latter case categorically made permanent the December 18, 1996 Temporary
Restraining Order issued against the COMELEC in the Delfin petition but did NOT formally
incorporate therein any directive PERMANENTLY enjoining the COMELEC "from entertaining or
taking cognizance of any petition for initiative on amendments." Undeniably, the perpetual
proscription against the COMELEC from assuming jurisdiction over any other petition on Charter
Change through a People's Initiative is just a conclusion and cannot bind the poll body, for such
unending ban would trench on its constitutional power to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall under
Section 2, Article IX of the Constitution. RA 6735 gave the COMELEC the jurisdiction to determine
the sufficiency of the petition on the initiative under Section 8, Rule 11 and the form of the petition
under Section 3, Rule I; hence, it cannot be barred from entertaining any such petition.

In sum, the COMELEC still retains its jurisdiction to take cognizance of any petition on initiative
under RA 6735 and it can rule on the petition and its action can only be passed upon by the Court
when the same is elevated through a petition for certiorari. COMELEC cannot be barred from acting
on said petitions since jurisdiction is conferred by law (RA 6735) and said law has not been declared
unconstitutional and hence still valid though considered inadequate in the Santiago case.

Respondents, however, claim that the Court in the subsequent case of PIRMA v. Commission on
Elections8 confirmed the statement of the Court in the Santiago case that the COMELEC was
"permanently enjoined from entertaining or taking cognizance of any petition for initiative on
amendments." Much reliance is placed on the ruling contained in a Minute Resolution which reads:

The Court ruled, first, by a unanimous vote, that no grave abuse of Discretion could be attributed to
the public respondent COMELEC in Dismissing the petition filed by PIRMA therein, it appearing that
it only Complied with the DISPOSITIONS in the Decision of this Court in G.R. No. 127325,
promulgated on March 19, 1997, and its Resolution of June 10, 1997.
Take note that the Court specifically referred to "dispositions" in the March 19, 1997 Decision. To
reiterate, the dispositions in the Santiago case decision refer specifically to the December 18, 1996
TRO being made permanent against the COMELEC but do not pertain to a permanent injunction
against any other petition for initiative on amendment. Thus, what was confirmed or even affirmed in
the Minute Resolution in the PIRMA case pertains solely to the December 18, 1996 TRO which
became permanent, the declaration of the inadequacy of RA 6735, and the annulment of certain
parts of Resolution No. 2300 but certainly not the alleged perpetual injunction against the initiative
petition. Thus, the resolution in the PIRMA case cannot be considered res judicata to the Lambino
petition.

Amendment or Revision

One last matter to be considered is whether the petition may be allowed under RA 6735, since only
amendments to the Constitution may be the subject of a people's initiative.

The Lambino petition cannot be considered an act of revising the Constitution; it is merely an
attempt to amend it. The term amendment has to be liberally construed so as to effectuate the
people's efforts to amend the Constitution.

As an eminent constitutionalist, Dean Vicente G. Sinco,9 explained:

Strictly speaking, the act of revising a constitution involves alterations of different portions of the
entire document. It may result in the rewriting either of the whole constitution, or the greater portion
of it, or perhaps only some of its important provisions. But whatever results the revision may
produce, the factor that characterizes it as an act of revision is the original intention and plan
authorized to be carried out. That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered or suppressed or whether the
whole document should be replaced with an entirely new one.

The act of amending a constitution, on the other hand, envisages a change of only a few specific
provisions. The intention of an act to amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather is to improve specific parts of the
existing constitution or to add to it provisions deemed essential on account of changed conditions or
to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect.

In this case, the Lambino petition is not concerned with rewriting the entire Constitution. It was never
its intention to revise the whole Constitution. It merely concerns itself with amending a few provisions
in our fundamental charter.

When there are gray areas in legislation, especially in matters that pertain to the sovereign people's
political rights, courts must lean more towards a more liberal interpretation favoring the people's right
to exercise their sovereign power.

Conclusion

Sovereignty residing in the people is the highest form of sovereignty and thus deserves the highest
respect even from the courts. It is not something that can be overruled, set aside, ignored or
stomped over by whatever amount of technicalities, blurred or vague provisions of the law.

As I find RA 6735 to be adequate as the implementing law for the People's Initiative, I vote to grant
the petition in G.R. No. 174153 and dismiss the petition in G.R. No. 174299. The Amended Petition
for Initiative filed by petitioners Raul L. Lambino and Erico B. Aumentado should be remanded to the
COMELEC for determination whether or not the petition is sufficient under RA 6735, and if the
petition is sufficient, to schedule and hold the necessary plebiscite as required by RA 6735.

It is time to let the people's voice be heard once again as it was twenty years ago. And should this
voice demand a change in the Constitution, the Supreme Court should not be one to stand in its
way.

PRESBITERO J. VELASCO, JR.

Associate Justice

Footnotes

1
Including Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP).

2
This provision states: "Requirements. — x x x x

(b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of
the total number of registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein. Initiative on the
Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution
and only once every five (5) years thereafter.

(c) The petition shall state the following:

c.1. contents or text of the proposed law sought to be enacted, approved or rejected, amended or
repealed, as the case may be;

c.2. the proposition;

c.3. the reason or reasons therefor;

c.4. that it is not one of the exceptions provided herein;

c.5. signatures of the petitioners or registered voters; and

c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly written
or printed at the top of every page of the petition."

3
This provision states: "Verification of Signatures. — The Election Registrar shall verify the
signatures on the basis of the registry list of voters, voters' affidavits and voters identification cards
used in the immediately preceding election."

4
Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI will be changed thus:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which
shall be composed of as many members as may be provided by law, to be apportioned among the
provinces, representative districts, and cities in accordance with the number of their respective
inhabitants, with at least three hundred thousand inhabitants per district, and on the basis of a
uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous,
compact and adjacent territory, and each province must have at least one member.
(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five
years old on the day of the election, a resident of his district for at least one year prior thereto, and
shall be elected by the qualified voters of his district for a term of five years without limitation as to
the number thereof, except those under the party-list system which shall be provided for by law and
whose number shall be equal to twenty per centum of the total membership coming from the
parliamentary districts.

5
Sections 1, 2, 3, and 4 of Article VII will be changed thus:

Section 1. There shall be a President who shall be the Head of State. The executive power shall be
exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be
elected by a majority of all the Members of Parliament from among themselves. He shall be
responsible to the Parliament for the program of government.

6
Sections 1-5 of the Transitory Provisions read:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their
term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the
1987 Constitution unless impeached by a vote of two thirds of all the members of the interim
parliament.

(2) In case of death, permanent disability, resignation or removal from office of the incumbent
President, the incumbent Vice President shall succeed as President. In case of death, permanent
disability, resignation or removal from office of both the incumbent President and Vice President, the
interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under
Article VII as amended.

Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby
be amended and Sections 18 and 24 which shall be deleted, all other sections of Article VI are
hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are
inconsistent with the Parliamentary system of government, in which case, they shall be amended to
conform with a unicameral parliamentary form of government; provided, however, that any and all
references therein to "Congress", "Senate", "House of Representatives" and "Houses of Congress"
shall be changed to read "Parliament"; that any and all references therein to "Member[s] of
Congress", "Senator[s]" or "Member[s] of the House of Representatives" shall be changed to read as
"Member[s] of Parliament" and any and all references to the "President" and or "Acting President"
shall be changed to read "Prime Minister".

Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the
exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended
and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article VII shall
be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be
inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to
a unicameral Parliamentary System of government; provided however that any and all references
therein to "Congress", "Senate", "House of Representatives" and "Houses of Congress" shall be
changed to read "Parliament"; that any and all references therein to "Member[s] of Congress",
"Senator[s]" or "Member[s] of the House of Representatives" shall be changed to read as
"Member[s] of Parliament" and any and all references to the "President" and or "Acting President"
shall be changed to read "Prime Minister".
Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament
which shall continue until the Members of the regular Parliament shall have been elected and shall
have qualified. It shall be composed of the incumbent Members of the Senate and the House of
Representatives and the incumbent Members of the Cabinet who are heads of executive
departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the
thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He
shall initially convene the interim Parliament and shall preside over its sessions for the election of the
interim Prime Minister and until the Speaker shall have been elected by a majority vote of all the
members of the interim Parliament from among themselves.

(3) Within forty-five days from ratification of these amendments, the interim Parliament shall convene
to propose amendments to, or revisions of, this Constitution consistent with the principles of local
autonomy, decentralization and a strong bureaucracy.

Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the
members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority
vote of the members thereof. The interim Prime Minister shall oversee the various ministries and
shall perform such powers and responsibilities as may be delegated to him by the incumbent
President.

(2) The interim Parliament shall provide for the election of the members of Parliament, which shall be
synchronized and held simultaneously with the election of all local government officials. Thereafter,
the Vice President, as Member of Parliament, shall immediately convene the Parliament and shall
initially preside over its session for the purpose of electing the Prime Minister, who shall be elected
by a majority vote of all

its members, from among themselves. The duly elected Prime Minister shall continue to exercise
and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration
of the term of incumbent President and Vice President.

7
As revised, Article XVIII contained a new paragraph in Section 4 (paragraph 3) and a modified
paragraph 2, Section 5, thus:

Section 4. x x x x

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the
thirtieth day of June 2010.

xxxx

Section 5. x x x x

(2) The interim Parliament shall provide for the election of the members of Parliament, which shall be
synchronized and held simultaneously with the election of all local government officials. The duly
elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities
of the interim Prime Minister until the expiration of the term of the incumbent President and Vice
President.

8
336 Phil. 848 (1997); Resolution dated 10 June 1997.
9
The COMELEC held:

We agree with the Petitioners that this Commission has the solemn Constitutional duty to enforce
and administer all laws and regulations relative to the conduct of, as in this case, initiative.

This mandate, however, should be read in relation to the other provisions of the Constitution
particularly on initiative.

Section 2, Article XVII of the 1987 Constitution provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative, upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. x x x.

The Congress shall provide for the implementation of the exercise of this right.

The afore-quoted provision of the Constitution being a non self-executory provision needed an
enabling law for its implementation. Thus, in order to breathe life into the constitutional right of the
people under a system of initiative to directly propose, enact, approve or reject, in whole or in part,
the Constitution, laws, ordinances, or resolution, Congress enacted Republic Act No. 6735.

However, the Supreme Court, in the landmark case of Santiago vs. Commission on Elections struck
down the said law for being incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned.

The Supreme Court likewise declared that this Commission should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the implementation of the system.

Thus, even if the signatures in the instant Petition appear to meet the required minimum per
centum of the total number of registered voters, of which every legislative district is represented by
at least three per centum of the registered voters therein, still the Petition cannot be given due
course since the Supreme Court categorically declared R.A. No. 6735 as inadequate to cover the
system of initiative on amendments to the Constitution.

This Commission is not unmindful of the transcendental importance of the right of the people under a
system of initiative. However, neither can we turn a blind eye to the pronouncement of the High
Court that in the absence of a valid enabling law, this right of the people remains nothing but an
"empty right", and that this Commission is permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution.

Considering the foregoing, We are therefore constrained not to entertain or give due course to the
instant Petition.

Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya; Philippine Transport
10

and General Workers Organization (PTGWO); Trade Union Congress of the Philippines; Sulong
Bayan Movement Foundation, Inc.

11
Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa,
Jr., Susan V. Ople and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Atty. Pete Quirino
Quadra; Bayan, Bayan Muna, Kilusang Mayo Uno, Head, Ecumenical Bishops Forum, Migrante,
Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Jojo Pineda, Dr. Darby
Santiago, Dr. Reginald Pamugas; Loretta Ann P. Rosales, and Mario Joyo Aguja, Ana Theresa
Hontiveros-Baraquel, Luwalhati Ricasa Antonino; Philippine Constitution Association (PHILCONSA),
Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon, Froilan M. Bacungan, Joaquin T. Venus,
Jr., Fortunato P. Aguas, and Amado Gat Inciong; Senate of the Philippines; Jose Anselmo I. Cadiz,
Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador and Randall C. Tabayoyong,
Integrated Bar of the Philippines, Cebu City and Cebu Province Chapters; Senate Minority Leader
Aquilino Q. Pimentel, Jr., and Senators Sergio R. Osmeňa III, Jamby Madrigal, Jinggoy Estrada,
Alfredo S. Lim and Panfilo Lacson; Joseph Ejercito Estrada and Pwersa ng Masang Pilipino.

12
This provision states: "Amendments to this Constitution may likewise be directly proposed by the
people through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per centum
of the registered voters therein. No amendment under this section shall be authorized within five
years following the ratification of this Constitution nor oftener than once every five years."

13
I RECORD, 387-388.

During the deliberations of the Constitutional Commission, Commissioner Rene V. Sarmiento

14

made the following report (I RECORD 389):

MR. SARMIENTO: Madam President, I am happy that the Committee on Amendments and
Transitory Provisions decided to retain the system of initiative as a mode of amending the
Constitution. I made a survey of American constitutions and I discovered that 13 States provide for a
system of initiative as a mode of amending the Constitution — Arizona, Arkansas, California,
Colorado, Massachusetts, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma
and Oregon. The initiative for ordinary laws only is used in Idaho, Maine, Montana and South
Dakota. So, I am happy that this was accepted or retained by the Committee.

xxxx

The Americans in turn copied the concept of initiatives from the Swiss beginning in 1898 when South
Dakota adopted the initiative in its constitution. The Swiss cantons experimented with initiatives in
the 1830s. In 1891, the Swiss incorporated the initiative as a mode of amending their national
constitution. Initiatives promote "direct democracy" by allowing the people to directly propose
amendments to the constitution. In contrast, the traditional mode of changing the constitution is
known as "indirect democracy" because the amendments are referred to the voters by the legislature
or the constitutional convention.

Florida requires only that the title and summary of the proposed amendment are "printed in clear
15

and unambiguous language." Advisory Opinion to the Attorney General RE Right of Citizens to
Choose Health Care Providers, No. 90160, 22 January 1998, Supreme Court of Florida.

16
State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933); Whitman v. Moore, 59 Ariz.
211, 125 P.2d 445 (1942); Heidtman v. City of Shaker Heights, 99 Ohio App. 415, 119 N.E. 2d 644
(1954); Christen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958); Stop the Pay Hike Committee v. Town
Council of Town of Irvington, 166 N.J. Super. 197, 399 A.2d 336 (1979); State ex rel Evans v.
Blackwell, Slip copy, 2006 WL 1102804 (Ohio App. 10 Dist.), 2006-Ohio-2076.
 407 Mass. 949, 955 (1990). Affirmed by the District Court of Massachusetts in Henry v. Conolly,
17

743 F. Supp. 922 (1990) and by the Court of Appeals, First Circuit, in Henry v. Conolly, 9109 F. 2d.
1000 (1990), and cited in Marino v. Town Council of Southbridge, 13 Mass.L.Rptr. 14 (2001).

18
89 P.3d 1227, 1235 (2004).

19
Stumpf v. Law, 839 P. 2d 120, 124 (1992).

20
Exhibit "B" of the Lambino Group's Memorandum filed on 11 October 2006.

Annex "B" of the Comment/Opposition in Intervention of Atty. Pete Quirino-Quadra filed on 7

21

September 2006.

22
www.ulap.gov.ph.

G.R. No. L-5270

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5270 January 15, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
H. N. BULL, defendant-appellant.

Bruce & Lawrence, for appellant.

Office of the Solicitor-General Harvey, for appellee.

ELLIOTT, J.:

The appellant was convicted in the Court of First Instance of a violation of section 1 of Act No. 55, as
amended by section 1 of Act No. 275, and from the judgment entered thereon appealed to this court,
where under proper assignments of error he contends: (1) that the complaint does not state facts
sufficient to confer jurisdiction upon the court; (2) that under the evidence the trial court was without
jurisdiction to hear and determine the case; (3) that Act No. 55 as amended is in violation of certain
provisions of the Constitution of the United States, and void as applied to the facts of this case; and
(4) that the evidence is insufficient to support the conviction.

The information alleges:

That on and for many months prior to the 2d day of December, 1908, the said H. N. Bull was then
and there master of a steam sailing vessel known as the steamship Standard, which vessel was
then and there engaged in carrying and transporting cattle, carabaos, and other animals from a
foreign port and city of Manila, Philippine Islands; that the said accused H. N. Bull, while master of
said vessel, as aforesaid, on or about the 2d day of December, 1908, did then and there willfully,
unlawfully, and wrongly carry, transport, and bring into the port and city of Manila, aboard said
vessel, from the port of Ampieng, Formosa, six hundred and seventy-seven (677) head of cattle and
carabaos, without providing suitable means for securing said animals while in transit, so as to avoid
cruelty and unnecessary suffering to the said animals, in this, to wit, that the said H. N. Bull, master,
as aforesaid, did then and there fail to provide stalls for said animals so in transit and suitable means
for trying and securing said animals in a proper manner, and did then and there cause some of said
animals to be tied by means of rings passed through their noses, and allow and permit others to be
transported loose in the hold and on the deck of said vessel without being tied or secured in stalls,
and all without bedding; that by reason of the aforesaid neglect and failure of the accused to provide
suitable means for securing said animals while so in transit, the noses of some of said animals were
cruelly torn, and many of said animals were tossed about upon the decks and hold of said vessel,
and cruelly wounded, bruised, and killed.

All contrary to the provisions of Acts No. 55 and No. 275 of the Philippine Commission.

Section 1 of Act No. 55, which went into effect January 1, 1901, provides that —

The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep,
swine, or other animals, from one port in the Philippine Islands to another, or from any foreign port to
any port within the Philippine Islands, shall carry with them, upon the vessels carrying such animals,
sufficient forage and fresh water to provide for the suitable sustenance of such animals during the
ordinary period occupied by the vessel in passage from the port of shipment to the port of
debarkation, and shall cause such animals to be provided with adequate forage and fresh water at
least once in every twenty-four hours from the time that the animals are embarked to the time of their
final debarkation.

By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by adding to section 1 thereof
the following:

The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep,
swine, or other animals from one port in the Philippine Islands to another, or from any foreign port to
any port within the Philippine Islands, shall provide suitable means for securing such animals while
in transit so as to avoid all cruelty and unnecessary suffering to the animals, and suitable and proper
facilities for loading and unloading cattle or other animals upon or from vessels upon which they are
transported, without cruelty or unnecessary suffering. It is hereby made unlawful to load or unload
cattle upon or from vessels by swinging them over the side by means of ropes or chains attached to
the thorns.

Section 3 of Act No. 55 provides that —

Any owner or master of a vessel, or custodian of such animals, who knowingly and willfully fails to
comply with the provisions of section one, shall, for every such failure, be liable to pay a penalty of
not less that one hundred dollars nor more that five hundred dollars, United States money, for each
offense. Prosecution under this Act may be instituted in any Court of First Instance or any provost
court organized in the province or port in which such animals are disembarked.

1. It is contended that the information is insufficient because it does not state that the court was
sitting at a port where the cattle were disembarked, or that the offense was committed on board a
vessel registered and licensed under the laws of the Philippine Islands.

Act No. 55 confers jurisdiction over the offense created thereby on Courts of First Instance or any
provost court organized in the province or port in which such animals are disembarked, and there is
nothing inconsistent therewith in Act No. 136, which provides generally for the organization of the
courts of the Philippine Islands. Act No. 400 merely extends the general jurisdiction of the courts
over certain offenses committed on the high seas, or beyond the jurisdiction of any country, or within
any of the waters of the Philippine Islands on board a ship or water craft of any kind registered or
licensed in the Philippine Islands, in accordance with the laws thereof. (U.S. vs. Fowler, 1 Phil. Rep.,
614.) This jurisdiction may be exercised by the Court of First Instance in any province into which
such ship or water upon which the offense or crime was committed shall come after the commission
thereof. Had this offense been committed upon a ship carrying a Philippine registry, there could have
been no doubt of the Jurisdiction of the court, because it is expressly conferred, and the Act is in
accordance with well recognized and established public law. But the Standard was a Norwegian
vessel, and it is conceded that it was not registered or licensed in the Philippine Islands under the
laws thereof. We have then the question whether the court had jurisdiction over an offense of this
character, committed on board a foreign ship by the master thereof, when the neglect and omission
which constitutes the offense continued during the time the ship was within the territorial waters of
the United States. No court of the Philippine Islands had jurisdiction over an offenses or crime
committed on the high seas or within the territorial waters of any other country, but when she came
within 3 miles of a line drawn from the headlines which embrace the entrance to Manila Bay, she
was within territorial waters, and a new set of principles became applicable. (Wheaton, Int. Law
(Dana ed.), p. 255, note 105; Bonfils, Le Droit Int., sec 490 et seq.; Latour, La Mer Ter., ch. 1.) The
ship and her crew were then subject to the jurisdiction of the territorial sovereign subject through the
proper political agency. This offense was committed within territorial waters. From the line which
determines these waters the Standard must have traveled at least 25 miles before she came to
anchor. During that part of her voyage the violation of the statue continued, and as far as the
jurisdiction of the court is concerned, it is immaterial that the same conditions may have existed
while the vessel was on the high seas. The offense, assuming that it originated at the port of
departure in Formosa, was a continuing one, and every element necessary to constitute it existed
during the voyage across the territorial waters. The completed forbidden act was done within
American waters, and the court therefore had jurisdiction over the subject-matter of the offense and
the person of the offender.

The offense then was thus committed within the territorial jurisdiction of the court, but the objection
to the jurisdiction raises the further question whether that jurisdiction is restricted by the fact of the
nationality of the ship. Every. Every state has complete control and jurisdiction over its territorial
waters. According to strict legal right, even public vessels may not enter the ports of a friendly power
without permission, but it is now conceded that in the absence of a prohibition such ports are
considered as open to the public ship of all friendly powers. The exemption of such vessels from
local jurisdiction while within such waters was not established until within comparatively recent times.
In 1794, Attorney-General Bradford, and in 1796 Attorney-General Lee, rendered opinions to the
effect that "the laws of nations invest the commander of a foreign ship of war with no exemption from
the jurisdiction of the country into which he comes." (1, Op. U.S. Attys. Gen., 46, 87.) This theory
was also supported by Lord Stowell in an opinion given by him to the British Government as late as
1820. In the leading case of the Schooner Exchange vs. McFadden (7 Cranch (U.S.), 116, 144),
Chief Justice Marshall said that the implied license under which such vessels enter a friendly port
may reasonably be construed as "containing exemption from the jurisdiction of the sovereign within
whose territory she claims the rights of hospitality." The principle was accepted by the Geneva
Arbitration Tribunal, which announced that "the priviledge of exterritoriality accorded to vessels of
war has been admitted in the law of nations; not as an absolute right, but solely as a proceeding
founded on the principle of courtesy and mutual deference between nations."
(2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor, Int. Law, sec. 256;
Ortolan, Dip de la Mer, 2. C.X.)

Such vessels are therefore permitted during times of peace to come and go freely. Local official
exercise but little control over their actions, and offenses committed by their crew are justiciable by
their own officers acting under the laws to which they primarily owe allegiance. This limitation upon
the general principle of territorial sovereignty is based entirely upon comity and convenience, and
finds its justification in the fact that experience shows that such vessels are generally careful to
respect local laws and regulation which are essential to the health, order, and well-being of the port.
But comity and convenience does not require the extension of the same degree of exemption to
merchant vessels. There are two well-defined theories as to extent of the immunities ordinarily
granted to them, According to the French theory and practice, matters happening on board a
merchant ship which do not concern the tranquillity of the port or persons foreign to the crew, are
justiciable only by the court of the country to which the vessel belongs. The French courts therefore
claim exclusive jurisdiction over crimes committed on board French merchant vessels in foreign
ports by one member of the crew against another. (See Bonfils, Le Droit Int. (quat. ed.), secs. 624-
628; Martens, Le Droit Int., tome 2, pp. 338, 339; Ortolan, Dip. de la Mer, tit. 1, p. 292; Masse, Droit
Int., tome 2, p. 63.) Such jurisdiction has never been admitted or claim by Great Britain as a right,
although she has frequently conceded it by treaties. (Halleck, Int. Law (Baker's ed.), vol. 1, 231;
British Territorial Waters Act, 1878.) Writers who consider exterritoriality as a fact instead of a theory
have sought to restrict local jurisdiction, but Hall, who is doubtless the leading English authority, says
that —

It is admitted by the most thoroughgoing asserters of the territoriality of merchant vessels that so
soon as the latter enter the ports of a foreign state they become subject to the local jurisdiction on all
points in which the interests of the country are touched. (Hall, Int. Law, p. 263.)

The United States has adhered consistently to the view that when a merchant vessel enters a
foreign port it is subject to the jurisdiction of the local authorities, unless the local sovereignty has by
act of acquiescence or through treaty arrangements consented to waive a portion of such
jurisdiction. (15 Op. Attys. Gen., U. S., 178; 2 Moore, Int. Law Dig., sec. 204; article by Dean
Gregory, Mich. Law Review, Vol. II, No. 5.) Chief Justice Marshall, in the case of the Exchange, said
that —

When merchant vessels enter for the purpose of trade, in would be obviously in convinient and
dangerous to society and would subject the laws to continual infraction and the government to
degradation if such individual merchants did not owe temporary and local allegiance, and were not
amendable to the jurisdiction of the country.

The Supreme Court of the United States has recently said that the merchant vessels of one country
visiting the ports of another for the purpose of trade, subject themselves to the laws which govern
the ports they visit, so long as they remain; and this as well in war as in peace, unless otherwise
provided by treaty. (U. S. vs. Diekelman, 92 U. S., 520-525.)

Certain limitations upon the jurisdiction of the local courts are imposed by article 13 of the treaty of
commerce and navigation between Sweden and Norway and the United States, of July 4, 1827,
which concedes to the consul, vice-consuls, or consular agents of each country "The right to sit as
judges and arbitrators in such differences as may arise between the captains and crews of the
vessels belonging to the nation whose interests are committed to their charge, without the
interference of the local authorities, unless the conduct of the crews or of the captains should disturb
the order or tranquillity of the country." (Comp. of Treaties in Force, 1904, p. 754.) This exception
applies to controversies between the members of the ship's company, and particularly to disputes
regarding wages. (2 Moore, Int. Law Dig., sec. 206, p. 318; Tellefsen vs. Fee, 168 Mass., 188.) The
order and tranquillity of the country are affected by many events which do not amount to a riot or
general public disturbance. Thus an assault by one member of the crew upon another, committed
upon the ship, of which the public may have no knowledge whatever, is not by this treaty withdrawn
from the cognizance of the local authorities.
In 1876 the mates of the Swedish bark Frederike and Carolina engaged in a "quarrel" on board the
vessel in the port of Galveston, Texas. They were prosecuted before a justice of the peace, but the
United States district attorney was instructed by the Government to take the necessary steps to have
the proceedings dismissed, and the aid of the governor of Texas was invoked with the view to "guard
against a repetition of similar proceedings." (Mr. Fish, Secretary of State, to Mr. Grip, Swedish and
Norwegian charged, May 16, 1876; Moore, Int. Law Dig.) It does not appear that this "quarrel" was of
such a nature as to amount to a breach of the criminal laws of Texas, but when in 1879 the mate for
the Norwegian bark Livingston was prosecuted in the courts of Philadelphia County for an assault
and battery committed on board the ship while lying in the port of Philadelphia, it was held that there
was nothing in the treaty which deprived the local courts of jurisdiction.
(Commonwealth vs. Luckness, 14 Phila. (Pa.), 363.) Representations were made through diplomatic
channels to the State Department, and on July 30, 1880, Mr. Evarts, Secretary of State, wrote to
Count Lewenhaupt, the Swedish and Norwegian minister, as follows:

I have the honor to state that I have given the matter careful consideration in connection with the
views and suggestion of your note and the provisions of the thirteenth article of the treaty of 1827
between the United States and Sweden and Norway. The stipulations contained in the last clause of
that article . . . are those under which it is contended by you that jurisdiction is conferred on the
consular officers, not only in regard to such differences of a civil nature growing out of the contract of
engagement of the seamen, but also as to disposing of controversies resulting from personal
violence involving offense for which the party may be held amenable under the local criminal law.

This Government does not view the article in question as susceptible of such broad interpretation.
The jurisdiction conferred upon the consuls is conceived to be limited to their right to sit as judges or
abitrators in such differences as may arise between captains and crews of the vessels, where such
differences do not involve on the part of the captain or crew a disturbance of the order or tranquillity
of the country. When, however, a complaint is made to a local magistrate, either by the captain or
one or more of the crew of the vessel, involving the disturbance of the order or tranquillity of the
country, it is competent for such magistrate to take cognizance of the matter in furtherance of the
local laws, and under such circumstances in the United States it becomes a public duty which the
judge or magistrate is not at liberty voluntarily to forego. In all such cases it must necessarily be left
to the local judicial authorities whether the procedure shall take place in the United States or in
Sweden to determine if in fact there had been such disturbance of the local order and tranquillity,
and if the complaint is supported by such proof as results in the conviction of the party accused, to
visit upon the offenders such punishment as may be defined against the offense by the municipal
law of the place." (Moore, Int. Law Dig., vol. 2, p. 315.)

The treaty does not therefore deprive the local courts of jurisdiction over offenses committed on
board a merchant vessel by one member of the crew against another which amount to a disturbance
of the order or tranquillity of the country, and a fair and reasonable construction of the language
requires un to hold that any violation of criminal laws disturbs the order or traquillity of the country.
The offense with which the appellant is charged had nothing to so with any difference between the
captain and the crew. It was a violation by the master of the criminal law of the country into whose
port he came. We thus find that neither by reason of the nationality of the vessel, the place of the
commission of the offense, or the prohibitions of any treaty or general principle of public law, are the
court of the Philippine Islands deprived of jurisdiction over the offense charged in the information in
this case.

It is further contended that the complaint is defective because it does not allege that the animals
were disembarked at the port of Manila, an allegation which it is claimed is essential to the
jurisdiction of the court sitting at that port. To hold with the appellant upon this issue would be to
construe the language of the complaint very strictly against the Government. The disembarkation of
the animals is not necessary in order to constitute the completed offense, and a reasonable
construction of the language of the statute confers jurisdiction upon the court sitting at the port into
which the animals are bought. They are then within the territorial jurisdiction of the court, and the
mere fact of their disembarkation is immaterial so far as jurisdiction is concerned. This might be
different if the disembarkation of the animals constituted a constitutional element in the offense, but it
does not.

It is also contended that the information is insufficient because it fails to allege that the
defendant knowingly and willfully failed to provide suitable means for securing said animals while in
transit, so as to avoid cruelty and unnecessary suffering. The allegation of the complaint that the act
was committed willfully includes the allegation that it was committed knowingly. As said in
Woodhouse vs. Rio Grande R.R. Company (67 Texas, 416), "the word 'willfully' carries the idea,
when used in connection with an act forbidden by law, that the act must be done knowingly or
intentionally; that, with knowledge, the will consented to, designed, and directed the act." So in
Wong vs. City of Astoria (13 Oregon, 538), it was said: "The first one is that the complaint did not
show, in the words of the ordinance, that the appellant 'knowingly' did the act complained of. This
point, I think, was fully answered by the respondent's counsel — that the words 'willfully' and
'knowingly' conveyed the same meaning. To 'willfully' do an act implies that it was done by design —
done for a certain purpose; and I think that it would necessarily follow that it was 'knowingly' done."
To the same effect is Johnson vs. The People (94 Ill., 505), which seems to be on all fours with the
present case.

The evidence shows not only that the defendant's acts were knowingly done, but his defense rests
upon the assertion that "according to his experience, the system of carrying cattle loose upon the
decks and in the hold is preferable and more secure to the life and comfort of the animals." It was
conclusively proven that what was done was done knowingly and intentionally.

In charging an offense under section 6 of General Orders, No. 58, paragraph 3, it is only necessary
to state the act or omission complained of as constituting a crime or public offense in ordinary and
concise language, without repitition. It need not necessarily be in the words of the statute, but it must
be in such form as to enable a person of common understanding to know what is intended and the
court to pronounce judgment according to right. A complaint which complies with this requirement is
good. (U.S. vs. Sarabia, 4 Phil. Rep., 556.)

The Act, which is in the English language, impose upon the master of a vessel the duty to "provide
suitable means for securing such animals while in transit, so as to avoid all cruelty and unnecessary
suffering to the animals." The allegation of the complaint as it reads in English is that the defendant
willfully, unlawfully, and wrongfully carried the cattle "without providing suitable means for securing
said animals while in transit, so as to avoid cruelty and unnecessary suffering to the said animals in
this . . . that by reason of the aforesaid neglect and failure of the accused to provide suitable means
for securing said animals were cruelty torn, and many of said animals were tossed about upon the
decks and hold of said vessels, and cruelty wounded, bruised, and killed."

The appellant contends that the language of the Spanish text of the information does not charge him
with failure to provide "sufficient" and "adequate" means. The words used are "medios suficientes"
and "medios adecuados." In view of the fact that the original complaint was prepared in English, and
that the word "suitable" is translatable by the words "adecuado," "suficiente," and "conveniente,"
according to the context and circumstances, we determine this point against the appellant,
particularly in view of the fact that the objection was not made in the court below, and that the
evidence clearly shows a failure to provide "suitable means for the protection of the animals."

2. The appellant's arguments against the constitutionality of Act No. 55 and the amendment thereto
seems to rest upon a fundamentally erroneous conception of the constitutional law of these Islands.
The statute penalizes acts and ommissions incidental to the transportation of live stock between
foreign ports and ports of the Philippine Islands, and had a similar statute regulating commerce with
its ports been enacted by the legislature of one of the States of the Union, it would doubtless have
been in violation of Article I, section 3, of the Constitution of the United States. (Stubbs vs. People
(Colo.), 11 L. R. A., N. S., 1071.)

But the Philippine Islands is not a State, and its relation to the United States is controlled by
constitutional principles different from those which apply to States of the Union. The importance of
the question thus presented requires a statement of the principles which govern those relations, and
consideration of the nature and extent of the legislative power of the Philippine Commission and the
Legislature of the Philippines. After much discussion and considerable diversity of opinion certain
applicable constitutional doctrines are established.

The Constitution confers upon the United States the express power to make war and treaties, and it
has the power possessed by all nations to acquire territory by conquest or treaty. Territory thus
acquired belongs to the United States, and to guard against the possibility of the power of Congress
to provide for its government being questioned, the framers of the Constitution provided in express
terms that Congress should have the power "to dispose of and make all needful rules and
regulations respecting territory and other property belonging to the United States." (Art. IV, sec. 3,
par. 3.) Upon the acquisition of the territory by the United States, and until it is formally incorporated
into the Union, the duty of providing a government therefor devolves upon Congress. It may govern
the territory by its direct acts, or it may create a local government, and delegate thereto the ordinary
powers required for local government. (Binns vs. U. S., 194 U. S., 486.) This has been the usual
procedure. Congress has provided such governments for territories which were within the Union,
and for newly acquired territory not yet incorporated therein. It has been customary to organize a
government with the ordinary separation of powers into executive, legislative, and judicial, and to
prescribe in an organic act certain general conditions in accordance with which the local government
should act. The organic act thus became the constitution of the government of the territory which
had not been formally incorporated into the Union, and the validity of legislation enacted by the local
legislature was determined by its conformity with the requirements of such organic act. (National
Bank vs. Yankton, 11 Otto (U. S.), 129.) To the legislative body of the local government Congress
has delegated that portion of legislative power which in its wisdom it deemed necessary for the
government of the territory, reserving, however, the right to annul the action of the local legislature
and itself legislate directly for the territory. This power has been exercised during the entire period of
the history of the United States. The right of Congress to delegate such legislative power can no
longer be seriously questioned. (Dorr vs. U. S., 195 U. S., 138; U. S. vs. Heinszen, 206 U. S., 370,
385.)

The Constitution of the United States does not by its own force operate within such territory,
although the liberality of Congress in legislating the Constitution into contiguous territory tended to
create an impression upon the minds of many people that it went there by its own force.
(Downes vs. Bidwell, 182 U. S., 289.) In legislating with reference to this territory, the power of
Congress is limited only by those prohibitions of the Constitution which go to the very root of its
power to act at all, irrespective of time or place. In all other respects it is plenary. (De
Lima vs. Bidwell, 182 U. S., 1; Downes vs. Bidwell, 182 U. S., 244; Hawaii vs. Mankichi, 190 U. S.,
197; Dorr vs. U. S., 195 U. S., 138; Rassmussen vs. U. S., 197 U. S., 516.)

This power has been exercised by Congress throughout the whole history of the United States, and
legislation founded on the theory was enacted long prior to the acquisition of the present Insular
possessions. Section 1891 of the Revised Statutes of 1878 provides that "The Constitution and all
laws of the United States which are not locally inapplicable shall have the same force and effect
within all the organized territories, and in every Territory hereafter organized, as elsewhere within the
United States." When Congress organized a civil government for the Philippines, it expressly
provided that this section of the Revised Statutes should not apply to the Philippine Islands. (Sec. 1,
Act of 1902.)

In providing for the government of the territory which was acquired by the United States as a result
of the war with Spain, the executive and legislative authorities have consistently proceeded in
conformity with the principles above state. The city of Manila was surrendered to the United States
on August 13, 1898, and the military commander was directed to hold the city, bay, and harbor,
pending the conclusion of a peace which should determine the control, disposition, and government
of the Islands. The duty then devolved upon the American authorities to preserve peace and protect
person and property within the occupied territory. Provision therefor was made by proper orders, and
on August 26 General Merritt assumed the duties of military governor. The treaty of peace was
signed December 10, 1898. On the 22d of December, 1898, the President announced that the
destruction of the Spanish fleet and the surrender of the city had practically effected the conquest of
the Philippine Islands and the suspension of the Spanish sovereignty therein, and that by the treaty
of peace the future control, disposition, and government of the Islands had been ceded to the United
States. During the periods of strict military occupation, before the treaty of peace was ratified, and
the interim thereafter, until Congress acted (Santiago vs. Noueral, 214 U.S., 260), the territory was
governed under the military authority of the President as commander in chief. Long before Congress
took any action, the President organized a civil government which, however, had its legal
justification, like the purely military government which it gradually superseded, in the war power. The
military power of the President embraced legislative, executive personally, or through such military
or civil agents as he chose to select. As stated by Secretary Root in his report for 1901 —

The military power in exercise in a territory under military occupation includes executive, legislative,
and judicial authority. It not infrequently happens that in a single order of a military commander can
be found the exercise of all three of these different powers — the exercise of the legislative powers
by provisions prescribing a rule of action; of judicial power by determination of right; and the
executive power by the enforcement of the rules prescribed and the rights determined.

President McKinley desired to transform military into civil government as rapidly as conditions would
permit. After full investigation, the organization of civil government was initiated by the appointment
of a commission to which civil authority was to be gradually transferred. On September 1, 1900, the
authority to exercise, subject to the approval of the President. "that part of the military power of the
President in the Philippine Islands which is legislative in its character" was transferred from the
military government to the Commission, to be exercised under such rules and regulations as should
be prescribed by the Secretary of War, until such time as complete civil government should be
established, or congress otherwise provided. The legislative power thus conferred upon the
Commission was declared to include "the making of rules and orders having the effect of law for the
raising of revenue by taxes, customs duties, and imposts; the appropriation and expenditure of
public funds of the Islands; the establishment of an educational system to secure an efficient civil
service; the organization and establishment of courts; the organization and establishment of
municipal and departmental government, and all other matters of a civil nature which the military
governor is now competent to provide by rules or orders of a legislative character." This grant of
legislative power to the Commission was to be exercised in conformity with certain declared general
principles, and subject to certain specific restrictions for the protection of individual rights. The
Commission were to bear in mind that the government to be instituted was "not for our satisfaction or
for the expression of our theoretical views, but for the happiness, peace, and prosperity of the
people of the Philippine Island, and the measures adopted should be made to conforms to their
customs, their habits, and even their prejudices, to the fullest extent consistent with the
accomplishment of the indispensable requisites of just and effective government." The specific
restrictions upon legislative power were found in the declarations that "no person shall be deprived
of life, liberty, or property without due process of law; that private property shall not be taken for
public use without just compensation; that in all criminal prosecutions the accused shall enjoy the
right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be
confronted with the witnesses against him, to have compulsory process for obtaining witnesses in
his favor, and to have the assistance of counsel for his defense; that excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; that no person
shall be put twice in jeopardy for the same offense or be compelled in any criminal case to be a
witness against himself; that the right to be secure against unreasonable searches and seizures
shall not be violated; that neither slavery nor involuntary servitude shall exist except as a punishment
for crime; that no bill of attainder or ex post facto law shall be passed; that no law shall be passed
abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble
and petition the Government for a redress of grievances; that no law shall be made respecting an
establishment of religion or prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or preference shall forever be
allowed."

To prevent any question as to the legality of these proceedings being raised, the Spooner
amendment to the Army Appropriation Bill passed March 2, 1901, provided that "all military, civil, and
judicial powers necessary to govern the Philippine Islands . . . shall until otherwise provided by
Congress be vested in such person and persons, and shall be exercised in such manner, as the
President of the United States shall direct, for the establishment of civil government, and for
maintaining and protecting the inhabitants of said Islands in the free enjoyment of their liberty,
property, and religion." Thereafter, on July 4, 1901, the authority, which had been exercised
previously by the military governor, was transferred to that official. The government thus created by
virtue of the authority of the President as Commander in Chief of the Army and Navy continued to
administer the affairs of the Islands under the direction of the President until by the Act of July 1,
1902, Congress assumed control of the situation by the enactment of a law which, in connection with
the instructions of April 7, 1900, constitutes the organic law of the Philippine Islands.

The Act of July 1, 1902, made no substancial changes in the form of government which the
President had erected. Congress adopted the system which was in operation, and approved the
action of the President in organizing the government. Substantially all the limitations which had been
imposed on the legislative power by the President's instructions were included in the law, Congress
thus extending to the Islands by legislative act nor the Constitution, but all its provisions for the
protection of the rights and privileges of individuals which were appropriate under the conditions.
The action of the President in creating the Commission with designated powers of government, in
creating the office of the Governor-General and Vice-Governor-General, and through the
Commission establishing certain executive departments, was expressly approved and ratified.
Subsequently the action of the President in imposing a tariff before and after the ratification of the
treaty of peace was also ratified and approved by Congress. (Act of March 8, 1902; Act of July 1,
1902; U.S. vs. Heinszen, 206 U.S., 370; Lincoln vs. U.S., 197 U.S., 419.) Until otherwise provided by
law the Islands were to continue to be governed "as thereby and herein provided." In the future the
enacting clause of all statutes should read "By authority of the United States" instead of "By the
authority of the President." In the course of time the legislative authority of the Commission in all
parts of the Islands not inhabited by Moros or non-Christian tribes was to be transferred to a
legislature consisting of two houses — the Philippine Commission and the Philippine Assembly. The
government of the Islands was thus assumed by Congress under its power to govern newly acquired
territory not incorporated into the United States.

This Government of the Philippine Islands is not a State or a Territory, although its form and
organization somewhat resembles that of both. It stands outside of the constitutional relation which
unites the States and Territories into the Union. The authority for its creation and maintenance is
derived from the Constitution of the United States, which, however, operates on the President and
Congress, and not directly on the Philippine Government. It is the creation of the United States,
acting through the President and Congress, both deriving power from the same source, but from
different parts thereof. For its powers and the limitations thereon the Government of the Philippines
looked to the orders of the President before Congress acted and the Acts of Congress after it
assumed control. Its organic laws are derived from the formally and legally expressed will of the
President and Congress, instead of the popular sovereign constituency which lies upon any subject
relating to the Philippines is primarily in Congress, and when it exercise such power its act is from
the viewpoint of the Philippines the legal equivalent of an amendment of a constitution in the United
States.

Within the limits of its authority the Government of the Philippines is a complete governmental
organism with executive, legislative, and judicial departments exercising the functions commonly
assigned to such departments. The separation of powers is as complete as in most governments. In
neither Federal nor State governments is this separation such as is implied in the abstract statement
of the doctrine. For instance, in the Federal Government the Senate exercises executive powers,
and the President to some extent controls legislation through the veto power. In a State the veto
power enables him to exercise much control over legislation. The Governor-General, the head of the
executive department in the Philippine Government, is a member of the Philippine Commission, but
as executive he has no veto power. The President and Congress framed the government on the
model with which Americans are familiar, and which has proven best adapted for the advancement
of the public interests and the protection of individual rights and priviliges.

In instituting this form of government of intention must have been to adopt the general constitutional
doctrined which are inherent in the system. Hence, under it the Legislature must enact laws subject
to the limitations of the organic laws, as Congress must act under the national Constitution, and the
States under the national and state constitutions. The executive must execute such laws as are
constitutionally enacted. The judiciary, as in all governments operating under written constitutions,
must determine the validity of legislative enactments, as well as the legality of all private and official
acts. In performing these functions it acts with the same independence as the Federal and State
judiciaries in the United States. Under no other constitutional theory could there be that government
of laws and not of men which is essential for the protection of rights under a free and orderly
government.

Such being the constitutional theory of the Government of the Philippine Islands, it is apparent that
the courts must consider the question of the validity of an act of the Philippine Commission or the
Philippine Legislature, as a State court considers an act of the State legislature. The Federal
Government exercises such powers only as are expressly or impliedly granted to it by the
Constitution of the United States, while the States exercise all powers which have not been granted
to the central government. The former operates under grants, the latter subject to restrictions. The
validity of an Act of Congress depends upon whether the Constitution of the United States contains a
grant of express or implied authority to enact it. An act of a State legislature is valid unless the
Federal or State constitution expressly or impliedly prohibits its enaction. An Act of the legislative
authority of the Philippines Government which has not been expressly disapproved by Congress is
valid unless its subject-matter has been covered by congressional legislation, or its enactment
forbidden by some provision of the organic laws.

The legislative power of the Government of the Philippines is granted in general terms subject to
specific limitations. The general grant is not alone of power to legislate on certain subjects, but to
exercise the legislative power subject to the restrictions stated. It is true that specific authority is
conferred upon the Philippine Government relative to certain subjects of legislation, and that
Congress has itself legislated upon certain other subjects. These, however, should be viewed simply
as enactments on matters wherein Congress was fully informed and ready to act, and not as
implying any restriction upon the local legislative authority in other matters. (See Opinion of Atty.
Gen. of U. S., April 16, 1908.)
The fact that Congress reserved the power to annul specific acts of legislation by the Government of
the Philippine tends strongly to confirm the view that for purposes of construction the Government of
the Philippines should be regarded as one of general instead of enumerated legislative powers. The
situation was unusual. The new government was to operate far from the source of its authority. To
relieve Congress from the necessity of legislating with reference to details, it was thought better to
grant general legislative power to the new government, subject to broad and easily understood
prohibitions, and reserve to Congress the power to annul its acts if they met with disapproval. It was
therefore provided "that all laws passed by the Government of the Philippine Islands shall be
reported to Congress, which hereby reserves the power and authority to annul the same." (Act of
Congress, July 1, 1902, sec. 86.) This provision does not suspend the acts of the Legislature of the
Philippines until approved by Congress, or when approved, expressly or by acquiescence, make
them the laws of Congress. They are valid acts of the Government of the Philippine Islands until
annulled. (Miners Bank vs. Iowa, 12 How. (U. S.), 1.)

In order to determine the validity of Act No. 55 we must then ascertain whether the Legislature has
been expressly or implication forbidden to enact it. Section 3, Article IV, of the Constitution of the
United States operated only upon the States of the Union. It has no application to the Government of
the Philippine Islands. The power to regulate foreign commerce is vested in Congress, and by virtue
of its power to govern the territory belonging to the United States, it may regulate foreign commerce
with such territory. It may do this directly, or indirectly through a legislative body created by it, to
which its power in this respect if delegate. Congress has by direct legislation determined the duties
which shall be paid upon goods imported into the Philippines, and it has expressly authorized the
Government of the Philippines to provide for the needs of commerce by improving harbors and
navigable waters. A few other specific provisions relating to foreign commerce may be found in the
Acts of Congress, but its general regulation is left to the Government of the Philippines, subject to
the reserved power of Congress to annul such legislation as does not meet with its approval. The
express limitations upon the power of the Commission and Legislature to legislate do not affect the
authority with respect to the regulation of commerce with foreign countries. Act No. 55 was enacted
before Congress took over the control of the Islands, and this act was amended by Act No. 275 after
the Spooner amendment of March 2, 1901, was passed. The military government, and the civil
government instituted by the President, had the power, whether it be called legislative or
administrative, to regulate commerce between foreign nations and the ports of the territory.
(Cross vs. Harrison, 16 How. (U.S.), 164, 190; Hamilton vs. Dillin, 21 Wall. (U.S.), 73, 87.) This Act
has remained in force since its enactment without annulment or other action by Congress, and must
be presumed to have met with its approval. We are therefore satisfied that the Commission had, and
the Legislature now has, full constitutional power to enact laws for the regulation of commerce
between foreign countries and the ports of the Philippine Islands, and that Act No. 55, as amended
by Act No. 275, is valid.

3. Whether a certain method of handling cattle is suitable within the meaning of the Act can not be
left to the judgment of the master of the ship. It is a question which must be determined by the court
from the evidence. On December 2, 1908, the defendant Bull brought into and disembarked in the
port and city of Manila certain cattle, which came from the port of Ampieng, Formosa, without
providing suitable means for securing said animals while in transit, so as to avoid cruelty and
unnecessary suffering to said animals, contrary to the provisions of section 1 of Act No. 55, as
amended by section 1 of Act No. 275. The trial court found the following facts, all of which are fully
sustained by the evidence:

That the defendant, H. N. Bull, as captain and master of the Norwegian steamer known as
the Standard, for a period of six months or thereabouts prior to the 2d day of December, 1908, was
engaged in the transportation of cattle and carabaos from Chines and Japanese ports to and into the
city of Manila, Philippine Islands.
That on the 2d day of December, 1908, the defendant, as such master and captain as aforesaid,
brought into the city of Manila, aboard said ship, a large number of cattle, which ship was anchored,
under the directions of the said defendant, behind the breakwaters in front of the city of Manila, in
Manila Bay, and within the jurisdiction of this court; and that fifteen of said cattle then and there had
broken legs and three others of said cattle were dead, having broken legs; and also that said cattle
were transported and carried upon said ship as aforesaid by the defendant, upon the deck and in the
hold of said ship, without suitable precaution and care for the transportation of said animals, and to
avoid danger and risk to their lives and security; and further that said cattle were so transported
abroad said ship by the defendant and brought into the said bay, and into the city of Manila, without
any provisions being made whatever upon said decks of said ship and in the hold thereof to maintain
said cattle in a suitable condition and position for such transportation.

That a suitable and practicable manner in which to transport cattle abroad steamship coming into
Manila Bay and unloading in the city of Manila is by way of individual stalls for such cattle, providing
partitions between the cattle and supports at the front sides, and rear thereof, and cross-cleats upon
the floor on which they stand and are transported, of that in case of storms, which are common in
this community at sea, such cattle may be able to stand without slipping and pitching and falling,
individually or collectively, and to avoid the production of panics and hazard to the animals on
account or cattle were transported in this case. Captain Summerville of the steamship Taming, a
very intelligent and experienced seaman, has testified, as a witness in behalf of the Government,
and stated positively that since the introduction in the ships with which he is acquainted of the stall
system for the transportation of animals and cattle he has suffered no loss whatever during the last
year. The defendant has testified, as a witness in his own behalf, that according to his experience
the system of carrying cattle loose upon the decks and in the hold is preferable and more secure to
the life and comfort of the animals, but this theory of the case is not maintainable, either by the
proofs or common reason. It can not be urged with logic that, for instance, three hundred cattle
supports for the feet and without stalls or any other protection for them individually can safely and
suitably carried in times of storm upon the decks and in the holds of ships; such a theory is against
the law of nature. One animal falling or pitching, if he is untied or unprotected, might produce a
serious panic and the wounding of half the animals upon the ship if transported in the manner found
in this case.

The defendant was found guilty, and sentenced to pay a fine of two hundred and fifty pesos, with
subsidiary imprisonment in case of insolvency, and to pay the costs. The sentence and judgment is
affirmed. So ordered.

Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ., concur.

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 G.R. No. L-1123
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-1123 March 5, 1947

ALEJO MABANAG, ET AL., petitioners,

vs.
JOSE LOPEZ VITO, ET AL., respondents.

Alejo Mabanag, Jose O. Vera, Jesus G. Barrera, Felixberto Serrano, J. Antonio Araneta, Antonio
Barredo, and Jose W. Diokno for petitioners.
Secretary of Justice Ozaeta, Solicitor General Tañada, and First Assistant Solicitor General Reyes
for respondents.

TUASON, J.:

This is a petition for prohibition to prevent the enforcement of a congressional resolution designated
"Resolution of both houses proposing an amendment to the Constitution of the Philippines to be
appended as an ordinance thereto." The members of the Commission on Elections, the Treasurer of
the Philippines, the Auditor General, and the Director of the Bureau of Printing are made defendants,
and the petitioners are eight senators, seventeen representatives, and the presidents of the
Democratic Alliance, the Popular Front and the Philippine Youth Party. The validity of the above-
mentioned resolution is attacked as contrary to the Constitution.

The case was heard on the pleadings and stipulation of facts. In our view of the case it is
unnecessary to go into the facts at length. We will mention only the facts essential for the proper
understanding of the issues. For this purpose it suffices to say that three of the plaintiff senators and
eight of the plaintiff representatives had been proclaimed by a majority vote of the Commission on
Elections as having been elected senators and representatives in the elections held on April 23,
1946. The three senators were suspended by the Senate shortly after the opening of the first
session of Congress following the elections, on account of alleged irregularities in their election. The
eight representatives since their election had not been allowed to sit in the lower House, except to
take part in the election of the Speaker, for the same reason, although they had not been formally
suspended. A resolution for their suspension had been introduced in the House of Representatives,
but that resolution had not been acted upon definitely by the House when the present petition was
filed.

As a consequence these three senators and eight representatives did not take part in the passage of
the questioned resolution, nor was their membership reckoned within the computation of the
necessary three-fourths vote which is required in proposing an amendment to the Constitution. If
these members of Congress had been counted, the affirmative votes in favor of the proposed
amendment would have been short of the necessary three-fourths vote in either branch of Congress.

At the threshold we are met with the question of the jurisdiction of this Court. The respondents deny
that this Court has jurisdiction, relying on the conclusiveness on the courts of an enrolled bill or
resolution. There is some merit in the petitioners' contention that this is confusing jurisdiction, which
is a matter of substantive law, with conclusiveness of an enactment or resolution, which is a matter
of evidence and practice. This objection, however, is purely academic. Whatever distinction there is
in the juridical sense between the two concepts, in practice and in their operation they boil down to
the same thing. Basically the two notions are synonymous in that both are founded on the regard
which the judiciary accords a co-equal coordinate, and independent departments of the Government.
If a political question conclusively binds the judges out of respect to the political departments, a duly
certified law or resolution also binds the judges under the "enrolled bill rule" born of that respect.

It is a doctrine too well established to need citation of authorities, that political questions are not
within the province of the judiciary, except to the extent that power to deal with such questions has
been conferred upon the courts by express constitutional or statutory provision. (16 C.J.S., 431.)
This doctrine is predicated on the principle of the separation of powers, a principle also too well
known to require elucidation or citation of authorities. The difficulty lies in determining what matters
fall within the meaning of political question. The term is not susceptible of exact definition, and
precedents and authorities are not always in full harmony as to the scope of the restrictions, on this
ground, on the courts to meddle with the actions of the political departments of the government.

But there is one case approaching this in its circumstances: Coleman vs. Miller, a relatively recent
decision of the United States Supreme Court reported and annotated in 122 A.L.R., 695. The case,
by a majority decision delivered by Mr. Chief Justice Hughes, is authority for the conclusion that the
efficacy of ratification by state legislature of a proposed amendment to the Federal Constitution is a
political question and hence not justiciable. The Court further held that the decision by Congress, in
its control of the Secretary of State, of the questions of whether an amendment has been adopted
within a reasonable time from the date of submission to the state legislature, is not subject to review
by the court.

If ratification of an amendment is a political question, a proposal which leads to ratification has to be

a political question. The two steps complement each other in a scheme intended to achieve a single
objective. It is to be noted that the amendatory process as provided in section 1 of Article XV of the
Philippine Constitution "consists of (only) two distinct parts: proposal and ratification." There is no
logic in attaching political character to one and withholding that character from the other. Proposal to
amend the Constitution is a highly political function performed by the Congress in its sovereign
legislative capacity and committed to its charge by the Constitution itself. The exercise of this power
is even independent of any intervention by the Chief Executive. If on grounds of expediency
scrupulous attention of the judiciary be needed to safeguard public interest, there is less reason for
judicial inquiry into the validity of a proposal than into that of a ratification. As the Mississippi
Supreme Court has once said:

There is nothing in the nature of the submission which should cause the free exercise of it to be
obstructed, or that could render it dangerous to the stability of the government; because the
measure derives all its vital force from the action of the people at the ballot box, and there can never
be danger in submitting in an established form, to a free people, the proposition whether they will
change their fundamental law. The means provided for the exercise of their sovereign right of
changing their constitution should receive such a construction as not to trammel the exercise of the
right. Difficulties and embarrassments in its exercise are in derogation of the right of free
government, which is inherent in the people; and the best security against tumult and revolution is
the free and unobstructed privilege to the people of the State to change their constitution in the
mode prescribed by the instrument. (Green vs. Weller, 32 Miss., 650; note, 10 L.R.A., N.S., 150.)
Mr. Justice Black, in a concurring opinion joined in by Justices Roberts, Frankfurter and Douglas, in
Miller vs. Coleman, supra, finds no basis for discriminating between proposal and ratification. From
his forceful opinion we quote the following paragraphs:

The Constitution grant Congress exclusive power to control submission of constitutional

amendments. Final determination by Congress that ratification by three-fourths of the States has
taken place "is conclusive upon the courts." In the exercise of that power, Congress, of course, is
governed by the Constitution. However, whether submission, intervening procedure or
Congressional determination of ratification conforms to the commands of the Constitution, call for
decisions by a "political department" of questions of a type which this Court has frequently
designated "political." And decision of a "political question" by the "political department" to which the
Constitution has committed it "conclusively binds the judges, as well as all other officers, citizens and
subjects of . . . government." Proclamation under authority of Congress that an amendment has
been ratified will carry with it a solemn assurance by the Congress that ratification has taken place
as the Constitution commands. Upon this assurance a proclaimed amendment must be accepted as
a part of the Constitution, leaving to the judiciary its traditional authority of interpretation. To the
extent that the Court's opinion in the present case even impliedly assumes a power to make judicial
interpretation of the exclusive constitutional authority of Congress over submission and ratification of
amendments, we are unable to agree.

The State court below assumed jurisdiction to determine whether the proper procedure is being
followed between submission and final adoption. However, it is apparent that judicial review of or
pronouncements upon a supposed limitation of a "reasonable time" within which Congress may
accept ratification; as to whether duly authorized State officials have proceeded properly in ratifying
or voting for ratification; or whether a State may reverse its action once taken upon a proposed
amendment; and kindred questions, are all consistent only with an intimate control over the
amending process in the courts. And this must inevitably embarrass the course of amendment by
subjecting to judicial interference matters that we believe were intrusted by the Constitution solely to
the political branch of government.

The Court here treats the amending process of the Constitution in some respects as subject to
judicial construction, in others as subject to the final authority of the Congress. There is no
disapproval of the conclusion arrived at in Dillon vs. Gloss, that the Constitution impliedly requires
that a properly submitted amendment must die unless ratified within a "reasonable time." Nor does
the Court now disapprove its prior assumption of power to make such a pronouncement. And it is not
made clear that only Congress has constitutional power to determine if there is any such implication
in Article 5 of the Constitution. On the other hand, the Court's opinion declares that Congress has
the exclusive power to decide the "political questions" of whether as State whose legislature has
once acted upon a proposed amendment may subsequently reverse its position, and whether, in the
circumstances of such a case as this, an amendment is dead because an "unreasonable" time has
elapsed. No such division between the political and judicial branches of the government is made by
Article 5 which grants power over the amending of the Constitution to Congress alone. Undivided
control of that process has been given by the Article exclusively and completely to Congress. The
process itself is "political" in its entirely, from submission until an amendment becomes part of the
Constitution, and is not subject to judicial guidance, control or interference at any point.

Mr. Justice Frankfurter, in another concurring opinion to which the other three justices subscribed,
arrives at the same conclusion. Though his thesis was the petitioner's lack of standing in court — a
point which not having been raised by the parties herein we will not decide — his reasoning
inevitably extends to a consideration of the nature of the legislative proceeding the legality of which
the petitioners in that case assailed. From a different angle he sees the matter as political, saying:
The right of the Kansas senators to be here is rested on recognition by Leser vs. Garnett, 258 U.S.,
130; 66 Law. ed., 505; 42 S. Ct., 217, of a voter's right to protect his franchise. The historic source of
this doctrine and the reasons for it were explained in Nixon vs. Herndon, 273 U.S., 436, 540; 71
Law. ed., 759, 761; 47 S. Ct., 446. That was an action for $5,000 damages against the Judges of
Elections for refusing to permit the plaintiff to vote at a primary election in Texas. In disposing of the
objection that the plaintiff had no cause of action because the subject matter of the suit was political,
Mr. Justice Homes thus spoke for the Court: "Of course the petition concerns political action, but it
alleges and seeks to recover for private damage. That private damage may be caused by such
political action and may be recovered for in a suit at law hardly has been doubted for over two
hundred years, since Ashby vs. White, 2 Ld. Raym., 938; 92 Eng. Reprint, 126; 1 Eng. Rul. Cas.,
521; 3 Ld. Raym., 320; 92 Eng. Reprint, 710, and has been recognized by this Court." "Private
damage" is the clue to the famous ruling in Ashby vs. White, supra, and determines its scope as well
as that of cases in this Court of which it is the justification. The judgment of Lord Holt is permeated
with the conception that a voter's franchise is a personal right, assessable in money damages, of
which the exact amount "is peculiarly appropriate for the determination of a
jury," see Wiley vs. Sinkler, 179 U.S., 58, 65; 45 Law. ed., 84, 88; 21 S. Ct., 17, and for which there
is no remedy outside the law courts. "Although this matter relates to the parliament," said Lord Holt,
"yet it is an injury precedaneous to the parliament, as my Lord Hale said in the case of
Bernardiston vs. Some, 2 Lev., 114, 116; 83 Eng. Reprint, 175. The parliament cannot judge of this
injury, nor give damage to the plaintiff for it: they cannot make him a recompense." (2 Ld. Raym.,
938, 958; 92 Eng. Reprint, 126; 1 Eng. Rul. Cas., 521.)

The reasoning of Ashby vs. White and the practice which has followed it leave intra-parliamentary
controversies to parliaments and outside the scrutiny of law courts. The procedures for voting in
legislative assemblies — who are members, how and when they should vote, what is the requisite
number of votes for different phases of legislative activity, what votes were cast and how they were
counted — surely are matters that not merely concern political action but are of the very essence of
political action, if "political" has any connotation at all. Marshall Field & Co. vs. Clark, 143 U.S., 649,
670, et seq.; 36 Law. ed., 294, 302; 12 S. Ct., 495; Leser vs. Garnett, 258 U.S., 130, 137; 66 Law.
ed., 505, 511; 42 S. Ct., 217. In no sense are they matters of "private damage." They pertain to
legislators not as individuals but as political representatives executing the legislative process. To
open the law courts to such controversies is to have courts sit in judgment on the manifold disputes
engendered by procedures for voting in legislative assemblies. If the doctrine of Ashby vs. White
vindicating the private rights of a voting citizen has not been doubted for over two hundred years, it
is equally significant that for over two hundred years Ashby vs. White has not been sought to be put
to purposes like the present. In seeking redress here these Kansas senators have wholly
misconceived the functions of this Court. The writ of certiorari to the Kansas Supreme Court should
therefore be dismissed.

We share the foregoing views. In our judgment they accord with sound principles of political
jurisprudence and represent liberal and advanced thought on the working of constitutional and
popular government as conceived in the fundamental law. Taken as persuasive authorities, they
offer enlightening understanding of the spirit of the United States institutions after which ours are
patterned.

But these concurring opinions have more than persuasive value. As will be presently shown, they
are the opinions which should operate to adjudicate the questions raised by the pleadings. To make
the point clear, it is necessary, at the risk of unduly lengthening this decision, to make a statement
and an analysis of the Coleman vs. Miller case. Fortunately, the annotation on that case in the
American Law Reports, supra, comes to out aid and lightens our labor in this phase of the
controversy.
Coleman vs. Miller was an original proceeding in mandamus brought in the Supreme Court of
Kansas by twenty-one members of the Senate, including twenty senators who had voted against a
resolution ratifying the Child Labor Amendment, and by three members of the House of
Representatives, to compel the Secretary of the Senate to erase in indorsement on the resolution to
the effect that it had been adopted by the Senate and to indorse thereon the words "as not passed."
They sought to restrain the offices of the Senate and House of Representatives from signing the
resolution, and the Secretary of State of Kansas from authenticating it and delivering it to the
Governor.

The background of the petition appears to have been that the Child Labor Amendment was
proposed by Congress in June, 1924; that in January, 1925, the legislature of Kansad adopted a
resolution rejecting it and a copy of the resolution was sent to the Secretary of State of the United
States; that in January, 1927, a new resolution was introduced in the Senate of Kansas ratifying the
proposed amendment; that there were forty senators, twenty of whom voted for and twenty against
the resolution; and that as a result of the tie, the Lieutenant Governor cast his vote in favor of the
resolution.

The power of the Lieutenant Governor to vote was challenged, and the petition set forth prior
rejection of the proposed amendment and alleged that in the period from June 1924 to March 1927,
the proposed amendment had been rejected by both houses of the legislatures of twenty-six states
and had been ratified only in five states, and that by reason of that rejection and the failure of
ratification within a reasonable time, the proposed amendment had lost its vitality.

The Supreme Court of Kansas entertained jurisdiction of all the issues but dismissed the petition on
the merits. When the case reached the Supreme Court of the United States the questions were
framed substantially in the following manner:

First, whether the court had jurisdiction; that is, whether the petitioners had standing to seek to have
the judgment of the state court reversed; second, whether the Lieutenant Governor had the right to
vote in case of a tie, as he did, it being the contention of the petitioners that "in the light of the
powers and duties of the Lieutenant Governor and his relation to the Senate under the state
Constitution, as construed by the Supreme Court of the state, the Lieutenant Governor was not a
part of the 'legislature' so that under Article 5 of the Federal Constitution, he could be permitted to
have a deciding vote on the ratification of the proposed amendment, when the Senate was equally
divided"; and third, the effect of the previous rejection of the amendment and of the lapse of time
after its submission.

The first question was decided in the affirmative. The second question, regarding the authority of the
Lieutenant Governor to vote, the court avoided, stating: "Whether this contention presents a
justiciable controversy, or a question which is political in its nature and hence not justiciable, is a
question upon which the Court is equally divided and therefore the court expresses no opinion upon
that point." On the third question, the Court reached the conclusion before referred to, namely, (1)
that the efficacy of ratification by state legislature of a proposed amendment to the Federal
Constitution is a political question, within the ultimate power of Congress in the exercise of its control
and of the promulgation of the adoption of amendment, and (2) that the decision by Congress, in its
control of the action of the Secretary of State, of the questions whether an amendment to the
Federal Constitution has been adopted within a reasonable time, is not subject to review by the
court.

The net result was that the judgment of the Supreme Court of Kansas was affirmed but in the
grounds stated in the United States Supreme Court's decision. The nine justices were aligned in
three groups. Justices Roberts, Black, Frankfurter and Douglas opined that the petitioners had no
personality to bring the petition and that all the questions raised are political and non-justiciable
Justices Butler and McReynolds opined that all the questions were justiciable; that the Court had
jurisdiction of all such questions, and that the petition should have been granted and the decision of
the Supreme Court of Kansas reversed on the ground that the proposal to amend had died of old
age. The Chief Justice, Mr. Justice Stone and Mr. Justice Reed regarded some of the issues as
political and non-justiciable, passed by the question of the authority of the Lieutenant Governor to
case a deciding vote, on the ground that the Court was equally divided, and took jurisdiction of the
rest of the questions.

The sole common ground between Mr. Justice Butler and Mr. Justice McReynolds, on the one hand
and the Chief Justice, Mr. Justice Stone and Mr. Justice Reed, on the other, was on the question of
jurisdiction; on the result to be reached, these two groups were divided. The agreement between
Justices Roberts, Black, Frankfurter and Douglas, on the one hand, and the Chief Justice and
Justices Stone and Reed, on the other, was on the result and on that part of the decision which
declares certain questions political and non-justiciable.

As the annotator in American Law Reports observes, therefore going four opinions "show
interestingly divergent but confusing positions of the Justices on the issues discussed. "It cites an
article in 48 Yale Law Journal, 1455, amusingly entitled "Sawing a Justice in Half," which, in the light
of the divergencies in the opinions rendered, aptly queries" whether the proper procedure for the
Supreme Court would not have been to reverse the judgment below and direct dismissal of the suit
for want of jurisdiction." It says that these divergencies and line-ups of the justices "leave power to
dictate the result and the grounds upon which the decision should be rested with the four justices
who concurred in Mr. Justice Black's opinion." Referring to the failure of the Court to decide the
question of the right of the Lieutenant Governor to vote, the article points out that from the opinions
rendered the "equally divided" court would seem under any circumstances to bean equal division of
an odd number of justices, and asks "What really did happen? Did a justice refuse to vote on this
issue? And if he did, was it because he could not make up his mind, or is it possible to saw a justice
vertically in half during the conference and have him walk away whole?" But speaking in a more
serious vein, the commentator says that decision of the issue could not be avoided on grounds of
irrelevance, since if the court had jurisdiction of the case, decision of the issue in favor of the
petitioners would have required reversal of the judgment below regardless of the disposal of the
other issues.

From this analysis the conclusion is that the concurring opinions should be considered as laying
down the rule of the case.

The respondent's other chief reliance is on the contention that a duly authenticated bill or resolution
imports absolute verity and is binding on the courts. This is the rule prevailing in England. In the
United States, "In point of numbers, the jurisdictions are divided almost equally pro and con the
general principle (of these, two or three have changed from their original position), two or three
adopted a special variety of view (as in Illinois), three or four are not clear, and one or two have not
yet made their decisions." (IV Wigmore on Evidence, 3d Edition, 685, footnote.) It is important to
bear in mind, in this connection, that the United States Supreme Court is on the side of those which
favor the rule. (Harwood vs. Wentworth, 40 Law. ed., 1069; Lyon vs. Wood, 38 Law. ed., 854;
Field vs. Clark, 36 Law. ed., 294.)

If for no other reason than that it conforms to the expressed policy of our law making body, we
choose to follow the rule. Section 313 of the old Code of Civil Procedure, as amended by Act No.
2210, provides: "Official documents may be proved as follows: . . . (2) the proceedings of the
Philippine Commission, or of any legislative body that may be provided for in the Philippine Islands,
or of Congress, by the journals of those bodies or of either house thereof, or by published statutes or
resolutions, or by copies certified by the clerk or secretary, or printed by their order; Provided, That
in the case of Acts of the Philippine Commission or the Philippine Legislature, when there is an
existence of a copy signed by the presiding officers and secretaries of said bodies, it shall be
conclusive proof of the provisions of such Acts and of the due enactment thereof."

But there is more than statutory sanction for conclusiveness.

This topic has been the subject of a great number of decisions and commentaries written with
evident vehemence. Arguments for and against the rule have been extensive and exhaustive. It
would be presumptuous on our part to pretend to add more, even if we could, to what has already
been said. Which such vast mass of cases to guide our judgment and discretion, our labor is
reduced to an intelligent selection and borrowing of materials and arguments under the criterion of
adaptability to a sound public policy.

The reasons adduced in support of enrollment as contrasted with those which opposed it are, in our
opinion, almost decisive. Some of these reasons are summarized in 50 American Jurisprudence,
section 150 as follows:

SEC. 150. Reasons for Conclusiveness. — It has been declared that the rule against going behind
the enrolled bill is required by the respect due to a coequal and independent department of the
government, and it would be an inquisition into the conduct of the members of the legislature, a very
delicate power, the frequent exercise of which must lead to endless confusion in the administration
of the law. The rule is also one of convenience, because courts could not rely on the published
session laws, but would be required to look beyond these to the journals of the legislature and often
to any printed bills and amendments which might be found after the adjournment of the legislature.
Otherwise, after relying on the prima facie evidence of the enrolled bills, authenticated as exacted by
the Constitution, for years, it might be ascertained from the journals that an act theretofore enforced
had never become a law. In this respect, it has been declared that these is quite enough uncertainty
as to what the law is without saying that no one may be certain that an act of the legislature has
become such until the issue has been determined by some court whose decision might not be
regarded as conclusive in an action between the parties.

From other decisions, selected and quoted in IV Wigmore on Evidence, 696, 697, we extract these
passages:

I think the rule thus adopted accords with public policy. Indeed, in my estimation, few things would
be more mischievous than the introduction of the opposite rule. . . . The rule contended for is that the
Court should look at the journals of the Legislature to ascertain whether the copy of the act attested
and filed with the Secretary of State conforms in its contents with the statements of such journals.
This proposition means, if it has any legal value whatever, that, in the event of a material
discrepancy between the journal and the enrolled copy, the former is to be taken as the standard of
veracity and the act is to be rejected. This is the test which is to be applied not only to the statutes
now before the Court, but to all statutes; not only to laws which have been recently passed, but to
laws the most ancient. To my mind, nothing can be more certain than that the acceptance of this
doctrine by the Court would unsettle the entire statute law of the State. We have before us some
evidence of the little reliability of these legislative journals. . . . Can any one deny that if the laws of
the State are to be tested by a comparison with these journals, so imperfect, so unauthenticated, the
stability of all written law will be shaken to its very foundations? . . . We are to remember the danger,
under the prevalence of such a doctrine, to be apprehended from the intentional corruption of
evidences of this character. It is scarcely too much to say that the legal existence of almost every
legislative act would be at the mercy of all persons having access to these journals. . . . ([1866],
Beasley, C.J., in Pangborn vs. Young, 32 N.J.L., 29, 34.)
But it is argued that if the authenticated roll is conclusive upon the Courts, then less than a quorum
of each House may be the aid of corrupt presiding officers imposed laws upon the State in defiance
of the inhibition of the Constitution. It must be admitted that the consequence stated would be
possible. Public authority and political power must of necessity be confided to officers, who being
human may violate the trusts reposed in them. This perhaps cannot be avoided absolutely. But it
applies also to all human agencies. It is not fit that the Judiciary should claim for itself a purity
beyond all others; nor has it been able at all times with truth to say that its high places have not been
disgraced. The framers of our government have not constituted it with faculties to supervise
coordinate departments and correct or prevent abuses of their authority. It cannot authenticate a
statute; that power does not belong to it; nor can it keep a legislative journal. (1869, Frazer, J., in
Evans vs. Brownem 30 Ind., 514, 524.)

Professor Wigmore in his work on Evidence — considered a classic, and described by one who
himself is a noted jurist, author, and scholar, as "a permanent contribution to American law" and
having "put the matured nineteenth-century law in form to be used in a new era of growth" —
unequivocally identifies himself with those who believe in the soundness of the rule. The
distinguished professor, in answer to the argument of Constitutional necessity, i.e., the impossibility
of securing in any other way the enforcement of constitutional restrictions on legislative action, says:

(1) In the first place, note that it is impossible of consistent application. If, as it is urged, the Judiciary
are bound to enforce the constitutional requirements of three readings, a two-thirds vote, and the
like, and if therefore an act must be declared no law which in fact was not read three times or voted
upon by two-thirds, this duty is a duty to determine according to the actual facts of the readings and
the votes. Now the journals may not represent the actual facts. That duty cannot allow us to stop
with the journals, if it can be shown beyond doubt that the facts were otherwise than therein
represented. The duty to uphold a law which in fact was constitutionally voted upon is quite as strong
as the duty to repudiate an act unconstitutionally voted upon. The Court will be going as far wrong in
repudiating an act based on proper votes falsified in the journal as it will be in upholding an act
based on improper votes falsified in the enrollment. This supposed duty, in short, is to see that the
constitutional facts did exist; and it cannot stop short with the journals. Yet, singularly enough, it is
unanimously conceded that an examination into facts as provable by the testimony of members
present is not allowable. If to support that it be said that such an inquiry would be too uncertain and
impracticable, then it is answered that this concedes the supposed constitutional duty not to be
inexorable, after all; for if the duty to get at the facts is a real and inevitable one, it must be a duty to
get at them at any cost; and if it is merely a duty that is limited by policy and practical convenience,
then the argument changes into the second one above, namely, how far it is feasible to push the
inquiry with regard to policy and practical convenience; and from this point of view there can be but
one answer.

(2) In the second place, the fact that the scruple of constitutional duty is treated thus inconsistently
and pushed only up to a certain point suggests that it perhaps is based on some fallacious
assumption whose defect is exposed only by carrying it to its logical consequences. Such indeed
seems to be the case. It rests on the fallacious motion that every constitutional provision is "per se"
capable of being enforced through the Judiciary and must be safeguarded by the Judiciary because
it can be in no other way. Yet there is certainly a large field of constitutional provision which does not
come before the Judiciary for enforcement, and may remain unenforced without any possibility or
judicial remedy. It is not necessary to invoke in illustration such provisions as a clause requiring the
Governor to appoint a certain officer, or the Legislature to pass a law for a certain purpose; here the
Constitution may remain unexecuted by the failure of Governor or Legislature to act, and yet the
Judiciary cannot safeguard and enforce the constitutional duty. A clearer illustration may be had by
imagining the Constitution to require the Executive to appoint an officer or to call out the militia
whenever to the best of his belief a certain state of facts exists; suppose he appoints or calls out
when in truth he has no such belief; can the Judiciary attempt to enforce the Constitution by inquiring
into his belief? Or suppose the Constitution to enjoin on the Legislators to pass a law upon a certain
subject whenever in their belief certain conditions exist; can the Judiciary declare the law void by
inquiring and ascertaining that the Legislature, or its majority, did not have such a belief? Or
suppose the Constitution commands the Judiciary to decide a case only after consulting a
soothsayer, and in a given case the Judiciary do not consult one; what is to be done?

These instances illustrate a general situation in which the judicial function of applying and enforcing
the Constitution ceases to operate. That situation exists where the Constitution enjoins duties which
affect the motives and judgment of a particular independent department of government, —
Legislature, Executive, and Judiciary. Such duties are simply beyond enforcement by any other
department if the one charged fails to perform them. The Constitution may provide that no legislator
shall take a bribe, but an act would not be treated as void because the majority had been bribed. So
far as the Constitution attempts to lay injunctions in matters leading up to and motivating the action
of a department, injunctions must be left to the conscience of that department to obey or disobey.
Now the act of the Legislature as a whole is for this purpose of the same nature as the vote of a
single legislator. The Constitution may expressly enjoin each legislator not to vote until he has
carefully thought over the matter of legislation; so, too, it may expressly enjoin the whole Legislature
not to act finally until it has three times heard the proposition read aloud. It is for the Legislature
alone, in the latter case as well as in the former, to take notice of this injunction; and it is no more the
function of the Judiciary in the one case than in the other to try to keep the Legislature to its duty:

xxx xxx xxx

The truth is that many have been carried away with the righteous desire to check at any cost the
misdoings of Legislatures. They have set such store by the Judiciary for this purpose that they have
almost made them a second and higher Legislature. But they aim in the wrong direction. Instead of
trusting a faithful Judiciary to check an inefficient Legislature, they should turn to improve the
legislature. The sensible solution is not to patch and mend casual errors by asking the Judiciary to
violate legal principle and to do impossibilities with the Constitution; but to represent ourselves with
competent, careful, and honest legislators, the work of whose hands on the statute-roll may come to
reflect credit upon the name of popular government. (4 Wigmore on Evidence, 699-702.)

The petitioners contend that the enrolled bill rule has not found acceptance in this jurisdiction, citing
the case of United States vs. Pons (34 Phil., 729). It is argued that this Court examined the journal in
that case to find out whether or not the contention of the appellant was right. We think the petitioners
are in error.

It will be seen upon examination of section 313 of the Code of Civil Procedure, as amended by Act
No. 2210, that, roughly, it provides two methods of proving legislative proceedings: (1) by the
journals, or by published statutes or resolutions, or by copies certified by the clerk or secretary or
printed by their order; and (2) in case of acts of the Legislature, by a copy signed by the presiding
officers and secretaries thereof, which shall be conclusive proof of the provisions of such Acts and of
the due enactment thereof.

The Court looked into the journals in United States vs. Pons because, in all probability, those were
the documents offered in evidence. It does not appear that a duly authenticated copy of the Act was
in existence or was placed before the Court; and it has not been shown that if that had been done,
this Court would not have held the copyconclusive proof of the due enactment of the law. It is to be
remembered that the Court expressly stated that it "passed over the question" of whether the
enrolled bill was conclusive as to its contents and the mode of its passage.
Even if both the journals and an authenticated copy of the Act had been presented, the disposal of
the issue by the Court on the basis of the journals does not imply rejection of the enrollment theory,
for, as already stated, the due enactment of a law may be proved in either of the two ways specified
in section 313 of Act No. 190 as amended. This Court found in the journals no signs of irregularity in
the passage of the law and did not bother itself with considering the effects of an authenticated copy
if one had been introduced. It did not do what the opponents of the rule of conclusiveness advocate,
namely, look into the journals behind the enrolled copy in order to determine the correctness of the
latter, and rule such copy out if the two, the journals and the copy, be found in conflict with each
other. No discrepancy appears to have been noted between the two documents and the court did
not say or so much as give to understand that if discrepancy existed it would give greater weight to
the journals, disregarding the explicit provision that duly certified copies "shall be conclusive proof of
the provisions of such Acts and of the due enactment thereof."

In view of the foregoing consideration, we deem it unnecessary to decide the question of whether
the senators and representatives who were ignored in the computation of the necessary three-
fourths vote were members of Congress within the meaning of section 1 of Article XV of the
Philippine Constitution.

The petition is dismissed without costs.

Moran, C.J., Pablo, and Hontiveros, JJ., concur.

Separate Opinions

BENGZON, J., with whom concurs PADILLA, J., concurring:

Although I maintain that we have jurisdiction as petitioners contend, I can't vote for them, because
the enrolled copy of the resolution and the legislative journals are conclusive upon us.

A. The overwhelming majority of the state courts are of the opinion that the question whether an
amendment to the existing constitution has been duly proposed in the manner required by such
constitution properly belongs to the judiciary. That is the position taken by Alabama, Arkansas,
California, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Jersey, Ohio, Oregon, Rhode Island, Washington and Wisconsin. (See 12 C. J., 880 and 16C.J.S.,
437.) (See also 11 Am. Jur., 639.) Only North Dakota and Oklahoma have adopted a different view.
(16 C.J.S., 437, notes 41 and 43.)

"The authorities are thus practically uniform in holding that whether a constitutional amendment has
been properly adopted according to the requirements of an existing constitution is a judicial
question." (McConaughy vs. Secretary of State, 106 Minn., 392, 409; 119 N.W., 408.) (12 C.J., 880.)

"An examination of the decisions shows that the courts have almost uniformly exercised the authority
to determine the validity of the proposal, submission, or ratification of constitutional amendments. It
has been judicially determined whether a proposed amendment received the constitutional majority
of votes. (Knight vs. Shelton, 134 Fed., 423; Rice vs. Palmer, 78 Ark., 432; 96 S. W. 396;
Green vs. State Canvassers, 5 Ida., 130; 47 P., 259; 95 Am. S.R., 169; In re Denny, 156 Ind., 104;
59 N.E., 359; 51 L. R. A., 722; Dayton vs. St. Paul, 22 Minn., 400; Tecumseh Nat.
Bank vs. Saunders, 51 Nebr., 801; 71 N.W., 779; Bott vs. Wurts, 63 N.J.L., 289; 43 A., 744, 881; 45
L.R.A., 251; State vs. Foraker, 46 Oh. St., 677; 23 N.E., 491; 6 L.R.A., 422.)" (12 C.J., 880.)
As our constitutional system ("limitation" of powers) is more analogous to state systems than to the
Federal theory of "grant" of powers, it is proper to assume that the members of our Constitutional
convention, composed mostly of lawyers, and even the members of the American Congress that
approved the Tydings-McDuffie enabling legislation, contemplated the adoption of such
constitutional practice in this portion of the world. Hence, my conclusion that in Philippine polity,
courts may and should take cognizance of the subject of this controversy.

B. The petitioners' grievance is that, contrary to the provisions of the Constitution (Article XV), the
proposed amendment was not approved "by a vote of three-fourths of all the members of the Senate
and of the House of Representatives." They complain that certain Senators and some members of
the House of Representatives were not allowed to participate and were not considered in
determining the required three fourths vote.

The respondents, besides denying our power to revised the counting, assert that the persons
mentioned, for all practical purposed did not belong to the Congress of the Philippines on the day the
amendment was debated and approved.

Central target of attack is Republic Act No. 73 "to submit to the Filipino people, for approval or
disapproval, the amendment to the Constitution of the Philippines to be appended as an Ordinance
thereto, proposed by the Congress of the Philippines in a Resolution of both Houses, etc."

Petitioners would have a declaration of invalidity of that piece of legislation. Its first section provides
that "the amendment to the Constitution of the Philippines to be appended as an Ordinance thereto,
proposed by the Congress of the Philippines in a Resolution of both Houses, adopted on September
eighteen, nineteen hundred and forty-six, shall be submitted to the people, for approval or
disapproval, at a general election which shall be held on March eleven, nineteen hundred and forty-
seven, in accordance with the provisions of this Act."

By this provision, the Legislative Department with the concurrence of the Executive, declares in the
most solemn manner that the resolution proposing the amendment was duly carried. Therefore, it
would be pertinent to inquire whether those petitioners who are members of the Congress that
approved Republic Act No. 73 are not precluded from questioning its validity or veracity, unless they
assert and prove that in Congress they opposed its enactment. In default of a contrary showing, it is
not reasonable to suppose that as members of Congress they endorsed-- or at least are bound by —
the declarations of Republic Act No. 73? And if a private party is estopped from challenging the
constitutional efficacy of a law whose enactment he has procured (see 16 C.J.S., 198 and 11 Am.
Jur., 767) should not a member of Congress be estopped from impugning a statute he helped
(presumably) to pass? Parenthetically it should be added that the remaining petitioners, as mere
citizens, would probably have no suable claim. (Cf. 16 C.J.S., 169.)

C. But perhaps these points should be left to future study and decision, because the instant litigation
may be solved by the application of other well-established principles founded mainly on the
traditional respect which one department of the Government entertains for the actions of the others.

On account of the separation of powers, which I firmly believe, I agree to the applicability and
binding effect of section 313 of Act No. 190, as amended by Act No. 2210, which, in my opinion, has
not been abrogated by the Rules of Court. I likewise believe the soundness of the doctrine
expounded by the authoritative Wigmore on a question admittedly within the domain of the law on
evidence: conclusiveness of the enrolled bill of resolution upon the judicial authorities.
D. Withal, should that principle of conclusiveness be denied, the respondents could plausibly fall
back on the time-honored rule that the courts may not go behind the legislative journals to contradict
their veracity. (United States vs. Pons, 34 Phil., 729.)

According to the minutes of the joint session Exhibit 3, in the Senate sixteenth (16) senators
approved the resolution against five (5), with no absences; whereas in the house sixty-eight (68)
congressmen voted "yes", eighteen(18) voted "no", one abstained from voting and one was absent.
Therefore, 16 being three-fourths of the total membership of twenty-one of the Senate (16 plus 5),
and 68 being more than three-fourths of the total membership of eighty-eight (88) of the House of
Representatives (68 plus 18 plus 1 plus 1), it is crystal clear that the measure was upheld by the
number of votes prescribed by the Constitution.

True, there are in the said exhibit statements by two Senators and one congressman to the effect
that the votes did not constitute the majority required by the Constitution. However, in the fact of the
incontestable arithmetical computation above shown, those protests must be attributed to their
erroneous counting of votes; none of them having then asserted that "there were absent Senators or
Congressmen who had not been taken into account. "Ford although we might have judicial notice of
the number of proclaimed members of Congress, still we are no better qualified than the Legislature
to determine the number of its actual membership at any given moment, what with demises or
demissions, remotions or suspensions.

HILADO, J., concurring and dissenting:

I concur in the result of the majority opinion as well as in the grounds supporting the same in so far
as they are not inconsistent with the applicable reasons supporting my concurring opinion in Vera vs.
Avelino (77 Phil., 192). But I dissent from that part of the majority opinion (page 3, ante) wherein it is
stated that if the suspended members of the Senate and House of Representatives had been
counted "the affirmative votes in favor of the proposed amendment would have been short of the
necessary three-fourths of vote in either branch of Congress."

The basic theories underlying my aforesaid concurring opinion in Vera vs. Avelino, supra, are, first,
that the questions therein raised were political in nature within the exclusive province of the
legislature, and, second, that the judiciary does not possess jurisdiction over such questions. It is to
me evidence that the questions involved in the present proceeding are no less political than those
involved in that former Senate case. It is deemed unnecessary to dwell at more length upon the
grounds of my said concurring opinion.

The ground for my dissent from the above-quoted statement of the majority opinion in the instant
proceeding is that the suspension of the said members of the Senate and the House of
Representatives being a political question, the judiciary, being without jurisdiction to interfere with
the determination thereof by the proper political department of the government, has perforce to abide
by said determination if it were to go any further in the consideration of the case. In other words, any
further discussion of the case in this Court will have to start from the premise that said members
have been suspended by the respective Houses of Congress and that we, being powerless to
interfere with the matter of said suspension, must consider ourselves bound by the determination of
said political branches of the government. As said by the Supreme Court of the United States in
Philipps vs. Payne (2 Otto. [U.S.], 130; 23 Law. ed., 649), "in cases involving the action of the
political departments of the government, the judiciary is bound by such action."
(Williams vs. Insurance Co., 13 Pet., 420; Garcia vs. Lee, 12 Pet., 511; Kennel vs. Chambers, 14
How., 38; Foster vs. Neilson, 2 Pet., 209; Nabob of Carnatio vs. East Ind. Co., Ves., Jr., 60;
Lucer vs. Barbon, 7 How., 1; R.I. vs. Mass., 12 Pet., 714.)
If, then, we are to proceed, as I think we should, upon the premise that said members have been
thus suspended, there will be to my mind, absolutely no justification, ground nor reason for counting
them in the determination of whether or not the required three-fourths vote was attained. Their case
was entirely different from that of members who, not having been suspended nor otherwise
disqualified, had the right to vote upon the resolution. In the case of the latter, they had, like all other
members similarly situated, three alternatives, namely, to vote in favor of the resolution, to vote
against it, or to abstain from voting. If they voted in favor, of course, their votes had to be counted
amount those supporting the resolution. If they voted against, of course, their votes had to be
counted with those opposing. And if they abstained from voting, there would be sound justification
for counting them as not in favor of the resolution, because by their very abstention they impliedly
but necessarily would signify that they did not favor the resolution, for it is obvious that if they did,
they would have voted in favor of it. On the other hand, those suspended members who, by reason
of the suspension, whose validity or legality we are devoid of jurisdiction to inquire into, cannot be
similarly treated. In their case there would be no way of determining which way their votes would
have gone or whether or not they would have abstained from voting. In this connection, in
considering the hypothesis of their voting in case they had not been suspended, I must go upon the
assumption that while those suspended members may belong to the political party which, as a party,
was opposed to the resolution, still they would have voted independently and following their
individual convictions. In this connection, it might not be amiss to mention that there were quite a
number of minority members of the legislature who voted for the resolution. Hence, we are not in a
position to say that said suspended members, if they had not been suspended, would have voted
against the resolution, nor in favor of it either, nor that they would have abstained from voting. Why
then should they bed counted with the members who voted against the resolution or those who,
having the right to vote, abstained from doing so? Why should we count them as though
we knew that they would have voted against the resolution, or even that they would have abstained
from voting? Soundly construed, I submit that the Constitution does not, and could not, include
suspended members in the determination of the required three-fourths vote.

I take it, that the drafters in providing in Article XV, section 1, of the Constitution that "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 (emphasis supplied) separately . . .", advisedly used the vital and
all-important word "voting" therein. I take it, that they meant to refer to the
members voting, undoubtedly expecting that all members not suspended or otherwise disqualified,
would cast their votes one way or the other. But I am here even making a concession in favor of the
opponents when I say that those who, with the right to vote, abstain from voting, may be counted
among those not in favor of the measure. But what I cannot bring myself to conceive is that the
quoted provision should have intended to count suspended or disqualified members as opposed to
the measure, or not being in favor of it, without it being possible to know which way they would have
voted or that they would have abstained from voting — that they would never have voted in favor of
the measure. If I should ask why we should not count such suspended or disqualified members
among those in favor of the measure, I am sure those who opine differently would answer, because
we do not know that they would have voted in favor of it. By the same token, if they should ask me
why we should not count them among those against the measure, I would answer that we do not
know that they would have voted against it or that they would have abstained from voting. All this
inevitably leads to the conclusion — the only one possible — that such suspended or disqualified
members should not and cannot be counted due to that very impossibility of knowing which way they
would have voted or whether they would have abstained from voting. I stand for a sound and rational
construction of the constitutional precept.

PARAS, J.:

I fully concur in the foregoing opinion of Mr. Justice Hilado.

PERFECTO, J., dissenting:

To surrender or not to surrender, that is the question.

The last bastion of democracy is in danger.

Those who are manning it are summoned to give up without the least resistance, and the banner of
the Constitution is silently and meekly hauled down from its pole to be offered as a booty to the
haughty standard bearers of a new brand of Farcism. In t he words of Cicero, "recedere de statu
suae dignitatis."

Cardinal moral bearings have been lost in the psychological chaos suffered by those, throwing
overboard all ideals as burdensome and dangerous ballast, in desperate efforts to attain at all costs
individual survival, even in ignominy, could not stand the impact of initial defeats at the hands of
invading fearsome military hordes.

The present is liable to confusion. Our minds are subjected to determinate and indeterminate
ideological pressures. Very often man walks in the darkness of a blind alley obeying the pullings and
pushings of hidden and unhidden forces, or the arcane predeterminations of the genes of human
chromosomes. A rudderless ship floating in the middle of an ocean without any visible shoreline, is
bound to be wrecked at the advent of the first typhoon. From early youth we begin to hear and learn
about the true ideals. Since then we set them as the guiding stars in our actions and decisions, but
in the long travel of life, many times the clouds dim or completely darken those stars and then we
have only to rely on our faith in their existence and on habit, becoming unerring if long enough
followed, of adjusting our conduct to their guidance in calm and cloudless nights. We are sitting in
judgment to pass upon the conflicts, disputes and disagreements of our fellowmen. Let us not forget
that the day shall come that we will be judged on how are are judging. Posterity shall always have
the final say. When the time solvent has dissolved the human snag, then shall be rendered the final
verdict as to whether we have faced our task fearlessly or whether our hearts have shrunk upon the
magnitude of our duties and have chosen the most comfortable path of retreat. Then it will be
conclusively known whether did keep burning the tripod fire in the temples of old. Some of us will just
return into anonymity, covered by the cold mist of historical oblivion; others will have their names as
by words repeatedly pronounced with popular hate or general contempt; and still others will be
remembered with universal gratefulness, love and veneration, the guard on accorded to all those
who remained faithful to the fundamental tenets of justice. Winnowing time will sift the chaff from the
grain.

This is one of the cases upon which future generations will decide if this tribunal has the sturdy
courage to keep its responsibility in proper high level. It will need the passing of decades and
perhaps centuries before a conclusive verdict is rendered, whether we should merit the scorn of our
fellow citizens and our decision shall be cursed as the Dred Scot decision of Chief Justice Taney,
the one that plunged the United States into civil war, or whether in the heart of each future Filipino
citizen there will be a shrine in which our memory will be remembered with gratefulness, because we
have shown the far-reaching judicial statesmanship of Chief Justice Marshall, the legal genius who
fixed and held the rock bottom foundations which made of the American Constitution the veritable
supreme law of the land and established the role of the tribunals as the ultimate keepers of the
Constitution. But for sure it will be rendered, and it will be impartial and unbiased, exacting and
pitiless, with unappealable finality, and for the one condemned Dante wrote this lapidary line:
"lasciate ogni speranza."

Unless the vision of our mental eyes should be shut up by the opaque cornea of stubborn refusal to
see reality or should be impaired by the polaroid visors of prejudice, there is no question that at the
time when the resolution in question, proposing an amendment to the Constitution, was adopted, the
members of the Senate were 24 and the members of the House of Representatives were 96, and
that the 16 members of the Senate who voted in favor of the resolution, by undisputable
mathematical computation, do not constituted three-fourths of the 24 members thereof, and the 68
members of the House of Representatives who voted for the resolution, by equally simple
arithmetical operation, do not constitute three-fourths of the 96 members of the said chamber. The
official certifications made by the presiding officers of the two houses of Congress to the effect that
three-fourths of all the members of the Senate and three-fourths of all the members of the House of
Representatives voted for the resolution, being untrue, cannot change the facts. Nothing in existence
can. The certification, being a clear falsification of public document punished by article 171 of the
Revised Penal Code with prision mayor and a fine not to exceed P5,000, cannot give reality to a
fiction based in a narration of facts that is in conflict with the absolute metaphysical reality of the
events.

FACTS OF THE CASE

Petitioners are citizens of the Philippines, taxpayers and electors, and besides some of them are
members of the Senate, others are members of the House of Representatives, and still others are
presidents of political parties, duly registered, with considerable following in all parts of the
Philippines.

The first three respondents are chairman and members, respectively, of the Commission on
Elections and the remaining three are respectively the Treasurer of the Philippines, the Auditor
General and the Director of the Bureau of Printing.

Petitioners alleged that the Senate is actually composed of 24 Senators, 8 elected in 1941 and 16 in
April 23, 1946, and that the House of Representatives is composed of 98 members, elected on April
23, 1946, minus 2d who resigned to assume other positions in the Government.

On September 18, 1946, there was presented for adoption by the Congress of the Philippines a
resolution proposing an amendment to the Constitution of the Philippines to be appended as an
ordinance thereto, which reads as follows:

Resolved by the Senate and House of Representatives, of the Philippines in joint session
assembled, by a vote of not less than three-fourths of all the Members of each House voting
separately. To propose, as they do hereby propose, the following amendment to the Constitution of
the Philippines to be appended as an Ordinance thereto:

ORDINANCE APPENDED TO THE CONSTITUTION

"Notwithstanding the provisions of section one, Article Thirteen, and section eight, Article Fourteen,
of the foregoing Constitution, during the effectivity of the Executive Agreement entered into by the
President of the Philippines with the President of the United States on the fourth of July, nineteen
hundred and forty-six, pursuant to the provisions of Commonwealth Act Numbered seven hundred
and thirty-three, but in no case to extend beyond the third of July, nineteen hundred and seventy-
four, the disposition, exploitation, development, and utilization, of all agricultural, timber, and mineral
lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces and
sources of potential energy, and other natural resources of the Philippines, and the operation of
public utilities, shall, if open to any person, be open to citizens of the United States and to all forms
of business enterprise owned or controlled, directly or indirectly, by citizens of the United States in
the same manner as to, and under the same conditions imposed upon, citizens of the Philippines or
corporations or associations owned or controlled by citizens of the Philippines."
This amendment shall be valid as a part of the Constitution when approved by a majority of the votes
cast in an election at which it is submitted to the people for the ratification pursuant to Article XV of
the Constitution.

Sixteen Senators voted in favor of the resolution and 5 against it, and 68 Representatives voted in
favor and 18 against.

Thereafter, Congress passed Republic Act No. 73 calling a plebiscite to be held on March 11, 1947,
for the purpose of submitting to the people the proposed amendment embodied in the resolution,
and appropriating P1,000,000 for said purpose.

Petitioners assail the validity of Republic Act No. 73 as unconstitutional because Congress may not,
by said act, submit to the people for approval or disapproval the proposed amendment to the
Constitution embodied in resolution Exhibit B inasmuch as, to comply with the express provisions of
Article XV of the Constitution, requiring the affirmative votes of three-fourths of all the members of
the Senate and of the House of Representatives voting separately, three-fourths of the 24 members
of the Senate is constituted by at least 18 Senators, 2 more than those who actually voted for the
resolution in question, and three-fourths of the 98 members of the House of Representatives should
at least be 72 Representatives, or 4 more than those who actually voted for the resolution.

Respondents deny that the Senate is composed of 24 Senators, by excluding from them petitioners
Jose O. Vera, Ramon Diokno and Jose E. Romero and allege that the House of Representatives is
not composed of 98 members but of only 90. They admit that at the joint session of Congress to
consider the resolution Exhibit B, in favor of the resolution 16 votes were cast in the Senate and in
the House of Representatives 68 and 5 in the Senate and 18 in the House of Representatives had
voted against. They admit the approval of Republic Act No. 73 and that necessary steps to hold the
plebiscite therein provided are being taken, but deny that said act is unconstitutional, and byway of
defense, allege that the resolution Exhibit B was adopted by three-fourths of all the qualified
members of the Senate and of the House of Representatives voting separately and, consequently,
Republic Act No. 73, ordering its submission to the people for approval or disapproval, fixing a date
for a general election, and appropriating public funds for said purpose, is valid and constitutional.

At the hearing of this case both parties submitted the following stipulation:

The parties through their undersigned counsel hereby stipulate the following facts:

1. That Messrs. Jose O. Vera, Ramon Diokno and Jose E. Romero were, by the majority vote of the
Commission on Elections, proclaimed elected senators in the election of April 23, 1946;

2. That when the Senate convened on May 25, 1946, the said senators-elect took part in the election
of the President of that body; but that before the senators-elect were sworn in by the President of the
Senate, a resolution was presented, and subsequently approved, to defer the administration of oath
and the seating of Messrs. Jose O. Vera, Ramon Diokno, and Jose E. Romero, pending the hearing
and decision of the protest lodged against their election;

3. That on the 25th of May, 1946, the said senators individually took their alleged oath of office
before notaries public, and not on the floor, and filed said oaths with the Secretary of the Senate
during the noon recess of the said date;

4. That Messrs. Vera and Romero filed with the Auditor of the Senate other oaths of office
accomplished by them outside of the floor before a notary public and the Secretary of the Senate, on
September 5 and August 31, 1946, respectively; and that their corresponding salaries from April 23,
1946, were paid on August 31, 1946;

5. That Mr. Diokno, having left for the United States, his son Jose W. Diokno filed a copy of Mr.
Diokno's alleged oath of office dated May 25, 1946, with the Auditor of the Senate on October
15,1946, and on said date his salary was paid corresponding to the period from April 23 to October
15, 1946;

6. That all three have subsequently received their salaries every fifteen days;

7. That since the approval of the resolution deferring their seating and oaths up to the present time,
the said Messrs. Vera, Diokno, and Romero have not been allowed to sit and take part in the
deliberations of the Senate and to vote therein, not do their names appear in the roll of the Senate;

8. That before May 25, 1946, the corresponding provincial boards of canvassers certified as having
been elected in the election held on April 23, 1946, ninety-eight representatives, among them
Messrs. Alejo Santos and Jesus B. Lava for Bulacan, Jose Cando and Constancio P. Padilla for
Nueva Ecija, Amado M. Yuson and Luis Taruc for Pampanga, Alejandro Simpauco for Tarlac, and
Vicente F. Gustilo for Negros Occidental;

9. That the aforesaid eight members-elect of the House of Representatives took part in the election
of the Speaker of the House of Representatives held on May 25, 1946;

10. That before the members-elect of the House of Representatives were sworn in by the Speaker,
Mr. Topacio Nueno, representative for Manila, submitted a resolution to defer the taking of oath and
seating of Luis Taruc and Amado Yuson for Pampanga, Constancio P. Padilla and Jose Cando for
Nueva Ecija, Alejandro Simpauco for Tarlac, Alejo Santos and Jesus Lava for Bulacan, and Vicente
F. Gustilo for Negros Occidental "pending the hearing and decision on the protests lodged against
their election," copy of the resolution being attached to and made part of this stipulation as Exhibit 1
thereof;

11. That the resolution Exhibit 1 was, upon motion of Representative Escareal and approved by the
House, referred for study to a committee of seven, which up to the present has not reported, as
shown by the Congressional Record for the House of Representatives;

12. That the eight representatives-elect included in the resolution were not shown in on the floor and
have not been so sworn in or allowed to sit up to the present time, nor have they participated in any
of the proceedings of the House of Representatives except during the debate of the Escareal motion
referred to in paragraph 11 hereof, nor cast any vote therein since May 25, 1946, and their names
do not appear in the roll of the members of the House except as shown by the Congressional
Record of the House of Representatives, nor in the roll inserted in the official program for the
inauguration of the Republic of the Philippines hereto attached as Exhibit 2 hereof;

13. That the eight representatives-elect above mentioned took their alleged oaths of office on the
date set opposite their names, as follows:

Jose Cando
Vicente Gustilo
Constancio Padilla
Alejo Santos
Luis M. Taruc
Amado M. Yuson
Jesus B. Lava
Alejandro Simpauco

May 25, 1946

May 25, 1946
May 22, 1946
May 23, 1946
May 25, 1946
May 25, 1946
May 25, 1946
May 25, 1946

all of which oaths were taken before notaries public, with the exception of the first four who took their
oaths before Mr. Narciso Pimentel, Secretary of the House;

14. That said oaths were filed with the Auditor through the office of the Secretary of the House of
Representatives;

15. That the persons mentioned in paragraph 13 were paid salaries for the term beginning April 23,
1946, up to the present, with the exception of Messrs. Luis Taruc and Jesus Lava, to whom payment
was suspended since August 16;

16. That Messrs. Alejo Santos and Vicente F. Gustilo took their oaths before the Speaker of the
House of Representatives and were allowed to sit on September 30, 1946, the last day of the
Special Sessions;

17. That in addition to the eight persons above mentioned, two members of the House,
Representatives Jose C. Zulueta and Narciso Ramos, had resigned before the resolution proposing
an amendment to the Constitution was discussed and passed on September 18,1946;

18. That the voting on the resolution proposing an amendment to the Constitution was made by the
Secretary calling the roll of each house and the votes cast were as shown in the attached certificate
of the Secretary of the House of Representatives hereto attached, marked Exhibit 3 and made a part
hereof; and

19. That the Congressional Records for the Senate and House of Representatives and the alleged
oaths of office are made a part of this Stipulation by reference thereto, respondents reserving the
right to question their materiality and admissibility.

Manila, Philippines, November 25, 1946.

For the petitioners:

For the respondents:

JOSE E. ROMERO
ANTONIO BARREDO

ROMAN OZAETA
Secretary of Justice
JOSE B.L. REYES
First Asst. Solicitor General

PETITIONER'S PERSONALITY

Whether petitioners have or have not the personality to file the petition in this case is the first
question we have to consider.

No party raised the question, but it having arisen in the course of the Court's deliberation, we should
not evade deciding it and giving what in law and justice should be the answer.

To our mind there is no doubt that petitioners have the personality to institute the present recourse of
prohibition. If petitioners should lack that personality, such legal defect would not certainly have
failed to be noticed by respondents themselves.

Respondents' failure to raise the question indicates their conviction that petitioners have the
necessary legal personality to file the petition, and we do not see any reason why such personality
should be put in doubt.

Petitioners are divided into three groups: the first is composed of senators; the second, of
representatives; and the third, of presidents of four political parties.

All of the individuals composing the first two groups, with the exception of Senators Jose O. Vera,
Ramon Diokno, and Jose E. Romero, are members of either of the two houses of Congress and took
part in the consideration of Resolution Exhibit B and of Republic Act No. 73, while the above three
excepted senators were the ones who were excluded in the consideration of said resolution and act
and were not counted for purposes of determining the three-fourths constitutional rule in the
adoption of the resolution.

In paragraph eight of the petition it is alleged that respondents have taken all the necessary steps for
the holding of the general election on March 11, 1947, and that the carrying out of said acts
"constitute an attempt to enforce the resolution and act aforementioned in open violation of the
Constitution," is without or in excess of respondents' jurisdiction and powers, "violative of the rights
of the petitioners who are members of the Congress, and will cause the illegal expenditure and
disbursement of public funds and end in an irreparable injury to the taxpayers and the citizens of the
Philippines, among whom are the petitioners and those represented by them in their capacities
mentioned above."

There should not be any question that the petitioners who are either senators or members of the
House of Representatives have direct interest in the legal issues involved in this case as members
of the Congress which adopted the resolution, in open violation of the Constitution, and passed the
act intended to make effective such unconstitutional resolution. Being members of Congress, they
are even duty bound to see that the latter act within the bounds of the Constitution which, as
representatives of the people, they should uphold, unless they are to commit a flagrant betrayal of
public trust. They are representatives of the sovereign people and it is their sacred duty to see to it
that the fundamental law embodying the will of the sovereign people is not trampled upon.

The four political parties represented by the third group of petitioners, represent large groups of our
population, perhaps nearly one-half of the latter, and the numerous persons they represent are
directly interested and will personally be affected by the question whether the Constitution should be
lightly taken and can easily be violated without any relief and whether it can be amended by a
process openly repugnant to the letter of the Constitution itself.
As a matter of fact, the vital questions raised in this case affect directly each and every one of the
citizens and inhabitants of this country. Whether our Constitution is, as it is supposed to be, a
paramount law or just a mere scrap of paper, only good to be thrown into a waste basket, is a matter
of far-reaching importance to the security, property, personal freedom, life, honor, and interests of
the citizens. That vital question will necessarily affect the way of life of the whole people and of its
most unimportant unit. Each and every one of the individuals inhabiting this land of ours shall have
to make plans for the future depending on how the question is finally decided. No one can remain
indifferent; otherwise, it will at his peril.

Our conclusion is that petitioners have full legal personality to institute the present action; and much
more, those who are members of Congress have the legal duty to institute it, lest they should betray
the trust reposed in them by the electorate.

24 SENATORS

The first question raised by respondents' answer refers to the actual number of the members of the
Senate. According to petitioners there are 24 of them while according to respondents there are only
21, excluding Senators Jose O. Vera, Ramon Diokno, and Jose E. Romero, because, according to
them, "they are not duly qualified and sworn in members of the Senate."

This allegation appears to be belied by the first seven paragraphs of the stipulation of facts
submitted by both parties.

No amount of sophism, of mental gymnastics or logo-daedaly may change the meanings and effects
of the words placed by respondents themselves in said seven paragraphs. No amount of argument
may delude anyone into believing that Senators Vera, Diokno, and Romero are not senators
notwithstanding their having been proclaimed as elected senators, their having taken part in the
election of the President of the Senate, their having taken their oaths of office, and their receiving
salaries as senators.

Such a paradoxical proposition could have been driven into acceptance in the undeveloped brains of
the pithecanthropus or gigantopithecus of five hundred millennia ago, but it would be unpardonably
insulting o the human mind of the twentieth century.

Our conclusion is that Senators Vera, Diokno, and Romero should be counted as members of the
Senate, without taking into consideration whatever legal effects the Pendatun resolution may have
produced, a question upon which we have already elaborated in our opinion in Vera vs. Avelino (77
Phil., 192). Suspended or not suspended, they are senators anyway, and there is no way of ignoring
a fact so clear and simple as the presence of the sun at day time. Therefore, counting said three
Senators, there are 24 Senators in all in the present Senate.

96 REPRESENTATIVES

The next question raised by respondents is their denial of petitioners' allegations to the effect that
the present House of Representatives is composed of 98 members and their own allegation to the
effect that at present "only 90 members have qualified, have been fully sworn in, and have taken
their seats as such."

Again respondents' allegations are belied by paragraphs eight to seventeen of the stipulation of
facts.
The disagreement between the parties is as to whether or not Representatives Cando, Gustilo,
Padilla, Santos, Taruc, Yuson, Lava and Simpauco, mentioned in paragraph 13 of the stipulation of
facts, are members of the House of Representatives.

The facts stipulated by the parties proved conclusively that said eight persons are actual members of
the House of Representatives. We may even add that the conclusiveness about said eight
representatives is even greater than in the case of Senators Vera, Diokno, and Romero, because no
resolution of suspension has ever been adopted by the House of Representatives against said eight
members, who are being deprived of the exercise of some of their official functions and privileges by
the unipersonal, groundless, dictatorial act of the Speaker.

That illegal deprivation, whose counterpart can only be found in countries where the insolence of
totalitarian rulers have replaced all constitutional guarantees and all concepts of decent government,
raises again a constitutional question: whether it is permissible for the Speaker of the House of
Representatives to exercise the arbitrary power of depriving representatives duly elected by the
people of their constitutional functions, privileges, and prerogatives. To allow the existence of such
an arbitrary power and to permit its exercise unchecked is to make of democracy a mockery.

The exercise of such an arbitrary power constitutes a want on onslaught against the sovereignty
itself of the people, an onslaught which may cause the people sooner or later to take justice in their
own hands. No system of representative government may subsist if those elected by the people may
so easily be silenced or obliterated from the exercise of their constitutional functions.

From the stipulation of facts, there should not be any question that at the last national election, 98
representatives were elected and at the time the resolution Exhibit B was adopted on September 18,
1946, 96 of them were actual members of the House, as two (Representatives Zulueta and Ramos)
has resigned.

Applying the three-fourth rule, if there were 24 senators at the time the resolution was adopted;
three-fourths of them should at least be 18 and not the 16 who only voted in favor of the resolution,
and if there were 96 representatives, three-fourths of them should certainly be more than the 68 who
voted for the resolution. The necessary consequence is that, since not three-fourths of the senators
and representatives voting separately have voted in favor of the resolution as required by Article XV
of the Constitution, there can be no question that the resolution has not been validly adopted.

We cannot but regret that our brethren, those who have signed or are in agreement with the majority
opinion, have skipped the questions as to the actual membership of the Senate and House of
Representatives, notwithstanding the fact that they are among the first important ones squarely
raised by the pleadings of both parties. If they had taken them into consideration, it would seem
clear that their sense of fairness will bring them to the same conclusion we now arrived at, at least,
with respect to the actual membership of the House of Representatives.

Upon our conclusions as to the membership of the Senate and House of Representatives, it appears
evident that the remedy sought for in the petition should be granted.

JURISDICTION OF THE SUPREME COURT

Without judging respondents' own estimate as to the strength of their own position concerning the
questions of the actual membership of the Senate and House of Representatives, it seems that
during the oral and in the written arguments they have retreated to the theory of conclusiveness of
the certification of authenticity made by the presiding officers and secretaries of both House of
Congress as their last redoubt.
The resolution in question begins as follows: "Resolved by the Senate and House of
Representatives of the Philippines in joint session assembled, by a vote of not less than three-
fourths of all the members of each House voting separately, . . .."

Just because the adoption of the resolution, with the above statement, appears to be certified over
the signatures of the President of the Senate and the House of Representatives and the Secretaries
of both Houses, respondents want us to accept blindly as a fact what is not. They want us to accept
unconditionally as a dogma, as absolute as a creed of faith, what, as we have shown, appears to be
a brazen official falsehood.

Our reason revolts against such an unethical proposition.

An intimation or suggestion that we, in the sacred temple of justice, throwing overboard all scruples,
in the administration of justice, could accept as true what we know is not and then perform our
official functions upon that voluntary self-delusion, is too shocking and absurb to be entertained even
for a moment. Anyone who keeps the minimum sense of justice will not fail to feel aghast at the
perversion or miscarriage of justice which necessarily will result from the suggestion.

But the theory is advanced as a basis to attack the jurisdiction of this Court to inquire behind the
false certification made by the presiding officers and the secretaries of the two Houses of Congress.

Respondents rely on the theory of, in the words of the majority opinion, "the conclusiveness on the
courts of an enrolled bill or resolution."

To avoid repeating the arguments advanced by the parties, we have made part of this opinion, as
Appendices A, B, and C,1 the memoranda presented by both petitioners and respondents, where
their attorneys appear to have amply and ably discussed the question. The perusal of the
memoranda will show petitioners' contentions to be standing on stronger ground and, therefore, we
generally agree with their arguments.

In what follows we will try to analyze the positions taken in the majority opinion.

POLITICAL QUESTIONS

The majority enunciates the proposition that "political questions are not within the province of the
judiciary," except "by express constitutional or statutory provision" to the contrary. Then argues that
"a duly certified law or resolution also binds the judges under the 'enrolled bill rule' out of respect to
the political departments."

The doctrine is predicated "on the principle of the separation of powers."

This question of separation of powers is the subject of discussion in the case of Vera vs.
Avelino, supra. We deem unnecessary to repeat what we have already said in our opinion in said
case, where we have elaborated on the question.

Although the majority maintains that what they call the doctrine that political questions are not within
the province of the judiciary is "too well-established to need citation of authorities," they recognize
the difficulty "in determining what matters fall under the meaning of political questions."
This alleged doctrine should not be accepted at its face value. We do not accept it even as a good
doctrine. It is a general proposition made without a full comprehension of its scope and
consequences. No judicial discernment lies behind it.

The confession that the "difficulty lies in determining what matters fall within the meaning of political
question" shows conclusively that the so-called doctrine has recklessly been advanced.

This allegedly "well-established" doctrine is no doctrine at all in view of the confessed difficulty in
determining what matters fall within the designation of political question. The majority itself admits
that the term "is not susceptible of exact definition, and precedents and authorities are not always in
full harmony as to the scope of the restrictions, on this ground, on the courts to meddle with the acts
of the political department of the government."

Doctrine is that "what is taught; what is held; put forth as true, and supported by a teacher, a school,
or a sect; a principle or position, or the body of principles, in any branch of knowledge; tenet; dogma;
principle of faith. "It is a synonym of principle, position, opinion, article, maxim, rule, and axiom. in its
general sense, doctrine applies to any speculative truth or working principle, especially as taught to
others or recommended to their acceptance. Therefore, to be true, it should be expressed on simple
and self-evident terms. A doctrine in which one of the elemental or nuclear terms is the subject of an
endless debate is a misnomer and paradox.

A doctrine is advanced and accepted as an established truth, as a starting point for developing new
propositions, as a guiding principle in the solution of many problems. It is a groundwork for the
building of an intellectual system. It is the basis of a more or less complex legal structure. If not the
cornerstone, it should at least be one of the main columns of an architectonic construction. If that
groundwork, cornerstone or column is supported by a thing whose existence still remains in dispute,
it is liable to fall.

We irrevocably refuse to accept and sanction such a pseudo-doctrine which is based on the
unsettled meaning of political question. The general proposition that "political questions are not
within the province of the judiciary" is just one of the many numerous general pronouncements made
as an excuse for apathetic, indifferent, lazy or uncourageous tribunals to refuse to decide hard or
ticklish legal issues submitted to them.

It belongs to the category of that much-vaunted principle of separation of powers, the handful of
sand with which judicial ostriches blind themselves, as if self-inflicted blindness may solve a problem
or may act as a conjuration to drive away a danger or an evil.

We agree with the majority that the proposal to amend the Constitution and the process to make it
effective, as provided in Article XV of the Constitution, are matters of political nature, but we cannot
agree with their conclusion that a litigation as to whether said article has been complied with a
violated is beyond the jurisdiction of the tribunals, because to arrive at this conclusion we must
accept as a major premise the pseudo-doctrine which we have precisely exposed as erroneous and
false.

Is there anything more political in nature than the Constitution? Shall all questions relating to it,
therefore, betaken away from the courts? Then, what about the constitutional provision conferring
the Supreme Court with the power to decide "all cases involving the constitutionality of a treaty or a
law?"

COLEMAN versus MILLER

The decision of the United States Supreme Court in Coleman vs. Miller (122 A. L. R., 625) is invoked
as the mainstay of the majority position.

No less than eight pages of the majority opinion are occupied by the exposition and analysis of the
decision of the Supreme Court.

The case is invoked as authority for the conclusion that "the efficacy of ratification by the State
legislature of a proposed amendment to the federal Constitution" and that "the decision by Congress,
in its control of the Secretary of State of the questions of whether an amendment has been adopted
within a reasonable time from the date of submission to the State legislature," are political questions
and not justiciable.

At the outset it must be noted that the two above mentioned questions have no similarity or analogy
with the constitutional questions herein discussed. The questions as to the efficacy of the ratification
by the Senate of Kansas of the Child Labor amendment proposed by the United States Congress in
June, 1924, and upon the decision of said Congress, "in its control of the Secretary of State,"
whether the amendment has been adopted "within a reasonable time from the date of submission to
the State legislature," either one of them does not raise a controversy of violation of specific
provisions of the Constitution as the ones raised in the present case.

No specific constitutional provision has been mentioned to have been violated because in January,
1925, the Legislature of Kansas rejected the amendment, a copy of the rejection having been sent to
the Secretary of State of the United States, and in January, 1927, a new resolution ratifying the
amendment was adopted by the Senate of Kansas on a 21-20 division, the Lieutenant Governor
casting the deciding vote. Neither was there such mention of constitutional violation as to the effect
of the previous rejection and of the lapse of time after submission of the amendment to the State
legislature.

No constitutional provision has been pointed out to have been violated because the Lieutenant
Governor had cast his vote or because by the lapse of time from June, 1924 to March, 1927, the
proposed amendment had allegedly lost its vitality.

It is only natural that, in the absence of a constitutional provision upon the efficacy of ratification by a
State legislature of a proposed amendment, it was within the ultimate power of the United States
Congress to decide the question, in its decision rendered in the exercise of its constitutional power,
to control the action of the Secretary of State, and the promulgation of the adoption of amendment
could not be controlled by the courts.

Evidently, the invoked authority has no bearing at all with the matters in controversy in the present
case.

We note, as observed in the majority opinion, that the four opinions in Coleman vs. Miller, according
to the American Law Reports, show "interestingly divergent but confusing positions of the justices,"
and are the subject of an amusing article in 48 Yale Law Journal, 1455, entitled "Sawing a Justice in
Half," asking how it happened that the nine-member United States Supreme Court could not reach a
decision on the question of the right of the Lieutenant Governor of Kansas to cast his vote, because
the odd number of justices was "equally divided."

How such a "confusing" and "amusing" four-opinion decision in Coleman vs. Miller could be an
authority is beyond our comprehension.

GREEN versus WELLER

One of the authorities upon which the majority relies is the decision of the Mississippi Supreme
Court in Green vs. Miller (32 Miss., 650), quoting one paragraph thereof.

Here again we have a case of inapplicable authority, unless taken in its reversed effect.

The Mississippi Supreme Court maintains that there is nothing in the nature of the submission to the
people of a proposal to amend the Constitution which should cause the free exercise of it to be
obstructed or that could render it dangerous to the stability of the government, but in making this
pronouncement, it assumes that the submission is made "in a established form," adding that the
means provided for the exercise by the people of their sovereign right of changing the fundamental
law should receive such a construction as not to trample upon the exercise of their right, and that the
best security against tumult and revolution is the free and unobstructed privilege to the people of the
state to change their Constitution "in the mode prescribed by the instrument."

So the authority, if clearly interpreted, will lead us to the conclusion that the majority position is
wrong because the Mississippi Supreme Court, in making the pronouncement, upon the assumption
that the submission to the people is made "in a established form" and "in the mode prescribed" by
the Constitution, namely, in accordance with the provisions of the instrument, the pronouncements
would be the opposite if, as in the present case, the submission of the proposal of amendment to the
people is made through a process flagrantly violative of the Constitution, aggravated by wanton
falsification of public records and tyrannical trampling of the constitutional prerogatives of duly
elected representatives of the people.

MR. JUSTICE BLACK

The concurring opinion of Mr. Justice Black, joined in by Mr. Justice Roberts, Mr. Justice Frankfurter
and Mr. Justice Douglas, in the "confusing" and "amusing" decision in Coleman vs. Miller, is also
invoked by the majority, but this other authority seems equally reluctant to offer its helping hand to a
helpless, desperate position.

The major premise of the concurring opinion is as follows: "The Constitution granted Congress
exclusive power to control submission of constitutional amendments."

Everybody ought to know that no such an unlimited, unchecked, omnipotent power is granted by our
fundamental law to the Congress of the Philippines. Our Congress may propose amendments or call
a convention to make the proposal, but that is all. Nowhere in the Constitution can be found any
word, any grammatical sign, not even the faintest hint that in submitting the proposed amendments
to the people, Congress shall have "exclusive power to control the submission." That submission
must be provided by law, and no law may be enacted and come into effect by the exclusive power of
Congress. It needs the concurring action of the President of the Philippines. And if the law happens
to violate the fundamental law, courts of justice may step in to nullify its effectiveness. After the law
is enacted, its execution devolves upon the Executive Department. As a matter of fact, it is the
Executive Department which actually submits to the people the proposed amendment. Congress
fixes the date of submission, but the President of the Philippines may refuse to submit it in the day
fixed by law if war, rebellion, or insurrection prevents a plebiscite from proceeding.

After showing that Mr. Justice Black started his argument from a major premise not obtainable in the
Philippines, his conclusions cannot help the majority in anyway.

MR. JUSTICE FRANKFURTER

The concurring opinion of Mr. Justice Frankfurter in the "confusing" and "amusing" case of
Coleman vs. Miller is the next authority invoked by the majority, but the opinion does not offered
much help. The justice maintains that the proceedings for voting in legislative assemblies "are
matters that concern not merely political actions but are also of the very essence of political action,"
and then advances the following argument: "To open the law-courts to such controversies is to have
courts sit in judgment on the manifold disputes engendered by procedures for voting in legislative
assemblies."

The argument has no weight at all. The argument merely displays an attitude, one of simple distaste
for the idea, but fails to give any sensible reason for the attitude. Ina totalitarian regime, where
decisions are rendered not in answer to the promptings of a sense of justice, but as expressions of
moods, caprices and whims of arbitrary rulers, Mr. Justice Frankfurter's attitude could be taken as
the law, but then it would be necessary to elevate him first to the category of a fuehrer.

In our jurisdiction personal attitudes are not the law. Here, justice must be founded on reason, but
never on passing unreasoned moods, judicial or otherwise.

We regret that we cannot agree with the majority's sharing Mr. Justice Frankfurter's views, which in
their judgment are in accord "with sound principles of political jurisprudence and represent liberal
and advanced thought on the workings of constitutional and popular government. "Our regret is not
for ourselves alone but for those who happen to accept as authority the unreasoned and
unexplained mental attitude of a judicial officer of a foreign country, praising it even with the much-
abused label as "liberal," notwithstanding the fact that it represents the whimsical rule of personal
attitudes and not the rule of well-matured reason.

THE ENROLLED BILL THEORY

This theory is amply discussed in the memoranda of the parties attached hereto as Appendices A, B,
and C. Although we consider it unnecessary to enlarge the discussion, we deem it convenient to
make a little analysis of what is stated in the majority opinion. Respondents contend, with the full
approval of the majority, that a duly authenticated bill or resolution imports absolute verity and is
binding on the courts.

The present case is a conclusive evidence of the absurdity of the theory. How can we accept the
absolute verity of the presiding officers' certification that the resolution in question has been adopted
by three-fourths of all the members of the Senate and of the House of Representatives, when as a
matter of undisputable fact the certification is false? How can we accept a theory which elevates a
false-hood to the category of truth?

The majority alleges that the rule is the one prevailing in England. Because the English have
committed the nonsense of accepting the theory, is that reason for Filipinos to follow suit? Why, in
the administration of justice, should our tribunals not think independently? Our temple of justice is
not presided by simians trained in the art of imitation but by human beings, and human beings must
act according to reason, never just to imitate what is wrong, although such mistakes may happen to
be consecrated as a judicial precedent. It would be inconceivable for our courts to commit such a
blunder.

Repeating what Wigmore has said (4 Wigmore on Evidence, 685, footnote), the majority states that
in the United States the jurisdictions are divided almost equally pro and con on the theory, although
in petitioners' memorandum Appendix A there appears more up-to-date evidence to the effect that
there is a great majority for the rejection. But to our mind, mere numbers as to pro and con seem to
us immaterial in the decision as to whether the theory is or is not correct. Numbers do not make
reason nor justice.

The majority contends that the theory conforms to the express policy of our law-making body,
invoking to said effect the now obsolete section 313 of the old Code of Civil Procedure, as amended
by Act No. 2210.

Even if we should follow the anachronistic practice of deciding issues upon the authority of laws
which have been repealed or abolished, still the evidence pointed out by the majority does not
support their contention. Section 313 alluded to enumerates the evidence that may prove the
procedures of the defunct Philippine Commission or of any legislative body that may be provided for
in the Philippines, with the proviso that the existence of a copy of acts of said commission or the
Philippine Legislature, signed by the presiding officers and secretaries of said bodies, is a conclusive
proof "of the provisions of such acts and of the due enactment thereof."

This proviso has been repealed by its non-inclusion in the Rules of Court. Sections 5 and 41 of Rule
123 show conclusively that this Supreme Court, in making the rules effective since July 1, 1940,
rejected the proviso as unreasonable and unjust. Section 5 provides that we may take judicial notice
of the official acts of Congress and section 41 provides what evidence can be used to prove said
official acts, but nowhere in the rules can a provision be found that would make conclusive a
certification by the presiding officers and secretaries of both House of Congress even if we know by
conclusive evidence that the certification is false.

The allegation that the theory in question conforms to the express policy of our lawmaking body,
upon the very evidence used in support thereof, after a little analysis, has to banish as a mid-
summer night's dream.

50 AMERICAN JURISDICTION, SECTION 150

In support of the theory of conclusiveness of the enrollment, the authority of 50 American

Jurisprudence, 150 is invoked as reasons for the theory.

We will analyze the reasons adduced:

1. Respect due to a coequal and independent department of the government. This must be the
strongest one, when it is first mentioned. It is so flimsy to require much discussion. Shall we sacrifice
truth and justice for the sake of a social courtesy, the mutual respect that must be shown between
different departments of the government? Has our sense of evaluation of spiritual values become so
perverted that we can make such a blunder in our choice? Since when have the social or official
amenities become of paramount value to the extent of overshadowing the principles of truth and
justice?

2. Because without the theory, courts would have to make "a n inquisition into the conduct of the
members of the legislature, a very delicate power." This second reason is premised not on a
democratic attitude, but rather on a Fascistic one. It is premised on the false belief that the members
of the majority are a king of emperos of Japan, to be worshipped but never to be discussed. The
ideology depicted by the second reason should be relegated to where it belongs: the archeological
museum.

3. "The rule is also one of convenience." This reason again shows a perverted evaluation of human
values. Is justice to be sacrificed for the sake of convenience?
4. "Otherwise after relying on the prima facie evidence of the enrolled bills authenticated as executed
by the Constitution, for years, it might be ascertained from the journals that an act heretofore
enforced had never become a law." This last reason personifies unreasonableness to the nth
degree. So we leave it as it is, as a perpetual evidence of the extent to which legal stupidity may
reach.

WIGMORE ON EVIDENCE

Now let us examine the arguments of the next authority invoked by the majority, Wigmore on
Evidence. We will also analyzed the arguments relied upon.

1. That to go beyond the enrolled bill "would unsettle the entire statute law of the State." This
argument, as it appears quoted in the majority decision, is premised on the unreliability of legislative
journals, and it seems to depict a mind poisoned by prejudice, as shown by the following: "We are to
remember the danger, under the prevalence of such a doctrine, to be apprehended from the
intentional corruption of evidences of this character. It is scarcely too much to say that the legal
existence of almost every legislative action would be at the mercy of all persons having access to
these journals. . . ."

The argument should be taken into consideration in connection with American experience, which
seems not to be too flattering to our former metropolis.

Our own personal experience of more than a decade in legislative processes convinces us that
Wigmore's assumption does not obtain in the Philippines. It is true that in the pre-constitution
legislative enactments we have seen few instances in which there had been disagreement between
what has actually been passed, as shown by the journal, and the authenticated enrolled bill. But the
instances were so few to justify entertaining here the same fears entertained by Wigmore in
America. Although those instances were few, we fought to correct the evil in the Constitutional
Convention, where we were able to introduce the following revolutionary provision in the
Constitution: "No bill shall be passed by either House unless it shall be printed and copies thereof in
their final from furnished each member at least three calendar days prior to its passage, except
when the President shall have certified to the necessity of its immediate enactment. Upon the last
reading of a bill no amendment thereof shall be allowed, and the question upon its passage shall be
taken immediately thereafter, and the yeas and nays entered in the journal." (Section 21 [2], Article
VI of the Constitution.)

This provision is an effective guarantee against the situation depicted by Wigmore's fears.

2. To the argument that if the authenticated roll is conclusive upon the courts, then less than a
quorum of each House may by the aid of presiding officers impose laws upon the State in defiance
of the inhibition of the Constitution, Wigmore answers: "This perhaps cannot be avoided absolutely.
But it applies also to all human agencies. It is not fit that the judiciary should claim for itself a purity
beyond all others; nor has it been able at all times with truth to say that its high places have not been
disgraced."

The answer is unconvincing. Because there can be and there have been blundering, disgraceful, or
corrupt judicial officers is no reason why arbitrary presiding officers and members of the legislature
should be allowed to have their way unchecked. Precisely the system of checks and balances
established by the Constitution presupposes the possibility of error and corruption in any department
of government and the system is established to put a check on them.
When the question of an unconstitutional, arbitrary or corrupt action by the legislature is placed at
the bar of justice, the judiciary must not shrink from its duty. If there is corruption in the judiciary, our
laws provide the proper remedy. Even we, the members of the highest tribunal, cannot with impunity
commit "culpable violation of the Constitution, treason, bribery, or other high crimes" without being
liable to be removed from office on impeachment, and we hope, if there is such a case, that the
House of Representatives and the Senate will do their duty in accordance with Article IX of the
Constitution, and not follow the uncourageous example which is given under the intellectual tutelage
of Wigmore.

THE CONSTITUTIONAL NUMERICAL RULES

The three-fourth rule has been provided in Article XV of the Constitution as a guarantee against the
adoption of amendments to the fundamental law by mere majorities.

The Constitution must be accorded more stability than ordinary laws and if any change is to be
introduced in it, it must be in answer to a pressing public need so powerful as to sway the will of
three-fourths of all the members of the Senate and of the House of Representatives. Said three-
fourth rule has been adopted by the Constitutional Convention, as all the other numerical rules, with
the purpose of avoiding any doubt that it must be complied with mathematical precision, with the
same certainty of all numbers and fractions expressed or expressible in arithmetical figures.

Where the Constitution says three-fourths of all the members of the Senate and of the House of
Representatives voting separately, it means an exact number, not susceptible of any more or less.
All the members means that no single member should be excluded in the counting. It means not
excluding three Senators and eight Representatives as respondents want us to do in order not to
cause any inconvenience to the presiding officers and secretaries of both Houses of Congress who
had the boldness of certifying that the three-fourth rule had been complied within the adoption of the
resolution in question, when such a certification is as false as any falsehood can be.

The three-fourth rule must not be left to the caprice of arbitrary majorities, otherwise it would be the
death knell of constitutionalism in our country. If a constitutional provision can be so trifled with, as
has happened in the adoption of the resolution in question, it would mean breaking faith with the
vitality of a government of laws, to enthrone in its stead a whimsical government of men.

The Constitution contains several numerical provisions. It requires that the Senate shall be
composed of 24 Senators (section 2, Article VI); that Congress shall by law make an apportionment
within three years after the return of every enumeration, and not otherwise (section 5, Article VI); that
each House may expel a member with the concurrence of two-third of all the members (section 10
[3], Article VI); that electoral tribunals shall each be composed of nine members, three Justices of
the Supreme Court and six legislature members (section 11, Article VI); that to overrun the veto of
the President, the concurrence of two-thirds of all the members of each House is necessary (section
20 [1], Article VI), and in certain cases the concurrence of three-fourths of all the members of each
House is necessary (section 20 [2], Article VI); that Congress shall, with the concurrence of two-
thirds of all the members of each House, have the sole power to declare war (section 25, Article VI);
that no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the
members of the Supreme Court (section 10, Article VIII); that the House of Representatives shall
have the sole power of impeachment by a vote of two-thirds of all its members (section 2, Article IX);
and that the Senate shall have the sole power to try all impeachments, but no person shall be
convicted without the concurrence of three-fourths of all the members of the Senate (section 3,
Article IX).
So it can be seen that the numerical rules inserted in the Constitution affect matters not of
momentary but of momentous importance. Each and every one of them should be given effect with
religious scruple, not only because our loyalty to the sovereign people so requires, but also because
by inserting them the Constitutional Convention had abided by the wise teachings of experience.

By denying the petition and allowing those responsible for the unconstitutional adoption of the
resolution in question to have their way is to set up a precedent that eventually may lead to the
supremacy of an empire of lawlessness. It will be tantamount to opening Pandora's box of evils and
disasters.

The power to declare was can only be exercised by Congress with the concurrence of two-thirds of
all the members of each House. From now on, by the simple expediency of certification by the
presiding officers and secretaries of both Houses that two-thirds had voted where a bare majority
had voted in fact, said majority may plunge our people into a maelstrome of war.

The Constitution provides that the power of impeachment needs the vote of two-thirds of all the
members of the House of Representatives. From now on, a mere plurality of one will be enough to
put impeachable high officials, including the President, on the carpet.

To convict an impeached officer the fundamental law requires the concurrence of three-fourths of all
the members of the Senate. From now on, that three-fourth rule may be dispensed with or
circumvented by not counting three actual Senators, as has been done in the resolution in question,
and thereby oust the President of the Philippines if he happens not to be in the good graces of a
senatorial majority.

Without entering into the merits of the proposed constitutional amendment, to submit which to the
people high-handed means have been resorted to, there can be no question that it is of vital
importance to the people and it will affect future generations to unimaginable extent. The
Constitutional Convention had thought it wise that before such a momentous proposal could be
submitted to the people the three-fourth rule should be adhered to by Congress.

QUOTATION FROM THE JALANDONI CASE

Months ago we stated: "It is high time to sound the clarion call that will summon all the forces of
liberalism to wage a crusade for human freedom. They should put on the armor of righteousness
and rally behind the banner for the vindication of the principles and guarantees embodied in the
Constitution and the high purposes of the Chapter of the United Nations." This, we said in our
dissenting opinion in People vs. Jalandoni, L-777. Concerning the judgment that the future may pass
upon the actuations of the Supreme Court, in that same opinion we ventured that the historian army,
under the heading of "Epoch of Great Reaction," write as follows:

At no epoch of its history has the Supreme Court shown to be most reactionary and retrogressive.
When the victims of a constitutional violation, perpetrated by a group of the highest officials of the
government, came to if for redress, it adopted a hands-off policy, showing lack of the necessary
vitality to grapple with the situation and finding refuge in a comfortable retreat, completely
disappointing those who have pinned their faith and hope in it as the first pillar of the Constitution
and the inexpugnable bulwark of human fundamental rights. The issue of human freedom was
disposed of by them most discouragingly by nullifying the right of an accused to be free on bail on
appeal, in flagrant violation of a constitutional guarantee and of one of the fundamental purposes
and principles of the Charter of the United Nations.
Upon touching the decision of this Court in the instant case, the same historian may record that the
highest tribunal of the new Republic of the Philippines has struck the hardest blow to the Philippine
constitutional system, by refusing to do its duty in giving redress in a clear case of violation of the
fundamental law, to the great disappointment, despair and apallment of millions of souls all over the
world who are pinning their hopes on constitutionalism for the survival of humanity.

The ideal of one world oftenly enunciated by progressive leaders in the deliberations of the several
organs of the United Nations is predicated in the adoption of a single standard of laws, compulsory
within all jurisdictions of our planet. The ethology of all mankind must be shaped under the pattern of
that single legal standard. But the whole system is liable to crash if it is not founded on the rock bed
of the elemental principle that the majesty of the law must always be held supreme.

To keep inviolate this primary principle it is necessary that some of the existing social organs, moral
attitudes and habits of thinking should undergo reforms and overhauling, and many fixed traditional
ideas should be discarded to be replaced with more progressive ones and inconsonance with truth
and reason. Among these ideas are the wrong ones which are used as premises for the majority
opinion in this case.

The role of innovators and reformers is hard and often thankless, but innovation and reform should
continuously be undertaken if death by stagnation is to be avoided. New truths must be discovered
and new ideas created. New formulas must be devised and invented, and those outworn discarded.
Good and useful traditions must be preserved, but those hampering the progressive evolution of
cultured should be stored in the museum of memory. The past and the present are just stepping
stones for the fulfilment of the promises of the future.

Since the last decade of the nineteenth century, physical science had progressed by leaps and
bounds. Polonium and radium were discovered by Madam Curie, Rontgen discovered the X-ray, and
Rutherford the alpha, beta and gamma particles. Atom ceased to be the smallest unit of matter to
become an under-microscopic planetarian system of neutrons, protons, and electrons.

Ion exchangers are utilized to make of electrons veritable lamps of Aladdin. Plants are grown in plain
water, without any soil, but only with anions and cations. Sawdust has ceased to be a waste matter,
and from it is produced wood sugar, weighing one-half of the sawdust processed. Inter-stellar space
vacuum, almost absolute, is being achieved to serve ends that contribute to human welfare. Bacteria
and other microbes are harnessed to serve useful human purposes. The aspergillus niger is made to
manufacture the acetic to produce vinegar for the asking. The penicillum notatum and the bacillus
brevis are made to produce penicillin and tyrothricin, two wonder drugs that are saving many lives
from formerly lethal infections. DDT decimates harmful insects, thus checking effectively malaria, an
illness that used to claim more than one million victims a year in the world. The creation of synthetics
had enriched the material treasures offered to man by nature. Means of transportation are
developed to achieve supersonic speeds. Many scientific dreams are fast becoming marvelous
realities. Thus, science marches on. There is no reason why the administration of justice should not
progress onward, synchronized with the rhythm of general human advancement towards a better
future.

The fact that the majorities of the two chambers of Congress have without any qualm violated Article
XV of the Constitution and the majority of this Court, instead of granting the proper relief provided by
law, preferred to adopt the comfortable attitude of indifferent by-standers, creates a situation that
seems to be ogling for more violations of the fundamental law. The final results no one is in a
position to foresee.

Our vote is for the granting of the petition.

BRIONES, M., con quien esta conforme FERIA, M., disidente:

Por segunda vez en menos de un año nos Ilaman a decidiry arbitrar sobre una violacion de la
Constitucion — elcodigo fundamental de nuestro pais. A media dos del año pasado se trataba del
recurso interpuesto ante esta misma Corte Suprema por tres Senadores 1 que se quejaban dehaber
sido privados injusta y arbitrariamente de su derecho a sentarse en el Senado de Filipinas y a
particular y votar en sus deliberaciones, con grave infraccion y detrimento de la Constitucion que
ampara tal derecho. Ahora esos mismos Senadores acuden de nuevo a esta Corte para quejarse de
otra violacion de la Constitucion, pero estavez no vienen solos: les acompañan otros cinco
miembros del Senado, diecisiete miembros de la Camarra de Representantes y tres jefes de
aagrupaciones o partidos politicos — Democratic Alliance, Popular Front y Philippine Youth Party.
Jose O. Vera es recurrente en su doble capacidad de miembro del Senado y Presidente del Partido
Nacionalista. De modo que los recurrentes suman veintiocho: 8Senadores, 17 Representantes y 3
particulares.2 Tienenun comun denominador, a saber: que son todos ciudadanos de Filipinas, y,
ademas, contribuyentes y electores.

Los recurridos son el Presidente y miembros de la Comision de Elecciones, el Tesorero de Filipinas,

el Auditor General y el Director del Buro de Imprenta. 3

El objeto del recurso es recabar de esta Corte un mandamiento de prohibicion dirigigo a los
recurridos para que estos, sus agentes, empleados, subordinados y otras personas que actuen bajo
su superintendencia o en su nombre "se abstengan y desistan de dar los pasos tendentes haciala
celebracion de un plebiscito e eleccion general el 11 de Marzo, 1947, y de imprimir la resolucion
(sobre reformade los articulos 13.º y 14.º de la Constitucion), las balotas y otros papeles necesarios
en relacion con dicho plebiscito,y de desembolsar o de autorizar el expendio de fondos publicos
para dicho proposito."

Para la mejor comprension del asunto estimo necesariopublicar integro a continuacion el texto de la
Resolucion conjunta que contiene la propuesta reforma a la Constitucion, resolucion que constituye
la materia u objeto de la consulta popular en el referido plebiscito de 11 de Marzo, y es la misma
que en el lexico corriente de la prensa y del publico se conoce por resolucion sobre paridad o
igualdad de derecdhos constitucionales a favor de los americanos, esdecir, que concede a estos
iguales derechos que a los filipinosen la propiedad y cultivo de terrenos publicos, en la explotacion
de nuestros recursos naturales como bosques,minas, pesca y fuerza hidraulica, y en la propiedad y
operacion de utilidades publicas. He aqui su texto:

RESOLUTION OF BOTH HOUSES PROPOSING AN AMENDMENT

TO THE CONSTITUTION OF THE PHILIPPINES
TO BE APPENDED AS AN ORDINANCE THERETO.

Resolved by the Senate and House of Representatives of the Philippines in joint session assembled,
by a vote of not less than three-fourths of all the Members of each House voting separately, to
propose, as they do hereby propose, the following amendment to the Constitution of the Philippines
to be appended as an Ordinance thereto;

ORDINANCE APPENDED TO THE CONSTITUTION

Notwithstanding the provisions of section one, Article Thirteen, and section eight, Article Fourteen, of
the foregoing Constitution, during the effectivity of the Executive Agreement entered into by the
President of the Philippines with the President of the United States on the Fourth of July, nineteen
hundred and forth-six, pursuant to the provisions of Commonwealth Act Numbered Seven hundred
and thirty-three, but in no case to extend beyond the third of July, nineteen hundred and seventy-
four, the disposition, exploitation, development, and utilization of all agricultural, timber, and mineral
lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces and
sources of potential energy, and other natural resources of the Philippines, and the operation of
public utilities, shall, if open to any person, be open to citizens of the United States and to all forms
of business enterprise owned or controlled, directly or indirectly, by citizens of the United States in
the same manner as to, and under the same conditions imposed upon, citizens of the Philippines or
corporation or associations owned or controlled by citizens of the Philippines.

This amendment shall be valid as a part of the Constitution when approved by a majority of the votes
cast in an election at which it is submitted to the people for their ratification pursuant to Article XV of
the Constitution.

Adopted,

(Sgd.) JOSE AVELINO

President of the Senate

(Sgd.) EUGENIO PEREZ

Speaker of the House of Representatives

We hereby certify that the foregoing Resolution was adopted by both Houses in joint session
assembled in the Hall of the House of Representatives on September 18, 1946.

(Sgd.) ANTONIO ZACARIAS

Secretary of the Senate

(Sgd.) NARCISO PIMENTEL

Secretary of the House of Representatives

Para comprobar la voluntad popular sobre la reforma constitucional propuesta el Congreso de

Filipinas ha aprobadola Ley No. 73 de la Republica que dispone y ordena la celebracion de un
plebiscito para el 11 de Marzo de esteano, provee a la forma de celebrarlo y consigna el
presupuesto necesario para sufragar los gastos del mismo. Siuna mayoria de los electores votare
afirmativamente, la reformaquedara ratificada y estara en vigor por un periodo de 28 años; en caso
contrario, quedara rechazada.

Los recurrentes alegan y sostiened que la resolucion conjuntade que se trate es ilegal y nula por no
haberse aprobadocon los votos de las tres cuartas-partes (3/4) del Congreso, conforme a lo provisto
en el Articulo XV de la Constitucion, a saber:

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 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.

Se alega que cuando se considero y aprobo la citada Resolucion conjunta el Senado se componia
actualmente de 24 miembros, es decir, el numero exacto fijado en la Constitucion, y la Camara de
Representantes de 96 miembros, es decir, dos menos que el numero señalado en la Constitucion,
pues does dimitieron despues de las elecciones, uno para aceptar un cargo en el ramo ejecutivo del
gobierno y otro para aceptar un nombramiento en el servicio diplomatico. Sin embargo, segun la
demanda de los recurrentes, en el Senado solo se permitio votar a 21 miembros, excluyen dose de
las deliberaciones y votacionfina l de la Resolucion a tres miembros, a saber; los Senadores Vera,
Diokno y Romero. De los referidos 21 miembros, votaron a favor de la Resolucion 16 y en contra 5;
asi que — arguyen los recurrentes — la Resolucion no quedo aprobada, por parte del Senado, con
el numero constitucionalde tres cuartas-partes (3/4) de los miembros, elcual debia ser 18.

En la Camara de Representantes, segun los recurrentes, solo se permitio votar a 88 miembros,

excluyen dose de las deliberaciones y votacion final de la resolucion a 8 miembros, a saber:
Representantes Alejo Santos y Jesus B. Lava, de Bulacan; Reps. Jose Cando y Constancio P.
Padilla, de Nueva Ecija; Reps. Amado M. Yuson y Luis Taruc, de Pampanga; Rep. Alejandro
Simpauco, de Tarlac; y Rep. Vicente F. Gustilo, de Negros Occidental. De los referidos 88
miembros votaron a favor de la Resolucion solo 68; asi que — arguyen los recurrentas — la
Resolucion tampoco quedo aprobada, por parte de la Camara, con el numero constitucional de tres
cuartas-partes (3/4) partes de sus miembros, el cual debia ser 72, por lo menos, y no 68, aun dando
por descontados los dos miembros que despues de las elecciones aceptaron cargos en otros
ramosdel gobierno.

Siendo inconstitucional y nula la Resolucion basica deque se trata, consiguientemente los

recurrentes tachantambien de inconstitucional e invalida la referida Ley de la Republica No. 73 que
convoca una eleccion general o plebiscito para el 11 de Marzo de 1947 a fin de someter alpueblo
para su ratificacion o repudio la enmienda constitucional propuesta, y que consigna la suma de
P1,000,000 para los gastos en que se hubiere de incurrir con motivo dela celebracion de dicho
plebiscito, entre habilitacion deprecintos electorales, pago de dietas de los inspectores y costo de la
a impresion, publicacion, fijacion y distribucion gratuita de copias de la propuesta enmienda en
ingles, español y otros dialectos del pais.

Los recurridos, despues de admitir ciertas alegacioneses enciales de la demanda y negar otras,
plantean las siguientes defensas especiales:

Primera defensa especial: que una ley o resolucion impresa (enrolled Act or Resolution) de ambas
Camaras del Congreso, adverada o autenticada con las firmas de los Presidentes de dichas
Camaras, es prueba concluyente deque la misma fue aprobada por el Congreso; que, en virtud del
respeto que se debe a un ramo igual y coordinado del gobierno, no es permisible una investigacion
judicial desi la misma a fue o no aprobada debida y propiamente por el Congreso; y que, por tanto,
esta Corte Suprema carecede jurisdiccion para conocer y enjuiciar los puntos suscitados por los
recurrentes en relacion con la validez y constitucionalidad de la resolucion en cuestion.

Empero si la primera defensa especial no fuese sostenida, los recurridos alegan, por via
de segunda defensa especial, que la resolucion controvertida fue aprobada a conlos votos de tres
cuartas-partes (3/4) de todos los miembros cualificados del Senado y de la Camara de
Representantes votando separadamente, en consonancia con el Articulo XV, apartado 1, de la
Constitucion, y que consiguientementela ley de la Republica No. 73 que ordena suplanteamiento
ante el pueblo para su ratificacion o desaprobacion, senala una fecha para la celebracion de
estaconsulta plebiscitaria y consigna fondos publicos para talfin, es valida y constitucional.

Consta en autos una estipulacion de hechos concertadaentre las partes, pero no se extracta aqui
para no alargar innecesariamente esta disidencia, pero se hara particular referencia a ella mas
adelante a medida que las exigenciasde la argumentacion lo demanden.

Es preciso hacer constar que los abogados de ambas parteshan hecho cumplida justicia a la
tremenda importancia del asunto haciendo extensos estudios y pacientes investigaciones de la
jurisprudencia pertinente, en particular la americana, teniendo en cuenta la influencia profunda y
decisiva de aquel pais en nuestras ideas politicas y constitucionales en virtud de la historica y
estrecha convivenciade casi medio siglo.

Es que la cosa no era para menos. Puede decirse, sinexageracion, que excepto en cuatro
momentos culminantes de su historia — el primer grito de rebelion contra España en Agosto de
1896, la ruptura de hostilidades contra Americaen Febrero de 1899, la aceptacion de la Ley de
Independencia en el plebiscito nacional de 1935, y la guerra contra el Japon en 1941 — en ningun
momento, en los ultimos 60 años, ha sido Ilamado el pueblo filipino a rendiruna decision tan
importante, de trascendencia e implicacionestan graves, tan tremendas, como la que tiene que
hacer en el plebiscito de 11 de Marzo proximo con motivode la Resolucion congresional discutida en
el presente asunto.

Es una de esas decisiones que hacen historia; que parabien o para mal sacuden los cimientos de
un pais tal quesi fuese un fenomeno cosmico; que determinan el curso desu existencia y deytinos
nacionales; que deciden, en una palabra, de la suerte de generaciones ya existentes y
degeneraciones que no han nacido todaviaa. Es una de esas decisiones que para hacerla los
pueblos deben hincarse humildemente de rodillas, de cara al cielo, pidiendo al Dios de los pueblos y
naciones la gracia de una salvadora inspiracion de Su infinita sabiduria . . ..

II

Para los efector de una amplia perspectiva historica quepermita destacar en toda su plenitud los
contornos de losformidables "issues" o puntos constitucionales debatidos en el presente asunto,
parece conveniente que repasemos, siquiera brevemente (en las notas marginales lo que no
cabeen el mismo texto de esta disidencia),4 los preceptos basicos de la Constitucion que se trate de
reformar conla Resolucion congresional de que tantas veces se ha hechomerito. Helos aqui:

ARTICLE XIII. — CONSERVATION AND UTILIZATION OF NATURAL RESOURCES.

SECTION 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of
the capital of which is owned by such citizens, subject to any existing right, grant, lease, or
concession at the time of the inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, renewable for another twenty-
five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other
than the development of water power, in which cases beneficial use may be the measure and the
limit of the grant.

ARTICLE XIV. — GENERAL PROVISIONS

xxx xxx xxx

SEC. 8. No franchise, certificate, or any other form of authorization for the operation of a public utility
shall be granted except to citizens of the Philippines or to corporations or other entities organized
under the laws of the Philippines, sixty per centum of the capital of which is owned by citizens of the
Philippines, nor shall such franchise, certificate, or authorization be exclusive in character or for a
longer period than fifty years. No franchise or right shall be granted to any individual, firm, or
corporation, except under the condition that it shall be subject to amendment, alteration, or repeal by
the Congress when the public interest so requires.

Como queda dicho, la reofrma propuesta es en el sentidode que, no obstante lo dispuesto en los
preceptos arribatranscritos, "durante la efectividad del Convencio Ejecutivo perfeccionado entre el
Presidente de Filipinas y el Presidente de los Estados Unidos el 4 de Julio de 1946, al tenorde las
disposiciones de la Ley del Commonwealth No. 733, pero que en ningun case se extendera mas
alla del 3 de Julio de 1974, la disposicion, explotacion, desar rollo y utilizacionde todos los terrenos
agricolas, forestales y minerales de dominio publico, de aguas, minerales, carbon, petroleo y otros
minerales petroliferos, de todas las fuerzasy fuentes de energia potencial, asi como de otros
recursos de Filipinas, y la operacion de utilidades publicas, si abiertos para cualguier persona,
quedan abiertos para los ciudadanos de los Estados Unidos y para todas las formas de negocio y
empresa de la propiedad o controladas, directao indirectamente, por ciudad años de los Estados
Unidos, de la misma manera y bajo las mismas condiciones impuestasa los ciudadanos de Filipinas
o a las corporaciones o asociaciones de la propiedad o controladas por ciudadanos de Filipinas
(Resolucion conjunta del Congreso filipino, supra).

Podemos tomar conocimiento judicial — pues, sobre ser historia contemporanea, se trata de las
labores y procesos deliberativos de la misma Asamblea Constituyente — de quelos preceptos
capitales arriba transcritos constituyen la expresion acabada de toda la madurez de juicio, de toda
laprudencia y sabiduria de que eran capaces no solo los autores de la Constitucion y los Delegados
que la aprobaron, sino el pueblo filipino que la ratifico en el correspondiente plebiscito nacional
convocado al efecto. En pocas resoluciones ha habido tanta firmeza y tan fuerte unanimidadentre
nuestros partidos politicos y sus caudillos como enesa recia y constructiva afirmacion de
nacionalismo. Nadamejor, creo yo, que las siguientes palabras para definir elespiritu, la filosofia que
informa esas provisiones:

This provision of the Constitution has been criticized as establishing the outworn Regalian doctrine
which, it is suggested, may serve to retard the economic development of the Philippines. The best
encomium on this provision is probably the very criticism launched against it. It is inconceivable that
the Filipinos would liberalize the acquisition, disposition and exploitation of our natural resources to
the extent of permitting their alienation or of depriving the people of this country of their heritage. The
life of any nation depends upon its patrimony and economic resources. Real freedom, if it is to be
lasting, must go hand in hand with economic security, if not economic prosperity. We are at most
usufructuaries of ourdomains and natural resources and have no power to alienate them even if we
should want to do so. They belong to the generations yet unborn and it would be the height of folly to
even think of opening the door for their untrammelled disposition, exploitation, development or
utilization to the detriment of the Filipinos people. With our natural resources in the hands of
foreigners what would be there left except the idealism of living in a country supposedly free, but
where freedom is, after all, an empty dream? We would be living in a sumptuous palace that it not
ours! We would be beggars in our own homes, strangers in our own land!

Friendship and amity towards all nations are compatible with the protection of the legitimate interests
of the Filipino people. There is no antagonism or hostility towards foreigners but sane nationalism
and self-protection which every country of the world is practising today in the interest of self-
preservation. (The Three Powers of Government, by Laurel, pp. 117-118.)

Los criticos de la enmienda constitucional propuesta pueden discutir libremente, como cumple a los
ciudadanos de un pais democratico, los meritos y demeritos de lamisma. Pueden combatirla con
toda clase de razones — morales, politicas, economicas, financieras, internacionales, y hasta de
decencia — y naturalmente defenderla tambiensus partidarios desde todos los angulos. Podrian los
opositoreshacer una minuciosa diseccion de su fraseologia yacaso hallar en sus repliegues
peligrosas implicaciones, posibles riesgos, como en ese par de adverbios "directa o indirectamente",
a cuyo socaire podrian acogerse corporacioneso asociaciones extranjeras controladas solo
indirectamente por ciudadanos americanos para concurrir en la explotacion de nuestros terrenos
publicos y recursos naturales, y en la operacion de utilidades publicas. Todo estolo pueden hacer, y
algo mas. Pero es obvio, elemental quesemejante discusion no compete a esta Corte Suprema,
sinoen todo caso a otros poderes constituidos.

Nosotros no estamos para determinar y enjuiciar labondad o maldad de la enmienda propuesta. Lo

unico quenos incumbe hacer, ya que la cuestion se halla propiamente planteada ante nosotros, es
resolver si la enmienda ha sido aprobada por el Congreso de acuerdo con el mandato expreso de la
Constitucion en materia de enmiendas; si losrequisitos que la Constitucion señala para poder
enmendarla — requisitos que son mandatorios, categorica menteimperativos y obligatorios — se
han cumplido o se han violado. Como se dijo bien en el asunto de Gray vs. Childs ([1934], 156 So.,
274, 279), ". . . No podemos decir queel estricto requerimiento relativo a las enmiendas se puede
renunciar a favor de una buena enmienda e invocar encontra de otra mala. . . . No compete a los
tribunales el determinar cuando una enmienda propuesta es sabia y cuando no lo es. Los tribunales
nada tienen que ver conla sabiduria de la politica. Pero es deber de los tribunales, cuando se les
pide que lo hagan, el determinar si o no el procedimiento adoptado para la aprobacion de la
enmiendaes el señalado por los terminos de la ley organica.

Todo lo que se lha dicho hasta aqui para poner de relievela filosofia de nuestra Constitucion en
materia de recursos naturales y utilidades publicas, se ha dicho no como expresion de un criterio
propio, sino tan solo para subrayar todala gravedad, toda la densidad del asunto, y prevenir entodo
caso los peligros de una rutinaria y complacienteliviandad. Como tambien se dijo en el citado asunto
deGray vs. Childs, "la enmienda de la ley organica del Estado o nacion no es una cosa para ser
tomada ligeramente, ni para ser hecha de lance o al azar. Es una cosa seria. Cuando la enmienda
es aprobada, viene a ser parte de laley fundamental del pais y puede significar el bienestar
omaldicion de las generaciones de la nacion donde se haceparte del codigo fundamental."

Este pronunciamiento adquiere todo el valor y toda la resonancia de una consigna en el presente
caso en que lareforma propuesta afecta vitalisimamente al patrimonionacional del pueblo filipino.
¿No son los recursos naturalesy las utilidades publicas el tesoro de una nacion, labase que sustenta
su existencia, la espina dorsal de sueconomia? Por tanto, jamas se podra exagerar el celo, la
vigilancia que el pueblo y sus organos naturales ejercenpara que las salvaguardias impuestas por la
misma Constitucionen relacion con el proceso y tramitacion de todaenmienda constitucional se
cumplan y observen con el maximo rigor.

Aqui no caben excusas ni subterfugios. Ni siquiera cabeescudarse tras la doctrina de la separacion

de poderes quela mayoria de esta Corte invoca para justificar su inaccion, su pasividad, su politica
de "manos fuera", alegando que el presente asunto es coto vedado para nos otros, algo quecae
fuera de nuestra jurisdiccion, eso que en derecho politico y constitucional se llama materia politica
no-justiciable.

III

La mayoria rehusa asumir jurisdiccion sobre el presente caso porque dice que versa sobre una
cuestion politica, ylas cuestiones politicas caen fuera de la competencia de los tribunales de justicia.
Creo que esto es un error, dicho seacon todos los respetos debidos a mis ilustres compañeros que
sostienen tal opinion. ¿Hay acaso algun documento mas politico que la Constitucion? Si la opinion
de lamayoria fuese valida y acertada, practicamente ninguna violacion de la Constitucion podria ser
enjuiciada por los tribunales, pues cual mas, cual menos, casi todas las
transgresionesconstitucionales, sobre todo las que comete elpoder legislativo o el poder ejecutivo,
tienen caracter politico. Bajo esa opinion la Constitucion seria una letramuerta, un simple pedazo de
papel: los poderes constituidos, los individuos que los componen, podrian infringirim punemente la
Constitucion sin que ningun arbitro constitucional pudiera intervenir ordenadamente para restaurarla
suprema majestad de la ley fundamental violada. Esclaro que esto podria conducir facilmente al
caos, a la anarquia, a la revolucion, dependiendo solo el resultado de lamayor o menor docilidad del
pueblo, del grado de elasticidad politica de las masas. Y es claro que ninguno puedequerer este
triste destino para nuestro pais.

Creo sinceramente que una mejor y mas correcta evaluacion de nuestro sistema de gobierno que
esta esencial mentecalcado en el americano, es que bajo la teoria relativa de las eparacion de
poderes, ningun poder es superior al pueblo cuya voluntad esta encarnada en la Constitucion. Los
poderes no son mas que agentes, mandatarios, servidores: el pueblo es el amo, el mandante, el
soberano. Y el pueblo ordena y manda por medio de la Constitucion — esta es suvoz el verbo
hecho carne politica y social, el soplo vital quetraduce y transmuts su espiritu en postulados
esenciales deregulacion y gobierno.

Todo eso esta bien, no puede haber seria objecion a ello,dicen los sostenedores absolutistas de la
teoria de la sedparacion de poderes. Pero se pregunta: ¿quien señala lavoluntad del pueblo tal
como esta plasmada en la Constitucion? ?Quien es el profeta que desciende del Sinai para revelar
las tablas de la ley? ¿Quien ha de arbitrar en los conflictos constitucionales, o quien ha de decidir
los litigios propiamente planteados en que se ventilan una infraccion de la Constitucion? ¿Hay un
peligroso vacio en nuestro mecanismo constitucional, o por el contrario, los resorteestan todos bien
situados, capaces de operar y funcionarade cuada y eficientemente? Esto es precisamente
el busilis, la cuestion batallona.

No puede haber duda en la contestacion a tales preguntas. Bajo nuestro sistema de gobierno el
poder judiciales el llamado a señalar, a interpretar la ley; y en los conflictoso transgresiones
constitucionales esta Corte Suprematiene la ultima palabra, le compete el arbitraje supremoy final.
Bajo nuestra mecanica constitucional, igual quebajo la americana, se da la aparente paradoja de
que la superior facultad, el supremo negocio de interpretar la voluntad del pueblo tal como esta
expresada mas o menos permanentemente en la Constitucion, no corresponde propiamentea
ninguno d e los poderes electivos, los que se renuevanperiodicamente, sino al poder que si bien es
denombramiento en su origen, tiene, sin embargo, sentido deperpetuidad, quiero decir, es vitalicio
en la complexion y funcion de los individuos que los componen — el poder judicial. La sabiduria
peculiar, la originalidad del sistemaconsiste precisamente en eso: en haber alojado el supremo
arbitraje con relacion a los conflictos y transgresiones constitucionales en un poder del Estado al
cual deliberadamentese le ha dotado de un clima psicologico y moral el maspropicio posible a la
objetividad y desasimiento de lasdisputas politicas y discordias civiles, situandosele por encimade
los vaivenes de la politica al uso y las veleida desde la suerte electora. "Esto es lo que va implicto
en la expresion supremacia judicial, que propiamente es la facultad de revision judicial bajo la
Constitucion" (Angara contra Comision Electoral, 63 Jur. Fil., 171).

The very essence of the American conception of the separation of powers is its insistence upon the
inherent distinction between law-making and law-interpreting, and its assignment of the latter to the
judiciary, a notion which, when brought to bear upon the Constitution, yields judicial review."
(Corwin, The Twilight of the Supreme Court, p. 146.)

En el famoso asunto de Marbury vs. Madison, supra, el Tribunal Supremo de los Estados Unidos,
por boca de sugran Chief Justice John Marshall, en terminos inequivocos definio y explico las
facultades de la judicatura para poneren vigor la Constitucion como la suprema ley del pais, y
declaro que es terminantemente de la competencia y deberdel departamento judicial el decidir cual
es la ley querige.
The reasoning of Webster and Kent is substantially the same. Webster says: "The Constitution being
the supreme law, it follows of course, that every act of the Legislature contrary to the law must be
void. But who shall decide this question? Shall the legislature itself decide it? If so, then the
Constitution ceases to be legal and becomes only a moral restraint for the legislature. If they, and
they only, are to judge whether their acts be conformable to the Constitution, then the Constitution is
advisory and accessory only, not legally binding; because, if the construction of it rest wholly with
them, their discretion, in particular cases, may be in favor of very erroneous constructions. Hence
the courts of law, necessarily, when the case arises, must decide upon the validity of particular acts."
Webster, Works, Vol. III, 30. (Willoughby on the Constitution of the United States, Vol. 1, 2d edition,
pp. 4, 5.)

En el citado asunto de Angara contra Comision Electoral dijimos tambien lo siguiente:

. . . Y la judicatura, a su vez, con el Tribunal Supremo por artbitro final, frena a con efectividad a los
demas departament of en elejercicio de su facultad de determinar la ley, y de aqui que pueda
declarar nulos los actos ejecutivos y legislativos que contravengan la Constitucion.

Esta doctrina reafirmo en el asunto de Planas contra Gil (67 Phil., 62), a saaber:

. . . As far as the judiciary is concerned, which it holds' neither the sword nor the purse' it is by
constitutional placement the organ called upon to allocate constitutional boundaries, and to
the Supreme Court is entrusted expressly or by necessary implication the obligation of determining
in appropriate cases the constitutionality or validity of any treaty, law, ordinance, or executive order
or regulation. (Section 2 [1], Art. VIII, Constitution of the Philippines.) In this sense and to this extent,
the judiciary restrains the other departments of the government and this result is one of the
necessary corollaries of the "system of checks and balances" of the government established.

No es que con esto el poder judicial assume un complejode superioridad sobre los otros poderes del
Estado, no. Setrate simplemente de que, dentro de las limitaciones de todacreacion humana,
alguien tiene que arbitrar y dirimir losconflictos y las transgresiones a gue puede dar lugar la
Constitucion, y se estima que el poder judicial, pro la razonde su ser y de sus funciones, es el mas
llamado a ser esearbitro. Se trate de una propia y graciosa inhibicion delos otros poderes en virtud
de una necesidad impuesta porunas teorias y practicas de gobiernio que han resistido la prueba del
tiempo y el choque con la realidad y la experiencia. En mi disidencia en el asunto de
Vera contra Avelino (77 Phil., 192), hablando sobre este particular dijelo siguiente y lo reitero ahora,
a saber:

En parte, el argumento expuesto es correcto y acertado. No sepuede discutir que los tres poderes
del Estado son iguales e independientesentre si; que ninguno de ellos es superior al otro, mucho
menos el poder judicial que entre los tres es el menos fuerte y elmas precario en medios e
implementos materiales. Tampoco se puede discutir que bajo la Constitucion cada poder tiene una
zona, una esferade accion propia y privativa, y dentro de esa esfera un cumulode facultades que le
pertenecen exclusivamente; que dentro de esaesfera y en el uso de esas facultades cada poder
tiene absoluta discreciony ningun otro poder puede controlar o revisar sus actos so pretexto de que
alguien los cuestiona o tacha de arbitrarios, injustos, imprudentes o insensatos. Pero la insularidad,
la separacion llegasolo hasta aqui. Desde Montesquieu que lo proclamo cientificamente hasta
nuestros dias, el principio de la separacion de poderes hasufrido tremendos modificaciones y
limitaciones. El consenso doctrinal hoy es que la teoria es solo relativa y que la separacionde
poderes queda condicionada por una mecanica constitucional — lamecanica de los frenos y
cortapisas. (Willoughby, On the Constitution of the United States, tomo 3, pags. 1619, 1620, 2.ª
edicion.) Como queda dicho, cada poder es absoluto dentro de la esfera quele asigna la
Constitucion; alli el juego de sus facultades y funcionesno se puede coartar. Pero cuando se sale y
extravasa de esa esferainvadiendo otras esferas constitucionales, ejerciendo facultades queno le
pertenecen, la teoria de la separacion ya no le ampara, la Constitucion que es superior a el le sale
al encuentro, le restringe uy leachica dentro de sus fronteras, impidiendo sus incursiones anti-
constitucionales. La cuestion ahora a determinar es si bajo nuestrosistema de gobierno hay un
mecanismo que permite restablecer eljuego normal de la Constitucion cuando surgen estos
desbarajustes, estos conflictos que podriamos llamar de fronteras constitucionales; tambien es
cuestion a determinar si cuando surgen esos conflictos, un ciudadano sale perjudicado en sus
derechos, el mismo tiene algun remedio expedito y adecuado bajo la Constitucion y las leyes, y
quien puede concederle ese remedio. Y con esto llegamos a la cuestion basica, cardinal en este
asunto.

Nuestra opinion es que ese mecanismo y ese remedio existen — son los tribunales de justicia.

La mayoria no define en su decision lo que llama cuestion politica no-justiciable ni las maaterials o
casos que caen dentro de su significado. "The difficulty lies" — dice la ponencia — "in determining
what matters fall within the meaning of political question. The term is not susceptible of exact
definition, and precedents and authorities are not always in full harmony as to the scope of the
restrictions, on this ground, on the courts to meddle with the actions of the political departments of
the government." Pero razonando por analogia cita un precedente, una autoridad — el caso de
Coleman vs. Miller decidido no hace muchos años por la Corte Suprema Federal de los Estados
Unidos. La mayoria cree que este es el caso mas semejante al que nos ocupa. Creo que la mayoria
padece error: el caso de Coleman contra Miller es precisamente un buen argumento en favor del
recurso.

Compendiado el caso es como sigue: En Junio, 1924, el Congreso de los Estados Unidos propuso
una reforma ala Constitucion, conocida por "Child Labor Amendment" (enmienda sobre el trabajo
infantil). En Enero, 1925, la Legislatura del Estado de Kansas adopto una resolucion rechazandola
enmienda y una copia certificada de la resolucionse envio al Secretario de Estado de los Estados
Unidos. En Enero, 1937, o sea 12 años despues, una resolucion conocida como "Resolucion
Concurrente del Senado No. 3" se presento en el Senado del Estado de Kansas pararatificar la
propuesta enmienda. Habia 40 Senadores. Alconsiderarse la resolucion 20 Senadores votaron en
favor y 20 Senadores en contra. El Teniente Gobernador, que era entonces el Presidente del
Senado en virtud de la Constitucion estatal, emitio su voto en favor de la resolucion, rompiendo asi
el empate. La resolucion fue posteriormente adoptada por la Camara de Representantes de Kandas
mediante una mayoria de los votos de sus miembros.

Fued entonces cuando se interpuso ante la Corte Suprema de Kansas un recurso

de mandamus por los 20 Senadores adversos a la resolucion y por otros 3 miembros de la
Camarade Representantes. El objeto del recurso era (a) compeler al Secretario del Senado a borrar
el endoso favorable de la resolucion y poner en su lugar las palabras "no ha sido aprobada"; (b)
recabar la expedicion de un interdicto contra los oficiales del Senado y Camara de Representantes
prohibiendo les que firmaran la resolucion y contra el Secretario de Estado de Kansad prohibiendole
que autentic aradicha resolucion y la entregara la Gobernador. La solicitud cuestionaba el derecho
del Teniente Gobernadora emitir su voto decisivo en el Senado. Tambien se planteabaen la solicitud
el hecho de que la resolucion habiasido rechazada originariamente y se alegaba, ademas,
quedurante el periodo de tiempo comprendido entre Junio,1924, y Mayo, 1927, la enmienda habia
sido rechazada porambas Camaras de las Legislaturas de 26 Estados y solose habia ratificado en 5
Estados, y que por razon de dicho rechazamiento y por no haberse ratificado dentro de untiempo
razonable la enmienda habia perdido su validez y vitalidad.

La Corte Suprema de Kansas hallo que no habia ninguna disputa sobre los hechos, asumio
competencia sobre el casoy sostuvo que el Teniente Gobernador tenia derecho a emitirvoto
decisivo, que la proyectada enmienda conservabasu vitalidad original a pesar del tiempo
transcurrido, y quela resolucion, "habiendo sido aprobada por la Camara de Representantes y por el
Senado, el acto de ratificacion dela propuesta enmienda por la Legislatura de Kansas erafinal y
complete." Consiguientemente el recurso de mandamus fue denegado.

Elevado el asunto en casacion para ante la Corte Suprema Federal, esta asumio jurisdiccion sobre
el caso, conla concurrencia y disidencia de algunos Magistrados que opinaban que el recurso debia
rechazarse de plano, sin masceremonias, por la razon, segun los disidentes, de que los recurrentes
no tenian personalidad ni derecho de accion para pedir la revision de la sentencia de la Corte
Supremade Kansas, y porque ademas se trataba de una cuestion puramente politica, por tanto no-
justiciable. Bajo la ponenciade su Presidente el Sr. Hughes, la Corte Suprema Federal conocio del
caso a fondo, discutiendo y resolviendo las cuestiones planteadas. He aqui sus palabras: "Our
authority to issue the writ of certiorari is challenged upon the ground that the petitioners have no
standing to seek to have the judgment of the state court reviewed and hence itis urged that the writ
of certiorari should be dismissed.We are unable to accept that view." Esto viene a ser comouna
replica a las siguientes palabras de los disidentes: "It is the view of Mr. Justice Roberts, Mr. Justice
Black, Mr. Justice Douglas and myself (Mr. Justice Frankfurter) that the petitioners have no
standing in the Court." Delo dicho resulta evidente que la Corte Federal no adoptola actitud de
"manos fuera" (hands off), sino que actuo positivamente sobre el caso, encarandolo.

La decision consta de tres partes. La primera parte, que es bastante extensa, esta consagrada
enteramente adiscutir la cuestion de la jurisdiccion de la Corte. Ya hemosvisto que esta cuestion se
ha resuelto enteramente enfavor de la jurisdiction, en virtud de las razones luminosas que alli se
explanan y que no reproduzco por no ser necesario y para no alargar indebidamente esta
disidencia. La segunda parte es bien breve, apenas consta de dos parrafos. Se refiere a la cuestion
de si el voto del Teniente Gobernador, que rompio el empate, era o no valido. La Corte nolo
resuelve, por que dice que sus miembros se dividieron porigual sobre si era una cuestion politica y,
por tanto, nojusticiable. La tercera parte, tan extensa como la primera, esta dedicada a estudiar y
discutir las siguientes proposiciones :(a) Si habiendo sido rechazada originariamentela enmienda,
una ratificacion posterior podia validamente dejar sin efecto dicho rechazamiento y tomarse como
unaratificacion legal al tenor de la Constitucion; (b) si ellargo tiempo transcurrido entre el
rechazamiento y la ratificacion — unos 13 años — no habia tenido el efecto de darcaracter final a la
repudiacion de la enmienda, causando estado juridico definitivo.

El analisis que hace el ilustrado ponente de las cuestiones planteadas es muy interesante y desde
luego acabado. Se estudian y comentan luminos amente los precedentes. Sobre la cuestion de si el
rechazamiento de unaenmienda propuesta impide que la misma sea ratificada posteriormente, se
puntualiza lo siguiente: que el articulo V de la Constitucion Federal sobre enmienda esta fraseadoen
terminos positivos, es decir, habla de ratificacion y node rechazamiento, y que por tanto "el poder
para ratificarlo confiera al Estado la Constitucion, y que, como poder ratificante, continua y persiste,
a pesar de un previo rechazamiento. "Luego la Corte dice, examinando los precedentes, que el
Congreso, en el ejercicio de su control sobrela promulgacion de las enmiendas a la Constitucion, ha
resuelto esta cuestion repetidas veces en el sentido indicado, esto es, considerando inefectivo el
previo rechazamientofrente a una positiva ratificacion; y la Corte concluye que esta accion del
Congreso es valida, constitucional; por consiguiente, los tribunales no estan autorizados para
revisarla. Es en este sentido, creo yo, como la Corte dice que se trate de una cuestion politica no-
justiciable, es decir una cuestion que cae dentro de la zona constitucional exclusion del Congreso;
por tanto, se trate deuna accion valida, constitucional. Pero no hay nada enesa decision que diga, o
permita inferir, que cuando el Congreso viola un mandato expreso de la Constitucion, como en el
caso que nos ocupa, los tribunales no pueden intervenir, bajo el principio de la supremacia
judicial entratandose de interpretar la Constitucion, para resolver el conflicto o enjuiciar la
transgresion, y conceder el remedio propiamente pedido. En otras palabras, en el caso de
Coleman contra Miller la Corte Suprema Federal hallo que el Congreso, al declarar valida la
ratificacion de la enmienda constitucional sobre trabajo infantil (Child labor), no habia infringibo el
articulo V de la Constitucion, sobre enmiendas, y la Corte lo razona diciendo, con la vista delos
precedentes, que el referido articulo V habla de ratificacion y no de rechazamiento, y que, por
tanto, "el poderpara ratificar continua y persiste a pesar de un previo rechazamiento." De suerte
que, en realidad de verdad, no escierto que la Corte Suprema Federal declaro injusticiablela
materia, pues ¿que mejor prueba de justiciabilidad que ese dictum categorico, positivo y
terminante?

Sobre la proposicion de si el largo tiempo transcurrido entre el rechazamiento y la ratificacion —

unos 136 años — no habia tenido el efecto de dar caracter final a la repudiacion de la enmienda,
causando estado juridico definitivo, la Corte Suprema Federal fallo que no, es decir, declarovalida la
ratificacion no obstante dicho lapso de tiempo, aduciendo razones muy atinadas, entre ellas la de
que las condiciones de caracter moral, medico, social y economico que aconsejaban la prohibicion
del trabajo infantil en las fabricas eran tan validas y existentes, si no mas, cuandose sometio la
enmienda por primera vez para su ratificacion como 13 años despues. Y luego la Corte cita
autoridades y precedentes en apoyo de su conclusion, entre ellosel caso tipico y decisivo de
Dillon vs. Glass (256 U.S., 368; 65 Law.ed., 994; 41 Sup.Ct., 510). En este caso la Cortedeclaro que
el Congreso, al proponer una enmienda a la Constitucion, pueded fijar un tiempo razonable para su
ratificacion, y sostuvo la accion del Congreso al disponer enla proyectada 18.ª Enmienda que la
misma seria ineficaza menos que se ratificase dentro de siete años.

Ahora bien, en el caso de Coleman contra Miller ocurre todo lo contrario: el Congreso no habia
fijado ningun plazopara la ratificacion. En vista de esto, los recurrentes pretendian que la Corte
supliera la omision del Congreso declarandolo que era tiempo razonable, teniendo en cuentalos
precedentes judiciales y el precedente congresional de 7 años ya sostenido en el caso citado de
Dillon contra Glass; y que desde luego el periodo de 13 años era demasiado largo para ser
razonable. La Corte Suprema dijo que no, queno eran los tribunales los que debian fijar ese tiempo
razonable; que en esta cuestion entraban muchos factores denaturaleza varia y compleja —
politicos, economicos y sociales — que solo el Congreso estaba en condiciones de determinar ya
mediante la correspondiente legislacion como enel caso de la 18.ª Enmienda, ya en cada caso
concreto deratificacion al ejercer su control sobre la promulgacion de las enmiendas. Ahora bien,
pregunto: ¿no es esto un dictum judicial? ¿no es esto justiciar? ¿no esta aqui la Corte Suprema
Federal sentandose en estrados y emitiendo judicialmente su opinion sobre una materia juridica y
constitucional sometida a su consideracion? En realidad, puede decirse que la unica cuestion que la
Corte ha dejado de resolver es la validez o nulidad del voto decisivo del Teniente Gobernador, por
la razon de que sobre este punto, segun se dice en la misma decision, la opinion del Tribunal
estaba igualmente dividida. Todas las demas cuestiones han sido enjuiciadas, resueltes, y esta
accion dela mayoria, asumiendo plena jurisdiccion sobre el caso y las materias en el discutidas, es
lo que ha motivado la disidencia de 4 Magistrados los Sres. Black, Roberts, Frankfurter y Douglas.
En efecto, estos disidentes no disimulansu desagrado al ver que la Corte asume en el caso,
siquier implicitamente, el poder de interpretacion judicial, y aunvan mas alla — expresan un notorio
desencanto al ver que la Corte "trata el proceso enmendatorio provisto por la Constitucion, como
sujeto a interpretacion judicial en algunos respectos, y en otros sujeto a la autoridad final del
Congreso", y al ver tambien que en la decision "no hay desaprobacion de la conclusion establecida
en el asunto de Dillon contra Glass, de que la Constitucion requiere tacitamente que una enmienda
propiamente sometida debe darsepor muerta, a menos que se ratifique dentro de un tiempo
razonable." Es decir, los Magistrados disidentes esperaban que la Corte revocase y abrogase lo
hecho por ella en elcitado asunto de Dillo contra Glass en donde la Corte, envez de abstenerse de
conocer del caso por tratarse en el, segun los disidentes, de materia politica no-justiciable, ejercio
plena jurisdiccion sobre el mismo asumiendo supoder tradicional de interpretar la Constitucion y
declarando valida la lay del Congreso que fijaba un plazo de7 años para la ratificacion de la 18.ª
Enmienda. No puedo resistir a la tentacion de reproducir las mismas palabrasde la disidencia: ellas,
mejor que todo lo que yo pueda decir, demuestran de modo inconcuso las irreconciliables
diferencias de criterio entre la mayoria, representada porel ilustre ponente Sr. Hughes, y los
disidentes, pues mientraspor un lado el ponente justicia decididamente el caso considerando,
discutiendo y resolviendo todas las cuestionesplanteadas, menos la cuestion del voto del Teniente
Gobernador, citando profusamente autoridades y precedentes, los disidentes, en su opinion,
preconizan una actitudde absoluta abstencion, de "manos fuera" (hands off), portratarse, segun
ellos, de una materia politica no-justiciable que cae exclusivamente bajo el control del Congreso. He
aqui las palabras de los disidentes:

. . . To the extent that the Court's opinion in the present case even impliedly assumes a power to
make judicial interpretation of the exclusive constitutional authority of Congress over submission and
ratification of amendments, we are unable to agree.

The State court below assumed jurisdiction to determine whether the proper procedure is being
followed between submission and final adoption. However, it is apparent that judicial review of or
pronouncements upon a supposed limitation of a "reasonable time" within which Congress may
accept ratification; as to whether duly authorized State officials have proceeded properly in ratifying
or voting for ratification; or whether a State may reverse its action once taken upon a proposed
amendment; and kindred questions, are all consistent only with an ultimate control over the
amending process in the courts. And this must inevitably embarrass the course of amendment
by subjecting to judicial interference matters that we believe were intrusted by the Constitution solely
to the political branch of government.

The Court here treats the amending process of the Constitution in some respects as subject to
judicial construction, in others as subject to the final authority of the Congress. There is no
disapproval of the conclusion arrived at in Dillon vs. Glass, that the Constitution impliedly requires
that a property submitted amendment must die unless ratified within a "reasonable time." Nor does
the Court now disapprove its prior assumption of power to make such a pronouncement. And it is not
made clear that only Congress has constitutional power to determine if there is any such implication
in article 5 of the Constitution. On the other hand, the Court's opinion declares that Congress has the
exclusive power to decide the political questions of whether a State whose legislature has once
acted upon a proposed amendment may subsequently reverse its position, and whether in the
circumstances of such a case as this, an amendment is dead because an "unreasonable" time has
elapsed. No such division between the political and judicial branches of the government is made by
article 5 which grants power over the amending of the Constitution to Congress alone. Undivided
control of that process has been given by the article exclusively and completely to Congress. The
process itself is "political" in its entirety, from submission until an amendment becomes part of the
Constitution and is not subject to judicial guidance, control or interference at any point.

Since Congress has sole and complete control over the amending process, subject to no judicial
review, the views of any court upon this process cannot be binding upon Congress, and in so far as
Dillon vs. Glass attempts judicially to imposed a limitation upon the right of Congress to determine
final adoption of an amendment, it should be disapproved. . . . (Coleman vs. Miller, 122 A.L.R., 695,
708, 709.)

La distribucion de los votos con relacion a las cuestiones planteadas en el referido asundo de
Coleman vs. Miller esalgun tanto confusa, como han podido notar los mismos comentaristas; asi
que necesita de alguna explicacion. Escierto que no suscriben la ponencia mas que 3 Magistrados,
a saber: el ponente Sr. Hughes y los Sres. Stone y Reed, pero en cuanto a la jurisdiccion plena que
la Corte asumio sobre el caso y la materia hay que añadir los votos de los Sres. McReynolds y
Butler. Estos dos ultimos no soloconcurrian implicitamente en la accion de la Corte al enjuiciarel
caso, sino que inclusive opinaban que debia concederse el recurso, esto es, que debia anularse la
ratificacion tardia de la Enmienda sobre Trabajo Infantil (Child Labor) hecha por la Legislatura de
Kansas. De modo queen cuanto al "issue" de la jurisdiccion, la justiciabilidad del caso, la votacion
era de 5 contra 4 — por la jurisdiccion,la justiciabilidad, el ponente Sr. Hughes, y los Magistrados
Sres. Stone, Reed, McReynolds y Butler; por la actitud de absoluta abstencion, de "manos fuera"
(hands off), los Magistrados Sres. Black, Frankfurter, Roberts y Douglas.

Repito lo dicho mas arriba: el caso de Coleman vs. Miller, en vez de ser una autoridad a favor de los
recurridos, juntamente con el caso de Dillon vs. Glass constituyen precedentes decisivos en la
jurisprudencia federal americana a favor de los recurrentes.

Pero si la jurisprudencia federal milita en favor de latesis de que tenemos jurisdiccion para enjuiciar
y decidirel presente caso, en el ejercicio de nuestras supremas funciones como interprete de la
Constitucion bajo el principio firmemente establecido de la supremacia judicial en asuntos
propiamente planteados sobre conflictos y transgresiones constitucionales, la jurisprudencia de los
Estados estodavia mas indubitable e inequivoca, mas terminante y decisiva. La importancia de esto
sube de punto si se tieneen cuenta que, mas que con el gobierno federal, nuestra analogia,
nuestros puntos de contacto en lo politico, constitucional y juridico es mas bien con los diferentes
Estados de la Union americana. Nuestro sistema de gobierna es unitario. Aqui nuestras provincias
no son Estados autonomos y semi-independientes como lo son los Estados americanos. Asi que la
cedula, la unidad politica mas semejante a la nuestra no es la federal, sino la estatal. Por eso si
bienes cierto que las constituciones de los Estados, como lanuestra, todas estan fundamentalmente
calcadas en el patron de la Constitucion federal, se vera que en ciertosrasgos caracteristicos del
sistema unitario nuestra Constitucionse aproxima evidentemente mas a las de los Estados que a la
federal. Esa semejanza es sobre todo notabilisimaen la parte que se refiere al proceso
enmendatorio de la Constitucion. Es que, en realidad, los Estados de la Union americana, para
todos los efectos de la vida interior, domestica, son practicamente naciones independientes; asi que
nuestra evolucion, nuestro transitode la condicion de Commonwealth a la de Republicas oberana e
independiente si bien nos distingue de ellos enel derecho internacional, ninguna diferencia, sin
embargo, ha operado en el campo constitucional, ora en la parte dogmatica de la Constitucion, ora
en la parte organica. Y la mejor prueba de esto es que con la independencia nohemos tenido
necesidad de cambiar de Constitucion: lamisma que nos servia cuando eramos simple
Commonwealth, es decir, cuando estabamos sujetos a la soberania americana, es la misma que
nos sirve hoy cuando ya somos Republic; y no cabe duda de que nos serviria perfectamente bien si
no la tuvieramos asendereada y malparada en nuestras pecaadoras manos con repetidas
violaciones, confrecuentes asaltos contra su integridad . . ..

Ahora bien; sin petulancia se puede retar a cualquieraa que señale un caso, un solo caso en la
jurisprudencia de los Estados de la Union americana en que los tribunales de justicia se hayan
negado a conocer y enjuiciaruna violacion constitucional semejante a la que nos ocupapor la razon
de que se trataba de una cuestion politica no-justiciable. No hay absolutamente ninguno; por
esoque los recurridos, a pesar de las pacientes y laboriosas investigaciones que denota su habil y
concienzudo alegato, no han podido citar ni un solo caso.

En cambio, los tomos de jurisprudencia de various Estados dan cuenta de casos indenticosd al que
nos ocupa y entodos ellos se ha declarado invariablemente que la violacion de la Constitucion en lo
que se refiere al precepto que regula el proceso de la enmiendas a la Ley organica esuna cuestion
judicial, y ninguna Corte Suprema de Estados e ha lavado jamas las manos bajo la teoria de la
separacion de poderes. Es mas: creo que in siquiera seha planteado seriamente la objecion
fundada en el argumentod e la injusticiabilidad.
Para no alargar demasiado esta disidencia no voy a citarmas que algunos casos los mas conocidos
y representativos, tomados de la jurisprudencia de algunos Estados, a saber: Florida, Minnesota,
Georgia e Indiana. De la Corte Suprema de Florida tenemos dos casos: el de Crawford vs .Gilchrist
y el de Gray vs. Childs.

En el asunto de Crawford vs. Gilchrist (64 Fla., 41; 59 So., 963l Ann. Cas., 1914B, 916), se trataba
de una accionde prohibicion interpuesta por el Gobernador del Estado, Albert W. Gilchrist, contra el
Secretario de Estado, H. Clay Crawford, para impedir que cierta propuesta enmiendaa la
Constitucion se publicara y se sometiera al electorado en un plebiscito para su ratificacion o
rechazamiento. Esdecir, lo mismo de que se trate en el case que tenemos antenosotros. La
enmienda habia sido aprobada por la Camarade Representantes de Florida con el voto necesario y
constitucional de tres quintas (3/5), y fue enviada al Senado para su concurrencia. El Senado
tambien la aprobo conel voto de tres quintos, pero esta votacion fue reconsiderada posteriormente.
Asi estaba el asunto, pendiente de reconsideracion cuando se clausuro la Legislatura. Despues, sin
embargo, diose por aprobada la propuesta enmienday el Secretario de Estado trato de dar los
pasos parasu publicacion y ratificacion plebiscitaria. De ahi la accionde interdicto prohibitorio,
fundada en la alegacion de quela enmienda no habia sido aprobada debidamente por la Legislatura
de acuerdo con los metodos prescritos en la Constitucion de Florida. Igual que en el presente
casetambien hubo alli una batalla forense colosal, con untremendo despliegue de habilidad y talento
por cada lado. El ponente no se recata en alabar el esfuerzo de las partesy dice: ". . . we think the
parties to this litigationare to be commended, both for taking the proceedings that have brought
these unsual questions before the court for determination and for the great ability with which their
counsel have presented them to this court."

¿Se lavo las manos la Corte Suprema de Florida declarandose incompetente para conocer del
asunto por la razonde que se trataba de una cuestion politica y, por tanto, nojusticiable? De ninguna
manera. La Corte asumio resueltamente su responsabilidad y poder tradicional de interpretarla
Constitucion y fallo el asunto en su fondo, declarando que la cuestion era propiamente judicial y que
laenmienda constitucional propuesta no se habia aprobada deconformidad con los requisitos
establecidos por la Constitucionpara el proceso y tramitacion de la enmiendas. Por tanto, se denego
la peticion de supersedeas interpuestapor el recurrido para enervar el recurso; es decir, al
recurrentegano su inusitado e historico pleito. Y las esferas politicas de Florida no se desorbitaron
por esta decisivaderrota de la teoria de la separacion de poderes. Vale la pena reproducir algunar
de las doctrinas sentadas en elasunto, a saber:

Constitutional Law — Power of Courts to Determine Validity of Action by Legislature in Proposing

Constitutional Amendment.

A determination of whether an amendment to the constitution has been validly proposed and agreed
to by the Legislature is to be had in a judicial forum where the constitution provides no other means
for such determination.

Injunction — Subject of Relief — Act of Secretary of State in Certifying Proposed Amendments.

The act of the secretary of state in publishing and certifying to the country commissioners proposed
amendments to the constitution is in its nature ministerial, involving the exercise of no discretion, and
if the act is illegal it may be enjoined in appropriate proceedings by proper parties, there being no
other adequate remedy afforded by law.

Injunction — Governor as Complainant, Secretary of State as Defendant.

The governor of the state, suing as such, and also as a citizen, taxpayer, and elector, is a proper
complainant in proceedings brought to enjoin the secretary of state from publishing at public
expense and certifying proposed amendments to the constitution upon the ground that such
proposed amendments are invalid because they have not been duly "agreed to by three-fifths of all
the members elected to each house" of the legislature.

Amendments to Constitution — Effect of Ignoring Mandatory Provisions of Constitution.

If essential mandatory provisions of the organic law are ignored in amending the constitution, it
violates the right of all the people of the state to government regulated by law.

Duty of Court to Enforce Constitution.

It is the duty of the courts in authorized proceedings to give effect to the existing constitution.

Mandatory Provisions of Constitutions as to Manner of Amending Constitution.

The provision of the organic law requiring proposed amendments of the constitution to "be agreed to
by three-fifths of all the members elected to each house" of the legislature is mandatory, and it
clearly contemplates that such amendments shall be agreed to by the deliberate, final, affirmative
vote of the requisite number of the numbers of each house at a regular session.

Construction of Constitution to Give Intended Effect — Mandatory Character of Provisions.

Every word of a state constitution should be given its intended meaning and effect, and essential
provisions of a constitution are to be regarded as being mandatory. (Crawford vs. Gilchrist, Ann.
Cas., 1914 B, pp. 916, 917.)

El asunto de Crawford vs. Gilchrist se decidio en 1912. Enm 1934 otro asunto constitucional
importante, el de Gray contra Childs, se decidio en virtud de la autoridad y sentencia dictada en
dicho asunto de Crawford.

En el caso citado de Gray contra Childs (156 So. Rep., 274; Fla.), tambien se trataba de una
demanda de prohibicion para impedir la publicacion de una propuesta enmienda constitucional que
iba a ser sometida al electorado de Florida para su ratificacion o rechazamiento en una eleccion
general o plebiscito fijado para Noviembre, 1934. La enmienda habia sido aprobada por la Camara
de Representantes con el voto de tres quintos (3/5), pero en el Senado hubo cierta confusion acerca
del texto finalmente aprobado. La Legislatura, antes de clausurarse aprobo unafs resolucion
conjunta autotizando a ciertos oficiales de las Camaras para que despues de la clausura hiciesen
ciertas correciones enlas actas y en el diario de sesiones a fin de formar la verdaderahistoria de los
procedimientos y compulsar el textode la enmienda tal como habia sido aprobada. Se alegabaen la
demanda que esto era ilegal y anticonstitucional. Eltribunal de circuito estimo el recurso de
prohibicion. Elevado el asunto en apelacion para ante la Corte Suprema del Estado, la misma
confirmo la sentencia apelada concediendo el interdicto prohibitorio. Hed aqui los pronunciamientos
de la Corte que parecen estereotipados para el caso que nos ocupa, a saber:

(4,5) Section 1 of article 17 of our Constitution provides the method by which the Constitution may
be amended. It requires that a proposed amendment shall be entered upon the respective Journals
of the House of Representatives and of the Senate with the yeas and nays showing a three-
fifths vote in favor of such amendment by each House. The proposed amendment here under
consideration nowhere appears upon the Journals of the Senate, and therefore it is unnecessary for
us to consider any other questions presented or any authorities cited.

The amendment of the organic law of the state or nation is not a thing to be lightly undertaken not to
be accomplished in a haphazard manner. It is a serious thing. When an amendment is adopted, it
becomes a part of the fundamental law of the land, and it may mean the weal or woe of the future
generations of the state wherein it becomes a part of the fundamental law. We cannot say that the
strict requirements pertaining to amendments may be waived in favor of a good amendment and
invoked as against a bad amendment. If the Constitution may be amended in one respect without
the amendment being spread upon the Journals of one of the respective House of the Legislature,
then it may be ameqnded in any other respect in the same manner. It is not for the courts to
determine what is a wise proposed amendment or what is an unwise one. With the wisdom of the
policy the courts have nothing to do. But it is the duty of the courts, when called upon so to do, to
determine whether or not the procedure attempted to be adopted is that which is required by the
terms of the organic law.

Finding that the organic law has not been complied with, as above pointed out, the decree appealed
from should be, and the same is hereby, affirmed on authority of the opinion and judgment in the
case of Crawford vs. Gilchrist, 64 Fla., 41; 59 So., 953; Ann. Cas., 1914B, 9156. (Gray vs. Childs,
156 Southern Reporter, pp. 274, 279.)

Note se que la clausula sobre enmiendas en la Constitucion de Florida es semejante a la nuestra, a

saber: (1) la propuesta enmienda tiene que ser aprobada por la Legislatura, en Florida con el voto
de tres quintos (3/5) de los miembros, en Filipinas con el voto de tres cuartos (3/4); (2) los sies y los
nos tienen que hacersesd constar en el diario de sesiones (Articulo VI, seccion 10, inciso 4; seccion
20, inciso 1, Constitucion de Filipinas); (3) despues de aprobada la enmienda por la Legislatura se
somete al electorado en una eleccion o plebiscito, para su ratificacion orechazamiento.

El procedimiento sobre enmiendas prescrito en la Constitucion federal americana es diferente, a

saber: el Congreso puede proponer la enmienda bien (1) mediante la aprobacion de dos tercios
(2/3) de sus miembros; bien (2) mediante una convencion que se convocara al efecto apeticion de
las Legislaturas de dos tercios (2/3) de los diferentes Estados. En cualquiera de ambos casos la
enmiendasera valida para todos los efectos y fines comoparte de la Constitucion siempre que fuera
ratificada porlas Legislaturas de tres cuartos (3/4) de los Estados, o porconvenciones de tres
cuartas-partes de los mismos, segun que uno u otro modo de ratificacion hubiera sido propuestopor
el Congreso.

Esta diferencia de procedimientos es la que, segun digomas arriba, me inclina a sostener que la
jurisprudencia constitucional propiamente aplicable a Filipinas es la jurisprudencia de los Estados,
puesto que es con estos con los cuales tenemos analogia o paridad constitucional en lo que toca a
la forma y manera como se puede reformar la Constitucion.

Seguire ahora citando mas casos.

Tenemos un caso de Minnesota, identico a los ya citados de Florida. En el asunto de In

re McConaughy (106 Minn., 392; 119 N.W., 408), tambin se suscito la cuestion de si una propuesta
enmienda constitucional habia sido aprobada de acuerdo con los requisitos señalados en la
Constitucion de Minnesota. Alli como aqui tambien hubo disputa sobre si esto era una cuestion
judicial o una cuestion politica no justiciable. La Corte Suprema deaquel Estado declaro sin ambajes
que era una cuestion judicial. He aqui sus palabras que no tienen desperdicio:
The authorities are thus practically uniform in holding that whether a constitutional amendment has
been properly adopted according to the requirements of an existing constitution is a judicial question.
There can be little doubt that the consensus of judicial opinion is to the effect that it is the absolute
duty of the judiciary to determine whether the constitution has been amended in the manner required
by the constitution, unless a special tribunal has been created to determine the question; and even
then many of the courts hold that the tribunal cannot be permitted to illegally amend the organic law.
There is some authority for the view that when the constitution itself creates a special tribunal, and
confides to it the exclusive power to canvass votes and declare the results, and makes the
amendment a part of the constitution as a result of such declaration by proclamation or otherwise,
the action of such tribunal is final and conclusive. It may be conceded that this is true when it clearly
appears that such was the intention of the people when they adopted the constitution. The right to
provide a special tribunal is not open to question; but it is very certain that the people of Minnesota
have not done so, and this fact alone eliminates such cases as Worman vs. Hagan, 78 Md., 152; 27
Atl., 616; 21 L. R. A., 716, and Miles vs. Badford, 22 Md., 170; 85 Am. Dec., 643, as authorities
against the jurisdiction of the courts. (In re McConaughy, 106 Minn., 392; 119 N. W., 408.)

Tambien tenemos un caso de Georgia. En el asunto de Hammond vs. Clark (136 Ga., 313; 71 S.E.,
479; 38 L.R.A.[N.S.], 77), se suscito igualmente una disputa sobre siuna enmienda habia sido
aprobada de acuerdo con los requisitos de la Constitucion era una cuestion judicial o no. La Corte
Suprema de aquel Estado declaro afirmativamente. He aqui su inequivoca pronunciamiento:

Counsel for plaintiff in error contended that the proclamation of the governor declaring that the
amendment was adopted was conclusive, and that the courts could not inquire into the question. To
this contention we cannot assent. The constitution is the supreme state law. It provides how it may
be amended. It makes no provision for exclusive determination by the governor as to whether an
amendment has been made in the constitutional method, and for the issuance by him of a binding
proclamation to that effect. Such a proclamation may be both useful and proper, in order to inform
the people whether or not a change has been made in the fundamental law; but the constitution did
not make it conclusive on that subject. When the constitution was submitted for ratification as a
whole, a provision was made for a proclamation of the result by the governor. Const. art. 13, section
2, par. 2 (Civ. Code 1910, section 6613). But in reference to amendment there is no such provision.
Const. article 13, section 1, par. 1 (Civ. Code 1910, section 6610). In the absence of some other
exclusive method of determination provided by the constitution, the weight of authority is to the effect
that whether an amendment has been properly adopted according to the requirements of the
existing constitution is a judicial question. (Hammond vs. Clark, 136 Ga., 313; 71 S.E., 479;38 L.R.A.
[N.S.], 77.)

Tambien tenemos el siguiente case de Indiana:

(1) In the beginning we are confronted with the contention on the part of appellees that this court has
no jurisdiction to determine the questions in issue here. In the case of Ellingham vs. Dye, 178 Ind.,
336, 391; 99 N.E., 1, 21 (Ann. Cas. 1915C, 200), this court, after reviewing many decisions as to the
power of the courts to determine similar questions, sums up the whole matter as follows:

"Whether legislative action is void for want of power in that body, or because the constitutional forms
of conditions have not been followed or have been violated (emphasis supplied) may become a
judicial question, and upon the courts the inevasible duty to determine it falls. And so the power
resides in the courts, and they have, with practical uniformity, exercised the authority to determine
the validity of the proposal, submission, or ratification of change in the organic law. Such is the rule
in this state" — citing more than 40 decisions of this and other states.
(2) Appellees further contend that appellant has not made out a case entitling him to equitable relief.
The trial court found that the officers of the state, who were instructed with the execution of the law,
were about to expend more than $500,000 under the law, in carrying out its provisions; indeed, it
was suggested, in the course of the oral argument, that the necessary expenditures would amount to
more than $2,000,000. This court, in the case of Ellingham vs. Dye, supra, involving the submission
to the people of the Constitution prepared by the Legislature, answered this same question contrary
to the contention of appellees. See pages 413 and 414 of that opinion. (186 Ind., 533;
Bennett vs. Jackson, North Eastern Reporter, Vol. 116, pp. 921, 922.)

Creo que la posicion de la jurisprudencia americana tanto federal como de Estado sobre este punto,
esto es, cuandoes judicial la cuestion y cuando no lo es, se halla bien definida en el tomo 12 del
Corpus Juris, en la parte que llevael encabezamiento de "Constitutional Law" y bajo el subepigrafe
que dice: "Adoption of Constitution and Amendments" (12 Corpus Juris, 880, 881). Es un
compendiocuidados amente elaborado en que se da un extracto de la doctrina con las citas sobre
autoridades al pie. Reproducire el compendio, pero omitiendo las citas para no alargar demasiado
esta disidencia: el que desee comprobarlas no tienemas que consultar el tomo. En realidad, leyendo
este extracto se ve que parece un resumen del extenso analisis que llevo hecho sobre la doctrina
tanto federal como estatal. Su meollo es, a saber: la cuestion de si o no una nueva constitucion se
ha adoptado la tienen que decidir los departamentos politicos del gobierno; pero la cuestion de si
una enmienda a una constitucion existente ha sido debidamente propuesta, adoptada y ratificada de
acuerdo con los requisitos provistos por la Constitucion, para que vengaa ser parte de la misma, es
una cuestion que los tribunales de justicia tienen que determinar y resolver, excepto cuandola
materia ha sido referida por la Constitucion a un tribunale special con poder para llegar una
conclusion final. He aqui el sinopsis:

SEC. 382. b. Adoption of Constitution and Amendments. — Whether or not a new constitution has
been adopted is a question to be decided by the political departments of the government. But
whether an amendment to the existing constitution has been duly proposed, adopted, and ratified in
the manner required by the constitution, as as to become part thereof, is a question for the courts to
determine, except where the matter has been committed by the constitution to a special tribunal with
power to make a conclusive determination, as where the governor is vested with the sole right and
duty of ascertaining and declaring the result, in which case the courts have no jurisdiction to revise
his decision. But it must be made clearly to appear that the constitution has been violated before the
court is warranted in interfering. In any event, whether an entire constitution is involved, or merely an
amendment, the federal courts will not attempt to pass on the legality of such constitution or
amendment where its validity has been recognized by the political departments of the state
government, and acquiesced in by the state judiciary. (12 C.J., pp. 880, 881.)

VI

Otra razon que aduce la mayoria para desestimar el recusro es que la copia impresa de la
resolucion en cuestionaparece certificada por los presidentes de ambas Camaras del Congreso;
que en esa certificacion consta que dicha resolucion fue debidamente aprobada por el Congreso
conlos votos de las tres quintas-partes (3/5) de sus miembros; que, por tanto, la debida aprobacion
de dicha resolucion nose puede cuestionar, es una prueba concluyente para todoel mundo y para
los tribunales de justicia particularmente. Este argumento se funda en la doctrina inglesa llamada
"enrolled act doctrine," cuya traduccion mas aproximada al español es "doctrina de la ley impresa."
Esto, por unlado.

Por otro lado, la representacion de los recurrentes arguye que lo que rige y prevaleced en esta
jurisdiccion noes la doctrina inglesa o "enrolled act doctrine," sino ladoctrina americana que se
conoce con el nombre de "journalentry doctrine," en virtud de la cual la prueba de siuna ley o una
resolucion ha sido debidamente aprobadapor el Congreso debe buscarse en el diario de sesiones
mismo del Congreso. Lo que diga el diario de sesiones esconcluyente y final.

Los recurrentes tienen la razon de su parte. Este punto legal ya se resolvio por esta Corte en la
causa de los Estados Unidos contra Pons (34 Jur. Fil., 772), que ambaspartes discuten en sus
respectivos informes. Una de las defensas del acusado era que la Ley No. 2381 de la Legislatura
Filipina en virtud de la cual habia sido condenado era nula e ilegal porque so aprobo despues ya del
cierrede las sesiones especiales que tuvo lugar el 28 de Febrero de 1914, a las 12 de la noche; es
decir, que, en realidad de verdad, la aprobacion se efectuo el 1.º de Marzo, puesla sesion sine
die del dia anterior se prolongo mediante una ficcion haciendose parar las manecillas del reloj a las
12 en punto de la noche. Esta Corte, sin necesidad deninguna otra prueba, examino el diario de
sesiones correspondientea la referida fecha 28 de Febrero, y habiendo hallado que alli constaba
inequivocamente haberse aprobadola mencionada ley en tal fecha, fallo que esta pruebaera final y
concluyente para las partes, para los tribunales y para todo el mundo. La Corte desatendio por
completoel "enrolled act," la copia impresa de la ley, pues dijo, asaber: "Pasando por alto la cuestion
relativa as si la Ley Impresa (Ley No. 2381), que fue aprobada por autorizacion legal, constituye
prueba concluyente sobre la fecha desu aprobacion, investigaremos si los Tribunales pueden
consultar otras fuestes de informacion, ademas de los diarios de las sesiones legislativas, para
determinar la fecha enque se cerraron las sesiones de la Legislatura, cuando talesdiarios son claros
y explicitos." Y la Corte dijo que nohabia necesidad de consultar otras fuestes, que el diario de
sesiones era terminante, definitivo; y asi fallo la causaen contra del apelante.

Y no era extraño que asi ocurriese: habia en la Corte una mayoria americana, familiarizada y
compenetrada naturalmente con la jurisprudencia pertinente de su pais ¿Quede extrano habia, por
tanto, que aplicasen la doctrina americana, la doctrina del "journal entry," que es mas democratica,
mas republicana, en vez de la doctrina inglesa, el "enrolled act doctrine," que despues de todo tiene
ciertotinte monarquico, producto del caracter peculiar e influencia tradicionalista de las instituciones
inglesas? (Vease Rash vs. Allen, 76 Atl. Rep., 371; Del.) Firman, como se sabe, la decision el
ponente Sr. Trent, y los Magistrados Sres. Torres, Johnson, Moreland y Araullo, sin mingun
disidente.Y notese que cuando se promulgo esta sentencia todavia estaba en vigor el articulo 313
del Codigo de Procedimiento Civil, tal como estaba reformado por la Ley No. 2210. que entre otras
cosas proveia lo siguiente: ". . . Entendiendose, que en el caso de las Leyes de la Comisionde
Filipinas o de la Legislatura Filipina, cuando existeuna copia firmada por los Presidentes y los
secretarios de dichos cuerpos, sera prueba concluyente de las dispociones de la ley en cuestion y
de la debida aprobacion delas mismas." ¿Que mejor prueba de la voluntad expresa, categorica, de
hacer prevalecer la doctrina americana sobrela doctrina inglesa? Lo mas comodo para esta
Cortehubiera sido aplicar el citado articulo 313 del Codigo de Procedimiento Civil. No lo hizo, paso
por alto sobreel mismo, yendo directamente al diario de sesiones dela Legislatura, tomando
conocimiento judicial del mismo. Si aqui hay algun respeto a la regla del stare decisis, estaes una
magnifica ocasion para demostrarlo. Una regla bien establecida no ha de abrogarse asi como asi;
sobretodo cuando de por medio anda la Constitucion como enel presente caso en que se ha
formulado ante nosotros la queja de que la ley fundamental ha sido violada en unrespecto muy
importante como es el capitulo sobre enmiendas, y la queja no solo no es temeraria sino que se
hallaapoyada en buenas y solidas razones.

Mas todavia: cuando se establecio la doctrina en lacitada causa de los Estados Unidos contra Pons
(1916, Agosto 12) adoptando en esta jurisdiccion la doctrina americana del "journal entry" en lugar
de la inglesa del "enrolled act," en nuestra Ley Organica que, por cierto, no era aun la Ley Jones
sino la Ley del Congreso de 1902, no habia ninguna disposicion que proveyera mandatoriamente
que en el diario de sesiones de la Legislatura sehiciesen constar los sies y los nos en la votacion de
cualquier proyecto de ley o resolucion, consignando especifica mentelos nombres de los miembros
que hayan votado enpro y en contra, ni tampoco habia ninguna disposicione statutoria a dicho
efecto. De modo que en aquella epoca el diario de sesiones de la Legislatura carecia aun de las
fuertes garantias de veracidad que ahora posee en virtud de esa disposicion que hace obligatoria la
constancia oconsignacion de los sies y nos, disposicion incorporada enla Constitucion del
Commonwealth, ahora de la Republica. (Vease Constitucion de Filipinas, Articulo VI, seccion 10,
inciso 4; seccion 20, incico 1; seccion 21, inciso 2.)

Sobre la derogacion del articulo 313 del Codigo de Procedimiento Civil no puede haber duda. Ese
articulo, que equivale a una regla de prueba, no se ha incorporado enel Reglamento de los
Tribunales. No tratandose de una regla fundada en un principio general y unanimemente
establecido, sino de algo peculiar aislado, acerca del cuallas autoridades estan divididas, con una
mayoria de los Estados de la Union americana decididamente en contra, suno inclusion en el
Reglamento de los Tribunales tiene queconsiderarse necesariamente como una derogacion.
Indudablemente esta Corte, al no incluir dicho articulo en el Reglamento de los Tribunales, ha
querido derogarlo en vistade los resuelto en la citada causa de Estados Unidos contraPons y de la
novisima disposicion insertada en la Constitucion del Commonwealth, ahora de la Republica, que
exige la consignacion en el diario de sesiones de los sies y nos en cada votacion final de proyecto
de ley o resolucion conjunta, con especificacion de los nombres de los que hasvotado.

Resulta evidente de lo expuesto que ahora existen masrazones para reafirmar en esta jurisdiccion
la doctrina americana del "journal entry" o "constancia en el diario desesiones" (1) porque el citado
seccion 313 del Codigo de Procedimiento Civil ya no rige con la vigencia del Reglamento de los
Tribunales; (2) porque esa disposicion denuestra Constitucion que hace obligatoria la consignacion
de los sies y nos en la votacion de cada bill o resolucion, con especificacion de los nombres de los
que hayan votado enfavor y en contra, hace del diario de sesiones la mejor prueba sobre
autenticidad de los actos legislativos y es, porconsiguiente, la ley sobre la materia en este pais, con
entera exclusion de la doctrina inglesa o "enrolled act doctrine."Las autoridades americanas son
contestes en que siempreque en un Estado de la Union Federal la Constitucioncontiene una
disposicion semejante a la nuestra sobre sies y nos la regla de prueba no es la copia impresa de la
leyo "enrolled act," sino el "journal entry" o constancia enel diario de sesiones.
(Vease Rash vs. Allen, supra.)

Aqui se podria dar por terminada toda discusion sobre este punto si no fuera porque los abogados
de los recurridos arguyen fuertemente en favor de la doctrina de la copia impresa o "enrolled act
doctrine," y la mayoria de esta Corte acepta sus argumentos. Se cita, sobre todo, el asunto federal
de Field vs. Clark en apoyo de la doctrina.

He examinado la jurisprudencia americana sobre este particular con toda la diligencia de que he
sido capaz y he llegado a la conclusion de que nuestros predecesores enesta Corte merecen todo
encomio por su indubitable aciertoal adoptar en esta jurisdiccion, en la causa de los Estados
Unidos contra Pons, supra, la doctrina americana del "journal entry" o constancia en el diario de
sesiones legislativas. No cabe duda de que esta doctrina es mas democratica, mas liberal, y
tambien mas humana y mas concorde con la realidad. La doctrina inglesa del "enrolled act" ocopia
impresa de la ley esta basada en el derecho comun y se adopto en Inglaterra donde, como se sabe,
no hay constitucion escrita y la forma de gobierno es monarquica,y se adopto en un tiempo en que
el poder del Parlamento que era tambien el mas alto tribunal de justicia, era absoluto y
transcendente y las restricciones sobre el mismo eran muy ligeras. Por eso un tribunal americano
ha dicho: "Because such a rule obtains as to the Parliament of Great Britain, under a monarchial
form of government, that cannot be regarded as a very potent reason for its application in this state,
where the will of the sovereign power hasbeen declared in the organic act."
(Vease Rash vs. Allen, supra, pag. 379; cito con frecuencia este asunto famoso de Delaware porque
es en el mismo donde he hallado una discusion mas acabada y comprensiva sobre ambas
doctrinas: la americana del "journal entry" y la inglesa del "enrolled act.")
Es indudable que el sesgo de la jurisprudencia americana hoy en dia es a favor de la doctrina del
"journal entry." Lo resuelto en el asunto federal de Field contra Clark, enque tanto enfasis ponen los
recurridos, no ha hecho mas que fortalecer ese giro, pues en dicho asunto va en vuelta lainferencia
de que cuando la Constitucion establece ciertos requisitos para la aprobacion de una ley o
resolucion, conla consignacion de los sies y nos y los nombres de los que han votado afirmativa y
negativamente, el diario de sesioneses el que rige y prevalece como modo e instrumento de
autenticacion. Por eso que en el asunto tipico y representativode Union Bank vs. Commissioners of
Oxford (199 N.C., 214; 25 S.E., 966; 34 L.R.A., 487), la Corte Supremade North Carolina ha
declarado lo siguiente.

According to the law it is well settled in nearly 100 well-adjudicated cases in the courts of last resort
in 30 states, and also by the Supreme Court of the United States, that when a state Constitution
prescribes such formalities in the enactment of laws as require a record of the yeas and nays on the
legislative journals, these journals are conclusive as against not only a printed statute, published by
authority of law, but also against a duly enrolled act. The following is a list of the authorities, in
number 93, sustaining this view either directly or by very close analogy. . . . It is believed that no
federal or state authority can be found in conflict with them.

Decisions can be found, as, for instance, Carr. vs. Coke (116 N.C., 223; 22 S.E. 16; 28 L.R.A., 737;
47 Am. St. Rep., 801, supra, to the effect that, where the Constitution contains no provision requiring
entries on the journal of particular matters — such, for example, as calles of the yeas and nays on a
measure in question — the enrolled act cannot, in such case, be impeached by the journals. That,
however, is very different proposition from the one involved here, and the distinction is adverted to in
Field vs. Clark, 143 U.S., 671 (12 Sup. Ct., 495; 36 Law. ed., 294. (Rash vs. Allen, 76 Atl. Rep., p.
377.)

Y en el asunto de Ottawa vs. Perkins la Corte Suprema de los Estados Unidos ha dicho lo siguiente:

But the Supreme Court of the United States, in the case of South Ottawa vs. Perkins, 94 U.S., 260;
24 Law., ed., 154, on appeal from the United States court for the Northern district of Illinois (Mr.
Justice Bradley delivering the opinion), said: "When once it became the settled construction of the
Constitution of Illinois that no act can be deemed a valid law, unless by the journals of the
Legislature it appears to have been regularly passed by both houses, it became the duty of the
courts to take judicial notice of the journal entries in that regard. The courts of Illinois may decline to
take that trouble, unless parties bring the matter to their attention, but on general principles the
question as to the existence of a law is a judicial one and must be so regarded by the courts of the
United States." (Rash vs. Allen, 76 Atl. Rep., p. 387.)

Se dice que el interest publico exige que el "enrolled act" o copia impresa de la ley firmada por los
Presidentes deambas Camaras del Congreso de declare concluyente y final, porque de otra manera
habria caos, confusion: cualquierase creeria con derecho a atacar la validez de una ley o resolucion,
impugnando la autenticidad de su aprobacion ode su texto. Pero esto pone en orden las siguientes
preguntas que se contestan por si mismas: ?no es el diariode sesiones un documento
constitucional, exigido por la Constitucion que se lleve por las dos camaras del Congreso,
controlado y supervisado por dichas camaras y por los oficiales de las mismas? ¿que mejor garantia
de autenticidad, contra la falsificacion, que ese requerimiento constitucional de consignar
obligatoriamente en el diario, en la votacionde todo bill o resolucion, los sies y los nos, y
haciendoconstar los nombres tanto afirmativos como negativos? ¿se ha producido por ventura caos
y confusion en los Estados americanos que han adoptado esta regla y que, segun admiten los
mismos recurridos, forman una decisiva mayoria? ¿se acaso posible concebir que el sentido
americano, tan practico, tan utilitario, tan, realista, optase poruna regla que fuese origen de caos y
confusion? Prescindiendo ya de la jurisprudencia que, ya hemos visto, estadecididamente inclinada
a favor de la doctrina americana del "journal entry" ?que dicen los tratadistas mas autorizados, los
de nombradia bien establecida, y sobre todolos especialistas en derecho constitucional?

El Juez Cooley, en su celebrada obra sobre Constitutional Limitations, 7th ed., 193, dice lo siguiente
a favor del "journal entry rule":

Judge Cooley in his work on Constitutional Limitations (7th Ed., 193), says: "Each house keeps a
journal of its proceedings which is a public record, and of which the courts are at liberty to take
judicial notice. If it would appear from these journals that any act did not receive the requisite
majority, or that in respect to it the Legislature did not follow any requirement of the Constitution or
that in any other respect the act was not constitutionally adopted, the courts may act upon this
evidence, and adjudge the statute void. But whenever it is acting in apparent performance of legal
functions, every reasonable presumption is to be made in favor of the action of a legislative body. It
will not be presumed in any case, from the mere silence of the journals, that either house has
exceeded its authority, or disregarded a constitutional requirement in the passage of legislative acts,
unless when the Constitution has expressly required the journals to show the action taken, as, for
instance, where it requires the yeas and nays to be entered."

Sutherland, en su tambien celebrada obra sobre Statutory Construction, seccion 46 y siguientes,

tambien sedeclara a favofr del "journal entry rule" con el siguiente pronunciamiento:

The presumption is that an act properly authenticated was regularly passed, unless there is
evidence of which the courts take judicial notice showing the contrary. The journals are records, and,
in all respects touching proceedings under the mandatory provisions of the Constitution, will be
effected to impeach and avoid the acts recorded as laws and duly authenticated, if the journals
affirmatively show that these provisions have been disregarded. . . . The journals by being required
by the Constitution or laws, are record . . ..

When required, as is extensively the case in this country, by a paramount law, for the obvious
purpose of showing how the mandatory provisions of that law have been followed in the methods
and forms of legislation, they are thus made records in dignity, and are of great importance. The
legislative acts regularly authenticated are also records. The acts passed, duly authenticated, and
such journals are parallel records; but the latter are superior, when explicit and conflicting with the
other, for the acts authenticated speak decisively only when the journals are silent, and not even
then as to particulars required to be entered therein. (Rash vs. Allen, 76 Atl. Rep., p. 378.)

Desde luego la opinion de Wigmore, en que se apoya la mayoria, merece toda clase de respetos.
Pero creo no seme tachara de parcial ni ligero si digo que sobre el punto constitucional que estamos
discutiendo, me inclino mas y doy mayor peso a la opinion del Juez Cooley y de Sutherland, por
razones obvias. Wigmore nunca pretendio serespecialista en derecho constitucional. Con mucho
tino elponente en el tantas veces citado asunto de Rash contra Allen dice lo siguiente de la opinion
del celebrado constitucionalista:

We have quoted Judge Cooley's language because of the great respect that his opinions always
command, and also because of the fact that it is upon the authority of his opinion that many of the
decisions in support of the American rule have been based. (Rash vs. Allen, 76 Atl. Rep., p. 378.)

Un detenido y minucioso examen de la jurisprudencia y de los tratados sobre el particular lleva a

uno al convencimiento de que la tendencia actual en America es a tomar la substancia, el fondo
mismo de las cosas en vez de la simpleforma, el caparazon, a prescindir del artificio, de la ficcion
legal, para ir a la realidad misma. Y no cabe duda deque el "enrolled act" se presta a veces a tener
mas apoyo en el artificio y ficcion legal, mientras que el diario desesiones, con las fuertes garantias
de autenticidad como las que se proveen en nuestra Constitucion y en Constituciones similares
americanas, reproduce y refleja la realidad de los hechos relativamente con mas exactitud y
fidelidad. Tomemos como ejemplo el presente caso. La copia impresade la resolucion cuestionada,
firmada por los Presidentes de ambas Camaras del Congreso, reza que la misma fueaprobada
debidamente con los votos de las tres cuartas-partes (3/4) del Congreso, pero esto no es mas que
unaopinion, una conclusion legal de los presidentes, pues noconsta en dicha copia impresa el
numero concreto de votos emitidos, ni el numero concreto de la totalidad de miembros actuales de
cada camara. Tampoco constan en dichacopia impresa, tal como manda la Constitucion, los sies y
nos de la votacion, con los nombres de los que votaron afirmativa y negativamente. Asi que, con
solo esa copiaimpresa a la vista, no podemos resolver la importantisima cuestion constitucional que
plantean los recurrentes, a saber: que la votacion fue anticonstitucional; que arbitrariamente fueron
excluidos de la votacion 11 miembros debidamente cualificados del Congreso — 3 Senadores y 8
Representantes; que, por virtud de la exclusion ilegal y arbitraria de estos 11 miembros, el numero
de votos emitidosen cada camara a favor de la resolucion no llegani constituye las tres cuartas-
partes (3/4) que requiere la Constitucion; y que, por tanto, la resolucion es ilegal, anti-constitucional
y nula. Para resolver estas cuestiones, todastremendas, todas transcedentales, no hay mas
remedio queir al fondo, a las entrañas de la realidad, y todo ello no sepuede hallar en el "enrolled
act," en la copia impresa dela ley, que es incolora, muda sobre el particular, sino enel diario de
sesiones donde con profusion se dan tales detalles. ¿No es verdad que todo esto demuestra
graficamentela evidente, abrumadora superioridad del "journalentry" sobre el "enrolled act," como
medio de prueba?

Mi conclusion, pues, sobre este punto es que el giro dela legislacion jurisprudencia en los diferentes
Estados de la Union es decididamente en favor de la doctrina americana del "journal entry"; que en
Filipinas desde 1916 en que se promulgo la sentencia en la causa de Estados Unidos contra Pons
la regla es el "journal entry rule"; que esta regla se adopto por este Supremo Tribunal enun tiempo
en que estaba vigente el articulo 313 del Codigo de Procedimiento Civil y cuando el diario de
sesiones de la Legislatura no gozaba de los prestigios de que goza hoy, en virtud de las rigidas y
fuertes garantias sobre autenticidad de las votaciones legislativas provistas en nuestra Constitucion;
que ahora que el referido articulo 313 del Codigo de Procedimiento Civil ya ha sido derogado porel
Reglamento de los Tribunales y se hallan vigentes esasgarantias constitucionales que
son mandatorias, la reglaindiscutible y exclusiva sobre la materia es el "journal entry rule"' que la
regla americana es mas liberal y mas democratica que la regla inglesa, la cual tiene un evidente
sabormonarquico; que el puebo filipino jamas tolerara un sistemamonarquico o algo semejante; que
el cambiar de regla ahora es un paso muy desafortunado, un injustificado retroceso, un apoyo a la
reaccion y puede dar lugar a la impresionde que las instituciones de la Republica filipina tienden a
ser totalitarias; que la doctrina inglesa del "enrolled act" es un instrumento harto inadecuado,
ineficaz, para resolver conflictos constitucionales que se iran planteando ante los tribunales, e
inclusive puede fomentargroseros asaltos contra la Constitucion; que, por el contrario, la doctrina
americana del "journal entry" es amplia, eficaz, y permite que con toda libertad y desembarazose
puedan resolver los conflictos y transgresiones constitucionales, sin evasivas ni debilidades; y, por
ultimo, que nuestro deber, el deber de esta Corte, es optar por la doctrina que mejor asegure y
fomente los procesos ordenadosde la ley y de la Constitucion y evitef situaciones en que el
ciudadano se sienta como desamparado de la ley y dela Constitucion y busque la justicia por sus
propias manos.

VII

La mayoria, habiendo adoptado en este asunto una posicion inhibitoria, estima innecesario discutir
la cuestion de si los 3 Senadores y 8 Representantes que fueron excluidos de la votacion son o no
miembros del Congreso. Es decir, lo que debiera ser cuestion fundamental — el leitmotiff, la
verdadera ratio decidendi en este caso — se relegaa termino secundario, se deja sin discutir y sin
resolver. No puedo seguir a la mayoria en esta evasion: tengo que discutir este punto tan
plenamente como los otros puntos, si no mas, porque es precisamente lo principal — el meollo del
caso.

Comencemos por el Senado. Los 3 Senadores excluido seran miembros actuales del Senado
cuando se voto la resolucion cuestionada, por las siguientes razones:

(a) Segun la estipulacion de hechos entre las partes y los ejemplares del diario de sesiones que
obran en autoscomo anexos, dichos Senadores fueron proclamados por la Comision de Elecciones
como electos juntamente con sus 21 compañeros. Despues de la proclamacion participaron en la
organizacion del Senado, votando en la eleccion del Presidente de dicho cuerpo. De hecho el
Senador Vera recibio 8 votos para Presidente contra el Senador Avelino que recibio 10. Tambien
participaron en algunos debates relativos a la organizacion.

(b) Tambien consta en la estipulacion de hechos y enel diario de sesiones que prestaron su
juramento de cargo ante Notarios particulares debidamente autorizados y calificados para
administrarlo, habiendose depositado dicho juramento en la secretaria del Senado. Se dice, sin
embargo, que ese juramento no era valido porque no se presto colectivamente, en union con los
otros Senadores. Esto es unerror. La Ley sobre la materia es el articulo 26 del Codigo
Administrativo Revisado, a saber:

By whom oath of office may be administered. — The oath of office may be administered by any
officer generally qualified to administer oath; but the oath of office of the members and officers
ofeither house of the legislature may also be administered by persons designated for such purpose
by the respective houses.

Este articulo es demasiado claro para necesitar mas comentarios. Es evidente que el Senador y
Representante puede calificarse prestando el juramento de su cargo antecualquier funcionario
autorizado para administrarlo; y la disposicion de que tambien pueden administrar ese juramento
personas designadas por cada camara es solo decaracter permisivo, opcional. Y la mejor prueba de
estoes que antes del advenimiento de la Republica el Senadodhabia reconocido la validez del
juramento de cargo prestadoante un Notario Publico por otros Senadores de la minoria los Sres.
Mabanag, Garcia, Confesor y Cabili. Amenos que estas cosas se tomen a broma, o la
arbitrariedadse erija en ley — la ley de la selva, del mas fuerte — no esconcebible que el juramento
ante Notario se declare validoen un caso y en otro se declared invalido, concurriendo lasmismas
circunstancias;

(c) Tambien consta, en virtud de la estipulacion de hechos y de los ejemplares del diario de
sesiones que obran en autos como anexos, que los Senadores Vera, Diokno y Romero han estado
cobrando todos sus sueldos y emolumentos como tales Senadores desde la inauguracion del
Senado hasta ahora, incluso naturalmente el tiempo en quese aprobo la resolucion cuestionada. Es
violentar demasiadola argucia el sostener que un miembro de una camara legislativa puede cobrar
todos sus haberes y emolumentos y, sin embargo, no ser legalmente miembro de la misma. El
vulgo, maestro en la ironia y en el sarcasmo, tiene unamanera cruda para pintar esta situacion
absurda: "Tiene, pero no hay". ¿Como es posible que las camaras autoricen el desembolso de sus
fondos a favor de unos hombres que, segun se sostiene seriamente, no estan legalmente
cualificados para merecer y recibir tales fondos?

(d) Se arguye, sin embargo, que los Senadores Vera, Diokno y Romero no son miembros del
Senado porque, envirtud de la Resolucion Pendatun, se les suspendio el juramento y el derecho a
sus asientos. Respecto del juramento, ya hemos visto que era valido, segun la ley. Respecto dela
suspension del derecho al asiento, he discutido extensamente este punto en mi disidencia en el
asunto de Vera contra Avelino, supra, calificando de anticonstitucional ynula la suspension. Pero
aun suponiendo que la mismafuera valida, los recurrentes alegan y arguyen que no poreso han
dejado de ser miembros los suspendidos. La alegaciones acertada. La suspension no abate ni
anula lacalidad de miembro; solo la muerte, dimision o expulsion produce ese efecto
(vease Alejandrino contra Quezon, 46 Jur. Fil., 100, 101; vease tambien United
States vs. Dietrich,126 Fed. Rep., 676). En el asunto de Alejandrino contra Quezon hemos
declarado lo siguiente:

Es cosa digna de observar que el Congreso de los Estados Unidos en toda su larga historia no ha
suspendido a ninguno de sus miembros.Y la razon es obvia. El castigo mediante reprension o
multavindica la dignidad ofendida de la Camara sin privar a los representados de su representante;
la expulsion cuando es permisiblevindica del mismo modo el honor del Cuerpo Legislativo dando asi
oportunidad a los representados de elegir a otro nuevo; pero la suspension priva al distrito electoral
de una representacion sin quese le de a ese distrito un medio para llenar la vacante. Mediante la
suspension el cargo continua ocupado, pero al que lo ocupa se le ha impuesto silencio.
(Alejandrino contra Quezon, 46 Jur. Fil.,100, 101.)

La posicion juridica y constitucional de los 8 Representantes excluidos de la votacion es todavia

mas firme.Consta igualmente, en virtud de la estipulacion de hechos y de los ejemplares del diario
de sesiones obrantes en autos, que dichos 8 Representantes tambien se calificaron, alinaugurarse
el Congreso, prestando el juramento de sucargo ante Notarios Publicos debidamente autorizados;
quesu juramento se deposito en la Secretaria de la Camara; que han estado cobrando desde la
inauguracion hasta ahoratodos sus sueldos y emolumentos, excepto dos los Representantes Taruc
y Lava que han dejado de cobrar desde hacealgun tiempo; que tambien han participado en algunas
deliberaciones, las relativas al proyecto de resolucion parasuspenderlos.

Pero entre su caso y el de los Senadores existe estadiferencia fundamental: mientras con respecto
a estos ultimosla Resolucion Pendatun sobre suspension llego aaprobarse adquiriendo estado
parlamentario, en la Camarade Representantes no ha habido tal cosa, pues la resolucionde
suspension se endoso a un comite especial para su estudioe investigacion, y hasta ahora la
Camara no ha tomadosobre ella ninguna accion, no favorable ni adversa. Demodo que en el caso
de los Representantes hasta ahora nohay suspension, porque de tal no puede calificarse la
acciondel Speaker y del macero privandoles del derecho detomar parte en las deliberaciones y
votaciones. Para queuna suspension produzca efectos legales y, sobre todo, constitucionales, tiene
que decret arla la Camara misma, pormedio de una resolucion debidamente aprobada, de
acuerdocon los requisitos provistos en la Constitucion. Nada deesto se ha hecho en la Camara.

El Articulo XV de nuestra Constitucion, sobre enmiendas, dice que "El Congreso, en sesion
conjunta, por el voto detres cuartas partes de todos los miembros del Senado y dela Camara de
Representantes votando separadamente, puede proponer enmiendas a esta Constitucion o
convocar unaconvencion para dicho efecto." Donde la ley no distingueno debemos distinguir. La
frase todos los miembros debeinterpretarse como que incluye todos los miembros elegidos, no
importa que esten ausentes o esten suspendidos; mas naturalmente cuando no estan suspendidos
como en el casode los ya citados 8 Representantes. El Juez Cooley, ensu ya citada
obra Constitutional Limitations, hace sobreeste particular los siguientes comentarios que son
terminantes para la resolucion de este punto constitucional, a saber:

For the votre required in the passage of any particular law the reader is referred to the Constitution
of his State. A simple majority of a quorum is sufficient, unless the Constitution establishes some
other rule; and where, by the Constitution, a two-thirds of three-fourths vote is made essential to the
passage of any particular class of bills, two-thids or three-fourths of a quorum will be understood,
unless the terms employed clearly indicate that this proportion of all the members, or of all those
elected, is intended. (A constitutional requirement that the assent of two-thirds of the members
elected to each house of the legislature shall be requisite to every bill appropriating the public money
or property for localor private purposes, is mandatory, and cannot be evaded by calling a bill a "joint
resolution".)

(Footnote: "Such a requirement is too clear and too valuable to be thus frittered away."
Allen vs. Board of State Auditors, 122 Mich., 324; 47 L.R.A., 117.)

(Footnote: "By most of the constitutions either all the laws, or laws on some particular subjects, are
required to be adopted by a majority voted, or some other proportion of "all the members elected," or
of "the whole representation." These and similar phrases require all the members to be taken into
account whether present or not. Where a majority of all the members elected is required in the
passage of a law, an ineligible person is not on that account to be excluded in the
count. (Satterloo vs. San Francisco, 23 Cal.,314.)" (Cooley on Constitutional Limitations, Vol. 1, p.
291.)

VIII

Los recurridos no cuestionan la personalidad o derecho de accion de los recurrentes para plantear
el presente litigio. Sin embargo, en nuestras deliberaciones algunos Magistrados han expresado
dudas sbore si los recurrentestien en interes legal suficiente y adecuado para demandar y, por
tanto, para invocar nuestra jurisdiccion en el presentecaso. La duda es si el interes que alegan los
recurrentesno es mas bien el general y abstracto que tiene cualquier otro ciudadano para defender
la integridad de la Constitucion, en cuyo caso seria insuficiente para demandarante los tribunales,
los cuales, segun el consenso de las autoridades, no estan establecidos para considerar y resolver
controversias academicas y doctrinales, sino conflictos positivos, reales, en que hay algun dano y
perjuicioo amago de dano y perjuicio.

Creo que la personalidad o derecho de accion de losrecurrentes es incuestionable. En primer lugar,

11 de ellosson miembros del Congreso, y alegan que se les privo delderecho de votar al
considerarse la resolucion cuestionaday que si se les hubiese permitido votar dicha resolucion no
hubiese obtenido la sancion de las tres cuartas-partes (3/4) que requiere la Constitucion. ¿Que
mayor interes legalque este? Ellos dicen que sus votos hubieran sido decisivos, que con su
intervencion parlamentaria hubies en salvado alpaid de lo que consideran amago de una tremenda
calamidad publica — la concesion de iguales derechos a los americanos para explotar nuestros
recursos naturales y utilidades publicas. ¿No es este amago de dano, para ellos individualmente y
para el pais colectivamentem, adecuado y suficiente para crear un interes legal? En el asunto de
Coleman vs. Miller, supra, se suscito esta misma cuestion y se resolvio a favor de los recurrentes.
Como ya hemos visto, estos eran 20 Senadores del Estado de Kansas que alegaban que en la
propuesta ratificacion de la 18.ª Enmienda a la Constitucion Federal sus votos que daron abatidos
por elvoto decisivo del Teniente Gobernador. La Corte Federal declaro que esto constituia interes
legal suficiente y adecuado.

En segundo lugar, los recurrentes alegan ser ciudadanos, electores y contribuyentes de Filipinas.
Naturalmente, como tales tienen derecho a participar en la explotacion de nuestros recursos
naturales y operacion de utilidades publicas, con exclusion de los americanos y otros extranjeros.
De ello se sigue logicamente que cualguier actolegislativo que anule y abrogue esa exclusividad
afectarapersonalmente a sus derechos, amagandolos de un probable perjuicio. Esto, a mi juicio,
crea un interes legalade cuado u suficiente para litigar. Esto no es un interesmeramente academico,
abstracto. (Vease Hawke vs.Smith, 253 U.S., 221, 227; 64 Law. ed., 871, 875; 40 Sup.Ct., 495; 10
A. L. R., 1504; veanse tambien Leser vs.Garnett, 258 Ud.S., 130, 137; 66 Law. ed., 505, 571; 42
Sup.Ct., 217; Coleman vs. Miller, 122 A. L. R., 698.)
En el asunto de Hawke vs. Smith, supra, el demandante alegaba ser "ciudadano y elector del
Estado de Ohio, y comoelector y contribuyente del Condado de Hamilton, en sunombre y en el de
otros similarmente situados, presento una solicitud de prohibicion ante el tribunal del Estado para
que se prohibiera al Secretario de Estado a que gastara fondos publicos en la preparacion e
impresion de balotaspara la sumision al electorado de la 18.ª Enmienda a la Constitucion Federal
para su ratificacion. La Corte Suprema Federal fallo que el demandante tenia intereslegal y, por
tanto, personalidad y derecho de accion para demandar.

En el asunto de Leser vs. Garnett, supra, los demandantes alegaban ser electores cualificados de
Maryland y solicitaban la exclusion de ciertas mujeres del censo electoralpor el fundamento de que
la Constitucion de Maryland limitaba el sufragio a los varones y la 19.ª Enmiendaa la Constitucion
Federal no habia sido validamente ratificadaa. Lo Corte Suprema Federal fallo tambien que los
demandantes tenian interes legal suficiente y adecuado.

IX

Cuando se celebraron las audiencias en este asunto sele pregunto a uno de los abogados de los
recurridos, creo que el mismo Secretario de Justicia, cual seria el remedio legal para los
recurrentes, ya que se sostiene que en elpresente caso se trate de una materia no judicial,
injusticiable, y, que, por tanto, los tribunales nada tienen que hacer. El Secretario de Justicia
contesto: ninguno. Lounico que los recurrentes pueden hacer es esperar las elecciones y plantear el
caso directamente ante el pueblo, unico juez en las controversias de caracter politico. Esto mismose
dijo en el caso de Vera contra Aveino, supra, y reiterolo que alli he dicho sobre este argumento, a
saber:

Solo nos queda por considerar el argumento deprimente, desalentadorde que el caso que nos
ocupa no tiene remedio ni bajo la Constitucion ni bajo las leyes ordinarias. A los recurrentes se
lesdice que no tienen mas que un recurso: esperar laas elecciones y plantear directamente la
cuestion ante el pueblo elector. Si los recurrentes tienen razon, el pueblo les reivindicara
eligiendoles o elevandoa su partido al poder, repudiando, en cambio, a los recurridoso a su partido.
Algunas cosas se podrian decir acerca de este argumento. Se podria decir, por ejemplo, que el
remedio no es expeditoni adecuado porque la mayoria de los recurridos han sido elegidos para un
periodo de seis anos, asi que no se les podra exigir ninguna responsabilidad por tan largo tiempo.
Se podria decir tambien que en una eleccion politica entran muchos factores, y es posible quela
cuestion que se discute hoy, con ser tan fervida y tan palpitante, quede, cuando llegue el caso,
obscurecida por otros "issues" maspresionantes y decisivos. Tambien se podria decir que,
independientemente de la justicia de su cuasa, un partido minoritario siemprelucha con desventaja
contra el partido mayoritario.

Pero, a nuestro juicio, la mejor contestacion al argumento esque no cabe concebir que los
redactores de la Constitucion filipina hayan dejado en medio de nuestro sistema de gobierno un
peligros ovacio en donde quedan paralizados los resortes de la Constituciony de la ley, y el
ciudadano queda inerme, impotente frente a lo que el considera flagrante transgresion de sus
derechos. Los redactoresde la Constitucion conocian muy bien nuestro sistema de gobierno —
sistema presidencial. Sabian muy bien que este no tiene la flexibilidaddel tipo ingles — el
parlamentario. En Inglaterra y en lospaises que siguen su sistema hay una magnifica valvula de
seguridad politica; cuando surge una grave crisis, de esas que sacudenlos cimientos de la nacion, el
parlamento se disuelve y se convocanelleciones generales para que el pueblo decida los grandes
"issues" del dia. Asi se consuman verdaderas revoluciones, sin sangre, sin violencia. El sistema
presidential no tiene esa valvula. El periodo que media de eleccion a eleccion es inflexible. Entre
nosotros, porejemplo, el periodo es de seis años para el Senado, y de cuatro años para la Camara
de Representantes y los gobiernos provinciales y municipales. Solamente se celebran elecciones
especiales para cubrir vacantes que ocurran entre unas elecciones generalesy otras. Se
comprendera facilmente que bajo un sistema asi esharto peligroso, es jugar con fuego el posibilitar
situaciones dondeel individuo y el pueblo no puedan buscar el amparo de la Constitucion y de las
leyes, bajo procesos ordenados y expeditos, paraprotegar sus derechos. (Vera contra Avelino,
pags. 363, 364.)

Fued Jefferson quien dijo que como medida de higiene politicaera conveniente que el pueblo
americano tuviera una revolucion cada veinte años. Parece que el gran democratadijo esto no por el
simple prurito de jugar con laparadoja, con la frase, sino convencido de que la revoluciones el mejor
antidoto para la tirania o los amagos de tirania.

Grande como es el respeto que merecen las opiniones delinmortal autor de la Decaraction de
Independencia, creoque la revolucion es siempre revolucion, la violencia es siempre violencia: caos,
confusion, desquiciamiento de los resortes politicos y sociales, derramamiento de sangre, perdidade
vidas y haciendas, etcetera, etcetera. Asi que normalmente ninguno puede desear para su pais la
violencia, aun en nombre de la vitalidad, de la salud publica.

Estoy convencido de que el mejor ideal politico es la revolucionsin sangre, esa que no pocas veces
se ha consumado v. gr. en la historia contemporanea de Inglaterra, yaun de America misma. Y ese
ideal es perfectamente realizable permitiendo el amplio juego de la Constitucion y delas leyes,
evitando pretextos a la violencia, y no posibilitando situaciones de desamparo y desesperacion.

Por eso creo sinceramente que la mejor politica, la mejordoctrina judicial es la que en todo tiempo
encauza y fomentalos procesos ordenados de la Constitucion y de la ley.

Footnotes

PERFECTO, J., dissenting:

1
Omitted.

BRIONES, M., con quien esta conforme FERIA, M., dissidente:

1
Jose O. Vera, Ramon Diokno y Jose E. Romero.

2
Senadores: Alejo Mabanag, Carlos P. Garcia, Eulogio Rodriguez, Tomas Confesor, Tomas Cabili,
Jose O. Vera, Ramon Diokno, y Jose E. Romero.

Representantes: Juvenal Almendras, Paulino Alonzo, Apolinario Cabigon, Floro Crisologo, Gabriel
Dunuan, Cosme B. Garcia, Agustin Y. Kintanar, Vicente Logarta, Francisco A. Perfecto, Cipriano P.
Primicias, Nicolas Rafols, Jose V. Rodriguez, Juan de G. Rodriguez, Felixberto M. Serrano,
Conrado Singson, George K. Tait, y Leandro A. Tojong.

Presidentes de Partido: Jose O. Vera, Jesus G. Barrera, Emilio Javier y Sofronio Quimson,
Nacionalista Party, Democratic Alliance, Popular Front y Philippine Youth Party, respectivamente.

3
Comision de Elecciones: Jose Lopez Vito, Francisco Enage y Vicente de Vera, respectivamente.

Marciano Guevara, Paciano Dizon y Pablo Lucas, Tesorero, Auditor y Director de Imprenta,
respectivamente.
4
La politica de nacionalizacion de la recursos naturales yutilidades publicas incorporada en nuestra
Constitucion no es unapolitica nueva, sino que trae su origen de nuestro pasado remoto, dela
historia colonial misma de España en Filipinas. Los primeros conflictos de los filipinos con los
conquistado es tenian por causala propiedad de la tierra; los filipinos se esforzaban por reivindicarel
dominio del suelo que creian detentado por los colonizadores. Estos conflictos fueron agravandose
con el tiempo condensan dose enla formidable cuestion agraria que en las postrimerias del siglo
diecinueve fue enm gran parte la causa de la revolucion contra España. Lass campanas de Rizal y
de los laborantes, y el Katipunan de Bonifacio tomaron gran parte de su fuerza, de su valor
combativo, delos agravios provocados por la cuestion agraria. La Liga Filipinade Rizal estaba
fundamentalmente basada en un ideario economico nacionalista, de control y dominio sobre la
riqueza y recursos delpais.

"Cuando America establecio aqui su soberania su mayor acierto consistio en echar los cimientos de
su politica fundamental de 'Filipinas para los filipinos.' Primero el Presidente McKinley, y despues los
Presidentes Taft y Wilson, consolidaron esta politica. El congresoaprobo leyes tendentes a la
conservacion de terrenos publicos yrecursos naturales, entre ellas la Ley de 1.º de Julio de 1902
conocida por Ley Cooper. En estas leyes se limitaba y restringia la adquisiciony uso de bienes de
dominio publico por particulares.

"Una pruebaf palmaria del celo del Congreso americano por mantener rigidamente la politica de
conservacion del patrimonio delos filipinos fue la investigacion congresional provocada por el
Congresista Martin, de Colorado, en relacion con la venta de terrenos delos frailes en Mindoro, a
una compañia americana en exceso de las 1,024 hectareas fijadas en las leyes de terrenos
publicos. Esto diolugar a uno de los episodios mas famosos en la carrera del Comisionado
Residente Quezon. Este relata su campaña en su autobiografia 'The Good Fight,' a saber:

"'My next address to Congress took place when a congressional investigation was being urged by
Congressman Martin of Colorado to determine how the Government of the Philippines was carrying
out the policy laid down by Congress, that limited to 1024 acres the maximum area of government
land that could be sold to corporations or individuals. This law had been enacted soon after the
United States has taken the Philippines to prevent the exploitation of the Filipino people by
capitalists, whether foreigners or natives. American capital interested in the sugar industry has
acquired two very large tracts of land which the Philippine Government had bought from the friars
with the funds bonds issued under the security of the Philippine Government. The avowed purpose
in buying these extensive properties from the Spanish religious orders was to resell them in small
lots to Filipino farmers, and thus to do away with absentee landlordism which had been the most
serious cause of the Philippine rebellion against Spain. The reason given for the sale of these lands
to American capital by the American official in charge of the execution of the congressional policy
were two-fold: First, that the act of Congress referred only to lands of the public domain not to lands
acquired by the Government in some other way. And second, that the sale of these lands was made
in order to establish the sugar industry in the Philippines on a truly grand scale under modern
methods, as had been done in Cuba. It was further alleged that such a method would bring great
prosperity to the Philippines.

"'I spoke in support of the proposed investigation, contending that the establishment of the sugar
industry under those conditions would mean the debasement of the Filipinos into mere peons.
'Moreover,' I argued, 'large investments of American capital in the Philippines will inevitably result in
the permanent retention of the Philippines by the United States.' At the climax of ny speech I roared:
If the preordained fate of my country is either to be a subject people but rich, or free but poor, I am
unqualifiedly for the latter.'
"'The investigation was ordered by the House of Representatives, and although the sales already
made were not annulled, no further sales were made in defiance of the Congressional Act. (The
Good Fight, by President Quezon, pp. 117-119.)'

"Para implementar la politica de nacionalizacion el gobierno filipino bajo la Ley Jones y la Ley del
Commonwealth fundo con una gruesa capitalizacion las corporaciones economicas del Estado
comoel Philippine National Bank, National Development Company, National Cement Company,
National Power Corporation, y otras.

"Para reglamentar y supervisar las utilidades y servicios publicos se creo la Comision de Servicios
Publicos."

The Lawphil Project - Arellano Law Foundation

Constitution
Statutes
Executive Issuances
Judicial Issuances
Other Issuances
Jurisprudence
International Legal Resources
AUSL Exclusive

G.R. No. L-35925

CHARITO PLANAS, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35929 January 22, 1973

PABLO C. SANIDAD, petitioner,

vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35940 January 22, 1973

GERARDO ROXAS, etc., et al. petitioners,

vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35941 January 22, 1973

EDDIE B. MONTECLARO, petitioner,

vs.
THE COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35942 January 22, 1973

SEDFREY A. ORDOÑEZ, et al., petitioners,
vs.
THE NATIONAL TREASURER OF THE PHILIPPINES, et al., respondents.

G.R. No. L-35948 January 22, 1973

VIDAL TAN, et al., petitioners,

vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35953 January 22, 1973

JOSE W. DIOKNO, et al., petitioners,

vs.
THE COMMISSION ON ELECTIONS, respondents.

G.R. No. L-35961 January 22, 1973

JACINTO JIMENEZ, petitioner,

vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35965 January 22, 1973

RAUL M. GONZALES, petitioner,

vs.
THE HONORABLE COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35979 January 22, 1973

ERNESTO HIDALGO, petitioner,

vs.
COMMISSION ON ELECTIONS, et al., respondents.

Ramon A. Gonzales for petitioner Charito Planas.

Pablito V. Sanidad and Gerardo L. Catipon for petitioner Pablo C. Sanidad.

Jovito R. Salonga and Associates and Rodrigo Law Office for petitioners Gerardo Roxas, etc., et al.

Quijano and Arroyo for petitioner Eddie B. Monteclaro.

Sedfrey A. Ordonez and Associates for petitioners Sedfrey A. Ordonez, et al.

Lorenzo M. Tañada for petitioners Vidal Tan, et al.

Francis E. Garchitorena for petitioners Jose W. Diokno, et al.

Jacinto Jimenez in his own behalf.

Raul M. Gonzales in his own behalf.

Ernesto Hidalgo in his own behalf.

Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T.
Limcaoco, Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for respondents.

CONCEPCION, C.J.:

On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by
Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose
amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was
implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of
which the election of delegates to said Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was
in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed
Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of
the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for ratification or
rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional
Convention, and appropriating funds therefor," as well as setting the plebiscite for said ratification or
rejection of the Proposed Constitution on January 15, 1973.

Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G. R. No. L-35925,
against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to
enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any
manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential Decree
"has no force and effect as law because the calling ... of such plebiscite, the setting of guidelines for
the conduct of the same, the prescription of the ballots to be used and the question to be answered
by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged
exclusively in Congress ...," and "there is no proper submission to the people of said Proposed
Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and
there being no sufficient time to inform the people of the contents thereof."

Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the
Commission on Elections (Case G.R. No. L-35929); on December 11, 1972, by Gerardo Roxas, et
al., against the Commission on Elections, the Director of Printing, the National Treasurer and the
Auditor General (Case G.R. No. L-35940), by Eddie B. Monteclaro against the Commission on
Elections and the Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey A. Ordoñez,
et al. against the National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on
December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the
Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-35948), and by Jose
W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No. L-35953);
on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor
General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R. No.
L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor General (Case G. R. No. L-35965); and on
December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of
Education, the National Treasurer and the Auditor General (Case G.R. No. L-35979).

In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their
answers "not later than 12: 00 (o'clock) noon of Saturday, December 16, 1972." Said cases were,
also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was
continued on December 19, 1972. By agreement of the parties, the aforementioned last case - G.R.
No. L-35979 — was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of
the hearing, on that date, the parties in all of the aforementioned cases were given a short period of
time within which "to submit their notes on the points they desire to stress." Said notes were filed on
different dates, between December 21, 1972, and January 4, 1973.

Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the
effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed
Constitution. On December 23, the President announced the postponement of the plebiscite for the
ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until
January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to
be held on January 15, 1973, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed
Constitution."

In view of these events relative to the postponement of the aforementioned plebiscite, the Court
deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were known or announced
officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in
regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority to call a plebiscite and appropriate
funds therefor, which Congress unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President — reportedly after consultation with, among others,
the leaders of Congress and the Commission on Elections — the Court deemed it more imperative
to defer its final action on these cases.

In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent
motion," praying that said case be decided "as soon as possible, preferably not later than January
15, 1973." It was alleged in said motion, inter alia:

6. That the President subsequently announced the issuance of Presidential Decree No. 86
organizing the so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin
Today, January 1, 1973];

7. That thereafter it was later announced that "the Assemblies will be asked if they favor or oppose
—

"[1] The New Society;

"[2] Reforms instituted under Martial Law;

"[3] The holding of a plebiscite on the proposed new Constitution and when (the tentative new date
given following the postponement of the plebiscite from the original date of January 15 are February
19 and March 5);

"[4] The opening of the regular session slated on January 22 in accordance with the existing
Constitution despite Martial Law." [Bulletin Today, January 3, 1973.]

8. That it was later reported that the following are to be the forms of the questions to be asked to the
Citizens Assemblies: —
"[1] Do you approve of the New Society?

"[2] Do you approve of the reform measures under martial law?

"[3] Do you think that Congress should meet again in regular session?

"[4] How soon would you like the plebiscite on the new Constitution to be held?" [Bulletin Today,
January 5, 1973;

9. That the voting by the so-called Citizens Assemblies was announced to take place during the
period from January 10 to January 15, 1973;

10 That on January 10, 1973, it was reported that one more question would be added to the four (4)
questions previously announced, and that the forms of the questions would be as follows: —

"[1] Do you like the New Society?

"[2] Do you like the reforms under martial law?

"[3] Do you like Congress again to hold sessions?

"[4] Do you like the plebiscite to be held later?

"[5] Do you like the way President Marcos is running the affairs of the government?" [Bulletin Today,
January 10, 1973; additional question emphasis.]

11. That on January 11, 1973, it was reported that six (6) more questions would be submitted to the
so-called Citizens Assemblies: —

"[1] Do you approve of the citizens assemblies as the base of popular government to decide issues
of national interests?

"[2] Do you approve of the new Constitution?

"[3] Do you want a plebiscite to be called to ratify the new Constitution?

"[4] Do you want the elections to be held in November, 1973 in accordance with the provisions of the
1935 Constitution ?

"[5] If the elections would not be held, when do you want the next elections to be called?

"[6] Do you want martial law to continue?" [Bulletin Today, January 11, 1973; emphasis supplied.]

12. That according to reports, the returns with respect to the six (6) additional questions quoted
above will be on a form similar or identical to Annex "A" hereof;

13. That attached to page 1 of Annex "A" is another page, which we marked as Annex "A-1", and
which reads: —

"COMMENTS ON
QUESTION No. 1

In order to broaden the base of citizens' participation in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it

should not be done so until after at least seven (7) years from the approval of the New Constitution
by the Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebiscite on the New
Constitution.

If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be
deemed ratified.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, of so many debates and
so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections will be enough for stability to
be established in the country, for reforms to take root and normalcy to return.

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him to exercise his powers with
more authority. We want him to be strong and firm so that he can accomplish all his reform programs
and establish normalcy in the country. If all other measures fail, we want President Marcos to
declare a revolutionary government along the lines of the new Constitution without the ad interim
Assembly."

Attention is respectfully invited to the comments on "Question No. 3", which reads: —

"QUESTION No. 3

The vote of the Citizens Assemblies should be considered the plebiscite on the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be
deemed ratified.

This, we are afraid, and therefore allege, is pregnant with ominous possibilities.

14. That, in the meantime, speaking on television and over the radio, on January 7, 1973, the
President announced that the limited freedom of debate on the proposed Constitution was being
withdrawn and that the proclamation of martial law and the orders and decrees issued thereunder
would thenceforth strictly be enforced [Daily Express, January 8, 1973];

15. That petitioners have reason to fear, and therefore state, that the question added in the last list
of questions to be asked to the Citizens Assemblies, namely: —

Do you approve of the New Constitution?" —

in relation to the question following it: —

"Do you still want a plebiscite to call to ratify the new Constitution?" —

would be an attempt to by-pass and short-circuit this Honorable Court before which the question of
the validity of the plebiscite on the proposed Constitution is now pending;

16. That petitioners have reason to fear, and therefore allege, that if an affirmative answer to the two
questions just referred to will be reported then this Honorable Court and the entire nation will be
confronted with a fait accompli which has been attained in a highly unconstitutional and
undemocratic manner;

17. That the fait accompli would consist in the supposed expression of the people approving the
proposed Constitution;

18. That, if such event would happen, then the case before this Honorable Court could, to all intents
and purposes, become moot because, petitioners fear, and they therefore allege, that on the basis of
such supposed expression of the will of the people through the Citizens Assemblies, it would be
announced that the proposed Constitution, with all its defects, both congenital and otherwise, has
been ratified;

19. That, in such a situation, the Philippines will be facing a real crisis and there is likelihood of
confusion if not chaos, because then, the people and their officials will not know which Constitution
is in force.

20. That the crisis mentioned above can only be avoided if this Honorable Court will immediately
decide and announce its decision on the present petition;

21. That with the withdrawal by the President of the limited freedom of discussion on the proposed
Constitution which was given to the people pursuant to Sec. 3 of Presidential Decree No. 73, the
opposition of respondents to petitioners' prayer that the proposed plebiscite be prohibited has now
collapsed and that a free plebiscite can no longer be held.

At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L-
35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and
L-35942, "Sedfrey A. Ordonez, et al. v. The National Treasurer, et al."

The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the
respondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "not
later than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 filed a "supplemental motion for issuance of
restraining order and inclusion of additional respondents," praying —
... that a restraining order be issued enjoining and restraining respondent Commission on Elections,
as well as the Department of LocaI Governments and its head, Secretary Jose Rono; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de Vega; their deputies, subordinates and
substitutes, and all other officials and persons who may be assigned such task, from collecting,
certifying, and announcing and reporting to the President or other officials concerned, the so-called
Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met
during the period comprised between January 10 and January 15, 1973, on the two questions
quoted in paragraph 1 of this Supplemental Urgent Motion.

In support of this prayer, it was alleged —

3. That petitioners are now before this Honorable Court in order to ask further that this Honorable
Court issue a restraining order enjoining herein respondents, particularly respondent Commission on
Elections as well as the Department of Local Governments and its head, Secretary Jose Rono; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies, subordinates
and/or substitutes, from collecting, certifying, announcing and reporting to the President the
supposed Citizens' Assemblies referendum results allegedly obtained when they were supposed to
have met during the period between January 10 and January 15, 1973, particularly on the two
questions quoted in paragraph 1 of this Supplemental Urgent Motion;

4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void particularly
insofar as such proceedings are being made the basis of a supposed consensus for the ratification
of the proposed Constitution because: —

(a) The elections contemplated in the Constitution, Article XV, at which the proposed constitutional
amendments are to be submitted for ratification, are elections at which only qualified and duly
registered voters are permitted to vote, whereas, the so-called Citizens' Assemblies were
participated in by persons 15 years of age and older, regardless of qualifications or lack thereof, as
prescribed in the Election Code;

(b) Elections or plebiscites for the ratification of constitutional amendments contemplated in Article
XV of the Constitution have provisions for the secrecy of choice and of vote, which is one of the
safeguards of freedom of action, but votes in the Citizens' Assemblies were open and were cast by
raising hands;

(c) The Election Code makes ample provisions for free, orderly and honest elections, and such
provisions are a minimum requirement for elections or plebiscites for the ratification of constitutional
amendments, but there were no similar provisions to guide and regulate proceedings of the so-called
Citizens' Assemblies;

(d) It is seriously to be doubted that, for lack of material time, more than a handful of the so-called
Citizens' Assemblies have been actually formed, because the mechanics of their organization were
still being discussed a day or so before the day they were supposed to begin functioning: —

"Provincial governors and city and municipal mayors had been meeting with barrio captains and
community leaders since last Monday (January 8, 1973) to thresh out the mechanics in the formation
of the Citizens' Assemblies and the topics for discussion," (Bulletin Today, January 16, 1973).

It should be recalled that the Citizens' Assemblies were ordered formed only at the beginning of the
year (Daily Express, January 1, 1971), and considering the lack of experience of the local organizers
of said assemblies, as well as the absence of sufficient guidelines for organizations, it is too much to
believe that such assemblies could be organized at such a short notice.

5. That for lack of material time, the appropriate amended petition to include the additional officials
and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could not
be completed because, as noted in the Urgent Motion of January 12, 1973, the submission of the
proposed Constitution to the Citizens' Assemblies was not made known to the public until January
11, 1973. But be that as it may, the said additional officials and agencies may be properly included in
the petition at bar because: —

(a) The herein petitioners have prayed in their petition for the annulment not only of Presidential
Decree No. 73, but also of "any similar decree, proclamation, order or instruction"

so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed Constitution
to a plebiscite by the so-called Citizens' Assemblies, is properly in issue in this case, and those who
enforce, implement, or carry out the said Presidential Decree No. 86, and the instructions incidental
thereto clearly fall within the scope of this petition;

(b) In their petition, petitioners sought the issuance of a writ of preliminary injunction restraining not
only the respondents named in the petition but also their "agents" from implementing not only
Presidential Decree No. 73, but also "any other similar decree, order, instruction, or proclamation in
relation to the holding of a plebiscite on January 15, 1973 for the purpose of submitting to the Filipino
people for their ratification or rejection the 1972 Draft or proposed Constitution approved by the
Constitutional Convention on November 30, 1972'; and finally,

(c) Petitioners prayed for such other relief which may be just and equitable. (p. 39, Petition).

"Therefore, viewing the case from all angles, the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion, can lawfully be reached by the processes of this
Honorable Court by reason of this petition, considering, furthermore, that the Commission on
Elections has under our laws the power, among others, of: —

"a) Direct and immediate supervision and control over national, provincial, city, municipal and
municipal district officials required by law to perform duties relative to the conduct of elections on
matters pertaining to the enforcement of the provisions of this Code ... ." (Election Code of 1971,
Sec. 3).

6. That unless the petition at bar is decided immediately and the Commission on Elections, together
with the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent
Motion are restrained or enjoined from collecting, certifying, reporting or announcing to the President
the results of the alleged voting of the so-called Citizens' Assemblies, irreparable damage will be
caused to the Republic of the Philippines, the Filipino people, the cause of freedom and democracy,
and the petitioners herein because:

(a) After the result of the supposed voting on the questions mentioned in paragraph 1 hereof shall
have been announced, a conflict will arise between those who maintain that the 1935 Constitution is
still in force, on the one hand, and those who will maintain that it has been superseded by the
proposed Constitution, on the other, thereby creating confusion, if not chaos;

(b) Even the jurisdiction of this Court will be subject to serious attack because the advocates of the
theory that the proposed Constitution has been ratified by reason of the announcement of the results
of the proceedings of the so-called Citizens' Assemblies will argue that, General Order No. 3, which
shall also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, has
placed Presidential Decrees Nos. 73 and 86 beyond the reach and jurisdiction of this Honorable
Court.

On the same date — January 15, 1973 — the Court passed a resolution requiring the respondents in
said case G.R. No. L-35948 to "file an answer to the said motion not later than 4 P.M., Tuesday,
January 16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the
case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on
the writer of this opinion and said that, upon instructions of the President, he (the Secretary of
Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been
signed by the President. Thereupon, the writer returned to the Session Hall and announced to the
Court, the parties in G.R. No. L-35948 — inasmuch as the hearing in connection therewith was still
going on — and the public there present that the President had, according to information conveyed
by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning. Thereupon, the
writer read Proclamation No. 1102 which is of the following tenor:

BY THE PRESIDENT OF THE PHILIPPINES

PROCLAMATION NO. 1102

ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION

PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional

Convention is subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in

chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all
persons who are residents of the barrio, district or ward for at least six months, fifteen years of age
or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members
kept by the barrio, district or ward secretary;

WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen
participation in the democratic process and to afford ample opportunity for the citizenry to express
their views on important national issues;

WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A,
dated January 5, 1973, the following questions were posed before the Citizens Assemblies or
Barangays: Do you approve of the New Constitution? Do you still want a pIebiscite to be called to
ratify the new Constitution?

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561)
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who
voted for its rejection; while on the question as to whether or not the people would still like a
plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight
thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite;

WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the
members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan
ng Mga Barangay has strongly recommended that the new Constitution should already be deemed
ratified by the Filipino people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution
proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been
ratified by an overwhelming majority of all the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come into effect.

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.

Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and
seventy-three.

(Sgd.) FERDINAND E. MARCOS

President of the Philippines

By the President:

ALEJANDRO MELCHOR
Executive Secretary

Such is the background of the cases submitted for Our determination. After admitting some of the
allegations made in the petition in L-35948 and denying the other allegations thereof, respondents
therein alleged in their answer thereto, by way of affirmative defenses: 1) that the "questions raised"
in said petition "are political in character"; 2) that "the Constitutional Convention acted freely and had
plenary authority to propose not only amendments but a Constitution which would supersede the
present Constitution"; 3) that "the President's call for a plebiscite and the appropriation of funds for
this purpose are valid"; 4) that "there is not an improper submission" and "there can be a plebiscite
under Martial Law"; and 5) that the "argument that the Proposed Constitution is vague and
incomplete, makes an unconstitutional delegation of power, includes a referendum on the
proclamation of Martial Law and purports to exercise judicial power" is "not relevant and ... without
merit." Identical defenses were set up in the other cases under consideration.

Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the
Members of the Court have been deliberating on the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it best that each Member write his own views
thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the
points in issue. Hence, the individual views of my brethren in the Court are set forth in the opinions
attached hereto, except that, instead of writing their separate opinions, some Member have
preferred to merely concur in the opinion of one of our colleagues.

What follows is my own view on these cases.

The first question for Our determination is whether We have authority to pass upon the validity of
Presidential Decree No. 73, in view of the Solicitor General's allegation to the effect that said
question is a political one. I am of the opinion — on which the Members of the Court are unanimous
— that the contention of the Solicitor General is untenable and that the issue aforementioned is a
justiciable one. Indeed, the contested decree purports to have the force and effect of a legislation, so
that the issue on the validity thereof is manifestly a justiciable one, on the authority, not only of a
long list of cases in which the Court has passed upon the constitutionality of statutes and/or acts of
the Executive,1 but, also, of no less than that of Subdivision (1) of Section 2, Article VIII of the 1935
Constitution,2 which expressly provides for the authority of this Court to review cases involving said
issue.

Petitioners in G.R. No. L-35948 maintain that the 1971 Constitutional Convention had exceeded its
authority in approving Sections 2, 3 (par. 2) and 12 of Article XVII of the proposed Constitution.
Regardless of the wisdom and moral aspects of the contested provisions of the proposed
Constitution, it is my considered view that the Convention was legally free to postulate any
amendment it may deem fit to propose — save perhaps what is or may be inconsistent with what is
now known, particularly in international law, as Jus Cogens — not only because the Convention
exercised sovereign powers delegated thereto by the people — although insofar only as the
determination of the proposals to be made and formulated by said body is concerned — but, also,
because said proposals cannot be valid as part of our Fundamental Law unless and until "approved
by the majority of the votes cast at an election at which" " said proposals "are submitted to the
people for their ratification," as provided in Section 1 of Art. XV of the 1935 Constitution.

As regards the authority of the President to issue Presidential Decree No. 73, "submitting to the
Filipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic of
the Philippines proposed by the 1971 Constitutional Convention and appropriating funds therefor," I
find it unnecessary, for the time being, to pass upon such question, because the plebiscite ordained
in said Decree has been postponed. In any event, should the plebiscite be scheduled to be held at
any time later, the proper parties may then file such action as the circumstances may justify.

With respect to the question whether or not martial law per se affects the validity of a submission to
the people for ratification of specific proposals for amendment of the Constitution, I consider this
matter as one intimately and necessarily related to the validity of Proclamation No. 1102 of the
President of the Philippines. This question has not been explicitly raised, however, in any of the
cases under consideration, said cases having been filed before the issuance of such Proclamation,
although the petitioners in L-35948 maintain that the issue on the referral of the Proposed
Constitution to the Citizens' Assemblies may be deemed and was raised in their Supplemental
Motion of January 15, 1973. At any rate, said question has not been adequately argued by the
parties in any of these cases, and it would not be proper to resolve such a transcendental question
without the most thorough discussion possible under the circumstances. In fairness to the petitioners
in L-35948 and considering the surrounding circumstances, I believe, therefore, that, instead of
dismissing the case as moot and academic, said petitioners should be given a reasonable period of
time within which to move in the premises.

Recapitulating the views expressed by the Members of the Court, the result is this:

1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No.
73.

2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra
and myself, or six (6) Members of the Court, are of the opinion that the issue has become moot and
academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold the validity of said
Decree.

3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to
incorporate therein the provisions contested by the petitioners in
L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue has become
moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to
uphold the authority of the Convention.
4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had
authority to continue in the performance of its functions despite the proclamation of Martial Law. In
effect, Justices Barredo, Makasiar and Antonio hold the same view.

5. On the question whether the proclamation of Martial Law affected the proper submission of the
proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, Justice
Fernando is of the opinion that there is a repugnancy between the election contemplated under Art.
XV of the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the
petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra are of the
opinion that that issue involves question of fact which cannot be predetermined, and that Martial
Law per se does not necessarily preclude the factual possibility of adequate freedom for the
purposes contemplated.

6. On Presidential Proclamation No. 1102, the following views were expressed:

a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and myself are of the
opinion that question of validity of said Proclamation has not been properly raised before the Court,
which, accordingly, should not pass upon such question.

b. Justice Barredo holds that the issue on the constitutionality of Proclamation No. 1102 has been
submitted to and should be determined by the Court, and that the "purported ratification of the
Proposed Constitution ... based on the referendum among Citizens' Assemblies falls short of being
in strict conformity with the requirements of Article XV of the 1935 Constitution," but that such
unfortunate drawback notwithstanding, "considering all other related relevant circumstances, ... the
new Constitution is legally recognizable and should be recognized as legitimately in force.

c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been ratified in
accordance with Article XV of the 1935 Constitution, and that, accordingly, it has no force and effect
whatsoever.

d. Justice Antonio feels "that the Court is not competent to act" on the issue whether the Proposed
Constitution has been ratified by the people or not, "in the absence of any judicially discoverable and
manageable standards," since the issue "poses a question of fact.

7. On the question whether or not these cases should dismissed, Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their
respective opinions. Justices Fernando, Teehankee and the writer similarly voted, except as regards
Case No. L-35948 as to which they voted to grant to the petitioners therein a reasonable period of
time within which to file appropriate pleadings should they wish to contest the legality of Presidential
Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the petitioners in said
Case No.
L-35948 for the aforementioned purpose, but he believes, in effect, that the Court should go farther
and decide on the merits everyone of the cases under Consideration.

WHEREFORE, all of the aforementioned cases are hereby dismissed, without special
pronouncement as to costs.

It is so ordered.

Makasiar, J., concur.

Separate Opinions

MAKALINTAL and CASTRO, JJ., concurring:

The principal relief prayed for in the petition in G.R. NO. L-35948 is to declare "Sections 2, 3 (par 2),
and 12 of Article XVII, of the 1972 Draft on proposed Constitution approved by the 1971
Constitutional Convention on November 30, 1972 as well as Presidential Decree No. 73 or any
similar decree, proclamation, order or instruction unconstitutional, null and void, ..." Basically,
although couched in different language, it is the same relief sought in the other petitions.

Article XVII contains the transitory provisions. Section 2 thereof refers to the membership of the
interim National Assembly, which includes, among others, "those Delegates to the (1971)
Constitutional Convention who have opted to serve therein by voting affirmatively for this Article."
Section 3 (par. 2) provides that "(A)ll proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part of the law of the land, and
shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders,
decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly
modified or repealed by the regular National Assembly." And Section 12 states in part: "All treaties,
executive agreements, and contracts entered into by the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations, are hereby
recognized as legal, valid, and binding ..."

Presidential Decree No. 73, issued on December 1, 1972, called for a plebiscite to be held on
January 15, 1973, wherein the proposed Constitution would be submitted for ratification. At the same
time it appropriated the sum of P15,000,000.00 for that purpose. It was primarily to stop the said
plebiscite from being held that these petitions were filed.

The specific grounds alleged in the petition in G.R. No. L-35948 to support the relief prayed for
which are fairly representative of the others, read as follows:

I. The President of the Philippines has no power to call a plebiscite for the ratification or rejection of
the 1972 Draft; neither has he the power to appropriate funds for the holding of the said plebiscite.

II. The 1972 Draft is vague and incomplete. It makes an unconstitutional delegation of power. And it
contains provisions which were beyond the power of the convention to enact. All these have made
the 1972 Draft unfit for "proper submission" to the people.

III. The period of time between November 30, 1972 when the 1972 Draft was approved, and January
15, 1973, the date the plebiscite will be held, is too inadequate for the people to be informed of the
contents of the 1972 Draft, and to study and discuss them so that they could thereafter intelligently
cast their vote.

Towards the end of December 1972 it was announced in the newspapers that the President had
postponed the plebiscite to a date to be fixed later, although tentatively February 19 and March 5,
1973 were mentioned. The announcement was made officially in General Order No. 20, dated
January 7, 1973. Then on January 17, 1973 the President issued Proclamation No 1102, certifying
that the proposed Constitution had been ratified by the Citizens Assemblies created under
Presidential Decree No. 86, issued on December 31, 1972, and that therefore it had become
effective.
In view of the foregoing developments which supervened after the petitions herein and the answers
thereto were filed and the cases argued by the parties, the issues raised in grounds Nos. I and III
abovequoted have become moot. The plebiscite sought to be enjoined did not take place on January
15, 1973. Indeed, its postponement to some indefinite date in the future rendered the petition also
premature. But of course whether the petition is moot or premature makes no material difference as
far as these cases are concerned, since the announced ratification of the proposed Constitution by
the Citizens Assemblies has made it unlikely that any plebiscite will be held.

With respect to ground No. II we are of the opinion that the question of whether or not the proposals
referred to by the petitioners, specifically Secs. 2, 3 (par. 2) and 12, were proper for submission to
the people for ratification has likewise become moot because of the President's Proclamation No.
1102 certifying that such ratification has already taken place. If they may be assailed at all as invalid
it should be not as mere proposals by the Convention but already as provisions of the Constitution,
and certainly not in the present cases in the state in which they have been submitted for decision.

There was an attempt on the part of counsel for the petitioner in G.R. No. L-35948 during the oral
argument on his urgent motion for early decision to question the validity of Proclamation No. 1102.
This question is not within the purview of the petition and involves issues which have neither been
raised nor argued herein, having arisen in a new and different setting and frame of reference, and
hence may only be ventilated, if at all, in an appropriate case or at least through appropriate
pleadings so that the parties may be duly heard.

We therefore vote to dismiss the petitions.

TEEHANKEE, J., concurring:

Without prejudice to the filing of a separate extended opinion, I concur with the Chief Justice in his
separate opinion and add the following brief comments.

The Solicitor General's Office on behalf of respondents manifested as of its last comment of January
16, 1973 that "(W)ith respect to the statement in the Joint Manifestation that Presidential Decree No.
73 which calls for the holding of the plebiscite on January 15, 1973 still stands, the plebiscite
scheduled to be held on January 15, 1973 has been postponed until further notice by virtue of
General Order No. 20, dated January 7, 1973, of President Ferdinand E. Marcos."

On the other hand, Presidential Proclamation No. 1102 issued on January 17, 1973 recites as a
premise thereof, inter alia, that "since the referendum results show that more than ninety-five (95)
per cent of the members of the Barangays (Citizens Assemblies)1 are in favor of the New
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution
should already be deemed ratified by the Filipino people."2

Under the circumstances of record from which it appears that no election (or plebiscite) for the
purpose has been called and held,3 it would be premature for now to hold that the averred
ratification of the Constitution proposed by the 1971 Constitutional Convention has met the
requirements of Article XV of the Constitution that "(S)uch amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification" or of section 16 of Article XVII of the proposed
Constitution itself that "(T)his Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose."

With the result reached by the Court, and the rendering moot of the issues raised against the validity
of Presidential Decree No. 73, I do not deem it necessary to reach and pass upon the grave
constitutional question in its two aspects (a) whether the Constitutional Convention may assume the
power to call the plebiscite (a power historically exercised by Congress) and to appropriate funds
therefor against the Constitutional mandate lodging such power in Congress4 and (b) whether the
Constitutional Convention may delegate such assumed power to the President — absent any
showing of willful default or incapacity on the part of Congress to discharge it.

By the same token, it is unnecessary to resolve the equally grave question of whether certain
matters adopted and proposed by the 1971 Constitutional Convention were ultra vires, e.g. sections
2 and 15 of Article XVII (Transitory Provisions) providing for the delegates of said Convention to
constitute the majority of an interim National Assembly and empowering such Assembly "upon
special call by the interim Prime Minister ..., by a majority vote of all its members, (to) propose
amendments to this Constitution (which) shall take effect when ratified in accordance with Article
Sixteen hereof", which would appear to be in violation of the accepted principles governing
constitutional conventions that they become functus officio upon completion of their function to
formulate and adopt amendments to the Constitution5 for the people's ratification or rejection in the
manner ordained in the Constitution6 — since such convention controlled interim National Assembly
may continue proposing Constitutional amendments by mere majority vote in contrast to
the regular national assembly which would require "a vote of three-fourths of all its members" to
propose such amendments.7

ANTONIO, J., concurring:

The historical events of the last few days have rendered the petitions (G.R. Nos. L-35925, L-35929,
L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979), including the
supplemental petition moot and should be dismissed.

Without prejudice to a more extended opinion later, I concur in the view that implicit in the power of
the Constitutional Convention to propose amendments to the Constitution is its authority to order an
election at which such amendments are to be submitted to the people for ratification and, within the
narrow range implied as necessary for the business of submitting the amendments to the people, the
capacity to appropriate money for the expenses necessary to make such submittal effective.
Independently therefore of the question, whether or not the President may legislate during martial
law, it was certainly within the authority of the President to issue such measures, acting as agent for
and in behalf of the Constitutional Convention to call for a plebiscite, prescribe its terms and
appropriate money for said purpose.

The opinion that the President, as agent of the Convention, could device other forms of election to
determine the will of the majority of the people on the ratification of the proposed Constitution,
establishes a principle that is, not entirely devoid of precedent. The present Constitution of the
United States was ratified in a manner not in accord with the first Constitution of the United States,
which was the Articles of Confederation. The violation was deliberate, but Madison, however
defended the method provided for the adoption of the new Constitution by saying that it was a case
"of absolute necessity" which forced the framers of the new Constitution to resort "to the great
principle of self-preservation; to the transcendental law of nature and of nature's God, which
declares that the safety and happiness of society are the objects at which all political institutions aim,
and to which all such institutions must be sacrificed." While I agree that this precedent is never one
that would justify governmental organs in ignoring constitutional restraints, the fact is the people
themselves had already acted by adopting the procedure devised in the expression of their
sovereign will.

To the contention of one of the petitioners, that the draft of the Constitution contains provisions
beyond the power of the Constitutional Convention to submit for ratification, suffice it to state that
there is nothing that can legally prevent a convention from actually revising the entire Constitution
for, in the final analysis, it is the approval of the people that gives validity to any proposal of
amendment or revision.

I concur in the opinion that martial rule per se, in the light of contemporary events, does not warrant
the presumption that the results of the plebiscite of ratification is not a genuine and free expression
of the popular will.

It poses a question of fact which, in the absence of any judicially discoverable and manageable
standards, or where the access to relevant information is insufficient to assure the correct
determination of the issue, I do not feel that this Court is competent to act.

If the ratification of the new Constitution and the new government erected thereon, is not what it is
represented to be, the expression of the will of the majority or the people are dissatisfied, they have
ample remedy. The instrument itself provides amendment and change. For the only and proper way
in which it should be remedied, is the people acting as a body politic. These questions relate to
matters not to be settled on strict legal principles. For the new Constitution has been promulgated
and great interests have already arisen under it. The political organ in the government has
recognized it and has commenced the implementation of its provisions. Under such circumstances
the Court should therefore refrain from precipitating impossible situations which might otherwise rip
the delicate social and political fabric.

The theory of presumptive collective duress under martial rule is perhaps valid in any other clime. In
the case at bar, it flies against the stark reality of the factual setting. To insist upon it is to ignore the
historical facts that culminated in the national referendum. The people wanted a revolutionary
change. They were aware of the manifold problems of the nation — its poverty, corruption, injustice,
subversion and insurgency and criminality. The sweeping and dramatic reforms during the last few
months buoyed up the hopes of the people that thru the instrumentality of a new charter these gains
of the commonweal may be conserved and further enlarged. In the ambience of such a historical
setting, it would have been presumptuous to assume that the qualified voters in the reportedly more
than fourteen million Filipinos who voted for the new charter, did so not with freedom but from fear.
Such a posture, I cannot accept, for that would demean the courage, integrity and wisdom of the
people themselves.

In all other respects, the opinion of Justice Barredo, merits my concurrence.

ESGUERRA, J., concurring:

I vote to deny all petitions seeking to prohibit the holding of the plebiscite on January 15, 1973, on
the Constitution of November 30, 1972, as provided for in Presidential Decree No. 73 of December
1, 1972. Specifically, I vote to deny the supplemental petition in G.R. No. L-35948 seeking to restrain
the Citizens Assemblies' referendum in connection with that ratification of said Constitution.

My reasons are simple and need no elaborate and lengthy discussion.

1. In the first place, these cases have been moot and academic as the holding of the plebiscite
scheduled for January 15, 1973, has been indefinitely postponed under General Order No. 20 dated
January 7, 1973. Consequently, there is nothing more to prohibit or restrain.

2. In the second place, the supplemental petition in G.R. No. L-35948 to restrain the respondents,
including three additional parties, namely Secretary Jose Rono as head of the Department of Local
Governments; Secretary Conrado Estrella, as head of the Department of Agrarian Reforms and
Secretary Guillermo de Vega, as Chairman of the National Ratification Coordinating Committee, who
were not duly served with summons and have never been heard, has been rendered futile as the
Citizens Assemblies have expressed their decisions to ratify the 1972 Constitution and said officers
have reported to the President and on the basis thereof he has announced the ratification of said
Constitution by Proclamation No. 1102, dated January 17, 1973, effective 12: 00 o'clock noon of said
date. Hence there is also nothing more to restrain or prohibit as the acts sought to be stopped have
been fully accomplished.

I do not attempt to assail the validity of Proclamation No. 1102 as the Court is not in possession of
any evidence to overthrow the veracity of the facts therein related, there being no case formally filed
with the Court attacking the validity of said Proclamation, and, moreover, the parties responsible for
the holding of the referendum or plebiscite by the Citizens Assemblies, which ratified the proposed
Constitution, have not being impleaded and afforded a chance to be heard. In brief, there is
absolutely no basis for making a pronouncement on the validity of the said proclamation, and to do
so would be simply tiding rough shod over the well-beaten road of due process of law which
basically requires notice and full and fair hearing.

Without any competent evidence I do not pretend to know more about the circumstances attending
the holding of said referendum or plebiscite and I cannot say that it was not plainfully held. I assume
that what the proclamation says on its face is true and until overcome by satisfactory evidence, of
which there is absolutely nothing before Us, I cannot subscribe to the claim that such plebiscite was
not held accordingly.

At this stage, whether or not there was a valid ratification of the 1972 Constitution cannot be
resolved without raising the legality of the Government under which we are now operating as of
January 17, 1973. Hence We would be confronted with a political question which is beyond the
jurisdiction of this Court to settle. I accept as a fait accompli that the Constitution adopted on
November 30, 1972, has been duly ratified, and I consider that any assault against it as well as the
manner of its ratification has been innocuous. Having been invested with full force and effect by the
approval of an overwhelming majority of the people, to mount an attack against it now would be
nothing less than fighting the windmills in Don Quijote fashion. I do not wish to emulate that unique
literary character and I prefer to take things in the light of the stark realities of the present. I have
always adhered to the idea that the practical approach to any question yields the happiest solution,
instead of soaring in flights of fantasies and losing one's self in idle metaphysical adventures.

FERNANDO, J., concurring and dissenting:

While I am in agreement with the resolution of the Court dismissing the petitions for their being moot
and academic, I feel that a brief separate opinion expressing my views on certain legal issues would
not be amiss, considering the transcendental character of the suits before us. Indisputably, they
involve the crucial role assumed by the Executive in the proposed submission of the new
Constitution, perhaps unavoidably thrust upon him in view of the declaration of martial law. It is
reassuring that there is a reiteration of the principle that the amending process, both as to proposal
and ratification, raises a judicial question. Notwithstanding the vigor and plausibility with which the
Solicitor-General stressed what for him is the political nature of the controversy, with considerable
support from authorities on constitutional law partial to the judicial restraint approach, it would be, for
me, a plain abdication of the trust reposed in this Court, if it would rule itself as devoid of authority to
inquire into the validity of the steps taken towards the ratification of the proposed amendments. The
most that I can concede is that where the effect of the nullification sought is to prevent the sovereign
people from expressing their will, the utmost caution and circumspection should be exercised.
Now, as to the merits of the issues that would have called for resolution, were it not for the matter
becoming moot and academic. While not squarely raised, the question of whether or not a
constitutional convention could go on meeting with martial law in force has a prejudicial aspect.
Following the ruling in Duncan v. Kahanamoku1 that Legislature and courts continue to function
even under such period, being not merely cherished governmental institutions but indispensable to
the operation of government, there is no doubt in my mind that the same principle should likewise
apply to a constituent body. To the contention pressed by Senator Tanada, as counsel, in Tan v.
Commission on Elections, that the proposed Constitution contains provisions beyond the power of
the Constitutional Convention to submit for ratification, it seems to me a sufficient answer that once
convened, the area open for deliberation to a Constitutional Convention and thereafter to be
embodied in proposed amendments if approved by the majority, is practically limitless.2 In that
sense, it can be truly stated that the Convention can propose anything but conclude nothing. As was
intimated by Justice Makasiar, speaking for the Court in Del Rosario v. Comelec,3 "whether the
Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the
present Constitution and propose an entirely new Constitution based on an ideology foreign to the
democratic system, is of no moment; because the same will be submitted to the people for
ratification. Once ratified by the sovereign people, there can be no debate about the validity of the
new Constitution."4 Once its work of drafting has been completed, it could itself direct the
submission to the people for ratification as contemplated in Article XV of the Constitution. Here it did
not do so. With Congress not being in session, could the President, by the decree under question,
call for such a plebiscite? Under such circumstances, a negative answer certainly could result in the
work of the Convention being rendered nugatory. The view has been repeatedly expressed in many
American state court decisions that to avoid such undesirable consequence, the task of submission
becomes ministerial, with the political branches devoid of any discretion as to the holding of an
election for that purpose.5 Nor is the appropriation by him of the amount necessary to be considered
as offensive to the Constitution. If it were done by him in his capacity as President, such an objection
would indeed have been formidable, not to say insurmountable.6 If the appropriation were made in
his capacity as agent of the Convention to assure that there be the submission to the people, then
such an argument loses force. The Convention itself could have done so.7 It is understandable why
it should be thus. If it were otherwise, then a legislative body, the appropriating arm of the
government, could conceivably make use of such authority to compel the Convention to submit to its
wishes, on pain of being rendered financially distraught. The President then, if performing his role as
its agent, could be held as not devoid of such competence. That brings me to the argument as to the
absence of proper submission, developed with the customary learning and persuasiveness by
Senators Tanada and Salonga. With all due recognition of their forensic skill, I prefer to rely on what,
for me, is the correct principle announced in the opinion of the Chief Justice in Gonzales v.
Commission on Elections:8 "A considerable portion of the people may not know how over 160 of the
proposed maximum of representative districts are actually apportioned by R.B.H. No. 1 among the
provinces in the Philippines. It is not improbable, however, that they are not interested in the details
of the apportionment, or that a careful reading thereof may tend in their simple minds, to impair a
clear vision thereof. Upon the other hand, those who are more sophisticated, may enlighten
themselves sufficiently by reading the copies of the proposed amendments posted in public places,
the copies kept in the polling places and the text of contested resolutions, as printed in full on the
back of the ballots they will use. It is, likewise, conceivable that as many people, if not more, may fail
to realize or envisage the effect of R.B.H. No. 3 upon the work of the Constitutional Convention or
upon the future of our Republic. But, then, nobody can foretell such effect with certainty. From our
viewpoint, the provisions of Article XV of the Constitution are satisfied so long as the electorate
knows that R.B.H. No. 3 permits Congressmen to retain their seats as legislators, even if they should
run for and assume the functions of delegates to the Convention. We are impressed by the factors
considered by our distinguished and esteemed brethren, who opine otherwise, but, we feel that such
factors affect the wisdom of Republic Act No. 4913 and that of R.B.H. Nos. 1 and
3, not the authority of Congress to approve the same. The system of checks and balances
underlying the judicial power to strike down acts of the Executive or of Congress transcending the
confines set forth in the fundamental laws is not in derogation of the principle of separation of
powers, pursuant to which each department is supreme within its own sphere. The determination of
the conditions under which the proposed amendments shall be submitted to the people is
concededly a matter which falls within the legislative sphere. We do not believe it has been
satisfactorily shown that Congress has exceeded the limits thereof in enacting Republic Act No.
4913."9

Nonetheless, were it not for the fact that the matter had become moot and academic, I am for
granting the petitions in view of what, for me, is the repugnancy between an election contemplated
under Article XV of the Constitution in herein the voters can freely register their will, whether it be for
approval or disapproval, and the existence of martial law, with its connotation that dissent may be
fraught with unpleasant consequences. While it is to be admitted that the Administration has done its
best to alleviate such a state of mind, I cannot in all honesty say, although I am prepared to concede
that I may labor under a sense of undue pessimism, that the momentum of fear necessarily incident
to such a regime has been reduced to a minimum. I fail to see then the existence of that
indispensable condition of freedom that would validate the ratification process as contemplated by
the Constitution. As to the validity of Proclamation No. 1102, adherence to what for me are
fundamental concepts of judicial review precludes it this state the expression of any opinion. It
would, at the very least, be premature. 10

BARREDO, J., concurring and dissenting:

With full consciousness of the transcendental consequences of the action the Court is taking in
these cases, not only upon me personally and as a member of the Supreme Court but upon the
Court itself as the guardian of the Constitution, which all its members have solemnly sworn in the
name of God to uphold and defend, and after long and serious consideration of all aspects and
angles of the issues submitted for resolution by the parties, I have come to the sincere conviction
that the petitions herein should be dismissed, including the supplemental petition filed by petitioners
in G.R. No. L-35948, with the consequent denial of the motion for the issuance of a writ of
preliminary injunction or a temporary restraining order enjoining in effect any act which would imply
giving force and effect to the 1972 Constitution which President Ferdinand E. Marcos proclaimed as
ratified in Proclamation No. 1102 as of twelve o'clock noon on January 17, 1973. Without prejudice
to a more extended opinion later, my reasons for this conclusion are as follows:

As of today, two matters present themselves for Our immediate resolution, namely, (1) the petitions
in all of these cases praying for a writ of prohibition against the implementation of Presidential
Decree No. 73 calling for and setting the date and the manner of holding the plebiscite for the
ratification of the Constitution proposed by the 1971 Constitutional Convention, the date set being
January 15, 1973, and (2) the supplemental petition, with prayer for the issuance of a writ of
preliminary injunction or a restraining order, in G.R. No. L-35948 to enjoin whatever ratification of the
said Constitution would be proposed by the Citizens Assemblies, established under Presidential
Decrees Nos. 86, 86-A, and 86-B, and, correspondingly, any act which would give force and effect to
such ratification, should it be proclaimed, which, by the way, everybody knows was already done at
about 11:00 o'clock A.M. on January 17, 1973.

As to No. (1), I vote to dismiss the original petitions in all these cases for the simple reason that the
alleged grounds thereof are either untenable or have been premature, if not somehow moot and
academic, at least, meanwhile that the plebiscite had not been reset.1

(a) There is no question that the matter of whether or not Presidential Decree No. 73 is valid is a
justiciable one and not political, hence within the jurisdiction of this Court to resolve. Tolentino v.
Comelec, G.R. No. L-34150, October 16, 1971, 41 SCRA 702 is sufficient authority for this pose.
(b) On the other hand, I am of the considered view that it is not within the competence of this Court
to pass on the propriety or wisdom of any part or provision of the Constitution as proposed by the
Convention. The Convention was called for the purpose of proposing amendments to the
Constitution, and like any Constitutional Convention it was completely and absolutely free to make
any proposal, whether or not consonant with the 1935 Constitution. The theory of ultra-vires
proposals advanced by petitioners is to me without sufficient legal basis.

(c) Much less can I accept the view that the Convention's task was limited to proposing specific
amendments to become either as new parts of the existing Constitution or as replacements of
corresponding portions thereof, for even if there were any theoretical basis for petitioners' posture in
this regard, I feel safe in saying that when the people elected the delegates to the Convention and
when the delegates themselves were campaigning such limitation of the scope of their function and
objective was not in their minds. Withal, considering the number and nature of the proposals already
being publicly discussed before and after said election, to follow petitioners' suggestion would have
produced confusion and probably insurmountable difficulties even in the framing and phrasing alone
of the amendments so that they may easily and clearly jibe with the other parts of the existing
Constitution.

(d) Regarding the alleged lack of legislative power of the President to issue Presidential Decree No.
73, I maintain that independently of the issue of whether or not the President may legislate during
martial law relative to matters not connected with the requirements of suppressing the armed
insurgency and the maintenance of peace and order, it was within the prerogative of the President to
issue said decree, considering that in doing so he merely acted as agent for and on behalf of the
Constitutional Convention, which, in my opinion written for the Court in the Tolentino case, I
individually held, had the power to call for a plebiscite, prescribe its terms and appropriate money for
the purpose. Disregarding immaterial niceties of form and language, and looking to its obvious intent
and purpose, I hold that Resolution No. 5843 of the Convention, approved on November 22, 1972,
delegated to the President in plenary terms the calling of the plebiscite, and since the ordinary rules
requiring the laying down of standards in the delegation of legislative functions binding Congress do
not, to my mind, apply to the Convention, if only because the latter occupies a higher plane of
legislative authority than Congress in matters related to the accomplishment of its objectives, it
follows that Presidential Decree No. 73 was validly issued.

(e) All the other objections to said decree were rendered premature, if not somehow moot and
academic for the time being, because under General Order No. 20, dated January 7, 1973, the
President postponed the plebiscite until further notice. Such being the case, nobody could positively
say that the President would not allow Congress to pass a plebiscite law or that he would not lift
martial law by then or that the contracts, executive orders, treaties, proclamations, decrees, etc. that
are supposed to be ratified together with the Constitution itself would not be published, for the proper
information of all concerned before the next date to be fixed for the plebiscite. In other words, no one
could say that appropriate steps would not be taken to meet the objections alleged in the petitions
before the plebiscite would be actually held. It is, indeed, judicially improper to pass upon any issue
the factual setting whereof may still be materially altered.

(f) On whether or not the holding of the plebiscite during martial law would materially affect proper
submission insofar as the freedom supposed to attend it is concerned, I agree with the respondents
that this is a question of fact which cannot be pre-determined and that it would, therefore, be the
burden of the petitioners to show by evidence that such freedom had been actually and substantially
impaired. When one recalls that measures were taken by the President precisely to provide the
widest opportunity for free debate and voting, consistent with the nature and purpose of the
plebiscite but at the same time safeguarding the objectives of the martial law proclaimed by him,
which measures he had to withdraw only when in his judgment he deemed it to be so required by
public safety, it does not seem altogether logical to assume that the existence of martial law per se
deprives the people of the essence of free suffrage. Martial law implemented Philippine style, to use
an apt expression, does not carry with it necessarily all the implications thereof as these are known
in other lands and in the recorded precedents.

Coming now to No. (2), it is evident that under the theory above-referred to that as agent of the
Convention, the President could devise other forms of plebiscite to determine the will of the majority
of the people vis-a-vis the ratification of the proposed Constitution, I believe that the establishment of
the Citizens' Assemblies as a mode of such plebiscite cannot be said to be clearly beyond the
contemplation of Article XV of the Constitution of 1935. It must be observed, however, that under
Article X of the same Constitution, it is the Commission on Elections that is supposed to "have
exclusive charge of the enforcement and administration of all laws relative to the conduct of
elections ..." and this function cannot be removed from the Commission whether by Congress or by
the President.2 This constitutional point seems to have been overlooked in the proceedings in the
Assemblies, since it does not appear from any of the official documents relative thereto that the
same have been undertaken or held under the charge of the Commission.

Besides, I feel I cannot bear evidence to history and the future generations of our people that in fact,
the answering of the questions and the canvassing and reporting of the referendum in the
Assemblies throughout the country were done exactly in the manner and form that they should have
been done, in the light of traditional concepts related to plebiscites as we know them. Otherwise
stated, I am not satisfied that Article XV of the 1935 Constitution has been fully complied with. By
this, I do not mean that it was not right to use the Assemblies; what I am saying is that, on the basis
of facts I am taking judicial notice of, the procedure of answering, canvassing and reporting adopted,
which, by the way, was far from being uniform in all the Assemblies, was not up to standard in many
places, judged on the basis of the requirements of the prevailing election laws.

On the other hand, in spite of these considerations, I do not find myself in a position to deny the
factual assertion in Proclamation 1102 that more than 14 million Filipinos have manifested approval
of the proposed Constitution and would consider the same as already ratified by them. I understand
that this number was determined on the basis of sworn reports of the respective heads of the
Assemblies. Such being the case, I am faced with proof which I have no way of duly controverting
that our people have spoken. I consider it undemocratic, impractical and unrealistic to close my eyes
to that vital fact. And since in a democracy the will of the people is the supreme law, I hold that it
would be improper for the Court to enjoin any act done or to be done pursuant to the proclamation in
dispute. I believe that whatever legal flaws there might have been in the procedure pursued leading
to the issuance of said proclamation may be deemed already cured by the apparent will of the
people however imperfectly, under legal and technical standards, the same has been expressed. To
grant the prayer of petitioners now would be tantamount to defying the very sovereign people by
whom and for whom the Constitution has been ordained, absent any demonstrated facts showing
that they prefer the status quo, which the Convention was precisely called to change meaningfully, to
the wide-range reforms everybody can see are being effected in practically all levels of the
government and all sectors of society. Withal, to issue any such injunctive writ at this stage of
denouncement of national events is to court consequences too horrible to imagine.

To the possible stricture that persons less than twenty-one years of age were allowed to participate
and vote in said Assemblies, my reaction is that I am not sure that Article V of the 1935 Constitution,
viewed in the light of the perceptible universal drift towards the enfranchisement of the youth, may
not be construed as permitting legislative enlargement of the democratic base of government
authority, since the said Article does not say that those thereby qualified are the only ones who can
vote - the language being simply that "suffrage may be exercised by male citizens of the Philippines
not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and
write, and who shall have resided in the Philippines for one year and in the municipality wherein they
propose to vote for at least six months preceding the election. ...," which, to me, strictly speaking,
only guarantees the right of suffrage to those enumerated but does not deny to the legislature the
power to include others who in its wisdom it believes should also enjoy such right. In any event, it is
elementary under our election law and jurisprudence that should it appear that disqualified persons
have succeeded in voting in an election, such election is not thereby necessarily rendered wholly
illegal, but the votes of such persons are only correspondingly deducted after being duly identified.
Accordingly, on the premise that the inclusion of those below 21 is illegal, their votes may be
deducted from the 14,000,000 or so aforementioned, and I am certain no one will deny that the
remainder would still be substantially sufficient to constitute a recognizable mandate of the people,
for under normal circumstances which must be presumed, and making the most liberal estimate, the
votes of the under aged voters among them could not have been more than one-third of said
number. Indeed, at the most, if this point had been considered before the issuance of Proclamation
1102, an injunction might have issued to restrain the under aged persons from participating in the
referendum, but now that the result thereof is a fait accompli, I cannot see how such a possible flaw
can be of any material consequence.

As may be noted, I have taken it upon myself to rule on the legal issues surrounding Proclamation
1102. Indeed, I feel very strongly that, as a member of the Supreme Court, it is my duty to our
people to enlighten them as to said issues. The eyes of the whole country have been pinned on Us
since the Convention approved the draft of the Constitution in question on November 30, 1972, and
the President called, on December 1, 1972, thru Presidential Decree No. 73, for a plebiscite
scheduled to be held on January 15, 1973, for its ratification. Concerned citizens purporting to speak
for the people have precisely come to the Court challenging the legality of the procedure thus
pursued as not being in consonance with the amending process specified in the 1935 Constitution
and praying that the Court enjoin the continued adoption of said procedure. Everybody knows that
they came to Us with the conviction that the Court would not hesitate to play its role as the final
authority designated by the Constitution itself to interpret and construe its provisions.

Accordingly, We gave due course to their petitions, and for two days, December 18 and 19, We
heard brilliant and learned counsel of both sides argue eloquently, even with obvious patriotic fervor
but in view of the circumstances related in the separate opinion of the Chief Justice, We were unable
to decide the cases even as late as January 13, 1973. Petitioners then came with motions urgently
seeking an early decision, and soon after, or, on January 15, 1973, petitioners in G.R. No. L-35948
filed a supplemental petition relative to the latest developments involving the creation of Citizens
Assemblies and the persistent reports indicating almost to a certainty that a proclamation would be
issued doing away with the usual plebiscite procedure and already proclaiming the proposed
Constitution as ratified and in force, on the basis alone of the favorable result of a referendum in said
Assemblies. Their main prayer was for Us to issue a writ of prohibition against the submission and
approval of the reports of the results of said referendum. We immediately required the respondents
to answer the supplemental petition not later than January 16 and set the case for hearing on
January 17 at 9:30 o'clock in the morning.

In closing his arguments before the Court that fateful morning, Senator Lorenzo Tanada, the
tenacious counsel for petitioners, pleaded earnestly, even after the Chief Justice had read to him in
open session the text of Proclamation 1102 which had just been delivered by the Secretary of
Justice, that the Court rule squarely on the issues petitioners have raised. He told Us that it is
secondary whether Our judgment should be favorable or unfavorable to petitioners, what is most
important is for the people to know whether or not the provisions of the Constitution have been
observed.

Indeed, no graver responsibility rests on the shoulders of the Court. And as I see it, We cannot shirk
that responsibility by alleging technical excuses which I sincerely believe are at best of controversial
tenability.
I cannot share the view that the validity and constitutionality of Proclamation 1102 have not been
submitted to Us for resolution in these proceedings. I maintain that for all intents and purposes, the
supplemental motion of Senator Tanada of January 15 placed those transcendental issues before
Us. Not only in his pleading but more so in his oral argument, Senator Tanada, with all the vigor of
his mind and the sincere patriotism of his heart, contended that with the creation of the Citizens
Assemblies and the referendum being conducted therein, and particularly in view of the two
questions to be answered, namely, "Do you approve of the proposed constitution?" and "Do you
want the plebiscite to be held?", there was no doubt that Article XV of the Constitution was being
bypassed and that this Court was being "short-circuited." In terms that could not have been plainer,
he pointed to the impending probability of the issuance of a proclamation of the nature of
Proclamation 1102, and he prayed eloquently, that We should act without loss of time to stop the
purported reports of the referendum so as to remove the basis for such feared eventuality. So much
so, that after the Chief Justice read the proclamation to him, he dramatically exclaimed, "I have been
confirmed." Others would have said, "Consummatum est!"

Under these circumstances, I cannot see how it can be held that We can refrain from ruling on the
legal and constitutional significance of Proclamation 1102. At the very least, the present state of the
case of Vidal Tan, et al. vs. Comelec, et al., G.R. No. L-35948, imposes upon Us the ineludible
obligation to rule whether or not We should have enjoined the submission of the reports of the
Assemblies, as demanded by petitioners, it being evident that as Senator Tanada contended said
reports were to be utilized as basis for the issuance of a proclamation declaring the proposed
Constitution as ratified and already in force. In similar past cases too numerous to cite, this Court
and all courts in the country, I dare say, have always considered the consummation of a threatened
act, after the petition to enjoin it has been submitted to the court's jurisdiction, as fit subject for its
disposition, within the same proceedings, to the extent that the courts even issue mandatory
injunctions, in appropriate cases, for the respondents to undo what has already been done without
having to hold any further hearing. It is claimed that the parties must be fully heard — but have we
not heard enough from them? Has not Senator Tanada presented all his arguments in support of his
supplemental petition? And if he has not, is it the fault of the Court? Is it fair to all concerned that
such possible omission be considered as a ground for Our withholding Our judgment on what under
the law and the rules is already properly before Us for resolution? Truth to tell, I cannot imagine a
fuller ventilation of the cause of any other petitioner who has come to this Court than petitioners in
G.R. No. L-35948. Rarely has the Court held hearings for days and more unusually has it given any
counsel almost unlimited time to speak, but these We have done in these cases. Can any party ask
for more? If at all, only the respondents have not adequately presented their side insofar as the
supplemental petition is concerned, but, again, it cannot be said that they have not had the
opportunity to do so. The Acting Solicitor General has unqualifiedly filed his answer on behalf of all
the respondents, and to me, his attempt to impress the Court that the new respondents have not
been summoned and that the subject petition is premised on probabilities and conjectures is of no
moment, considering the grave importance of the issues and the urgent necessity of disposing them
expeditiously and without unnecessary loss of fateful time. Of course, I respect the reasons of my
colleagues who cannot see it my way, but as far as I am concerned, this is as appropriate a case
and an occasion as any can be to resolve all the fundamental issues raised by petitioners, and to
leave them unresolved now would be practically inviting some non-conformists to challenge the
Constitution and to keep not only the wheels of the transition at a standstill, but worse, also the
animus of the people in suspended animation fraught with anxiety, with all the dire consequences
such a situation entails.

Some legalists would call the government under the proclaimed Constitution a revolutionary
government, but the President denies that it is, because, according to him, it is to operate under a
Constitution ratified by the people. At this crucial moment in the history of the nation, We need not
bother about variant nomenclatures; these can be subjective and are, in any event, unsubstantial.
What is of supreme and utmost importance is that the people be told what exactly the situation is,
sans the veneer of what might turn out after all to be an inaccurate appellation. The people must
know the real score, and, as a member of the Supreme Court, I do not hesitate to tell them that, as I
have already explained above, in my honest opinion, the purported ratification of the Constitution
attested in Proclamation 1102 and based on the referendum among the Citizens Assemblies falls
short of being in strict conformity with the requirements of Article XV of the 1935 Constitution. I must
hasten to add, however, that such unfortunate drawback notwithstanding, and considering all other
relevant circumstances, principally, the naked proof before Us indicating that the people approve of
it, I earnestly and sincerely believe that the new Constitution is legally recognizable and should be
recognized as legitimately in force.

I reiterate I have no legal means of denying it to be a fact, as stated in the proclamation, that
14,000,000 Filipinos have manifested in the referendum in the Citizens Assemblies their approval of
this Constitution. And even if We considered that said referendum was held under the aegis of full
implementation of the martial law proclaimed by the President under Proclamation 1081, as
mandated by General Order No. 20, We would not be able to ignore that the government under this
Constitution is well organized and is in stable, effective and complete control of the whole Philippine
territory, and what is more pertinently important, that this Constitution purged as it is now of its
Achilles heel, the Interim National Assembly, may fairly be said to be acceptable generally to the
people, embodying as it does meaningful reforms designed to check, if not to eradicate the then
prevalent causes of widespread popular restiveness and activism which has already assumed
practically the proportions of an armed insurgency or rebellion somehow endangering the security
and safety of the constituted government, if not the integrity of the nation. And in connection with the
implementation of martial law thus ordered, as I have already noted earlier in this opinion, its being
done Philippine style may be of some relevance, since such enforcement is not characterized by the
rigor that the usual concept of martial law connotes, hence, any suggestion of constructive duress
relative to the proceedings in the Assemblies and the Barangays may not fully hold water. Upon
these premises, it is my considered opinion that if in any sense the present government and
Constitution may be viewed as revolutionary, because they came into being, strictly speaking, extra-
constitutionally or outside the pale of the 1935 Constitution, they are nonetheless entitled to be
accorded legitimate standing, for all intents and purposes and for all concerned, under the
universally accepted principle that a revolution, whether violent or bloodless, is illegal only when it
fails to gain the support of the people. Indeed, under these circumstances, I cannot resist the
temptation of asking, is it juridically possible for this Court to declare unconstitutional and without
force and effect the very Constitution under which it presently exists? I am inclined to hold that the
answer to this question can only be in the negative. Consequently, petitioners are not entitled to any
judicial relief and, I have no alternative but to vote for the dismissal of the supplemental petition of
January 15, 1973.

In conclusion, I hold that the 1935 Constitution has pro tanto passed into history and has been
legitimately supplanted by the Constitution now in force by virtue of Proclamation 1102, issued
pursuant to the certified results of the referendum in the Citizens Assemblies all over the country
favoring its adoption and enforcement.

Long live our country, the Philippines! God bless our people, the Filipino people!

ZALDIVAR, J., dissenting:

I cannot agree with my worthy colleagues who hold the view that the petitions in all these have
become moot and academic simply because the relief prayed for by petitioners cannot be granted
after Proclamation No. 1102 was issued by the President of the Philippines. A case does not
become moot where there remain substantial rights or issues that are controverted and which are
not settled.1 This Court has decided cases even if no positive relief, as prayed for by a party in the
case, could be granted, or even if a party has withdrawn his appeal, if the case presented to the
court for resolution is a clear violation of the Constitution or of fundamental personal rights of liberty
and property.2

In the present cases it is in the public interest that this Court renders a ruling on the transcendental
issues brought about by the petition — issues which must be resolved by this Court as the guardian
of the Constitution of this Republic.

For a comprehensive appraisal of the facts and circumstances relevant to the resolution of the
issues involved in these cases, We shall narrate pertinent events, as shown in the record.

On December 1, 1972 the President of the Philippines, in his capacity as Commander-in-Chief of all
the Armed Forces of the Philippines and acting pursuant to Proclamation No. 1081, dated
September 21, 1972, issued Presidential Decree No. 73, submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention, and appropriating funds for the purpose. The Decree states that the same
was issued pursuant to Resolution No. 5843 of the 1971 Constitutional Convention proposing "to
President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the
proposed new Constitution on such appropriate date as he shall determine and providing for the
necessary funds therefor." "3 The decree set the plebiscite for January 15, 1973 and appropriated
the sum of P15,000,000.00 to carry out the purpose of the decree. The Decree provided for the
publication of the proposed Constitution, the dissemination of information regarding the proposed
Constitution, the application of the provisions of the Election Code of 1971 to the plebiscite insofar
as they are not inconsistent with the provisions of the decree, specially stating that the provisions of
said Code regarding the right and obligations of political parties and candidates shall not apply to the
plebiscite. The Decree further provided for a calendar for the plebiscite, for the registration of voters,
for the constitution of the board of inspectors, for watchers, for precincts and polling places, for the
official ballots to be used, for the preparation and transmission of plebiscite returns, for the canvass
of the returns by the city, municipality, and the municipal district board of canvassers, for the
canvass by the Commission on Elections and the proclamation of the results by said Commission,
for supplies and services needed for the holding of the plebiscite, and on the authority given to the
Commission on Elections to promulgate rules and regulations necessary to carry out the provisions
of the Decree.

On December 1, 1972, the President of the Philippines also issued General Order No. 17, ordering
and enjoining the Armed Forces of the Philippines and all other departments and agencies of the
Government to allow and encourage public and free discussions and debates on the proposed
Constitution before the plebiscite set for January 15, 1973.

During the first half of the month of December 1972, the petitioners, in the ten cases now before this
Court, filed petitions for prohibition with preliminary injunction, seeking to prevent the holding of the
plebiscite on January 15, 1973. The petitioners question the validity of Presidential Decree No. 73,
principally upon the ground that it is not in the power of the President of the Philippines to call a
plebiscite for the ratification or rejection of the proposed Constitution and to appropriate public funds
for the purpose. The petitioners also maintain that the period of only about 45 days from the date of
the approval of the proposed Constitution by the Constitutional Convention on November 30, 1972 to
January 15, 1973, was not a sufficient time for the electorate of this country to be properly informed
regarding the provisions of the proposed Constitution, and the electorate could not therefore vote
intelligently on whether to ratify or to reject the proposed Constitution, and so there could be no
proper submission of the proposed Constitution to the electorate. The petitioners further maintain
that the country being under martial law there could not be a free submission of the proposed
Constitution to the electorate. In some of the petitions, the petitioners also maintain that the
proposed Constitution contains provisions which are beyond the power of the Constitutional
Convention to adopt or to propose. All the petitioners prayed this Court to issue a writ of preliminary
injunction or restraining order to prevent the respondents in each of the petitions from implementing
Presidential Decree No. 73. This Court, however, did not issue the preliminary injunction, nor the
restraining order, prayed for. This Court required the respondents in each petition to answer the
petition, and set the cases for hearing on the petition for preliminary injunction and on the merits of
the case for December 18, 1972. Hearings were actually held for two days — on December 18 and
19, 1972.

On December 31, 1972, while these cases were pending before this Court, the President of the
Philippines issued Presidential Decree No. 86 creating the Citizens Assemblies throughout the
country. Among others, Decree No. 86 provides that there is created a citizen assembly in each
barrio in municipalities, and in each district in chartered cities, provided that in the case of Manila
and other chartered cities where there are no barrios there shall be a citizen assembly in every ward;
that the citizen assemblies shall consist of all persons who are residents of the barrio, district, or
ward for at least six months, 15 years of age or over, citizens of the Philippines, and who are
registered in the list of citizens assembly members kept by the barrio, district or ward secretary. As
stated in the decree, the purpose of establishing the citizens assemblies is to broaden the base of
the citizens' participation in the democratic process and to afford ample opportunities for the citizenry
to express their views on important national issues.

On January 5, 1973 the President of the Philippines issued Presidential Decree No. 86-A which,
among others, provided for the submission to the citizens' assemblies created under Presidential
Decree No. 86 questions to be answered, and among those questions are these two: (1) "Do you
approve of the new Constitution?"; (2) "Do you still want a plebiscite to be called to ratify the new
Constitution ?"

On January 7, 1973 the President issued General Order No. 20, ordering the postponement of the
plebiscite that had been scheduled for January 15, 1973. Said general order reads as follows:

GENERAL ORDER NO. 20

WHEREAS, pursuant to Presidential Decree No. 73 dated December 1, 1972, a plebiscite has been
called on January 15, 1973 at which the proposed Constitution of the Philippines shall be submitted
to the people for ratification or rejection;

WHEREAS, Presidential Decree No. 86, dated December 31, 1972, created Citizens Assemblies so
as to afford ample opportunities for the citizenry to express their views on important national issues;

WHEREAS, one of the questions presented to the Citizens Assemblies is: "Do you like the plebiscite
on the proposed Constitution to be held later?

WHEREAS, it is necessary to hold in abeyance the plebiscite until the people's preference has been
ascertained;

NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed Forces of

the Philippines, and pursuant to Proclamation No. 1081, dated September 21, 1972, do hereby order
that the plebiscite scheduled to be held on January 15, 1973, be postponed until further notice.

I further order that the provision of Section 3 of Presidential Decree No. 73 insofar as they allow free
public discussion of the proposed Constitution, as well as my order of December 17, 1972,
temporarily suspending the effects of Proclamation No. 1081 for the purposes of free and open
debate on the proposed Constitution, be suspended in the meantime.

Done in the City of the Manila, this 7th day of January, in the year of Our Lord, nineteen hundred
and seventy-three.

(Sgd.) FERDINAND E. MARCOS

President
Republic of the Philippines

By the President:

(Sgd.) ALEJANDRO MELCHOR

Executive Secretary

As of the day when the above-quoted General Order No. 20 was issued these cases were all
pending decision before this Court.

At this juncture I am going to particularize my discussion on case G.R. No. L-35948 (Vidal Tan, et
al., petitioners vs. Commission on Elections, et al., respondents). What I say in connection with the
Vidal Tan case may also be considered in relation with the other cases before Us.

On January 12, 1973 counsel for the petitioners in the Tan case filed an "Urgent Motion For Early
Decision", alleging, among others, that it was announced that voting by the Citizens' Assemblies
would be held on January 10 to 15, 1973 whereby the Citizens' Assemblies would be asked a
number of questions, among them the following:

(1) Do you approve of Citizens' Assemblies as the base of popular government to decide issues of
national interests?

(2) Do you approve of the new Constitution?

(3) Do you want a plebiscite to be called to ratify the new Constitution?

(4) Do you want the elections to be held in November, 1973 in accordance with the provisions of the
1935 Constitution?

(5) If the election would not be held, when do you want the next elections to be called?

(6) Do you want martial law to continue?

Counsel for the petitioners also alleged that petitioners had reasons to fear that the question: "Do
you approve of the new Constitution?", in relation to the question following it: "Do you still want a
plebiscite to be called to ratify the new Constitution?", would be an attempt to bypass and short-
circuit this Court before which the question regarding the validity of the plebiscite scheduled for
January 15, 1973 on the proposed Constitution was pending resolution. Counsel for petitioners also
alleged that they had reasons to fear "that if an affirmative answer to the two questions just referred
to would be reported then this Honorable Court and the entire nation would be confronted with a fait
accompli which has been attained in a highly unconstitutional and undemocratic manner;" and
"the fait accompli would consist in the supposed expression of the people approving the proposed
Constitution." Counsel further states "that if such event would happen then the case before this
Honorable Court could, to all intents and purposes, become moot because, petitioners fear, and they
therefore allege, that on the basis of such supposed expression of the will of the people through the
Citizens' Assemblies, it would be announced that the proposed Constitution with all its defects, both
congenital and otherwise, has been ratified" and "that in such a situation, the Philippines would be
facing a real crisis and there is a likelihood of confusion if not chaos, because then, the people and
their officials would not know which Constitution is in force."4

On January 13, 1973 this Court ordered the Solicitor General to answer the urgent motion of the
petitioners, dated January 12, 1973.

On January 15, 1973 counsel for petitioners filed "A Supplemental Motion for Issuance of
Restraining Order and for Inclusion of Additional Respondents." The respondents sought to be
added were the Department of Local Governments and its head, Secretary Jose Rono; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella; and the National
Ratification Coordinating Committee and its chairman, Guillermo de Vega. In their supplemental
motion for the issuance of restraining order enjoining the original respondents, as well as the
additional respondents, and their deputies, subordinates and/or substitutes from collecting,
certifying, announcing and reporting to the President or other officials concerned, the Citizens'
Assembly referendum results that would be obtained in the voting held during the period comprised
between January 10 and January 15, 1973, particularly on the two questions: (1) "Do you approve of
the new Constitution?", and (2) "Do you still want a plebiscite to be called for the ratification of the
new Constitution?" Counsel for petitioners further alleged that for lack of material time the
appropriate amended petition to include the new respondents could not be completed because the
submission of the proposed Constitution to the Citizens' Assemblies was not made known to the
public until January 11, 1973, but nevertheless the new respondents could properly be included
because in their petition petitioners prayed "for the annulment not only of Presidential Decree No. 73
but also of any similar decree, proclamation, order or instruction" so that Presidential Decree Nos. 86
(and 86-A) in so far at least as they attempt to submit the proposed Constitution to a plebiscite by
the Citizens' Assemblies are properly in issue in the case, and those who enforce, implement and
carry out said Presidential decrees and the instructions incidental thereto clearly fall within the scope
of the petition. Moreover, counsel for petitioners alleges that in the original petition they prayed for
the issuance of a writ of preliminary injunction restraining not only the original respondents, but also
their agents from the performance of acts, implementing, or tending to implement, Presidential
Decree No. 73 or any other similar decree, order, instructions, or proclamation in relation to the
holding of the plebiscite in question on January 15, 1973, and that they had also prayed for such
other relief which may be just and equitable. Counsel for petitioners stressed the plea that unless the
petition is decided immediately and the respondents were restrained or enjoined from collecting,
certifying, reporting, or announcing to the President the result of the alleged voting of the so-called
Citizens' Assemblies irreparable damage would be caused to the Republic of the Philippines, to the
Filipino people and to the cause of freedom and democracy, because after the result of the
supposed voting on the two precise questions that they mentioned shall have been announced, a
conflict would arise between those who maintain that the 1935 Constitution is still in force, on the
one hand, and those who maintain that the old Constitution is superseded by the proposed
Constitution on the other hand, thereby creating confusion if not chaos; and that even the jurisdiction
of this Court would be subject to serious attacks because the advocates of the theory that the
proposed Constitution had been ratified by reason of the announcement of the results of the
proceedings of the Citizens Assemblies would argue that General Order No. 3, which would also be
deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, had placed
Presidential Decrees No. 73 and No. 86 (and 86-A) beyond the reach and jurisdiction of this Court.

This Court required the Solicitor General to comment on the supplemental motion and set the said
motion for hearing on January 17, 1973.
On January 17, 1973 the urgent motion of January 12, 1973 and the supplemental motion for the
issuance of the restraining order and the inclusion of additional respondents were heard on oral
arguments by counsel for the petitioners and the Solicitor General. Towards the end of the hearing,
and while counsel for the petitioners was answering questions from Members of this Court, the Chief
Justice received a copy of Proclamation No. 1102 of the President of the Philippines "announcing
the ratification by the Filipino people of the Constitution proposed by the 1971 Constitutional
Convention." The Chief Justice read in open court, for the record, Proclamation No. 1102. Said
Proclamation reads as follows:

PROCLAMATION NO. 1102

ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION

PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional

Convention is subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in

chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all
persons who are residents of the barrio, district or ward for at least six months, fifteen years of age
or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members
kept by the barrio, district or ward secretary;

WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen
participation in the democratic process and to afford ample opportunity for the citizenry to express
their views on important national issues;

WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A,
dated January 5, 1973, the following questions were posed before the Citizens Assemblies or
Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to
ratify the new Constitution?

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561)
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who
voted for its rejection; while on the question as to whether or not the people would still like a
plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight
thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangay (Citizens Assemblies) should be considered as a vote in a plebiscite;

WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the
members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan
ng Mga Barangay has strongly recommended that the New Constitution should already be deemed
ratified by the Filipino people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution
proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been
ratified by an overwhelming majority of all of the votes cast by the members of all the Barangay
(Citizens Assemblies) throughout the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.

Done in the City of Manila, this 17th day of January in the year of Our Lord, nineteen hundred and
seventy-three.

FERDINAND E. MARCOS
President of the Philippines

By the President:

ALEJANDRO MELCHOR
Executive Secretary

And so, what the petitioners had feared, as expressed in their urgent motion for early decision and in
their supplemental motion to issue restraining order, etc., that the results of the voting in the Citizens'
Assemblies might be taken as a basis for proclaiming the ratification of the proposed Constitution,
had actually happened. And so, what the petitioners in all the ten cases now before Us — among
them civic leaders, newspapermen, Senators and Congressmen, Members of the 1971
Constitutional Convention, and professionals — had tried to prevent from happening, that is, the
proclamation of the ratification of the proposed constitution on the basis of the affirmative votes that
might be cast in the plebiscite that was set for January 15, 1973 pursuant to Presidential Decree No.
73, the legality of which decree was being questioned by petitioners, had happened.

The crucial question before this Court is whether or not Presidential Proclamation No. 1102
announcing the ratification of the proposed Constitution of 1972 is in accordance with the
Constitution and has the effect of making the proposed Constitution of 1972 effective and in force as
of January 17, 1973 when the proclamation was issued. This is, I believe, the vital question that this
Court is called upon to resolve, and it is for this reason that I believe that this case has not been
moot and academic. While it is true that the relief prayed for by the petitioners, that the original
respondents be enjoined from implementing Presidential Decree No. 73, cannot now be granted,
Proclamation No. 1102 nevertheless has the effect of consummating the ratification of the proposed
Constitution — the very event which the petitioners had precisely sought to prevent from happening
when they filed their petitions. Presidential Proclamation No. 1102 has a tremendous effect upon the
political, economic and social life of the people of this country. I believe, therefore, that this Court
should not indulge in the niceties of procedural technicalities and evade the task of declaring
whether or not the Constitution proposed by 1971 Convention has been validly ratified as announced
in said Proclamation No. 1102. This Court is called upon to give the people of this Republic the
proper orientation regarding the effect of said Proclamation No. 1102. That orientation will only come
about when this Highest Court of the land has rendered a ruling on whether or not said Proclamation
No. 1102 is valid.

I cannot agree with the view of some of my colleagues that this Court cannot make a ruling on the
question of whether or not Proclamation No. 1102 is valid, because the validity of said proclamation
is not the matter that is squarely presented to this Court for resolution by the petitions in these
cases. I believe, however, that this Court should not close its eyes to the fact that in the ten petitions
that are before this Court the uniform prayers of the petitioners are to enjoin the implementation of
Presidential Decree No. 73 and to nullify said decree — precisely in order to prevent the ratification
of the Constitution proposed by the 1971 Convention in a manner that is not in accordance with the
Constitution and the law. So much so that in G.R. No. L-35948 (Tan, et al. v. Comelec, et al.) the
petitioners, among others, prayed that judgment be rendered declaring" ... Presidential Decree No.
73 or any similar decree, proclamation, order or instruction unconstitutional, null and void and
making the writ of preliminary injunction permanent." It is not difficult to understand that the purpose
of the petitioners was to invalidate any and all orders, decrees and proclamations that are corollary
or related to Presidential Decree No. 73 which had for its main purpose to submit the Constitution
proposed by the 1971 Convention to a plebiscite on January 15, 1973 and thereby determine
whether the people approve or reject the proposed Constitution. As We have adverted to, the
objective of the petitioners was to prevent the ratification of the proposed constitution in a manner
that is offensive to the Constitution and the law. All orders, decrees, instructions, or proclamations
made after the issuance of Presidential Decree No. 73, which have for their purpose either to
supplement Presidential Decree No. 73 or to accomplish through other means or methods what
Presidential Decree No. 73 was issued for, are encompassed within the prayer of petitioners to
nullify "any similar decree, proclamation, order, or instruction". Presidential Decrees Nos. 86 and 86-
A are such "similar" decrees, because, as it turned out, Presidential Decree No. 86 provided for the
organization of the citizens' assemblies which became the forums where the question of whether to
ratify or to reject the proposed Constitution was submitted; and, as it turned out, Presidential Decree
No. 86-A provided for the very question which otherwise the voters would have been asked to
answer "Yes" or "No" in the plebiscite which had been provided for in Presidential Decree No. 73. In
other words, Presidential Decree No. 86 supplanted Presidential Decree No. 73 in so far as the latter
decree provided for the forum where the question was to be asked; while Presidential Decree No.
86-A supplanted Presidential Decree No. 73 in so far as the latter decree provided for the question
to be asked regarding the proposed Constitution. And finally because Presidential Proclamation No.
1102 has for its basis what was done pursuant to Presidential Decrees Nos. 86 and 86-A, it follows
that Proclamation No. 1102 is just the "proclamation" that the petitioners sought to nullify or
invalidate if issued.

I believe that the effects of Proclamation No. 1102 have an intimate bearing on the objectives of the
petitioners when they filed the instant petitions for prohibition, and so said proclamation has to be
considered along with all the issues raised by the petitioners in the cases at bar. More so, because
said Proclamation No. 1102 was read into the record by the Chief Justice of this Court during the
hearing of L-35948 (Tan vs. Comelec), in open court, on January 17, 1973. I believe that this Court
must not ignore Proclamation No. 1102 in relation to the matters and to the issues ventilated before
this Court. Proclamation No. 1102 was formally brought to the attention of this Court. It is my view
that this Court should not evade its duty of defining for the benefit of the people of this Republic the
legal and constitutional nature and effects of that proclamation. I, for one, as a humble member of
this Court, feel it my duty to say what I think, and believe, about Proclamation No. 1102. I do this not
because of any desire on my part to obstruct the workings of the agencies and instrumentalities of
our Government, or to foster among the people in our country an attitude of disrespect or disloyalty
towards the constituted authorities that presently run the affairs of our Government. I am only doing
what I believe is my sworn duty to perform.

The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines,
which reads:

Section 1. The Congress in joint session assembled by a vote of three fourths of all the Members of
the Senate and of the House of Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification.

It is in consonance with the above-quoted provision of the 1935 Constitution that on March 16, 1967,
the Congress of the Philippines passed Resolution No. 2 calling a convention to propose
amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
Section 7. The amendments proposed by the Convention shall be valid and considered part of the
Constitution when approved by a majority of the votes cast in an election which they are submitted to
the people for their ratification pursuant to Article XV of the Constitution.

It follows that from the very resolution of the Congress of the Philippines which called for the 1971
Constitutional Convention there was a clear mandate that the amendment proposed by the 1971
Convention, in order to be valid and considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are submitted to the people for their ratification
as provided in the Constitution.

This Court, in the case of Tolentino vs. Commission on Elections, L-35140, October 16, 1971 (41
SCRA 715), speaking through Mr. Justice Barredo, said:

The Constitutional Convention of 1971, as any other convention of the same nature, owes its
existence and derives all its authority and power from the existing Constitution of the Philippines.
This Convention has not been called by the people directly as in the case of a revolutionary
convention which drafts the first Constitution of an entirely new government born of either a war of
liberation from a mother country or of a revolution against an existing government or of a bloodless
seizure of power a la coup coup d' etat. As to such kind of conventions, it is absolutely true that the
convention is completely without restraint and omnipotent all wise, and it is as to such conventions
that the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by
Senator Pelaez refer. No amount of rationalization can belie the fact that the current convention
came into being only because it was called by a resolution of a joint session of Congress acting as a
constituent assembly by authority of Section 1, Article XV of the present Constitution ...

xxx xxx xxx

As to matters not related to its internal operation and the performance of its assigned mission to
propose amendments to the Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now we hold that even as to its latter task of
proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV.

In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that
as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines the President proclaimed that the Constitution proposed by the
1971 Convention has been ratified and has thereby come into effect.

It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of
Article XV of the Constitution of 1935 was not complied with. It is not necessary that evidence be
produced before this Court to show that no elections were held in accordance with the provisions of
the Election Code. Proclamation No. 1102 unequivocably states that the proposed Constitution of
1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the qualified and registered voters of
the country would cast their votes, where official ballots prepared for the purpose are used, where
the voters would prepare their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country, where the election is conducted
by election inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to
the Constitution to increase the number of Members of the House of Representatives and to allow
the Members of Congress to run in the elections for Delegates to the Constitutional Convention of
1971 were rejected.

I cannot see any valid reason why the practice or procedure in the past, in implementing the
constitutional provision requiring the holding of an election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.

It is my view that the President of the Philippines cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No.
1102 was issued in complete disregard, or, in violation, of the provisions of Section 1 of Article V of
the 1935 Constitution.

Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people
would still like a plesbiscite to be called to ratify the new Constitution, 14,298,814 members of the
barangays answered that there was no need for a plebiscite but that the vote of the barangays
should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the
power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.

The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.

An election is the embodiment of the popular will, the expression of the sovereign power of the
people. In common parlance an election is the act of casting and receiving the ballots, counting
them, and making the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637).

Election" implies a choice by an electoral body at the time and substantially in the manner and with
the safeguards provided by law with respect to some question or issue. (Leffel v. Brown, Com. Pl.,
159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).

... the statutory method whereby qualified voters or electors pass on various public matters
submitted to them — the election of officers, national, state, county, township — the passing on
various other questions submitted for their determination (29 C.J.S. 13, citing Iowa-Illinois Gas &
Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358).

Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W. 2d 438, 254
Ky. 720, in Words and Phrases, Permanent Edition, p. 234).

The right to vote may be exercised only on compliance with such statutory requirements as have
been set up by the legislature, (People ex rel. Rago v. Lipsky 63 N.E. 2d 642, 327 III. App. 63;
Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied)

In this connection I herein quote the pertinent provisions of the Election Code of 1971:
Sec. 2. Applicability of this Act. — All elections of Public officers except barrio officials
and plebiscites shall be conducted in the manner provided by this Code.

Sec. 99. Necessity of registration to be entitled to vote. — In order that a qualified voter may vote in
any regular or special election or in any plebiscite, he must be registered in the permanent list of
voters for the city, municipality or municipal district in which he resides: Provided, That no person
shall register more than once without first applying for cancellation of his previous registration.
(Emphasis supplied). 3) Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388).

It is stated in Proclamation No. 1102 that the voting was done by the members of citizens
assemblies who are 15 years of age or over. Under the provision of Section 1 of Article V of the
1935 Constitution the age requirement to be a qualified voter is 21 years or over.

But what is more noteworthy is the fact that the voting in the barangays, except in very few
instances, was done by the raising of hands by the persons indiscriminately gathered to participate
in the voting, where even children below 15 years of age were included. This is a matter of common
observation, or of common knowledge, which the Court may take judicial notice of. To consider the
votes in the barangays as expressive of the popular will and use them as the basis in declaring
whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which would
mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the supreme law of the land, should be
ratified or not, must not be decided by simply gathering people and asking them to raise their hands
in answer to the question of whether they vote for or against a proposed Constitution. The election
processes as provided by law should be strictly observed in determining the will of the sovereign
people in a democracy. In our Republic the will of the people must be expressed through the ballot in
a manner that is provided by law.

It is said that in a democracy the will of the people is the supreme law. Indeed, the people are
sovereign, but the will of the people must be expressed in a manner as the law and the demands of
a well-ordered society require. The rule of law must prevail even over the apparent will of the
majority of the people, if that will had not been expressed, or obtained, in accordance with the law.
Under the rule of law public questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of the adoption of a constitution or in the ratification of an
amendment to the Constitution.

The following citations are, to me, very relevant in the effort to determine whether the proposed
Constitution of 1972 had been validly ratified or not:

When it is said that "the people" have the right to alter or amend the constitution, it must not be
understood that this term necessarily includes all the inhabitants of the state. Since the question of
the adoption or rejection of a proposed new constitution or constitutional amendment must be
answered by a vote, the determination of it rests with those who, by the existing constitution, are
accorded the right of suffrage, But the qualified electors must be understood in this, as in many other
cases, as representing those who have not the right to participate in the ballot. If a constitution
should be abrogated, and a new one adopted, by the whole mass of people in a state, acting
through representatives not chosen by the "people" in the political sense of the term, but by the
general body of the populace, the movement would be extra-legal. (Black's Constitutional Law,
Second Edition, pp. 47-48).

The theory of our political system is that the ultimate sovereignty is in the people, from whom springs
all legitimate authority. The people of the Union created a national constitution, and conferred upon it
powers of sovereignty over certain subjects, and the people of each State created a State
government, to exercise the remaining powers of sovereignty so far as they were disposed to allow
them to be exercised at all. By the constitution which they establish, they not only tie up the hands of
their official agencies, but their own hands as well; and neither the officers of the State, nor the
whole people as an aggregate body, are at liberty to take action in opposition to this fundamental
law. (Cooley's Constitutional Limitations, 8th Edition, Vol. I, p, 81 cited in Graham v. Jones, 3 So. 2d.
761, 782).

The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend a
constitution, may cure, render innocous, all or any antecedent failures to observe commands of that
Constitution in respect of the formulation or submission of proposed amendments thereto, does not
prevail in Alabama, where the doctrine of the stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome constitutional principles in Collier v.
Frierson supra, as quoted in the original opinion, ante. The people themselves are bound by the
Constitution; and, being so bound, are powerless, whatever their numbers, to change or thwart its
mandates, except through the peaceful means of a constitutional convention, or of amendment
according to the mode therein prescribed, or through the exertion of the original right of revolution.
The Constitution may be set aside by revolution, but it can only be amended in the way it provides,"
said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. Johnson v. Craft, et
al., 87 So. 375, 385, 387 On Rehearing).

The fact that a majority voted for the amendment, unless the vote was taken as provided by the
Constitution, is not sufficient to make a change in that instrument. Whether a proposed amendment
has been legally adopted is a judicial question, for the court must uphold and enforce the
Constitution as written until it is amended in the way which it provides for. Wood v. Tooker 15 Mont.
8, 37 Pac. 840, 25 L.R.A. 560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland
Paving Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958,
133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104).

Provisions of a constitution regulating its own amendment, ... are not merely directory, but are
mandatory; and a strict observance of every substantial requirement is essential to the validity of the
proposed amendment. These provisions are as binding on the people as on the legislature, and the
former are powerless by vote of acceptance to give legal sanction to an amendment the submission
of which was made in disregard of the limitations contained in the constitution. (16 C.J.S. 35-36 cited
in Graham v. Jones, 3 So. 2d 761, 782).

It is said that chaos and confusion in the governmental affairs of the State will result from the Court's
action in declaring the proposed constitutional amendment void. This statement is grossly and
manifestly inaccurate. If confusion and chaos should ensue, it will not be due to the action of the
Court but will be the result of the failure of the drafters of the joint resolution to observe, follow and
obey the plain essential provisions of the Constitution. Furthermore, to say that, unless the Court
disregards its sworn duty to enforce the Constitution, chaos and confusion will result, is an inherently
weak argument in favor of the alleged constitutionality of the proposed amendment. It is obvious
that, if the Court were to countenance the violations of the sacramental provisions of the
Constitution, those who would thereafter desire to violate it and disregard its clear mandatory
provisions would resort to the scheme of involving and confusing the affairs, of the State and then
simply tell the Court that it was powerless to exercise one of its primary functions by rendering the
proper decree to make the Constitution effective, (Graham v. Jones, 3 So. 2d. 761, 793-794).

In our jurisprudence I find an instance where this Court did not allow the will of the majority to
prevail, because the requirements of the law were not, complied with. In the case of Monsale v.
Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of
Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of
candidacy before the expiration of the period for the filing of the same. However, on October 10,
1947, after the period for the filing of certificates of candidacy, Monsale withdrew his certificate of
candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by
withdrawing the withdrawal of his certificate of candidacy. The Commission on Elections, on
November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless
proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes
cast for Monsale upon the ground that the votes cast for him were stray votes, because he was
considered as having no certificate of candidacy. On the other hand, the boards of inspectors
credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the
election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the
proceedings in the trial court it appeared that Monsale had obtained 2,877 votes while Nico obtained
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo
decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the
decision of the lower court. This Court declared that because Monsale withdrew his certificate of
candidacy his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not
restore the effectiveness of his certificate of candidacy, and this court declared Nico the winner in
spite of the fact that Monsale had obtained more votes than he.

We have cited this Monsale case to show that the will of the majority of the voters would not be
given effect, as declared by this Court, if certain legal requirements have not been complied with in
order to render the votes valid and effective to decide the result of an election.

And so, in the cases now before this Court, the fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the
basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was
reported that 14,976,561 members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law must
be upheld.

My last observation: One of the valid grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
to exercise their right of choice, because of the existence of martial law in our country. The same
ground holds true as regards the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of Presidential Decree No. 13 in so far as they allow free
public discussion of the proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open
debate on the proposed constitution, be suspended in the meantime."5 It is, therefore, my view that
voting in the barangays on January 10-15, 1973 was not free, and so this is one added reason why
the results of the voting in the barangays should not be made the basis for the proclamation of the
ratification of the proposed Constitution.

It is my view, therefore, that Proclamation No. 1102 is repugnant to the 1935 Constitution, and so it
is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971
Constitutional Convention should be considered as not yet ratified by the people of this Republic,
and so it should not be given force and effect.

During the deliberation of these cases by this Court, a suggestion was made that because of the
transcendental effect of Proclamation No. 1102 on the country, the petitioners in these cases,
specially the petitioners in L-35948 (Vidal Tan, et al. vs. Comelec, et al.), be given a period of ten
days to move in the premises, considering that the issuance of Proclamation No. 1102 came as a
surprise to the petitioners and they had no opportunity to define their stand on said Proclamation in
relation to their petitions. The majority of the Court, however, were not in favor of the idea. I
expressed myself, and I so express now, that I am in favor of granting the petitioners the opportunity
to articulate their stand regarding Proclamation No. 1102 so that the objection of some members of
this Court to pass upon the validity of said proclamation upon the ground that it is not in issue in
these cases may be met, and so that the validity of Proclamation No. 1102, and the question of
whether or not the proposed 1972 Constitution has been validly ratified, may be resolved by this
Court once and for all.

At any rate, whether the petitioners are granted opportunity to define their stand on Proclamation No.
1102, or not, I humbly submit this opinion for whatever if may be worth, with the hope that the
officials and the citizens of this country will take note of it, and ponder over it. I am only doing my
duty according to the light that God has given me.

Separate Opinions

MAKALINTAL and CASTRO, JJ., concurring:

The principal relief prayed for in the petition in G.R. NO. L-35948 is to declare "Sections 2, 3 (par 2),
and 12 of Article XVII, of the 1972 Draft on proposed Constitution approved by the 1971
Constitutional Convention on November 30, 1972 as well as Presidential Decree No. 73 or any
similar decree, proclamation, order or instruction unconstitutional, null and void, ..." Basically,
although couched in different language, it is the same relief sought in the other petitions.

Article XVII contains the transitory provisions. Section 2 thereof refers to the membership of the
interim National Assembly, which includes, among others, "those Delegates to the (1971)
Constitutional Convention who have opted to serve therein by voting affirmatively for this Article."
Section 3 (par. 2) provides that "(A)ll proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part of the law of the land, and
shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders,
decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly
modified or repealed by the regular National Assembly." And Section 12 states in part: "All treaties,
executive agreements, and contracts entered into by the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations, are hereby
recognized as legal, valid, and binding ..."

Presidential Decree No. 73, issued on December 1, 1972, called for a plebiscite to be held on
January 15, 1973, wherein the proposed Constitution would be submitted for ratification. At the same
time it appropriated the sum of P15,000,000.00 for that purpose. It was primarily to stop the said
plebiscite from being held that these petitions were filed.

The specific grounds alleged in the petition in G.R. No. L-35948 to support the relief prayed for
which are fairly representative of the others, read as follows:

I. The President of the Philippines has no power to call a plebiscite for the ratification or rejection of
the 1972 Draft; neither has he the power to appropriate funds for the holding of the said plebiscite.

II. The 1972 Draft is vague and incomplete. It makes an unconstitutional delegation of power. And it
contains provisions which were beyond the power of the convention to enact. All these have made
the 1972 Draft unfit for "proper submission" to the people.
III. The period of time between November 30, 1972 when the 1972 Draft was approved, and January
15, 1973, the date the plebiscite will be held, is too inadequate for the people to be informed of the
contents of the 1972 Draft, and to study and discuss them so that they could thereafter intelligently
cast their vote.

Towards the end of December 1972 it was announced in the newspapers that the President had
postponed the plebiscite to a date to be fixed later, although tentatively February 19 and March 5,
1973 were mentioned. The announcement was made officially in General Order No. 20, dated
January 7, 1973. Then on January 17, 1973 the President issued Proclamation No 1102, certifying
that the proposed Constitution had been ratified by the Citizens Assemblies created under
Presidential Decree No. 86, issued on December 31, 1972, and that therefore it had become
effective.

In view of the foregoing developments which supervened after the petitions herein and the answers
thereto were filed and the cases argued by the parties, the issues raised in grounds Nos. I and III
abovequoted have become moot. The plebiscite sought to be enjoined did not take place on January
15, 1973. Indeed, its postponement to some indefinite date in the future rendered the petition also
premature. But of course whether the petition is moot or premature makes no material difference as
far as these cases are concerned, since the announced ratification of the proposed Constitution by
the Citizens Assemblies has made it unlikely that any plebiscite will be held.

With respect to ground No. II we are of the opinion that the question of whether or not the proposals
referred to by the petitioners, specifically Secs. 2, 3 (par. 2) and 12, were proper for submission to
the people for ratification has likewise become moot because of the President's Proclamation No.
1102 certifying that such ratification has already taken place. If they may be assailed at all as invalid
it should be not as mere proposals by the Convention but already as provisions of the Constitution,
and certainly not in the present cases in the state in which they have been submitted for decision.

There was an attempt on the part of counsel for the petitioner in G.R. No. L-35948 during the oral
argument on his urgent motion for early decision to question the validity of Proclamation No. 1102.
This question is not within the purview of the petition and involves issues which have neither been
raised nor argued herein, having arisen in a new and different setting and frame of reference, and
hence may only be ventilated, if at all, in an appropriate case or at least through appropriate
pleadings so that the parties may be duly heard.

We therefore vote to dismiss the petitions.

TEEHANKEE, J., concurring:

Without prejudice to the filing of a separate extended opinion, I concur with the Chief Justice in his
separate opinion and add the following brief comments.

The Solicitor General's Office on behalf of respondents manifested as of its last comment of January
16, 1973 that "(W)ith respect to the statement in the Joint Manifestation that Presidential Decree No.
73 which calls for the holding of the plebiscite on January 15, 1973 still stands, the plebiscite
scheduled to be held on January 15, 1973 has been postponed until further notice by virtue of
General Order No. 20, dated January 7, 1973, of President Ferdinand E. Marcos."

On the other hand, Presidential Proclamation No. 1102 issued on January 17, 1973 recites as a
premise thereof, inter alia, that "since the referendum results show that more than ninety-five (95)
per cent of the members of the Barangays (Citizens Assemblies)1 are in favor of the New
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution
should already be deemed ratified by the Filipino people."2

Under the circumstances of record from which it appears that no election (or plebiscite) for the
purpose has been called and held,3 it would be premature for now to hold that the averred
ratification of the Constitution proposed by the 1971 Constitutional Convention has met the
requirements of Article XV of the Constitution that "(S)uch amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification" or of section 16 of Article XVII of the proposed
Constitution itself that "(T)his Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose."

With the result reached by the Court, and the rendering moot of the issues raised against the validity
of Presidential Decree No. 73, I do not deem it necessary to reach and pass upon the grave
constitutional question in its two aspects (a) whether the Constitutional Convention may assume the
power to call the plebiscite (a power historically exercised by Congress) and to appropriate funds
therefor against the Constitutional mandate lodging such power in Congress4 and (b) whether the
Constitutional Convention may delegate such assumed power to the President — absent any
showing of willful default or incapacity on the part of Congress to discharge it.

By the same token, it is unnecessary to resolve the equally grave question of whether certain
matters adopted and proposed by the 1971 Constitutional Convention were ultra vires, e.g. sections
2 and 15 of Article XVII (Transitory Provisions) providing for the delegates of said Convention to
constitute the majority of an interim National Assembly and empowering such Assembly "upon
special call by the interim Prime Minister ..., by a majority vote of all its members, (to) propose
amendments to this Constitution (which) shall take effect when ratified in accordance with Article
Sixteen hereof", which would appear to be in violation of the accepted principles governing
constitutional conventions that they become functus officio upon completion of their function to
formulate and adopt amendments to the Constitution5 for the people's ratification or rejection in the
manner ordained in the Constitution6 — since such convention controlled interim National Assembly
may continue proposing Constitutional amendments by mere majority vote in contrast to
the regular national assembly which would require "a vote of three-fourths of all its members" to
propose such amendments.7

ANTONIO, J., concurring:

The historical events of the last few days have rendered the petitions (G.R. Nos. L-35925, L-35929,
L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979), including the
supplemental petition moot and should be dismissed.

Without prejudice to a more extended opinion later, I concur in the view that implicit in the power of
the Constitutional Convention to propose amendments to the Constitution is its authority to order an
election at which such amendments are to be submitted to the people for ratification and, within the
narrow range implied as necessary for the business of submitting the amendments to the people, the
capacity to appropriate money for the expenses necessary to make such submittal effective.
Independently therefore of the question, whether or not the President may legislate during martial
law, it was certainly within the authority of the President to issue such measures, acting as agent for
and in behalf of the Constitutional Convention to call for a plebiscite, prescribe its terms and
appropriate money for said purpose.

The opinion that the President, as agent of the Convention, could device other forms of election to
determine the will of the majority of the people on the ratification of the proposed Constitution,
establishes a principle that is, not entirely devoid of precedent. The present Constitution of the
United States was ratified in a manner not in accord with the first Constitution of the United States,
which was the Articles of Confederation. The violation was deliberate, but Madison, however
defended the method provided for the adoption of the new Constitution by saying that it was a case
"of absolute necessity" which forced the framers of the new Constitution to resort "to the great
principle of self-preservation; to the transcendental law of nature and of nature's God, which
declares that the safety and happiness of society are the objects at which all political institutions aim,
and to which all such institutions must be sacrificed." While I agree that this precedent is never one
that would justify governmental organs in ignoring constitutional restraints, the fact is the people
themselves had already acted by adopting the procedure devised in the expression of their
sovereign will.

To the contention of one of the petitioners, that the draft of the Constitution contains provisions
beyond the power of the Constitutional Convention to submit for ratification, suffice it to state that
there is nothing that can legally prevent a convention from actually revising the entire Constitution
for, in the final analysis, it is the approval of the people that gives validity to any proposal of
amendment or revision.

I concur in the opinion that martial rule per se, in the light of contemporary events, does not warrant
the presumption that the results of the plebiscite of ratification is not a genuine and free expression
of the popular will.

It poses a question of fact which, in the absence of any judicially discoverable and manageable
standards, or where the access to relevant information is insufficient to assure the correct
determination of the issue, I do not feel that this Court is competent to act.

If the ratification of the new Constitution and the new government erected thereon, is not what it is
represented to be, the expression of the will of the majority or the people are dissatisfied, they have
ample remedy. The instrument itself provides amendment and change. For the only and proper way
in which it should be remedied, is the people acting as a body politic. These questions relate to
matters not to be settled on strict legal principles. For the new Constitution has been promulgated
and great interests have already arisen under it. The political organ in the government has
recognized it and has commenced the implementation of its provisions. Under such circumstances
the Court should therefore refrain from precipitating impossible situations which might otherwise rip
the delicate social and political fabric.

The theory of presumptive collective duress under martial rule is perhaps valid in any other clime. In
the case at bar, it flies against the stark reality of the factual setting. To insist upon it is to ignore the
historical facts that culminated in the national referendum. The people wanted a revolutionary
change. They were aware of the manifold problems of the nation — its poverty, corruption, injustice,
subversion and insurgency and criminality. The sweeping and dramatic reforms during the last few
months buoyed up the hopes of the people that thru the instrumentality of a new charter these gains
of the commonweal may be conserved and further enlarged. In the ambience of such a historical
setting, it would have been presumptuous to assume that the qualified voters in the reportedly more
than fourteen million Filipinos who voted for the new charter, did so not with freedom but from fear.
Such a posture, I cannot accept, for that would demean the courage, integrity and wisdom of the
people themselves.

In all other respects, the opinion of Justice Barredo, merits my concurrence.

ESGUERRA, J., concurring:

I vote to deny all petitions seeking to prohibit the holding of the plebiscite on January 15, 1973, on
the Constitution of November 30, 1972, as provided for in Presidential Decree No. 73 of December
1, 1972. Specifically, I vote to deny the supplemental petition in G.R. No. L-35948 seeking to restrain
the Citizens Assemblies' referendum in connection with that ratification of said Constitution.

My reasons are simple and need no elaborate and lengthy discussion.

1. In the first place, these cases have been moot and academic as the holding of the plebiscite
scheduled for January 15, 1973, has been indefinitely postponed under General Order No. 20 dated
January 7, 1973. Consequently, there is nothing more to prohibit or restrain.

2. In the second place, the supplemental petition in G.R. No. L-35948 to restrain the respondents,
including three additional parties, namely Secretary Jose Rono as head of the Department of Local
Governments; Secretary Conrado Estrella, as head of the Department of Agrarian Reforms and
Secretary Guillermo de Vega, as Chairman of the National Ratification Coordinating Committee, who
were not duly served with summons and have never been heard, has been rendered futile as the
Citizens Assemblies have expressed their decisions to ratify the 1972 Constitution and said officers
have reported to the President and on the basis thereof he has announced the ratification of said
Constitution by Proclamation No. 1102, dated January 17, 1973, effective 12: 00 o'clock noon of said
date. Hence there is also nothing more to restrain or prohibit as the acts sought to be stopped have
been fully accomplished.

I do not attempt to assail the validity of Proclamation No. 1102 as the Court is not in possession of
any evidence to overthrow the veracity of the facts therein related, there being no case formally filed
with the Court attacking the validity of said Proclamation, and, moreover, the parties responsible for
the holding of the referendum or plebiscite by the Citizens Assemblies, which ratified the proposed
Constitution, have not being impleaded and afforded a chance to be heard. In brief, there is
absolutely no basis for making a pronouncement on the validity of the said proclamation, and to do
so would be simply tiding rough shod over the well-beaten road of due process of law which
basically requires notice and full and fair hearing.

Without any competent evidence I do not pretend to know more about the circumstances attending
the holding of said referendum or plebiscite and I cannot say that it was not plainfully held. I assume
that what the proclamation says on its face is true and until overcome by satisfactory evidence, of
which there is absolutely nothing before Us, I cannot subscribe to the claim that such plebiscite was
not held accordingly.

At this stage, whether or not there was a valid ratification of the 1972 Constitution cannot be
resolved without raising the legality of the Government under which we are now operating as of
January 17, 1973. Hence We would be confronted with a political question which is beyond the
jurisdiction of this Court to settle. I accept as a fait accompli that the Constitution adopted on
November 30, 1972, has been duly ratified, and I consider that any assault against it as well as the
manner of its ratification has been innocuous. Having been invested with full force and effect by the
approval of an overwhelming majority of the people, to mount an attack against it now would be
nothing less than fighting the windmills in Don Quijote fashion. I do not wish to emulate that unique
literary character and I prefer to take things in the light of the stark realities of the present. I have
always adhered to the idea that the practical approach to any question yields the happiest solution,
instead of soaring in flights of fantasies and losing one's self in idle metaphysical adventures.

FERNANDO, J., concurring and dissenting:

While I am in agreement with the resolution of the Court dismissing the petitions for their being moot
and academic, I feel that a brief separate opinion expressing my views on certain legal issues would
not be amiss, considering the transcendental character of the suits before us. Indisputably, they
involve the crucial role assumed by the Executive in the proposed submission of the new
Constitution, perhaps unavoidably thrust upon him in view of the declaration of martial law. It is
reassuring that there is a reiteration of the principle that the amending process, both as to proposal
and ratification, raises a judicial question. Notwithstanding the vigor and plausibility with which the
Solicitor-General stressed what for him is the political nature of the controversy, with considerable
support from authorities on constitutional law partial to the judicial restraint approach, it would be, for
me, a plain abdication of the trust reposed in this Court, if it would rule itself as devoid of authority to
inquire into the validity of the steps taken towards the ratification of the proposed amendments. The
most that I can concede is that where the effect of the nullification sought is to prevent the sovereign
people from expressing their will, the utmost caution and circumspection should be exercised.

Now, as to the merits of the issues that would have called for resolution, were it not for the matter
becoming moot and academic. While not squarely raised, the question of whether or not a
constitutional convention could go on meeting with martial law in force has a prejudicial aspect.
Following the ruling in Duncan v. Kahanamoku1 that Legislature and courts continue to function
even under such period, being not merely cherished governmental institutions but indispensable to
the operation of government, there is no doubt in my mind that the same principle should likewise
apply to a constituent body. To the contention pressed by Senator Tanada, as counsel, in Tan v.
Commission on Elections, that the proposed Constitution contains provisions beyond the power of
the Constitutional Convention to submit for ratification, it seems to me a sufficient answer that once
convened, the area open for deliberation to a Constitutional Convention and thereafter to be
embodied in proposed amendments if approved by the majority, is practically limitless.2 In that
sense, it can be truly stated that the Convention can propose anything but conclude nothing. As was
intimated by Justice Makasiar, speaking for the Court in Del Rosario v. Comelec,3 "whether the
Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the
present Constitution and propose an entirely new Constitution based on an ideology foreign to the
democratic system, is of no moment; because the same will be submitted to the people for
ratification. Once ratified by the sovereign people, there can be no debate about the validity of the
new Constitution."4 Once its work of drafting has been completed, it could itself direct the
submission to the people for ratification as contemplated in Article XV of the Constitution. Here it did
not do so. With Congress not being in session, could the President, by the decree under question,
call for such a plebiscite? Under such circumstances, a negative answer certainly could result in the
work of the Convention being rendered nugatory. The view has been repeatedly expressed in many
American state court decisions that to avoid such undesirable consequence, the task of submission
becomes ministerial, with the political branches devoid of any discretion as to the holding of an
election for that purpose.5 Nor is the appropriation by him of the amount necessary to be considered
as offensive to the Constitution. If it were done by him in his capacity as President, such an objection
would indeed have been formidable, not to say insurmountable.6 If the appropriation were made in
his capacity as agent of the Convention to assure that there be the submission to the people, then
such an argument loses force. The Convention itself could have done so.7 It is understandable why
it should be thus. If it were otherwise, then a legislative body, the appropriating arm of the
government, could conceivably make use of such authority to compel the Convention to submit to its
wishes, on pain of being rendered financially distraught. The President then, if performing his role as
its agent, could be held as not devoid of such competence. That brings me to the argument as to the
absence of proper submission, developed with the customary learning and persuasiveness by
Senators Tanada and Salonga. With all due recognition of their forensic skill, I prefer to rely on what,
for me, is the correct principle announced in the opinion of the Chief Justice in Gonzales v.
Commission on Elections:8 "A considerable portion of the people may not know how over 160 of the
proposed maximum of representative districts are actually apportioned by R.B.H. No. 1 among the
provinces in the Philippines. It is not improbable, however, that they are not interested in the details
of the apportionment, or that a careful reading thereof may tend in their simple minds, to impair a
clear vision thereof. Upon the other hand, those who are more sophisticated, may enlighten
themselves sufficiently by reading the copies of the proposed amendments posted in public places,
the copies kept in the polling places and the text of contested resolutions, as printed in full on the
back of the ballots they will use. It is, likewise, conceivable that as many people, if not more, may fail
to realize or envisage the effect of R.B.H. No. 3 upon the work of the Constitutional Convention or
upon the future of our Republic. But, then, nobody can foretell such effect with certainty. From our
viewpoint, the provisions of Article XV of the Constitution are satisfied so long as the electorate
knows that R.B.H. No. 3 permits Congressmen to retain their seats as legislators, even if they should
run for and assume the functions of delegates to the Convention. We are impressed by the factors
considered by our distinguished and esteemed brethren, who opine otherwise, but, we feel that such
factors affect the wisdom of Republic Act No. 4913 and that of R.B.H. Nos. 1 and
3, not the authority of Congress to approve the same. The system of checks and balances
underlying the judicial power to strike down acts of the Executive or of Congress transcending the
confines set forth in the fundamental laws is not in derogation of the principle of separation of
powers, pursuant to which each department is supreme within its own sphere. The determination of
the conditions under which the proposed amendments shall be submitted to the people is
concededly a matter which falls within the legislative sphere. We do not believe it has been
satisfactorily shown that Congress has exceeded the limits thereof in enacting Republic Act No.
4913."9

Nonetheless, were it not for the fact that the matter had become moot and academic, I am for
granting the petitions in view of what, for me, is the repugnancy between an election contemplated
under Article XV of the Constitution in herein the voters can freely register their will, whether it be for
approval or disapproval, and the existence of martial law, with its connotation that dissent may be
fraught with unpleasant consequences. While it is to be admitted that the Administration has done its
best to alleviate such a state of mind, I cannot in all honesty say, although I am prepared to concede
that I may labor under a sense of undue pessimism, that the momentum of fear necessarily incident
to such a regime has been reduced to a minimum. I fail to see then the existence of that
indispensable condition of freedom that would validate the ratification process as contemplated by
the Constitution. As to the validity of Proclamation No. 1102, adherence to what for me are
fundamental concepts of judicial review precludes it this state the expression of any opinion. It
would, at the very least, be premature. 10

BARREDO, J., concurring and dissenting:

With full consciousness of the transcendental consequences of the action the Court is taking in
these cases, not only upon me personally and as a member of the Supreme Court but upon the
Court itself as the guardian of the Constitution, which all its members have solemnly sworn in the
name of God to uphold and defend, and after long and serious consideration of all aspects and
angles of the issues submitted for resolution by the parties, I have come to the sincere conviction
that the petitions herein should be dismissed, including the supplemental petition filed by petitioners
in G.R. No. L-35948, with the consequent denial of the motion for the issuance of a writ of
preliminary injunction or a temporary restraining order enjoining in effect any act which would imply
giving force and effect to the 1972 Constitution which President Ferdinand E. Marcos proclaimed as
ratified in Proclamation No. 1102 as of twelve o'clock noon on January 17, 1973. Without prejudice
to a more extended opinion later, my reasons for this conclusion are as follows:

As of today, two matters present themselves for Our immediate resolution, namely, (1) the petitions
in all of these cases praying for a writ of prohibition against the implementation of Presidential
Decree No. 73 calling for and setting the date and the manner of holding the plebiscite for the
ratification of the Constitution proposed by the 1971 Constitutional Convention, the date set being
January 15, 1973, and (2) the supplemental petition, with prayer for the issuance of a writ of
preliminary injunction or a restraining order, in G.R. No. L-35948 to enjoin whatever ratification of the
said Constitution would be proposed by the Citizens Assemblies, established under Presidential
Decrees Nos. 86, 86-A, and 86-B, and, correspondingly, any act which would give force and effect to
such ratification, should it be proclaimed, which, by the way, everybody knows was already done at
about 11:00 o'clock A.M. on January 17, 1973.

As to No. (1), I vote to dismiss the original petitions in all these cases for the simple reason that the
alleged grounds thereof are either untenable or have been premature, if not somehow moot and
academic, at least, meanwhile that the plebiscite had not been reset.1

(a) There is no question that the matter of whether or not Presidential Decree No. 73 is valid is a
justiciable one and not political, hence within the jurisdiction of this Court to resolve. Tolentino v.
Comelec, G.R. No. L-34150, October 16, 1971, 41 SCRA 702 is sufficient authority for this pose.

(b) On the other hand, I am of the considered view that it is not within the competence of this Court
to pass on the propriety or wisdom of any part or provision of the Constitution as proposed by the
Convention. The Convention was called for the purpose of proposing amendments to the
Constitution, and like any Constitutional Convention it was completely and absolutely free to make
any proposal, whether or not consonant with the 1935 Constitution. The theory of ultra-vires
proposals advanced by petitioners is to me without sufficient legal basis.

(c) Much less can I accept the view that the Convention's task was limited to proposing specific
amendments to become either as new parts of the existing Constitution or as replacements of
corresponding portions thereof, for even if there were any theoretical basis for petitioners' posture in
this regard, I feel safe in saying that when the people elected the delegates to the Convention and
when the delegates themselves were campaigning such limitation of the scope of their function and
objective was not in their minds. Withal, considering the number and nature of the proposals already
being publicly discussed before and after said election, to follow petitioners' suggestion would have
produced confusion and probably insurmountable difficulties even in the framing and phrasing alone
of the amendments so that they may easily and clearly jibe with the other parts of the existing
Constitution.

(d) Regarding the alleged lack of legislative power of the President to issue Presidential Decree No.
73, I maintain that independently of the issue of whether or not the President may legislate during
martial law relative to matters not connected with the requirements of suppressing the armed
insurgency and the maintenance of peace and order, it was within the prerogative of the President to
issue said decree, considering that in doing so he merely acted as agent for and on behalf of the
Constitutional Convention, which, in my opinion written for the Court in the Tolentino case, I
individually held, had the power to call for a plebiscite, prescribe its terms and appropriate money for
the purpose. Disregarding immaterial niceties of form and language, and looking to its obvious intent
and purpose, I hold that Resolution No. 5843 of the Convention, approved on November 22, 1972,
delegated to the President in plenary terms the calling of the plebiscite, and since the ordinary rules
requiring the laying down of standards in the delegation of legislative functions binding Congress do
not, to my mind, apply to the Convention, if only because the latter occupies a higher plane of
legislative authority than Congress in matters related to the accomplishment of its objectives, it
follows that Presidential Decree No. 73 was validly issued.

(e) All the other objections to said decree were rendered premature, if not somehow moot and
academic for the time being, because under General Order No. 20, dated January 7, 1973, the
President postponed the plebiscite until further notice. Such being the case, nobody could positively
say that the President would not allow Congress to pass a plebiscite law or that he would not lift
martial law by then or that the contracts, executive orders, treaties, proclamations, decrees, etc. that
are supposed to be ratified together with the Constitution itself would not be published, for the proper
information of all concerned before the next date to be fixed for the plebiscite. In other words, no one
could say that appropriate steps would not be taken to meet the objections alleged in the petitions
before the plebiscite would be actually held. It is, indeed, judicially improper to pass upon any issue
the factual setting whereof may still be materially altered.

(f) On whether or not the holding of the plebiscite during martial law would materially affect proper
submission insofar as the freedom supposed to attend it is concerned, I agree with the respondents
that this is a question of fact which cannot be pre-determined and that it would, therefore, be the
burden of the petitioners to show by evidence that such freedom had been actually and substantially
impaired. When one recalls that measures were taken by the President precisely to provide the
widest opportunity for free debate and voting, consistent with the nature and purpose of the
plebiscite but at the same time safeguarding the objectives of the martial law proclaimed by him,
which measures he had to withdraw only when in his judgment he deemed it to be so required by
public safety, it does not seem altogether logical to assume that the existence of martial law per se
deprives the people of the essence of free suffrage. Martial law implemented Philippine style, to use
an apt expression, does not carry with it necessarily all the implications thereof as these are known
in other lands and in the recorded precedents.

Coming now to No. (2), it is evident that under the theory above-referred to that as agent of the
Convention, the President could devise other forms of plebiscite to determine the will of the majority
of the people vis-a-vis the ratification of the proposed Constitution, I believe that the establishment of
the Citizens' Assemblies as a mode of such plebiscite cannot be said to be clearly beyond the
contemplation of Article XV of the Constitution of 1935. It must be observed, however, that under
Article X of the same Constitution, it is the Commission on Elections that is supposed to "have
exclusive charge of the enforcement and administration of all laws relative to the conduct of
elections ..." and this function cannot be removed from the Commission whether by Congress or by
the President.2 This constitutional point seems to have been overlooked in the proceedings in the
Assemblies, since it does not appear from any of the official documents relative thereto that the
same have been undertaken or held under the charge of the Commission.

Besides, I feel I cannot bear evidence to history and the future generations of our people that in fact,
the answering of the questions and the canvassing and reporting of the referendum in the
Assemblies throughout the country were done exactly in the manner and form that they should have
been done, in the light of traditional concepts related to plebiscites as we know them. Otherwise
stated, I am not satisfied that Article XV of the 1935 Constitution has been fully complied with. By
this, I do not mean that it was not right to use the Assemblies; what I am saying is that, on the basis
of facts I am taking judicial notice of, the procedure of answering, canvassing and reporting adopted,
which, by the way, was far from being uniform in all the Assemblies, was not up to standard in many
places, judged on the basis of the requirements of the prevailing election laws.

On the other hand, in spite of these considerations, I do not find myself in a position to deny the
factual assertion in Proclamation 1102 that more than 14 million Filipinos have manifested approval
of the proposed Constitution and would consider the same as already ratified by them. I understand
that this number was determined on the basis of sworn reports of the respective heads of the
Assemblies. Such being the case, I am faced with proof which I have no way of duly controverting
that our people have spoken. I consider it undemocratic, impractical and unrealistic to close my eyes
to that vital fact. And since in a democracy the will of the people is the supreme law, I hold that it
would be improper for the Court to enjoin any act done or to be done pursuant to the proclamation in
dispute. I believe that whatever legal flaws there might have been in the procedure pursued leading
to the issuance of said proclamation may be deemed already cured by the apparent will of the
people however imperfectly, under legal and technical standards, the same has been expressed. To
grant the prayer of petitioners now would be tantamount to defying the very sovereign people by
whom and for whom the Constitution has been ordained, absent any demonstrated facts showing
that they prefer the status quo, which the Convention was precisely called to change meaningfully, to
the wide-range reforms everybody can see are being effected in practically all levels of the
government and all sectors of society. Withal, to issue any such injunctive writ at this stage of
denouncement of national events is to court consequences too horrible to imagine.

To the possible stricture that persons less than twenty-one years of age were allowed to participate
and vote in said Assemblies, my reaction is that I am not sure that Article V of the 1935 Constitution,
viewed in the light of the perceptible universal drift towards the enfranchisement of the youth, may
not be construed as permitting legislative enlargement of the democratic base of government
authority, since the said Article does not say that those thereby qualified are the only ones who can
vote - the language being simply that "suffrage may be exercised by male citizens of the Philippines
not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and
write, and who shall have resided in the Philippines for one year and in the municipality wherein they
propose to vote for at least six months preceding the election. ...," which, to me, strictly speaking,
only guarantees the right of suffrage to those enumerated but does not deny to the legislature the
power to include others who in its wisdom it believes should also enjoy such right. In any event, it is
elementary under our election law and jurisprudence that should it appear that disqualified persons
have succeeded in voting in an election, such election is not thereby necessarily rendered wholly
illegal, but the votes of such persons are only correspondingly deducted after being duly identified.
Accordingly, on the premise that the inclusion of those below 21 is illegal, their votes may be
deducted from the 14,000,000 or so aforementioned, and I am certain no one will deny that the
remainder would still be substantially sufficient to constitute a recognizable mandate of the people,
for under normal circumstances which must be presumed, and making the most liberal estimate, the
votes of the under aged voters among them could not have been more than one-third of said
number. Indeed, at the most, if this point had been considered before the issuance of Proclamation
1102, an injunction might have issued to restrain the under aged persons from participating in the
referendum, but now that the result thereof is a fait accompli, I cannot see how such a possible flaw
can be of any material consequence.

As may be noted, I have taken it upon myself to rule on the legal issues surrounding Proclamation
1102. Indeed, I feel very strongly that, as a member of the Supreme Court, it is my duty to our
people to enlighten them as to said issues. The eyes of the whole country have been pinned on Us
since the Convention approved the draft of the Constitution in question on November 30, 1972, and
the President called, on December 1, 1972, thru Presidential Decree No. 73, for a plebiscite
scheduled to be held on January 15, 1973, for its ratification. Concerned citizens purporting to speak
for the people have precisely come to the Court challenging the legality of the procedure thus
pursued as not being in consonance with the amending process specified in the 1935 Constitution
and praying that the Court enjoin the continued adoption of said procedure. Everybody knows that
they came to Us with the conviction that the Court would not hesitate to play its role as the final
authority designated by the Constitution itself to interpret and construe its provisions.

Accordingly, We gave due course to their petitions, and for two days, December 18 and 19, We
heard brilliant and learned counsel of both sides argue eloquently, even with obvious patriotic fervor
but in view of the circumstances related in the separate opinion of the Chief Justice, We were unable
to decide the cases even as late as January 13, 1973. Petitioners then came with motions urgently
seeking an early decision, and soon after, or, on January 15, 1973, petitioners in G.R. No. L-35948
filed a supplemental petition relative to the latest developments involving the creation of Citizens
Assemblies and the persistent reports indicating almost to a certainty that a proclamation would be
issued doing away with the usual plebiscite procedure and already proclaiming the proposed
Constitution as ratified and in force, on the basis alone of the favorable result of a referendum in said
Assemblies. Their main prayer was for Us to issue a writ of prohibition against the submission and
approval of the reports of the results of said referendum. We immediately required the respondents
to answer the supplemental petition not later than January 16 and set the case for hearing on
January 17 at 9:30 o'clock in the morning.

In closing his arguments before the Court that fateful morning, Senator Lorenzo Tanada, the
tenacious counsel for petitioners, pleaded earnestly, even after the Chief Justice had read to him in
open session the text of Proclamation 1102 which had just been delivered by the Secretary of
Justice, that the Court rule squarely on the issues petitioners have raised. He told Us that it is
secondary whether Our judgment should be favorable or unfavorable to petitioners, what is most
important is for the people to know whether or not the provisions of the Constitution have been
observed.

Indeed, no graver responsibility rests on the shoulders of the Court. And as I see it, We cannot shirk
that responsibility by alleging technical excuses which I sincerely believe are at best of controversial
tenability.

I cannot share the view that the validity and constitutionality of Proclamation 1102 have not been
submitted to Us for resolution in these proceedings. I maintain that for all intents and purposes, the
supplemental motion of Senator Tanada of January 15 placed those transcendental issues before
Us. Not only in his pleading but more so in his oral argument, Senator Tanada, with all the vigor of
his mind and the sincere patriotism of his heart, contended that with the creation of the Citizens
Assemblies and the referendum being conducted therein, and particularly in view of the two
questions to be answered, namely, "Do you approve of the proposed constitution?" and "Do you
want the plebiscite to be held?", there was no doubt that Article XV of the Constitution was being
bypassed and that this Court was being "short-circuited." In terms that could not have been plainer,
he pointed to the impending probability of the issuance of a proclamation of the nature of
Proclamation 1102, and he prayed eloquently, that We should act without loss of time to stop the
purported reports of the referendum so as to remove the basis for such feared eventuality. So much
so, that after the Chief Justice read the proclamation to him, he dramatically exclaimed, "I have been
confirmed." Others would have said, "Consummatum est!"

Under these circumstances, I cannot see how it can be held that We can refrain from ruling on the
legal and constitutional significance of Proclamation 1102. At the very least, the present state of the
case of Vidal Tan, et al. vs. Comelec, et al., G.R. No. L-35948, imposes upon Us the ineludible
obligation to rule whether or not We should have enjoined the submission of the reports of the
Assemblies, as demanded by petitioners, it being evident that as Senator Tanada contended said
reports were to be utilized as basis for the issuance of a proclamation declaring the proposed
Constitution as ratified and already in force. In similar past cases too numerous to cite, this Court
and all courts in the country, I dare say, have always considered the consummation of a threatened
act, after the petition to enjoin it has been submitted to the court's jurisdiction, as fit subject for its
disposition, within the same proceedings, to the extent that the courts even issue mandatory
injunctions, in appropriate cases, for the respondents to undo what has already been done without
having to hold any further hearing. It is claimed that the parties must be fully heard — but have we
not heard enough from them? Has not Senator Tanada presented all his arguments in support of his
supplemental petition? And if he has not, is it the fault of the Court? Is it fair to all concerned that
such possible omission be considered as a ground for Our withholding Our judgment on what under
the law and the rules is already properly before Us for resolution? Truth to tell, I cannot imagine a
fuller ventilation of the cause of any other petitioner who has come to this Court than petitioners in
G.R. No. L-35948. Rarely has the Court held hearings for days and more unusually has it given any
counsel almost unlimited time to speak, but these We have done in these cases. Can any party ask
for more? If at all, only the respondents have not adequately presented their side insofar as the
supplemental petition is concerned, but, again, it cannot be said that they have not had the
opportunity to do so. The Acting Solicitor General has unqualifiedly filed his answer on behalf of all
the respondents, and to me, his attempt to impress the Court that the new respondents have not
been summoned and that the subject petition is premised on probabilities and conjectures is of no
moment, considering the grave importance of the issues and the urgent necessity of disposing them
expeditiously and without unnecessary loss of fateful time. Of course, I respect the reasons of my
colleagues who cannot see it my way, but as far as I am concerned, this is as appropriate a case
and an occasion as any can be to resolve all the fundamental issues raised by petitioners, and to
leave them unresolved now would be practically inviting some non-conformists to challenge the
Constitution and to keep not only the wheels of the transition at a standstill, but worse, also the
animus of the people in suspended animation fraught with anxiety, with all the dire consequences
such a situation entails.

Some legalists would call the government under the proclaimed Constitution a revolutionary
government, but the President denies that it is, because, according to him, it is to operate under a
Constitution ratified by the people. At this crucial moment in the history of the nation, We need not
bother about variant nomenclatures; these can be subjective and are, in any event, unsubstantial.
What is of supreme and utmost importance is that the people be told what exactly the situation is,
sans the veneer of what might turn out after all to be an inaccurate appellation. The people must
know the real score, and, as a member of the Supreme Court, I do not hesitate to tell them that, as I
have already explained above, in my honest opinion, the purported ratification of the Constitution
attested in Proclamation 1102 and based on the referendum among the Citizens Assemblies falls
short of being in strict conformity with the requirements of Article XV of the 1935 Constitution. I must
hasten to add, however, that such unfortunate drawback notwithstanding, and considering all other
relevant circumstances, principally, the naked proof before Us indicating that the people approve of
it, I earnestly and sincerely believe that the new Constitution is legally recognizable and should be
recognized as legitimately in force.

I reiterate I have no legal means of denying it to be a fact, as stated in the proclamation, that
14,000,000 Filipinos have manifested in the referendum in the Citizens Assemblies their approval of
this Constitution. And even if We considered that said referendum was held under the aegis of full
implementation of the martial law proclaimed by the President under Proclamation 1081, as
mandated by General Order No. 20, We would not be able to ignore that the government under this
Constitution is well organized and is in stable, effective and complete control of the whole Philippine
territory, and what is more pertinently important, that this Constitution purged as it is now of its
Achilles heel, the Interim National Assembly, may fairly be said to be acceptable generally to the
people, embodying as it does meaningful reforms designed to check, if not to eradicate the then
prevalent causes of widespread popular restiveness and activism which has already assumed
practically the proportions of an armed insurgency or rebellion somehow endangering the security
and safety of the constituted government, if not the integrity of the nation. And in connection with the
implementation of martial law thus ordered, as I have already noted earlier in this opinion, its being
done Philippine style may be of some relevance, since such enforcement is not characterized by the
rigor that the usual concept of martial law connotes, hence, any suggestion of constructive duress
relative to the proceedings in the Assemblies and the Barangays may not fully hold water. Upon
these premises, it is my considered opinion that if in any sense the present government and
Constitution may be viewed as revolutionary, because they came into being, strictly speaking, extra-
constitutionally or outside the pale of the 1935 Constitution, they are nonetheless entitled to be
accorded legitimate standing, for all intents and purposes and for all concerned, under the
universally accepted principle that a revolution, whether violent or bloodless, is illegal only when it
fails to gain the support of the people. Indeed, under these circumstances, I cannot resist the
temptation of asking, is it juridically possible for this Court to declare unconstitutional and without
force and effect the very Constitution under which it presently exists? I am inclined to hold that the
answer to this question can only be in the negative. Consequently, petitioners are not entitled to any
judicial relief and, I have no alternative but to vote for the dismissal of the supplemental petition of
January 15, 1973.
In conclusion, I hold that the 1935 Constitution has pro tanto passed into history and has been
legitimately supplanted by the Constitution now in force by virtue of Proclamation 1102, issued
pursuant to the certified results of the referendum in the Citizens Assemblies all over the country
favoring its adoption and enforcement.

Long live our country, the Philippines! God bless our people, the Filipino people!

ZALDIVAR, J., dissenting:

I cannot agree with my worthy colleagues who hold the view that the petitions in all these have
become moot and academic simply because the relief prayed for by petitioners cannot be granted
after Proclamation No. 1102 was issued by the President of the Philippines. A case does not
become moot where there remain substantial rights or issues that are controverted and which are
not settled.1 This Court has decided cases even if no positive relief, as prayed for by a party in the
case, could be granted, or even if a party has withdrawn his appeal, if the case presented to the
court for resolution is a clear violation of the Constitution or of fundamental personal rights of liberty
and property.2

In the present cases it is in the public interest that this Court renders a ruling on the transcendental
issues brought about by the petition — issues which must be resolved by this Court as the guardian
of the Constitution of this Republic.

For a comprehensive appraisal of the facts and circumstances relevant to the resolution of the
issues involved in these cases, We shall narrate pertinent events, as shown in the record.

On December 1, 1972 the President of the Philippines, in his capacity as Commander-in-Chief of all
the Armed Forces of the Philippines and acting pursuant to Proclamation No. 1081, dated
September 21, 1972, issued Presidential Decree No. 73, submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention, and appropriating funds for the purpose. The Decree states that the same
was issued pursuant to Resolution No. 5843 of the 1971 Constitutional Convention proposing "to
President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the
proposed new Constitution on such appropriate date as he shall determine and providing for the
necessary funds therefor." "3 The decree set the plebiscite for January 15, 1973 and appropriated
the sum of P15,000,000.00 to carry out the purpose of the decree. The Decree provided for the
publication of the proposed Constitution, the dissemination of information regarding the proposed
Constitution, the application of the provisions of the Election Code of 1971 to the plebiscite insofar
as they are not inconsistent with the provisions of the decree, specially stating that the provisions of
said Code regarding the right and obligations of political parties and candidates shall not apply to the
plebiscite. The Decree further provided for a calendar for the plebiscite, for the registration of voters,
for the constitution of the board of inspectors, for watchers, for precincts and polling places, for the
official ballots to be used, for the preparation and transmission of plebiscite returns, for the canvass
of the returns by the city, municipality, and the municipal district board of canvassers, for the
canvass by the Commission on Elections and the proclamation of the results by said Commission,
for supplies and services needed for the holding of the plebiscite, and on the authority given to the
Commission on Elections to promulgate rules and regulations necessary to carry out the provisions
of the Decree.

On December 1, 1972, the President of the Philippines also issued General Order No. 17, ordering
and enjoining the Armed Forces of the Philippines and all other departments and agencies of the
Government to allow and encourage public and free discussions and debates on the proposed
Constitution before the plebiscite set for January 15, 1973.
During the first half of the month of December 1972, the petitioners, in the ten cases now before this
Court, filed petitions for prohibition with preliminary injunction, seeking to prevent the holding of the
plebiscite on January 15, 1973. The petitioners question the validity of Presidential Decree No. 73,
principally upon the ground that it is not in the power of the President of the Philippines to call a
plebiscite for the ratification or rejection of the proposed Constitution and to appropriate public funds
for the purpose. The petitioners also maintain that the period of only about 45 days from the date of
the approval of the proposed Constitution by the Constitutional Convention on November 30, 1972 to
January 15, 1973, was not a sufficient time for the electorate of this country to be properly informed
regarding the provisions of the proposed Constitution, and the electorate could not therefore vote
intelligently on whether to ratify or to reject the proposed Constitution, and so there could be no
proper submission of the proposed Constitution to the electorate. The petitioners further maintain
that the country being under martial law there could not be a free submission of the proposed
Constitution to the electorate. In some of the petitions, the petitioners also maintain that the
proposed Constitution contains provisions which are beyond the power of the Constitutional
Convention to adopt or to propose. All the petitioners prayed this Court to issue a writ of preliminary
injunction or restraining order to prevent the respondents in each of the petitions from implementing
Presidential Decree No. 73. This Court, however, did not issue the preliminary injunction, nor the
restraining order, prayed for. This Court required the respondents in each petition to answer the
petition, and set the cases for hearing on the petition for preliminary injunction and on the merits of
the case for December 18, 1972. Hearings were actually held for two days — on December 18 and
19, 1972.

On December 31, 1972, while these cases were pending before this Court, the President of the
Philippines issued Presidential Decree No. 86 creating the Citizens Assemblies throughout the
country. Among others, Decree No. 86 provides that there is created a citizen assembly in each
barrio in municipalities, and in each district in chartered cities, provided that in the case of Manila
and other chartered cities where there are no barrios there shall be a citizen assembly in every ward;
that the citizen assemblies shall consist of all persons who are residents of the barrio, district, or
ward for at least six months, 15 years of age or over, citizens of the Philippines, and who are
registered in the list of citizens assembly members kept by the barrio, district or ward secretary. As
stated in the decree, the purpose of establishing the citizens assemblies is to broaden the base of
the citizens' participation in the democratic process and to afford ample opportunities for the citizenry
to express their views on important national issues.

On January 5, 1973 the President of the Philippines issued Presidential Decree No. 86-A which,
among others, provided for the submission to the citizens' assemblies created under Presidential
Decree No. 86 questions to be answered, and among those questions are these two: (1) "Do you
approve of the new Constitution?"; (2) "Do you still want a plebiscite to be called to ratify the new
Constitution ?"

On January 7, 1973 the President issued General Order No. 20, ordering the postponement of the
plebiscite that had been scheduled for January 15, 1973. Said general order reads as follows:

GENERAL ORDER NO. 20

WHEREAS, pursuant to Presidential Decree No. 73 dated December 1, 1972, a plebiscite has been
called on January 15, 1973 at which the proposed Constitution of the Philippines shall be submitted
to the people for ratification or rejection;

WHEREAS, Presidential Decree No. 86, dated December 31, 1972, created Citizens Assemblies so
as to afford ample opportunities for the citizenry to express their views on important national issues;
WHEREAS, one of the questions presented to the Citizens Assemblies is: "Do you like the plebiscite
on the proposed Constitution to be held later?

WHEREAS, it is necessary to hold in abeyance the plebiscite until the people's preference has been
ascertained;

NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed Forces of

the Philippines, and pursuant to Proclamation No. 1081, dated September 21, 1972, do hereby order
that the plebiscite scheduled to be held on January 15, 1973, be postponed until further notice.

I further order that the provision of Section 3 of Presidential Decree No. 73 insofar as they allow free
public discussion of the proposed Constitution, as well as my order of December 17, 1972,
temporarily suspending the effects of Proclamation No. 1081 for the purposes of free and open
debate on the proposed Constitution, be suspended in the meantime.

Done in the City of the Manila, this 7th day of January, in the year of Our Lord, nineteen hundred
and seventy-three.

(Sgd.) FERDINAND E. MARCOS

President
Republic of the Philippines

By the President:

(Sgd.) ALEJANDRO MELCHOR

Executive Secretary

As of the day when the above-quoted General Order No. 20 was issued these cases were all
pending decision before this Court.

At this juncture I am going to particularize my discussion on case G.R. No. L-35948 (Vidal Tan, et
al., petitioners vs. Commission on Elections, et al., respondents). What I say in connection with the
Vidal Tan case may also be considered in relation with the other cases before Us.

On January 12, 1973 counsel for the petitioners in the Tan case filed an "Urgent Motion For Early
Decision", alleging, among others, that it was announced that voting by the Citizens' Assemblies
would be held on January 10 to 15, 1973 whereby the Citizens' Assemblies would be asked a
number of questions, among them the following:

(1) Do you approve of Citizens' Assemblies as the base of popular government to decide issues of
national interests?

(2) Do you approve of the new Constitution?

(3) Do you want a plebiscite to be called to ratify the new Constitution?

(4) Do you want the elections to be held in November, 1973 in accordance with the provisions of the
1935 Constitution?

(5) If the election would not be held, when do you want the next elections to be called?
(6) Do you want martial law to continue?

Counsel for the petitioners also alleged that petitioners had reasons to fear that the question: "Do
you approve of the new Constitution?", in relation to the question following it: "Do you still want a
plebiscite to be called to ratify the new Constitution?", would be an attempt to bypass and short-
circuit this Court before which the question regarding the validity of the plebiscite scheduled for
January 15, 1973 on the proposed Constitution was pending resolution. Counsel for petitioners also
alleged that they had reasons to fear "that if an affirmative answer to the two questions just referred
to would be reported then this Honorable Court and the entire nation would be confronted with a fait
accompli which has been attained in a highly unconstitutional and undemocratic manner;" and
"the fait accompli would consist in the supposed expression of the people approving the proposed
Constitution." Counsel further states "that if such event would happen then the case before this
Honorable Court could, to all intents and purposes, become moot because, petitioners fear, and they
therefore allege, that on the basis of such supposed expression of the will of the people through the
Citizens' Assemblies, it would be announced that the proposed Constitution with all its defects, both
congenital and otherwise, has been ratified" and "that in such a situation, the Philippines would be
facing a real crisis and there is a likelihood of confusion if not chaos, because then, the people and
their officials would not know which Constitution is in force."4

On January 13, 1973 this Court ordered the Solicitor General to answer the urgent motion of the
petitioners, dated January 12, 1973.

On January 15, 1973 counsel for petitioners filed "A Supplemental Motion for Issuance of
Restraining Order and for Inclusion of Additional Respondents." The respondents sought to be
added were the Department of Local Governments and its head, Secretary Jose Rono; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella; and the National
Ratification Coordinating Committee and its chairman, Guillermo de Vega. In their supplemental
motion for the issuance of restraining order enjoining the original respondents, as well as the
additional respondents, and their deputies, subordinates and/or substitutes from collecting,
certifying, announcing and reporting to the President or other officials concerned, the Citizens'
Assembly referendum results that would be obtained in the voting held during the period comprised
between January 10 and January 15, 1973, particularly on the two questions: (1) "Do you approve of
the new Constitution?", and (2) "Do you still want a plebiscite to be called for the ratification of the
new Constitution?" Counsel for petitioners further alleged that for lack of material time the
appropriate amended petition to include the new respondents could not be completed because the
submission of the proposed Constitution to the Citizens' Assemblies was not made known to the
public until January 11, 1973, but nevertheless the new respondents could properly be included
because in their petition petitioners prayed "for the annulment not only of Presidential Decree No. 73
but also of any similar decree, proclamation, order or instruction" so that Presidential Decree Nos. 86
(and 86-A) in so far at least as they attempt to submit the proposed Constitution to a plebiscite by
the Citizens' Assemblies are properly in issue in the case, and those who enforce, implement and
carry out said Presidential decrees and the instructions incidental thereto clearly fall within the scope
of the petition. Moreover, counsel for petitioners alleges that in the original petition they prayed for
the issuance of a writ of preliminary injunction restraining not only the original respondents, but also
their agents from the performance of acts, implementing, or tending to implement, Presidential
Decree No. 73 or any other similar decree, order, instructions, or proclamation in relation to the
holding of the plebiscite in question on January 15, 1973, and that they had also prayed for such
other relief which may be just and equitable. Counsel for petitioners stressed the plea that unless the
petition is decided immediately and the respondents were restrained or enjoined from collecting,
certifying, reporting, or announcing to the President the result of the alleged voting of the so-called
Citizens' Assemblies irreparable damage would be caused to the Republic of the Philippines, to the
Filipino people and to the cause of freedom and democracy, because after the result of the
supposed voting on the two precise questions that they mentioned shall have been announced, a
conflict would arise between those who maintain that the 1935 Constitution is still in force, on the
one hand, and those who maintain that the old Constitution is superseded by the proposed
Constitution on the other hand, thereby creating confusion if not chaos; and that even the jurisdiction
of this Court would be subject to serious attacks because the advocates of the theory that the
proposed Constitution had been ratified by reason of the announcement of the results of the
proceedings of the Citizens Assemblies would argue that General Order No. 3, which would also be
deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, had placed
Presidential Decrees No. 73 and No. 86 (and 86-A) beyond the reach and jurisdiction of this Court.

This Court required the Solicitor General to comment on the supplemental motion and set the said
motion for hearing on January 17, 1973.

On January 17, 1973 the urgent motion of January 12, 1973 and the supplemental motion for the
issuance of the restraining order and the inclusion of additional respondents were heard on oral
arguments by counsel for the petitioners and the Solicitor General. Towards the end of the hearing,
and while counsel for the petitioners was answering questions from Members of this Court, the Chief
Justice received a copy of Proclamation No. 1102 of the President of the Philippines "announcing
the ratification by the Filipino people of the Constitution proposed by the 1971 Constitutional
Convention." The Chief Justice read in open court, for the record, Proclamation No. 1102. Said
Proclamation reads as follows:

PROCLAMATION NO. 1102

ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION

PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional

Convention is subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in

chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all
persons who are residents of the barrio, district or ward for at least six months, fifteen years of age
or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members
kept by the barrio, district or ward secretary;

WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen
participation in the democratic process and to afford ample opportunity for the citizenry to express
their views on important national issues;

WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A,
dated January 5, 1973, the following questions were posed before the Citizens Assemblies or
Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to
ratify the new Constitution?

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561)
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who
voted for its rejection; while on the question as to whether or not the people would still like a
plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight
thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangay (Citizens Assemblies) should be considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the
members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan
ng Mga Barangay has strongly recommended that the New Constitution should already be deemed
ratified by the Filipino people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution
proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been
ratified by an overwhelming majority of all of the votes cast by the members of all the Barangay
(Citizens Assemblies) throughout the Philippines, and has thereby come into effect.

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.

Done in the City of Manila, this 17th day of January in the year of Our Lord, nineteen hundred and
seventy-three.

FERDINAND E. MARCOS
President of the Philippines

By the President:

ALEJANDRO MELCHOR
Executive Secretary

And so, what the petitioners had feared, as expressed in their urgent motion for early decision and in
their supplemental motion to issue restraining order, etc., that the results of the voting in the Citizens'
Assemblies might be taken as a basis for proclaiming the ratification of the proposed Constitution,
had actually happened. And so, what the petitioners in all the ten cases now before Us — among
them civic leaders, newspapermen, Senators and Congressmen, Members of the 1971
Constitutional Convention, and professionals — had tried to prevent from happening, that is, the
proclamation of the ratification of the proposed constitution on the basis of the affirmative votes that
might be cast in the plebiscite that was set for January 15, 1973 pursuant to Presidential Decree No.
73, the legality of which decree was being questioned by petitioners, had happened.

The crucial question before this Court is whether or not Presidential Proclamation No. 1102
announcing the ratification of the proposed Constitution of 1972 is in accordance with the
Constitution and has the effect of making the proposed Constitution of 1972 effective and in force as
of January 17, 1973 when the proclamation was issued. This is, I believe, the vital question that this
Court is called upon to resolve, and it is for this reason that I believe that this case has not been
moot and academic. While it is true that the relief prayed for by the petitioners, that the original
respondents be enjoined from implementing Presidential Decree No. 73, cannot now be granted,
Proclamation No. 1102 nevertheless has the effect of consummating the ratification of the proposed
Constitution — the very event which the petitioners had precisely sought to prevent from happening
when they filed their petitions. Presidential Proclamation No. 1102 has a tremendous effect upon the
political, economic and social life of the people of this country. I believe, therefore, that this Court
should not indulge in the niceties of procedural technicalities and evade the task of declaring
whether or not the Constitution proposed by 1971 Convention has been validly ratified as announced
in said Proclamation No. 1102. This Court is called upon to give the people of this Republic the
proper orientation regarding the effect of said Proclamation No. 1102. That orientation will only come
about when this Highest Court of the land has rendered a ruling on whether or not said Proclamation
No. 1102 is valid.
I cannot agree with the view of some of my colleagues that this Court cannot make a ruling on the
question of whether or not Proclamation No. 1102 is valid, because the validity of said proclamation
is not the matter that is squarely presented to this Court for resolution by the petitions in these
cases. I believe, however, that this Court should not close its eyes to the fact that in the ten petitions
that are before this Court the uniform prayers of the petitioners are to enjoin the implementation of
Presidential Decree No. 73 and to nullify said decree — precisely in order to prevent the ratification
of the Constitution proposed by the 1971 Convention in a manner that is not in accordance with the
Constitution and the law. So much so that in G.R. No. L-35948 (Tan, et al. v. Comelec, et al.) the
petitioners, among others, prayed that judgment be rendered declaring" ... Presidential Decree No.
73 or any similar decree, proclamation, order or instruction unconstitutional, null and void and
making the writ of preliminary injunction permanent." It is not difficult to understand that the purpose
of the petitioners was to invalidate any and all orders, decrees and proclamations that are corollary
or related to Presidential Decree No. 73 which had for its main purpose to submit the Constitution
proposed by the 1971 Convention to a plebiscite on January 15, 1973 and thereby determine
whether the people approve or reject the proposed Constitution. As We have adverted to, the
objective of the petitioners was to prevent the ratification of the proposed constitution in a manner
that is offensive to the Constitution and the law. All orders, decrees, instructions, or proclamations
made after the issuance of Presidential Decree No. 73, which have for their purpose either to
supplement Presidential Decree No. 73 or to accomplish through other means or methods what
Presidential Decree No. 73 was issued for, are encompassed within the prayer of petitioners to
nullify "any similar decree, proclamation, order, or instruction". Presidential Decrees Nos. 86 and 86-
A are such "similar" decrees, because, as it turned out, Presidential Decree No. 86 provided for the
organization of the citizens' assemblies which became the forums where the question of whether to
ratify or to reject the proposed Constitution was submitted; and, as it turned out, Presidential Decree
No. 86-A provided for the very question which otherwise the voters would have been asked to
answer "Yes" or "No" in the plebiscite which had been provided for in Presidential Decree No. 73. In
other words, Presidential Decree No. 86 supplanted Presidential Decree No. 73 in so far as the latter
decree provided for the forum where the question was to be asked; while Presidential Decree No.
86-A supplanted Presidential Decree No. 73 in so far as the latter decree provided for the question
to be asked regarding the proposed Constitution. And finally because Presidential Proclamation No.
1102 has for its basis what was done pursuant to Presidential Decrees Nos. 86 and 86-A, it follows
that Proclamation No. 1102 is just the "proclamation" that the petitioners sought to nullify or
invalidate if issued.

I believe that the effects of Proclamation No. 1102 have an intimate bearing on the objectives of the
petitioners when they filed the instant petitions for prohibition, and so said proclamation has to be
considered along with all the issues raised by the petitioners in the cases at bar. More so, because
said Proclamation No. 1102 was read into the record by the Chief Justice of this Court during the
hearing of L-35948 (Tan vs. Comelec), in open court, on January 17, 1973. I believe that this Court
must not ignore Proclamation No. 1102 in relation to the matters and to the issues ventilated before
this Court. Proclamation No. 1102 was formally brought to the attention of this Court. It is my view
that this Court should not evade its duty of defining for the benefit of the people of this Republic the
legal and constitutional nature and effects of that proclamation. I, for one, as a humble member of
this Court, feel it my duty to say what I think, and believe, about Proclamation No. 1102. I do this not
because of any desire on my part to obstruct the workings of the agencies and instrumentalities of
our Government, or to foster among the people in our country an attitude of disrespect or disloyalty
towards the constituted authorities that presently run the affairs of our Government. I am only doing
what I believe is my sworn duty to perform.

The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines,
which reads:
Section 1. The Congress in joint session assembled by a vote of three fourths of all the Members of
the Senate and of the House of Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification.

It is in consonance with the above-quoted provision of the 1935 Constitution that on March 16, 1967,
the Congress of the Philippines passed Resolution No. 2 calling a convention to propose
amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:

Section 7. The amendments proposed by the Convention shall be valid and considered part of the
Constitution when approved by a majority of the votes cast in an election which they are submitted to
the people for their ratification pursuant to Article XV of the Constitution.

It follows that from the very resolution of the Congress of the Philippines which called for the 1971
Constitutional Convention there was a clear mandate that the amendment proposed by the 1971
Convention, in order to be valid and considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are submitted to the people for their ratification
as provided in the Constitution.

This Court, in the case of Tolentino vs. Commission on Elections, L-35140, October 16, 1971 (41
SCRA 715), speaking through Mr. Justice Barredo, said:

The Constitutional Convention of 1971, as any other convention of the same nature, owes its
existence and derives all its authority and power from the existing Constitution of the Philippines.
This Convention has not been called by the people directly as in the case of a revolutionary
convention which drafts the first Constitution of an entirely new government born of either a war of
liberation from a mother country or of a revolution against an existing government or of a bloodless
seizure of power a la coup coup d' etat. As to such kind of conventions, it is absolutely true that the
convention is completely without restraint and omnipotent all wise, and it is as to such conventions
that the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by
Senator Pelaez refer. No amount of rationalization can belie the fact that the current convention
came into being only because it was called by a resolution of a joint session of Congress acting as a
constituent assembly by authority of Section 1, Article XV of the present Constitution ...

xxx xxx xxx

As to matters not related to its internal operation and the performance of its assigned mission to
propose amendments to the Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now we hold that even as to its latter task of
proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV.

In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that
as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines the President proclaimed that the Constitution proposed by the
1971 Convention has been ratified and has thereby come into effect.

It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of
Article XV of the Constitution of 1935 was not complied with. It is not necessary that evidence be
produced before this Court to show that no elections were held in accordance with the provisions of
the Election Code. Proclamation No. 1102 unequivocably states that the proposed Constitution of
1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the qualified and registered voters of
the country would cast their votes, where official ballots prepared for the purpose are used, where
the voters would prepare their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country, where the election is conducted
by election inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to
the Constitution to increase the number of Members of the House of Representatives and to allow
the Members of Congress to run in the elections for Delegates to the Constitutional Convention of
1971 were rejected.

I cannot see any valid reason why the practice or procedure in the past, in implementing the
constitutional provision requiring the holding of an election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.

It is my view that the President of the Philippines cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No.
1102 was issued in complete disregard, or, in violation, of the provisions of Section 1 of Article V of
the 1935 Constitution.

Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people
would still like a plesbiscite to be called to ratify the new Constitution, 14,298,814 members of the
barangays answered that there was no need for a plebiscite but that the vote of the barangays
should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the
power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.

The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.

An election is the embodiment of the popular will, the expression of the sovereign power of the
people. In common parlance an election is the act of casting and receiving the ballots, counting
them, and making the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637).

Election" implies a choice by an electoral body at the time and substantially in the manner and with
the safeguards provided by law with respect to some question or issue. (Leffel v. Brown, Com. Pl.,
159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).

... the statutory method whereby qualified voters or electors pass on various public matters
submitted to them — the election of officers, national, state, county, township — the passing on
various other questions submitted for their determination (29 C.J.S. 13, citing Iowa-Illinois Gas &
Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358).
Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W. 2d 438, 254
Ky. 720, in Words and Phrases, Permanent Edition, p. 234).

The right to vote may be exercised only on compliance with such statutory requirements as have
been set up by the legislature, (People ex rel. Rago v. Lipsky 63 N.E. 2d 642, 327 III. App. 63;
Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied)

In this connection I herein quote the pertinent provisions of the Election Code of 1971:

Sec. 2. Applicability of this Act. — All elections of Public officers except barrio officials
and plebiscites shall be conducted in the manner provided by this Code.

Sec. 99. Necessity of registration to be entitled to vote. — In order that a qualified voter may vote in
any regular or special election or in any plebiscite, he must be registered in the permanent list of
voters for the city, municipality or municipal district in which he resides: Provided, That no person
shall register more than once without first applying for cancellation of his previous registration.
(Emphasis supplied). 3) Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388).

It is stated in Proclamation No. 1102 that the voting was done by the members of citizens
assemblies who are 15 years of age or over. Under the provision of Section 1 of Article V of the
1935 Constitution the age requirement to be a qualified voter is 21 years or over.

But what is more noteworthy is the fact that the voting in the barangays, except in very few
instances, was done by the raising of hands by the persons indiscriminately gathered to participate
in the voting, where even children below 15 years of age were included. This is a matter of common
observation, or of common knowledge, which the Court may take judicial notice of. To consider the
votes in the barangays as expressive of the popular will and use them as the basis in declaring
whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which would
mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the supreme law of the land, should be
ratified or not, must not be decided by simply gathering people and asking them to raise their hands
in answer to the question of whether they vote for or against a proposed Constitution. The election
processes as provided by law should be strictly observed in determining the will of the sovereign
people in a democracy. In our Republic the will of the people must be expressed through the ballot in
a manner that is provided by law.

It is said that in a democracy the will of the people is the supreme law. Indeed, the people are
sovereign, but the will of the people must be expressed in a manner as the law and the demands of
a well-ordered society require. The rule of law must prevail even over the apparent will of the
majority of the people, if that will had not been expressed, or obtained, in accordance with the law.
Under the rule of law public questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of the adoption of a constitution or in the ratification of an
amendment to the Constitution.

The following citations are, to me, very relevant in the effort to determine whether the proposed
Constitution of 1972 had been validly ratified or not:

When it is said that "the people" have the right to alter or amend the constitution, it must not be
understood that this term necessarily includes all the inhabitants of the state. Since the question of
the adoption or rejection of a proposed new constitution or constitutional amendment must be
answered by a vote, the determination of it rests with those who, by the existing constitution, are
accorded the right of suffrage, But the qualified electors must be understood in this, as in many other
cases, as representing those who have not the right to participate in the ballot. If a constitution
should be abrogated, and a new one adopted, by the whole mass of people in a state, acting
through representatives not chosen by the "people" in the political sense of the term, but by the
general body of the populace, the movement would be extra-legal. (Black's Constitutional Law,
Second Edition, pp. 47-48).

The theory of our political system is that the ultimate sovereignty is in the people, from whom springs
all legitimate authority. The people of the Union created a national constitution, and conferred upon it
powers of sovereignty over certain subjects, and the people of each State created a State
government, to exercise the remaining powers of sovereignty so far as they were disposed to allow
them to be exercised at all. By the constitution which they establish, they not only tie up the hands of
their official agencies, but their own hands as well; and neither the officers of the State, nor the
whole people as an aggregate body, are at liberty to take action in opposition to this fundamental
law. (Cooley's Constitutional Limitations, 8th Edition, Vol. I, p, 81 cited in Graham v. Jones, 3 So. 2d.
761, 782).

The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend a
constitution, may cure, render innocous, all or any antecedent failures to observe commands of that
Constitution in respect of the formulation or submission of proposed amendments thereto, does not
prevail in Alabama, where the doctrine of the stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome constitutional principles in Collier v.
Frierson supra, as quoted in the original opinion, ante. The people themselves are bound by the
Constitution; and, being so bound, are powerless, whatever their numbers, to change or thwart its
mandates, except through the peaceful means of a constitutional convention, or of amendment
according to the mode therein prescribed, or through the exertion of the original right of revolution.
The Constitution may be set aside by revolution, but it can only be amended in the way it provides,"
said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. Johnson v. Craft, et
al., 87 So. 375, 385, 387 On Rehearing).

The fact that a majority voted for the amendment, unless the vote was taken as provided by the
Constitution, is not sufficient to make a change in that instrument. Whether a proposed amendment
has been legally adopted is a judicial question, for the court must uphold and enforce the
Constitution as written until it is amended in the way which it provides for. Wood v. Tooker 15 Mont.
8, 37 Pac. 840, 25 L.R.A. 560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland
Paving Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958,
133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104).

Provisions of a constitution regulating its own amendment, ... are not merely directory, but are
mandatory; and a strict observance of every substantial requirement is essential to the validity of the
proposed amendment. These provisions are as binding on the people as on the legislature, and the
former are powerless by vote of acceptance to give legal sanction to an amendment the submission
of which was made in disregard of the limitations contained in the constitution. (16 C.J.S. 35-36 cited
in Graham v. Jones, 3 So. 2d 761, 782).

It is said that chaos and confusion in the governmental affairs of the State will result from the Court's
action in declaring the proposed constitutional amendment void. This statement is grossly and
manifestly inaccurate. If confusion and chaos should ensue, it will not be due to the action of the
Court but will be the result of the failure of the drafters of the joint resolution to observe, follow and
obey the plain essential provisions of the Constitution. Furthermore, to say that, unless the Court
disregards its sworn duty to enforce the Constitution, chaos and confusion will result, is an inherently
weak argument in favor of the alleged constitutionality of the proposed amendment. It is obvious
that, if the Court were to countenance the violations of the sacramental provisions of the
Constitution, those who would thereafter desire to violate it and disregard its clear mandatory
provisions would resort to the scheme of involving and confusing the affairs, of the State and then
simply tell the Court that it was powerless to exercise one of its primary functions by rendering the
proper decree to make the Constitution effective, (Graham v. Jones, 3 So. 2d. 761, 793-794).

In our jurisprudence I find an instance where this Court did not allow the will of the majority to
prevail, because the requirements of the law were not, complied with. In the case of Monsale v.
Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of
Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of
candidacy before the expiration of the period for the filing of the same. However, on October 10,
1947, after the period for the filing of certificates of candidacy, Monsale withdrew his certificate of
candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by
withdrawing the withdrawal of his certificate of candidacy. The Commission on Elections, on
November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless
proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes
cast for Monsale upon the ground that the votes cast for him were stray votes, because he was
considered as having no certificate of candidacy. On the other hand, the boards of inspectors
credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the
election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the
proceedings in the trial court it appeared that Monsale had obtained 2,877 votes while Nico obtained
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo
decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the
decision of the lower court. This Court declared that because Monsale withdrew his certificate of
candidacy his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not
restore the effectiveness of his certificate of candidacy, and this court declared Nico the winner in
spite of the fact that Monsale had obtained more votes than he.

We have cited this Monsale case to show that the will of the majority of the voters would not be
given effect, as declared by this Court, if certain legal requirements have not been complied with in
order to render the votes valid and effective to decide the result of an election.

And so, in the cases now before this Court, the fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the
basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was
reported that 14,976,561 members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law must
be upheld.

My last observation: One of the valid grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
to exercise their right of choice, because of the existence of martial law in our country. The same
ground holds true as regards the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of Presidential Decree No. 13 in so far as they allow free
public discussion of the proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open
debate on the proposed constitution, be suspended in the meantime."5 It is, therefore, my view that
voting in the barangays on January 10-15, 1973 was not free, and so this is one added reason why
the results of the voting in the barangays should not be made the basis for the proclamation of the
ratification of the proposed Constitution.
It is my view, therefore, that Proclamation No. 1102 is repugnant to the 1935 Constitution, and so it
is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971
Constitutional Convention should be considered as not yet ratified by the people of this Republic,
and so it should not be given force and effect.

During the deliberation of these cases by this Court, a suggestion was made that because of the
transcendental effect of Proclamation No. 1102 on the country, the petitioners in these cases,
specially the petitioners in L-35948 (Vidal Tan, et al. vs. Comelec, et al.), be given a period of ten
days to move in the premises, considering that the issuance of Proclamation No. 1102 came as a
surprise to the petitioners and they had no opportunity to define their stand on said Proclamation in
relation to their petitions. The majority of the Court, however, were not in favor of the idea. I
expressed myself, and I so express now, that I am in favor of granting the petitioners the opportunity
to articulate their stand regarding Proclamation No. 1102 so that the objection of some members of
this Court to pass upon the validity of said proclamation upon the ground that it is not in issue in
these cases may be met, and so that the validity of Proclamation No. 1102, and the question of
whether or not the proposed 1972 Constitution has been validly ratified, may be resolved by this
Court once and for all.

At any rate, whether the petitioners are granted opportunity to define their stand on Proclamation No.
1102, or not, I humbly submit this opinion for whatever if may be worth, with the hope that the
officials and the citizens of this country will take note of it, and ponder over it. I am only doing my
duty according to the light that God has given me.

Footnotes

Concepcion, C.J. concurring:

1 Mun. of Malabang v. Benito, L-28113, March 28, 1969; NAWASA v. Piguing, et al., L- 35573, Oct.
11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967; Gonzales v. Commission on
Elections, L-28224, Nov. 29, 1967; Bara Lidasan v. COMELEC, L-28089, Oct. 25, 1967; Mun. of San
Juan v. NAWASA, L-22047, Aug. 31, 1967; Mun. of San Joaquin v. Siva, L-19870, March 18, 1967;
Pelayo v. Auditor General, L-23825, Dec. 24, 1965; Philippine Constitution Association v. Gimenez,
L-23326, Dec. 18, 1965; Mun. of La Carlota v. NAWASA, L-20232, Sept. 30, 1964; Guevara v.
Inocentes, L-25577, March 15, 1966; Gillera v. Fernandez, L-20741, Jan. 31, 1964; Siguiente v.
Secretary of Justice, L-20370, Nov. 29, 1963; Mun. of Naguilian v. NAWASA, L-18540, Nov. 29,
1963; Herrera v. Liwag, L-20079, Sept. 30, 1963; Aytona v. Castillo, L-19313, Jan. 19, 1962; La
Mallorca, etc. v. Ramos, et al., L-15476, Sept. 19, 1961; Tan v. De Leon, et al., L-15254, Sept. 16,
1961; Macias v. Commission on Elections, L-18684, Sept. 14, 1961; Philippine Tobacco Flue-Curing
& Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31, 1961; Miller v. Mardo, L-15138, July 31, 1961;
Cu Bu Liong v. Estrella, et al.,
L-14212, July 31, 1961; Pampanga Sugar Development Co., Inc. v. Fuentes, et al., L-14738, July
31, 1961; Earnshaw Docks & Honolulu Iron Works v. Mardo, et al., L-14759, July 31, 1961; Liwanag
v. Central Azucarera Don Pedro, L-15372, July 31, 1961; Lecura v. Regional Office No. 3, etc., L-
15582, July 31, 1961; Pitogo v. Sen Bee Trading Co., et al., L-15693, July 31, 1961; Pascual v.
Secretary of Public Works and Communications, L-10405, Dec. 29, 1960; Corominas, Jr. v. Labor
Standards Commission, L-14837, June 30, 1961; City of Baguio v. NAWASA, L-12032, Aug. 31,
1959; City of Cebu v. NAWASA, L-12892, April 20, 1960; Montes v. Civil Service Board of Appeals,
101 Phil. 490; Rutter v. Esteban, 93 Phil. 68; Araneta v. Dinglasan, 84 Phil. 368; Borromeo v.
Mariano, 41 Phil. 322.

2 Reiterated in the aforementioned Proposed Constitution [Subdivision (2) (a) of Section 5, Article X
thereof].
Teehankee, J., concurring:

1 Such Citizens Assemblies, as stated in the proclamation, were created in barrios in municipalities
and in districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December
31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six
months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of
Citizen Assembly members kept by the barrio, district or ward secretary." (2nd whereas clause)

2 6th whereas clause.

3 The conduct of such elections (or plebiscite) is, under Article X of the Constitution, entrusted to the
Commission on Elections which has "exclusive charge" (See Justice Barredo's separate opinion, p.
7). Under Article V of the Constitution, the right of suffrage is limited to qualified and duly registered
voters, "who are 21 years of age or over and are able to read and write." Tolentino vs. Comelec,
infra, in denying reconsideration, prohibited the submittal in an advance election of the Con-Cons
Organic Res. No. 1 proposing to lower the voting age to 18, as a piece-meal and incomplete
amendment and rejected the contention "that the end sought to be achieved is to be desired." As per
Barredo, J., "if this kind of amendment is allowed, the Philippines will appear before the world to be
in the absurd position of being the only country with a Constitution containing a provision so
ephemeral no one knows until when it will be actually in force."

4 Article VI, sec. 23, par. 2 of the Constitution, provides that "No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law."

5 Cf. Tolentino vs. Comelec, L-34150, Oct. 16, 1971 and Resolution on motion for reconsideration
with concurring opinions. Nov. 4, 1971.

6 See text, Presidential Decree No. 73.

7 Article XVI, sec. 1, par. 1 of the proposed Constitution.

Barredo, J., concurring and dissenting:

1 It was agreed in the deliberations that the validity of Presidential Decree No. 73 would be passed
upon as if Proclamation 1102 did not exist, and afterwards, for those who would like to express their
views on the matter, the validity of Proclamation 1102 itself, hence the tenses and moods in this
discussion.

2 Under the Constitution of 1935, both Article X and Article XV use the same word "election", hence,
the plebiscite contemplated in the latter Article must be deemed to be intended to be included
among the elections placed under the charge of the Commission, irrespective of the form to be
employed therein.

Fernando, J., concurring and dissenting:

1 327 US 304 (1946).

2 Ex parte Kerby 205 P. 279 (1922).

3 L-32476, Oct. 20, 1970, 35 SCRA 367.

4 Ibid, 369.

5 Cf. Koehler v. Hill, 14 NW 738, 60 Iowa 543 (1883); Hatch v. Stoneman, 6 P. 734, 66 Cal. 632
(1885); Macmillan v. Blattner 25 NW 245, 67 Iowa 287 (1895); State v. Powell, 27 So 297, 77 Miss.
543 (1900); Hammond v. Clark, 71 SE 479, 136 Ga. 313 (1911); State v. Hall, 171 NW 213, 44 ND
459 (1919); Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 (1920) ; State v. Smith, 138 NE 881,
105 Ohio St. 570 (1922): Looney v. Leeper, 292 P. 365, 145 Okl. 202 (1930); School District v. City
of Pontiac, 247 NW 474, 262 Mich. 338 (1933).

6 According to Art. VI, Sec. 23. par. 2 of the Constitution: "No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law."

7 Cf. Hutcheson v. Gonzales, 71 P. 2d 140 (1937) : State Smith, 184 SW 2d 598 (1945).

8 L-28196 and 28224, November 9, 1967, 21 SCRA 774.

9 Ibid, 801-802.

10 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); People v. Vera, 65 Phil. 56 (1937);
Planas v. Gil, 67 Phil. 62 (1939): Tan v. Macapagal, L-24161, Feb. 29, 1972, 43 SCRA 677.

Zaldivar, J., dissenting:

1 Reserve Lite Ins. Co., Dallas, Tex. v. Franfather, 225 P. 2d 1035, 1036, 123 Colo. 77, 39 A.L.R. 2d
146; Appeal of Frank Foundries Corporation, 56 N.E. 2d 649, 652, 653, 323, III. App. 594 in 27A
Words and Phrases, p. 145.

2 Krivenko vs. Register of Deeds, 79 Phil. 461; Philippine Association of Colleges and Universities
vs. Secretary of Education, 97 Phil. 806; Hebron vs. Reyes, 104 Phil. 175.

3 Annex 1 of the Answer of the Respondents in L-35948 shows the resolution of the Constitutional
Convention of November 22, 1972, proposing to President Marcos that a decree be issued calling
for a plebiscite is Resolution No. 29. "Resolution No. 5843" is as stated in Presidential Decree No.
73.

4 Words within quotation marks in this paragraph are as quoted from the Urgent Motion For Decision
in L-35948, dated January 12, 1973.

5 As quoted from General Order No. 20, January 7, 1973.

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G.R. No. L-36142

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoke. Or if it is to be convened at all, it should
not be done so until after at least seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebiscite on the New
Constitution.

If the Citizens Assemblies approve of the new Constitution then the new Constitution should be
deemed ratified.

The Solicitor General claims, and there seems to be showing otherwise, that the results of the
referendum were determined in the following manner:

Thereafter, the results of the voting were collated and sent to the Department of Local Governments.
The transmission of the results was made by telegram, telephone, the provincial government SSB
System in each province connecting all towns; the SSB communication of the PACD connecting
most provinces; the Department of Public Information Network System; the Weather Bureau
Communication System connecting all provincial capitals and the National Civil Defense Network
connecting all provincial capitals. The certificates of results were then flown to Manila to confirm the
previous figures received by the aforementioned means of transmission. The certificates of results
tallied with the previous figures taken with the exception of few cases of clerical errors.

The Department adopted a system of regionalizing the receiving section of the Citizens Assemblies
operation at the Department wherein the identity of the barrio and the province was immediately
given to a staff in charge of each region. Every afternoon at 2:00 o'clock, the 11 regions submitted
the figures they received from the field to the central committee to tabulate the returns. The last
figures were tabulated at 12 midnight of January 16, 1973 and early morning of January 17, 1973
and were then communicated to the President by the Department of Local Governments.

The development culminated in the issuance by the President of Proclamation 1102 on January 17,
1973. Said proclamation reads:

PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF

THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional

Convention is subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in

chartered cities pursuant to Presidential Decree No. 6, dated December 31, 1972, composed of all
persons who are residents of the barrio, district or ward for at least six months, fifteen years of age
or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members
kept by the barrio, district or ward secretary;

WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of citizen
participation in the democratic process and to afford ample opportunity for the citizen to express their
views on important national issues;

WHEREAS, responding to the clamor of the people an pursuant to Presidential Decree No. 86-A,
dated January 5, 1973, the following questions were posed before Citizens' Assemblies or
Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to
ratify the new Constitution?

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty one (14,976,561)
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight hundred sixty nine (743,869) who
voted for its rejection; while on the question as to whether or not the people would still like a
plebiscite to be called to ratify the new Constitution fourteen million two hundred ninety-eight
thousand eight hundred fourteen (14,298,814) answered that there was no need for plebiscite and
that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite;

WHEREAS, since the referendum results show that more than ninety-five (95) percent of the
members of the Barangays (Citizen Assemblies) are in favor of the New Constitution, the Katipunan
ng Mga Barangay has strongly recommended that the new Constitution should already be deemed
ratified by the Filipino people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution
proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been
ratified by an overwhelmingly majority of all of the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come into effect.

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.

Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and
seventy-three.

The first attempt to question the steps just enumerated taken by the President was in the so-called
Plebiscite Cases, ten in number, which were filed by different petitioners during the first half of
December 1972.1 Their common target then was Presidential Decree No. 73, but before the said
cases could be decided, the series of moves tending in effect to make them moot and academic
insofar as they referred exclusively to the said Presidential Decree began to take shape upon the
issuance of Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B,
also above quoted, was issued and the six additional questions which were first publicized on
January 11, 1973 were known, together with the "comments", petitioners sensed that a new and
unorthodox procedure was being adopted to secure approval by the people of the new Constitution,
hence Counsel Tañada, not being satisfied with the fate of his urgent motion for early decision of the
above ten cases dated January 12, 1973, filed on January 15, 1973, his supplemental motion
seeking the prohibition against and injunction of the proceedings going on. Principal objective was to
prevent that the President be furnished the report of the results of the referendum and thereby
disable him from carrying out what petitioners were apprehensively foreseeing would be done — the
issuance of some kind of proclamation, order or decree, declaring that the new Constitution had
been ratified. Reacting swiftly, the Court resolved on the same day, January 15, which was Monday,
to consider the supplemental motion as a supplemental petition and to require the respondents to
answer the same the next Wednesday, January 17th, before the hour of the hearing of the petition
which set for 9:30 o'clock in the morning of that day. The details what happened that morning form
part of the recital of facts the decision rendered by this Court in the ten cases on January 22, 1973
and need not be repeated here. Suffice it to state no that before the hearing could be closed and
while Counsel Tañada was still insisting on his prayer for preliminary injunction or restraining order,
the Secretary of Justice arrived and personally handed to the Chief Justice a copy Proclamation
1102 which had been issued at about 11:00 o'clock that same morning. In other words, the valiant
and persistent efforts of petitioners and their counsels were overtaken by adverse developments,
and in the mind of the majority of the members of the Court, the cases had become academic. For
my part, I took the view that even on the basis of the supplemental petition and the answer thereto
filed by respondents, the Court could already decide on the fundamental issue of the validity
Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel
Tañada's pleading and argument had anticipated its issuance, but the majority felt it was not ready to
resolve the matter, for lack, according them, of full ventilation, and so, the decision reserved
petitioners the filing of the "appropriate" cases, evidently, the present ones.

II

At the threshold, I find myself confronted by a matter which, although believed to be inconsequential
by my learned brethren, I strongly feel needs special attention. I refer to the point raised by Counsel
Arturo M. Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as President
and President Pro Tempore of the Senate, to the effect that change in the composition of the
Supreme Court provided for the 1973 Constitution, from the 11-man tribunal under the 1935
Constitution to a 15-man Court, makes of these cases which were filed after January 17, 1973 the
date when Proclamation 1102 declared the new Constitution as ratified, political nature and beyond
our jurisdiction. The main consideration submitted in this connection is that inasmuch as the number
votes needed for a decision of this Court has been increased from six to eight in ordinary cases and
from eight to ten for the declaration of unconstitutionality of a treaty, executive agreement2 or law,
the Court would have to resolve first as a prejudicial question whether the Court is acting in these
cases as the 15-man or the 11-man Court, in which event, it would be faced with the dilemma that if
it acts either as the former or as the latter, it would be prejudging the very matter in issue one way or
the other, and, in effect, it would be choosing between two constitutions, which is a political
determination not within the Court's competence.

While I agree that the problem is at first blush rather involved, I do not share the view that the
premises laid down by counsel necessarily preclude this Court from taking a definite stand on
whether the Court is acting in these cases as the 15-Man or the 11-man Court. I feel very strongly
that the issue should not be ignored or dodged, if only to make the world know that the Supreme
Court of the Philippines is never incognizant of the capacity in which it is acting, much less lacking in
courage or wisdom to resolve an issue that relates directly to its own composition. What a disgrace it
would be to admit that this Supreme Court does not know, to use a common apt expression, whether
it is fish or fowl. Withal, scholars and researchers who might go over our records in the future will
inevitably examine minutely how each of us voted and upon what considerations we have
individually acted, and, indeed, doubts may arise as to whether or not, despite the general result we
might announce, there had been the requisite number of votes for a valid collegiate action.

For instance, it may be argued that the present cases do not involve an issue of unconstitutionality,
hence, if we are acting as the 11-man Court, only six votes would suffice to declare Proclamation
1102 ineffective, and if upon analysis of our respective opinions it should be inferable therefrom that
six of us have considered the matter before the Court as justiciable and at the same time have found
the procedure of ratification adopted in Presidential Decrees 86-A and 86-B and related orders of the
President as not being in conformity with Article XV of the old Constitution, a cloud would exist as to
efficacy of the dispositive portion of Our decision dismiss these cases, even if we have it understood
that by the vote of justices in favor of such dismissal, We intended to mean the implementation or
enforcement of the new Constitution now being done could continue.

Be that as it may, I am against leaving such an important point open to speculation. By nature I am
averse to ambiguity and equivocation and as a member of the Supreme Court, last thing I should
knowingly countenance is uncertainty as to the juridical significance of any decision of the Court
which is precisely being looked upon as the haven in which doubts are supposed to be
authoritatively dispelled. Besides, from very nature of things, one thing is indubitably beyond dispute
— we cannot act in both capacities of a 15-man and an 11-man Court at the same time, in like
manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us both in
force. Our inescapable duty is to make a choice between them, according to what law and other
considerations inherent to our function dictate. I cannot bear the thought that someone may
someday say that the Supreme Court of the Philippines once decided a case without knowing the
basis of its author to act or that it was ever wanting in judicial courage to define the same.

Accordingly, with full consciousness of my limitations but compelled by my sense of duty and
propriety to straighten out this grave of issue touching on the capacity in which the Court acting in
these cases, I hold that we have no alternative but adopt in the present situation the orthodox rule
that when validity of an act or law is challenged as being repugnant constitutional mandate, the
same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stated
differently, We have to proceed on the assumption that the new Constitution is in force and that We
are acting in these cases as the 15-man Supreme Court provided for there Contrary to counsel's
contention, there is here no prejudgment for or against any of the two constitutions. The truth of
matter is simply that in the normal and logical conduct governmental activities, it is neither practical
nor wise to defer the course of any action until after the courts have ascertained their legality, not
only because if that were to be the rule, the functioning of government would correspondingly be
undesirably hesitative and cumbersome, but more importantly, because the courts must at the first
instance accord due respect to the acts of the other departments, as otherwise, the smooth running
of the government would have to depend entirely on the unanimity of opinions among all its
departments, which is hardly possible, unless it is assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from being its sole interpreter, which is contrary
to all norms of juridical and political thinking. To my knowledge, there is yet no country in the world
that has recognized judicial supremacy as its basic governmental principle, no matter how desirable
we might believe the idea to be.

Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on the assumption that
this Court is still functioning under the 1935 Constitution. It is undeniable that the whole government,
including the provincial, municipal and barrio units and not excluding the lower courts up to the Court
of Appeals, is operating under the 1973 Constitution. Almost daily, presidential orders and decrees
of the most legislative character affecting practically every aspect of governmental and private
activity as well as the relations between the government and the citizenry are pouring out from
Malacañang under the authority of said Constitution. On the other hand, taxes are being exacted
and penalties in connection therewith are being imposed under said orders and decrees. Obligations
have been contracted and business and industrial plans have been and are being projected
pursuant to them. Displacements of public officials and employees in big numbers are going on in
obedience to them. For the ten justices of the Supreme Court to constitute an island of resistance in
the midst of these developments, which even unreasoning obstinacy cannot ignore, much less
impede, is unimaginable, let alone the absurd and complicated consequences such a position entails
in the internal workings within the judiciary amount its different components, what with the lower
courts considering such orders and decrees as forming part of the law of the land in making their
orders and decisions, whereas the Supreme Court is holding, as it were, their effectivity at bay if it is
not being indifferent to or ignoring them.

It is suggested that the President, being a man of law, committed to abide by the decision of the
Supreme Court, and if the Court feels that it cannot in the meantime consider the enforcement of the
new Constitution, he can wait for its decision. Accepting the truth of this assertion, it does
necessarily follow that by this attitude of the President, considers the Supreme Court as still
operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions for
the payment of the justices in accordance with the rate fixed in the New Constitution. Not only that,
official alter ego, the Secretary of Justice, has been shoving this Court, since January 18, 1973, all
matters related to the administrative supervision of the lower courts which by the new charter has
been transferred from the Department of Justice to the Supreme Court, and as far as I know,
President has not countermanded the Secretary's steps in that direction. That, on the other hand, the
President has not augmented the justices of the Court to complete the prescribed number of fifteen
is, in my appraisal, of no consequence considering that with the presence of ten justices who are the
Court now, there is a working quorum, and the addition of new justices cannot in anyway affect the
voting on the constitutional questions now before Us because, while there sufficient justices to
declare by their unanimous vote illegality of Proclamation 1102, the votes of the justices to added
would only be committed to upholding the same, since they cannot by any standard be expected to
vote against legality of the very Constitution under which they would be appointed.

Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We
are dealing here with a whole constitution that radically modifies or alters only the form of our
government from presidential parliamentary but also other constitutionally institutions vitally affecting
all levels of society. It is, to mind, unrealistic to insist on that, fundamentally, the 1973 Constitution is
the same 1935 Constitution, with a few improvements. A cursory perusal of the former should
convince anyone that it is in essence a new one. While it does retain republicanism as the basic
governmental tenet, the institutional changes introduced thereby are rather radical and its social
orientation is decidedly more socialistic, just as its nationalistic features are somewhat different in
certain respects. One cannot but note that the change embraces practically every part of the old
charter, from its preamble down to its amending and effectivity clauses, involving as they do the
statement of general principles, the citizenship and suffrage qualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and responsibilities not only of
citizens but also of officers of the government and the provisions on the national economy as well as
the patrimony of the nation, not to mention the distinctive features of the general provisions. What is
more, the transitory provisions notably depart from traditional and orthodox views in that, in general,
the powers of government during the interim period are more or less concentrated in the President,
to the extent that the continuation or discontinuance of what is now practically a one-man-rule, is
even left to his discretion. Notably, the express ratification of all proclamations, orders, decrees and
acts previously issued or done by the President, obviously meant to encompass those issued during
martial law, is a commitment to the concept of martial law powers being implemented by President
Marcos, in defiance of traditional views and prevailing jurisprudence, to the effect that the
Executive's power of legislation during a regime of martial law is all inclusive and is not limited to the
matters demanded by military necessity. In other words, the new constitution unlike any other
constitution countenances the institution by the executive of reforms which normally is the exclusive
attribute of the legislature.

Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a new
one, are that (1) Section 16 of its Article XVII which provides that this constitution shall "supersede
the Constitution of nineteen hundred and thirty-five and all amendments thereto" and (2) its transitory
provisions expressly continue the effectivity of existing laws, offices and courts as well as the tenure
of all incumbent officials, not adversely affected by it, which would have been unnecessary if the old
constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the
Judiciary (which include the Chief Justice and Associate Justices of Supreme Court) may continue in
office (under the constitution) until they reach the age of seventy years, etc." By virtue of the
presumptive validity of the new charter, all of form part of the 15-man-Court provided for therein
correspondingly, We have in legal contemplation, ceased in the meanwhile to be members of the 11-
man-Court in the 1935 Constitution. Should the Court finally decide that the Constitution is invalid,
then We would automatically revert to our positions in the 11-man- Court, otherwise, We would just
continue to be in our membership in the 15-man-Court, unless We feel We cannot in conscience
accept the legality of existence. On the other hand, if it is assumed that We are the 11-man-Court
and it happens that Our collective decision is in favor of the new constitution, it would be
problematical for any dissenting justice to consider himself as included automatically in the 15-man-
Court, since that would tantamount to accepting a position he does not honestly believe exists.

III

In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the
ratification of the 1973 Constitution it purports to declare as having taken place as a result of the
referendum above-referred to is ineffective since it cannot be said on the basis of the said
referendum that said Constitution has been "approved by a majority of the votes cast at an election"
in the manner prescribed by Article XV the Constitution of 1935. More specifically, they maintain that
the word "election" in the said Article has already acquired a definite accepted meaning out of the
consistent holding in the past of ratification plebiscites, and accordingly, no other form of ratification
can be considered contemplated by the framers of the Old Constitution than that which had been
followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the
supervision of the Commission on Elections. Furthermore, they emphatically deny the veracity of the
proclaimed results of the referendum because, according to them the referendum was a farce and its
results were manufactured or prefabricated, considering that Mr. Francisco Cruz, who is supposed to
have submitted the final report to the President, which served as basis for Proclamation 1102, had
no official authority to render the same, and it is inconceivable and humanly impossible for anyone to
have been able to gather, tabulate and canvass the 15 million votes allegedly reported within the
short period of time employed. Of course, they also contend that in any event, there was no proper
submission because martial law per se creates constructive duress which deprives the voters of the
complete freedom needed for the exercise of their right of choice and actually, there was neither
time nor opportunity for real debate before they voted.

On the other hand, the position of the Solicitor General as counsel for the respondents is that the
matter raised in the petitions is a political one which the courts are not supposed to inquire into, and,
anyway, there has been a substantial compliance with Article XV of the 1935 Constitution, inasmuch
as, disregarding unessential matters of form, the undeniable fact is that the voting in the referendum
resulted in the approval by the people of the New Constitution.

I need not dwell at length on these variant positions of the parties. In my separate opinion in the
Plebiscite Cases, I already made the observation that in view of the lack of solemnity and regularity
in the voting as well as in the manner of reporting and canvassing conducted in connection with the
referendum, I cannot say that Article XV of the Old Constitution has been complied with, albeit I held
that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myself
clearer on some relevant points, I would like to add a few considerations to what I have already said
in the former cases.

In my opinion in those cases, the most important point I took into account was that in the face of the
Presidential certification through Proclamation 1102 itself that the New Constitution has been
approved by a majority of the people and having in mind facts of general knowledge which I have
judicial notice of, I am in no position to deny that the result of the referendum was as the President
had stated. I can believe that the figures referred to in the proclamation may not accurate, but I
cannot say in conscience that all of them are manufactured or prefabricated, simply because I saw
with own eyes that people did actually gather and listen discussions, if brief and inadequate for those
who are abreast of current events and general occurrences, and that they did vote. I believe I can
safely say that what I have seen have also been seen by many others throughout the country and
unless it can be assumed, which honestly, I do not believe to be possible, that in fact there were
actually no meetings held and no voting done in more places than those wherein there were such
meetings and votings, I am not prepared to discredit entirely the declaration that there was voting
and that the majority of the votes were in favor of the New Constitution. If in fact there were
substantially less than 14 million votes of approval, the real figure, in my estimate, could still be
significant enough and legally sufficient to serve as basis for a valid ratification.

It is contended, however, that the understanding was that the referendum among the Citizens
Assemblies was to be in the nature merely of a loose consultation and not an outright submission for
purposes of ratification. I can see that at the outset, when the first set of questions was released,
such may have been the idea. It must not be lost sight of, however, that if the newspaper reports are
to be believed, and I say this only because petitioners would consider the newspapers as the official
gazettes of the administration, the last set of six questions were included precisely because the
reaction to the idea of mere consultation was that the people wanted greater direct participation, thru
the Citizens Assemblies, in decision-making regarding matters of vital national interest. Thus,
looking at things more understandingly and realistically the two questions emphasized by counsel,
namely, (1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to
ratify the new Constitution? should be considered no longer as loose consultations but as direct
inquiries about the desire of the voters regarding the matters mentioned. Accordingly, I take it that if
the majority had expressed disapproval of the new Constitution, the logical consequence would have
been the complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is
very plain to see that since the majority has already approved the new Constitution, a plebiscite
would be superfluous. Clear as these rationalizations may be, it must have been thought that if the
holding of a plebiscite was to be abandoned, there should be a direct and expressed desire of the
people to such effect in order to forestall as much as possible any serious controversy regarding the
non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause,
of the new Constitution. Oddly enough, the "comments" accompanying the questions do strongly
suggest this view. And as it turned out, the majority found no necessity in holding a plebiscite.

In connection with the question, Do you approve of the New Constitution? capital is being made of
the point that as so framed, the thrust of the said question does not seek an answer of fact but of
opinion. It is argued that it would have been factual were it worded categorically thus — Do you
approve the New Constitution? The contention would have been weighty were it not unrealistic. I
remember distinctly that the observation regarding the construction of the subject question was not
originally made by any of the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz
Castro whose mastery of the English language can rightly be the cause of envy of even professors
of English. None of the other members of the Court, as far as I can recall, ever noticed how the said
question is phrased, or if anyone of Us did, I am not aware that he gave it more than passing
attention. What I mean is that if neither any of the distinguished and learned counsels nor any
member of the Court understood the said question otherwise than calling for a factual answer
instead of a mere opinion, how could anyone expect the millions of unlettered members of the
Citizens Assemblies to have noticed the point brought out by Justice Castro? Truth to tell, I myself
did not realize the difference until Justice Castro gave it emphasis. Besides, reading the question in
the light of the accompanying "comment" corresponding to it in particular, I am certain that any one
who answered the same understood it in no other sense than a direct inquiry as to whether or not,
as a matter of fact, he approves the New Constitution, and naturally, affirmative answer must be
taken as a categorical vote of approval thereof, considering, particularly, that according to the
reported result of the referendum said answer was even coupled with the request that the President
defer the convening of the Interim National Assembly.

It is also contended that because of this reference in answer to that question to the deferment of the
convening of the interim assembly, the said answer is at best a conditional approval not proper nor
acceptable for purposes of ratification plebiscite. The contention has no basis. In interest of
accuracy, the additional answer proposed in pertinent "comment" reads as follows: "But we do not
want Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, as
reported, was of similar tenor, it is not fair to ascribe to it the imposition of a condition. At most, the
intention is no more than a suggestion or a wish.

As regards said "comments", it must be considered that a martial law was declared, the
circumstances surrounding making of the Constitution acquired a different and more meaningful
aspect, namely, the formation of a new society. From the point of view of the President and on the
basis of intelligence reports available to him, the only way to meet situation created by the
subversive elements was to introduce immediately effective reforms calculated to redeem the people
from the depth of retrogression and stagnation caused by rampant graft and corruption in high
places, influence peddling, oligarchic political practices, private armies, anarchy, deteriorating
conditions of peace and order, the so inequalities widening the gap between the rich and the poor,
and many other deplorable long standing maladies crying for early relief and solution. Definitely, as
in the case of rebellious movement that threatened the Quirino Administration, the remedy was far
from using bullets alone. If a constitution was to be approved as an effective instrument towards the
eradication of such grave problems, it had to be approved without loss of time and sans the
cumbersome processes that, from the realistic viewpoint, have in the past obstructed rather than
hastened the progress of the people. Stated otherwise, in the context of actualities, the evident
objective in having a new constitution is to establish new directions in the pursuit of the national
aspirations and the carrying out of national policies. Only by bearing these considerations in mind
can the "comments" already referred to be properly appreciated. To others said "comments" may
appear as evidence of corruption of the will of those who attended the assemblies, but actually, they
may also be viewed in the same light as the sample ballots commonly resorted to in the elections of
officials, which no one can contend are per se means of coercion. Let us not forget that the times are
abnormal, and prolonged dialogue and exchange of ideas are not generally possible, nor practical,
considering the need for faster decisions and more resolute action. After all voting on a whole new
constitution is different from voting on one, two or three specific proposed amendments, the former
calls for nothing more than a collective view of all the provisions of the whole charter, for necessarily,
one has to take the good together with the bad in it. It is rare for anyone to reject a constitution only
because of a few specific objectionable features, no matter how substantial, considering the ever
present possibility that after all it may be cured by subsequent amendment. Accordingly, there was
need to indicate to the people the paths open to them in their quest for the betterment of their
conditions, and as long as it is not shown that those who did not agree to the suggestions in the
"comments" were actually compelled to vote against their will, I am not convinced that the existence
of said "comments" should make any appreciable difference in the court's appraisal of the result of
the referendum.

I must confess that the fact that the referendum was held during martial law detracts somehow from
the value that the referendum would otherwise have had. As I intimated, however, in my former
opinion, it is not fair to condemn and disregard the result of the referendum barely because of martial
law per se. For one thing, many of the objectionable features of martial law have not actually
materialized, if only because the implementation of martial law since its inception has been generally
characterized by restraint and consideration, thanks to the expressed wishes of the President that
the same be made "Philippine style", which means without the rigor that has attended it in other
lands and other times. Moreover, although the restrictions on the freedom of speech, the press and
movement during martial law do have their corresponding adverse effects on the area of information
which should be open to a voter, in its real sense what "chills" his freedom of choice and mars his
exercise of discretion is suspension of the privilege of the writ of habeas corpus. The reason is
simply that a man may freely and correctly vote even if the needed information he possesses as to
the candidates or issues being voted upon is more or less incomplete, but when he is subject to
arrest and detention without investigation and without being informed of the cause thereof, that is
something else which may actually cause him to cast a captive vote. Thus it is the suspension of the
writ of habeas corpus accompanying martial law that can cause possible restraint on the freedom
choice in an election held during martial law. It is a fact, however, borne by history and actual
experience, that in the Philippines, the suspension of the privilege of the writ habeas corpus has
never produced any chilling effect upon the voters, since it is known by all that only those who run
afoul the law, saving inconsequential instances, have any cause for apprehension in regard to the
conduct by them of the normal activities of life. And so it is recorded that in the elections 1951 and
1971, held while the privilege of writ of habeas corpus was under suspension, the Filipino voters
gave the then opposition parties overwhelming if not sweeping victories, in defiance of the respective
administrations that ordered the suspensions.

At this juncture, I think it is fit to make it clear that I am not trying to show that the result of the
referendum may considered as sufficient basis for declaring that the New Constitution has been
ratified in accordance with the amending clause of the 1935 Constitution. I reiterate that in point of
law, I find neither strict nor substantial compliance. The foregoing discussion is only to counter, if I
may, certain impression regarding the general conditions obtaining during and in relation to the
referendum which could have in one way or another affected the exercise of the freedom of choice
and the use of discretion by the members of the Citizens Assemblies, to the end that as far as the
same conditions may be relevant in my subsequent discussions of the acceptance by the people of
the New Constitution they may also be considered.

IV

It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people.
And on this premise, my considered opinion is that the Court may no longer decide these cases on
the basis of purely legal considerations. Factors which are non-legal but nevertheless ponderous
and compelling cannot be ignored, for their relevancy is inherent in the issue itself to be resolved.

In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether
or not there was proper submission under Presidential Decree No. 73 is justiciable, and I still hold
that the propriety of submission under any other law or in any other form is constitutionally a fit
subject for inquiry by the courts. The ruling in the decided cases relied upon by petitioners are to this
effect. In view, however, of the factual background of the cases at bar which include ratification itself,
it is necessary for me to point out that when it comes to ratification, I am persuaded that there should
be a boundary beyond which the competence of the courts no longer has any reason for being,
because the other side is exclusively political territory reserved for their own dominion by the people.

The main basis of my opinion in the previous cases was acceptance by the people. Others may feel
there is not enough indication of such acceptance in the record and in the circumstances the Court
can take judicial notice of. For my part, I consider it unnecessary to be strictly judicial in inquiring into
such fact. Being personally aware, as I have already stated, that the Citizens Assemblies did meet
and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to
judicial tape and measure, to find out with absolute precision the veracity of the total number of votes
actually cast. After all, the claims that upon a comparison of conflicting reports, cases of excess
votes may be found, even if extrapolated will not, as far as I can figure out, suffice to overcome the
outcome officially announced. Rather than try to form a conclusion out of the raw evidence before Us
which the parties did not care to really complete, I feel safer by referring to the results announced in
the proclamation itself. Giving substantial allowances for possible error and downright manipulation,
it must not be overlooked that, after all, their having been accepted and adopted by the President,
based on official reports submitted to him in due course of performance of duty of appropriate
subordinate officials, elevated them to the category of an act of a coordinate department of the
government which under the principle separation of powers is clothed with presumptive correctness
or at least entitled to a high degree of acceptability, until overcome by better evidence, which in
these cases does not exist. In any event, considering that due to the unorthodoxy of the procedure
adopted and the difficulty of an accurate checking of all the figures, I am unable to conceive of any
manageable means of acquiring information upon which to predicate a denial, I have no alternative
but to rely on what has been officially declared. At this point, I would venture to express the feeling
that if it were not generally conceded that there has been sufficient showing of the acceptance in
question by this time, there would have been already demonstrative and significant indications of a
rather widespread, if not organized resistance in one form or another. Much as they are to be given
due recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord
to the filing of these cases as indicative enough of the general attitude of the people.

It is true that in the opinion I had the privilege of penning the Court in Tolentino vs. Comelec, 41
SCRA 702, I made strong and unequivocal pronouncements to the effect that any amendment to the
Constitution of 1935, to be valid, must appear to have been made in strict conformity with the
requirements of Article XV thereof. What is more, that decision asserted judicial competence to
inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in the
correctness of those views and I would even add that I sincerely feel it reflects the spirit of the said
constitutional provision. Without trying to strain any point however, I, submit the following
considerations in the context of the peculiar circumstances of the cases now at bar, which are
entirely different from those in the backdrop of the Tolentino rulings I have referred to.

1. Consider that in the present case what is involved is not just an amendment of a particular
provision of an existing Constitution; here, it is, as I have discussed earlier above, an entirely new
Constitution that is being proposed. This important circumstance makes a great deal of difference.

No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the
petitioner in the case I have just referred to is, now inviting Our attention to the exact language of
Article XV and suggesting that the said Article may be strictly applied to proposed amendments but
may hardly govern the ratification of a new Constitution. It is particularly stressed that the Article
specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be
valid as part of this Constitution." Indeed, how can a whole new constitution be by any manner of
reasoning an amendment to any other constitution and how can it, if ratified, form part of such other
constitution? In fact, in the Tolentino case I already somehow hinted this point when I made
reference in the resolution denying the motion for reconsideration to the fact that Article XV must be
followed "as long as any amendment is formulated and submitted under the aegis of the present
Charter." Said resolution even added. "(T)his is not to say that the people may not, in the exercise of
their inherent revolutionary powers, amend the Constitution or promulgate an entirely new one
otherwise.".

It is not strange at all to think that the amending clause of a constitution should be confined in its
application only to proposed changes in any part of the same constitution itself, for the very fact that
a new constitution is being adopted implies a general intent to put aside the whole of the old one,
and what would be really incongrous is the idea that in such an eventuality, the new Constitution
would subject its going into effect to any provision of the constitution it is to supersede, to use the
language precisely of Section 6, Article XVII, the effectivity clause, of the New Constitution. My
understanding is that generally, constitutions are self-born, they very rarely, if at all, come into being,
by virtue of any provision of another constitution. 3 This must be the reason why every constitution
has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea
of the referendum and provided for such a method to be used in the ratification of the New
Constitution, I would have had serious doubts as to whether Article XV could have had priority of
application.

2. When an entirely new constitution is proposed to supersede the existing one, we cannot but take
into consideration the forces and the circumstances dictating the replacement. From the very nature
of things, the proposal to ordain a new constitution must be viewed as the most eloquent expression
of a people's resolute determination to bring about a massive change of the existing order, a
meaningful transformation of the old society and a responsive reformation of the contemporary
institutions and principles. Accordingly, should any question arise as to its effectivity and there is
some reasonable indication that the new charter has already received in one way or another the
sanction of the people, I would hold that the better rule is for the courts to defer to the people's
judgment, so long as they are convinced of the fact of their approval, regardless of the form by which
it is expressed provided it be reasonably feasible and reliable. Otherwise stated, in such instances,
the courts should not bother about inquiring into compliance with technical requisites, and as a
matter of policy should consider the matter non-justiciable.

3. There is still another circumstance which I consider to be of great relevancy. I refer to the
ostensible reaction of the component elements, both collective and individual, of the Congress of the
Philippines. Neither the Senate nor the House of Representatives has been reported to have even
made any appreciable effort or attempt to convene as they were supposed to do under the
Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being
composed of experienced, knowledgeable and courageous members, it would not have been difficult
for said parliamentary bodies to have conceived some ingenious way of giving evidence of their
determined adherence to the Constitution under which they were elected. Frankly, much as I admire
the efforts of the handful of senators who had their picture taken in front of the padlocked portals of
the Senate chamber, I do not feel warranted to accord such act as enough token of resistance. As
counsel Tolentino has informed the court, there was noting to stop the senators and the
congressmen to meet in any other convenient place and somehow officially organize themselves in
a way that can logically be considered as a session, even if nothing were done than to merely call
the roll and disperse. Counsel Tolentino even pointed out that if there were not enough members to
form a quorum, any smaller group could have ordered the arrest of the absent members. And with
particular relevance to the present cases, it was not constitutionally indispensable for the presiding
officers to issue any call to the members to convene, hence the present prayers for mandamus have
no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission on
Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the
House of Representatives, have officially and in writing exercised the option given to them to join the
Interim National Assembly under the New Constitution, thereby manifesting their acceptance of the
new charter.

Now, having these facts in mind, and it being obvious that of the three great departments of the
government under the 1935 Constitution, two, the Executive and the Legislative, have already
accepted the New Constitution and recognized its enforceability and enforcement, I cannot see how
this Supreme Court can by judicial fiat hold back the political developments taking place and for the
sake of being the guardian of the Constitution and the defender of its integrity and supremacy make
its judicial power prevail against the decision of those who were duly chosen by the people to be
their authorized spokesmen and representatives. It is not alone the physical futility of such a gesture
that concerns me. More than that, there is the stark reality that the Senators and the Congressmen,
no less than the President, have taken the same oath of loyalty to the Constitution that we, the
Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the
Constitution. If as the representatives of the people, they have already opted to accept the New
Constitution as the more effective instrument for fulfillment of the national destiny, I really wonder if
there is even any idealistic worth in our desperately clinging by Ourselves alone to Our sworn duty
vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the new dispensation and
cognizant of the decisive steps being with the least loss of time, towards their accomplishment,
cannot but feel apprehensive that instead of serving the best interests of our people, which to me is
in reality the real meaning of our oath of office, the Court might be standing in the way of the very
thing our beloved country needs to retrieve its past glory and greatness. In other words, it is my
conviction that what these cases demand most of all is not a decision demonstrative of our legal
erudition and Solomonic wisdom but an all rounded judgment resulting from the consideration of all
relevant circumstances, principally the political, or, in brief, a decision more political than legal, which
a court can render only by deferring to the apparent judgment of the people and the announcement
thereof by the political departments of the government and declaring the matter non-justiciable.

4. Viewed from the strictly legal angle and in the light of judicial methods of ascertainment, I cannot
agree with the Solicitor General that in the legal sense, there has been at least substantial
compliance with Article XV of the 1935 Constitution, but what I can see is that in a political sense,
the answers to the referendum questions were not given by the people as legal conclusions. I take it
that when they answered that by their signified approval of the New Constitution, they do not
consider it necessary to hold a plebiscite, they could not have had in mind any intent to do what was
constitutionally improper. Basically accustomed to proceed along constitutional channels, they must
have acted in the honest conviction that what was being done was in conformity with prevailing
constitutional standards. We are not to assume that the sovereign people were indulging in a futile
exercise of their supreme political right to choose the fundamental charter by which their lives, their
liberties and their fortunes shall be safeguarded. In other words, we must perforce infer that they
meant their decision to count, and it behooves this Court to render judgment herein in that context. It
is my considered opinion that viewed understandingly and realistically, there is more than sufficient
ground to hold that, judged by such intent and, particularly, from the political standpoint, the
ratification of the 1973 Constitution declared in Proclamation 1102 complies substantially with Article
XV of the 1935 Charter, specially when it is considered that the most important element of the
ratification therein contemplated is not in the word "election", which conceivably can be in many
feasible and manageable forms but in the word "approved" which may be said to constitute the
substantiality of the whole article, so long as such approval is reasonably ascertained. In the last
analysis, therefore, it can be rightly said, even if only in a broad sense, that the ratification here in
question was constitutionally justified and justifiable.

5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal
grounds, the same should be dispelled by viewing the situation in the manner suggested by Counsel
Tolentino and by the writer of this opinion in his separate opinion, oft-referred to above, in the
Plebiscite Cases — that is, as an extra constitutional exercise by the people, under the leadership of
President Marcos, of their inalienable right to change their fundamental charter by any means they
may deem appropriate, the moment they are convinced that the existing one is no longer responsive
to their fundamental, political and social needs nor conducive to the timely attainment of their
national destiny. This is not only the teaching of the American Declaration of Independence but is
indeed, a truth that is self-evident. More, it should be regarded as implied in every constitution that
regardless of the language of its amending clause, once the people have given their sanction to a
new charter, the latter may be deemed as constitutionally permissible even from the point of view of
the preceding constitution. Those who may feel restrained to consider this view out of respect to the
import of Tolentino vs. Comelec, supra., would be well advised to bear in mind that the case was
decided in the context of submission, not accomplished ratification.

The language of the disputed amending clause of the 1935 Constitution should not be deemed as
the be all and end all the nation. More important than even the Constitution itself with all its excellent
features, are the people living under it — their happiness, their posterity and their national destiny.
There is nothing that cannot be sacrificed in the pursuit of these objectives, which constitute the
totality of the reasons for national existence. The sacred liberties and freedom enshrined in it and the
commitment and consecration thereof to the forms of democracy we have hitherto observed are
mere integral parts of this totality; they are less important by themselves.

What seems to me to be bothering many of our countrymen now is that by denying the present
petitions, the Court would be deemed as sanctioning, not only the deviations from traditional
democratic concepts and principles but also the qualified curtailment of individual liberties now being
practiced, and this would amount, it is feared, to a repudiation of our oath to support and defend the
Constitution of 1935. This is certainly something one must gravely ponder upon. When I consider,
however, that the President, the Vice President, the members of both Houses of Congress, not to
speak of all executive departments and bureaus under them as well as all the lower courts, including
the Court of Appeals have already accepted the New Constitution as an instrument of a meaningful
nationwide-all-level change in our government and society purported to make more realistic and
feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national
aspirations, I am led to wonder whether or not we, as members of the Supreme Court are being true
to our duty to our people by refusing to follow suit and accept the realities of the moment, despite our
being convinced of the sincerity and laudableness of their objectives, only because we feel that by
the people's own act of ratifying the Constitution of 1935, they have so encased themselves within its
provisions and may, therefore, no longer take measures to redeem themselves from the situation
brought about by the deficiencies of the old order, unless they act in strict conformity therewith. I
cannot believe that any people can be so stifled and enchained. In any event, I consider it a God-
given attribute of the people to disengage themselves, if necessary, from any covenant that would
obstruct their taking what subsequently appears to them to be the better road to the promotion and
protection of their welfare. And once they have made their decision in that respect, whether
sophisticatedly or crudely, whether in legal form or otherwise, certainly, there can be no court or
power on earth that can reverse them.

I would not be human if I should be insensitive to the passionate and eloquent appeals of Counsels
Tañada and Salonga that these cases be decided on the basis of conscience. That is exactly what I
am doing. But if counsel mean that only by granting their petitions can this Court be worthily the
bulwark of the people's faith in the government, I cannot agree, albeit my admiration and respect are
all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to
principle. Verily, they have brought out everything in the Filipino that these cases demand.

In times of national emergencies and crises, not arising from foreign invasion, we need not fear
playing opposite roles, as long as we are all animated by sincere love of country and aim exclusively
at the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio
Luna, Mabini and so also with our patriots of the recent generations, Quezon, Osmeña, Roxas,
Laurel and Recto, to mention only some of them, had their differences of views — and they did not
hesitate to take diametrically opposing sides — that even reached tragic proportions, but all of them
are admired and venerated.

It is my faith that to act with absolute loyalty to our country and people is more important than loyalty
to any particular precept or provision of the Constitution or to the Constitution itself. My oath to abide
by the Constitution binds me to whatever course of action I feel sincerely is demanded by the
welfare and best interests of the people.

In this momentous juncture of our history, what is imperative is national unity. May God grant that
the controversies the events leading to these cases have entail will heal after the decision herein is
promulgated, so that all us Filipinos may forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions for mandamus and prohibition
without costs.

MAKASIAR, J., concurring:

Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure for the
ratification of constitutional amendments or of a new Constitution and that such procedure was no
complied with, the validity of Presidential Proclamation No. 1102 is a political, not a justiciable, issue;
for it is inseparably or inextricably link with and strikes at, because it is decisive of, the validity of
ratification and adoption of, as well as acquiescence of people in, the 1973 Constitution and the
legitimacy of the government organized and operating thereunder. And being political, it is beyond
the ambit of judicial inquiry, tested by the definition of a political question enunciated in Tañada, et.
al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will not do violence to rights
vested under the new Constitution, to international commitments forged pursuant thereto and to
decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or
whose jurisdiction has been altered by the 1973 Constitution and the government established
thereunder, and will dissipate any confusion in the minds of the citizenry, who have been obeying
the mandates of the new Constitution, as well as exercising the rights and performing the obligations
defined by the new Constitution, and decrees and orders issued in implementation of the same and
cooperating with the administration in the renovation of our social, economic and political system as
re-structured by the 1973 Constitution and by the implementing decrees and orders (see Miller vs.
Johnson, 18 SW 522, 522-526, 1892).

In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf of the Court,
defined a political question as one which, under the Constitution, is "to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government." (Tañada, et al. vs. Cuenco, et al., supra).

Article XV of the 1935 Constitution provides: "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 ratification." Under Article XV of the 1935 Constitution, the power to
propose constitutional amendments is vested in Congress or in a constitutional convention; while the
power to ratify or reject such proposed amendments or new Constitution is reserved by the
sovereign people. The nullification of Proclamation No. 1102 would inevitably render inoperative the
1973 Constitution, which is in fact the express prayer of the petitioners in G.R. No. L-36164.
Regardless of the modality of submission or ratification or adoption — even if it deviates from or
violates the procedure delineated therefore by the old Constitution — once the new Constitution is
ratified, adopted and/or acquiesced in by the people or ratified even by a body or agency not duly
authorized therefor but is subsequently adopted or recognized by the people and by the other official
organs and functionaries of the government established under such a new Constitution, this Court is
precluded from inquiring into the validity of such ratification, adoption or acquiescence and of the
consequent effectivity of the new Constitution. This is as it should be in a democracy, for the people
are the repository of all sovereign powers as well as the source of all governmental authority (Pole
vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is expressly restated in Section 1
of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions, thus: "Sovereignty
resides in the people and all government authority emanates from them."

The legality of the submission is no longer relevant; because the ratification, adoption and/or
acquiescence by the people cures any infirmity in its submission or any other irregularities therein
which are deemed mandatory before submission as they are considered merely directory after such
ratification or adoption or acquiescence by the people. As Mr. Justice Brewer, then of the Kansas
State Supreme Court and later Associate Justice of the Federal Supreme Court, stated in re
Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two important, vital
elements of the Legislature and a majority of the popular vote. Beyond these, other provisions are
mere machineries and forms. They may not be disregarded, because by them certainty as to the
essentials is secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 285
NW 59, 61-64, 1939).

This was the ruling by the American Supreme Court in the 1939 case of Coleman vs. Miller (307
U.S. 433, 83 L.ed. 1385), where Chief Justice Hughes, speaking for the majority, stated that:

... Thus the political departments of the government dealt with the effect of both previous rejection
and attempted withdrawal and determined that both were ineffectual in the presence of an actual
ratification ... . This decision by the political departments of the Government as to the validity of the
adoption of the Fourteenth amendment has been accepted.

We think that in accordance with this historic precedent the question of the efficacy of ratifications by
state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a
political question pertaining to the political departments, with the ultimate authority in the Congress in
the exercise of its control over the promulgation of the adoption of the amendment.

This view was likewise emphasized by Mr. Justice Black in his concurring opinion, in which Mr.
Justices Roberts, Frankfurter, and Douglas join, thus:

The Constitution grants Congress exclusive power to control submission of constitutional

amendments. Final determination by Congress that ratification by three-fourths of the States has
taken place "is conclusive upon the courts." In the exercise of that power, Congress, of course, is
governed by the Constitution. However, whether submission, intervening procedure or
Congressional determination of ratification conforms to the commands of the Constitution, calls for
decisions by a "political department" of questions of a type which this Court has frequently
designated "political." And decision of a "political question" by the "political department" to which the
Constitution has committed it "conclusively binds the judges, as well as all other officers, citizens and
subjects of...government." Proclamation under authority of Congress that an amendment has been
ratified will carry with it a solemn assurance by the Congress that ratification has taken place as the
Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part
of the Constitution, leaving to the judiciary its traditional authority of interpretation. To the extent that
the Court's opinion in the present case even impliedly assumes a power to make judicial
interpretation of the exclusive constitutional authority of Congress over submission and ratification of
amendments, we are unable to agree... (American Constitutional Issues, by Pritchett, 1962 Ed., p.
44).

The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our Supreme Court in
toto in Mabanag vs. Lopez Vito (78 Phil. 1).

The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA 774)
and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place
great reliance — that the courts may review the propriety of a submission of a proposed
constitutional amendment before the ratification or adoption of such proposed amendment by the
sovereign people, hardly applies to the cases at bar; because the issue involved in the aforesaid
cases refers to only the propriety of the submission of a proposed constitutional amendment to the
people for ratification, unlike the present petitions, which challenge inevitably the validity of the 1973
Constitution after its ratification or adoption thru acquiescence by the sovereign people. As
heretofore stated, it is specious and pure sophistry to advance the reasoning that the present
petitions pray only for the nullification of the 1973 Constitution and the government operating
thereunder.

It should be stressed that even in the Gonzales case, supra, We held that:

Indeed, the power to amend the Constitution or to propose amendments thereto is not included in
the general grant of legislative powers to Congress. It is part of the inherent powers of the people —
as the repository of sovereignty in a republican state, such as ours — to make, and hence, to amend
their own Fundamental Law. Congress may propose amendments to the same explicitly grants such
power. Hence, when exercising the same, it is said that Senators and Members of the House of
Representatives act, not as members, 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, for their authority does not emanate from the
Constitution — they are the very source of all powers of government, including the Constitution itself.
(21 SCRA 787)

We did not categorically and entirely overturn the doctrine in Mabanag vs. Lopez Vito (78 Phil. 1)
that both the proposal to amend and the ratification of such a constitutional amendment are political
in nature forming as they do the essential parts of one political scheme — the amending process.
WE merely stated therein that the force of the ruling in the said case of Mabanag vs. Lopez Vito has
been weakened by subsequent cases. Thus, We pronounced therein:

It is true that in Mabanag vs. Lopez Vito, 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, Avelino vs. Cuenco, Tañada vs. Cuenco and Macias vs. Commission on Elections. In the
first, we held the officers and employees of the Senate Electoral Tribunal are supervision and
control, not of that of the Senate President, 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.
(21 SCRA pp. 785-786);

for which reason We concluded

In short, the issue whether or not a resolution of Congress before 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 vs.
Lopez Vito, the latter should be deemed modified accordingly. (p. 787, emphasis supplied.)

In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA 703-714).
The inevitable consequence therefore is that the validity of the ratification or adoption of or
acquiescence by the people in the 1973 Constitution, remains a political issue removed from the
jurisdiction of this Court to review.

One more word about the Gonzales and Tolentino cases. Both primarily stressed on the impropriety
of the submission of a proposed constitutional amendment. Courts do not deal with propriety or
wisdom or absence of either of an official act or of a law. Judicial power concerns only with the
legality or illegality, constitutionality or unconstitutionality of an act: it inquires into the existence of
power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political department
of the government.

The classic example of an illegal submission that did not impair the validity of the ratification or
adoption of a new Constitution is the case of the Federal Constitution of the United States. It should
be recalled that the thirteen (13) original states of the American Union — which succeeded in
liberating themselves from England after the revolution which began on April 19, 1775 with the
skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at
Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their
Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and ratified on
March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six thereafter, the Congress of
the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitutional
Convention "for the sole and express purpose of revising the articles of confederation ... ." (Appendix
I, Federalist, Modern Library ed., p. 577, emphasis supplied).

The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of
Confederation and Perpetual Union stated specifically:

The articles of this confederation shall be inviolably observed in every state, and the union shall be
perpetual; nor shall any alterations at any time hereafter be made in any of them; unless such
alteration be agreed to in a congress of the united states, and be afterwards confirmed by the
legislatures of every state. (See the Federalist, Appendix II, Modern Library Ed., 1937, p. 584;
emphasis supplied.)

But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for
the alteration for the ratification of the Federal Constitution as drafted by the Philadelphia Convention
were not followed. Fearful the said Federal Constitution would not be ratified by the legislatures as
prescribed, the Philadelphia Convention adopted a resolution requesting the Congress of the
Confederation to pass a resolution providing that the Constitution should be submitted to elected
state conventions and if ratified by the conventions in nine (9) states, not necessarily in all thirteen
(13) states, the said Constitution shall take effect.

Thus, history Professor Edward Earle Mead of Princeton University recorded that:

It would have been a counsel of perfection to consign the new constitution to the tender mercies of
the legislatures of each and all of the 13 states. Experience clearly indicated that ratification then
would have had the same chance as the scriptural camel passing through the eye of a needle. It was
therefore determined to recommend to Congress that the new Constitution be submitted to
conventions in the several states especially elected to pass upon it and that, furthermore, the new
government should go into effect if and when it should be ratified by nine of the thirteen states ... .
(The Federalist, Modern Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix; emphasis
supplied)

Historian Samuel Eliot Morison similarly recounted:

The Convention, anticipating that the influence of many state politicians would be Antifederalist,
provided for ratification of the Constitution by popularly elected conventions in each state.
Suspecting that Rhode Island, at least, would prove recalcitrant, it declared that the Constitution
would go into effect as soon as nine states ratified. The convention method had the further
advantage that judges, ministers, and others ineligible to state legislatures, could be elected to a
convention. The nine-state provision was, of course, mildly revolutionary. But the Congress of the
Confederation, still sitting in New York to carry on federal government until relieved, formally
submitted the new constitution to the states and politely faded out before the first presidential
inauguration. (The Oxford History of the Am. People, by Samuel Eliot Morison, 1965 ed., p. 312).

And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last
four states on May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27. — by the state conventions and
not by all thirteen (13) state legislatures as required by Article XIII of the Articles of Confederation
and Perpetual Union aforequoted — and in spite of the fact that the Federal Constitution as originally
adopted suffers from two basic infirmities, namely, the absence of a bill of Rights and of a provision
affirming the power of judicial review.

The liberties of the American people were guaranteed by subsequent amendments to the Federal
Constitution. The doctrine of judicial review has become part of American constitutional law only by
virtue of a judicial pronouncement by Chief Justice Marshall in the case of Marbury vs.
Madison (1803, 1 Cranch 137).

Until this date, no challenge has been launched against the validity of the ratification of the American
Constitution, nor against the legitimacy of the government organized and functioning thereunder.

In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), which enunciated the
principle that the validity of a new or revised Constitution does not depend on the method of its
submission or ratification by the people, but on the fact or fiat or approval or adoption or
acquiescence by the people which fact of ratification or adoption or acquiescence is all that is
essential, the Court cited precisely the case of the irregular revision and ratification by state
conventions of the Federal Constitution, thus:

No case identical in its facts with the case now under consideration has been called to our attention,
and we have found none. We think that the principle which we apply in the instant case was very
clearly applied in the creation of the constitution of the United States. The convention created by a
resolution of Congress had authority to do one thing, and one only, to wit, amend the articles of
confederation. This they did not do, but submitted to the sovereign power, the people, a new
constitution. In this manner was the constitution of the United States submitted to the people and it
became operative as the organic law of this nation when it had been properly adopted by the people.

Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the constitution of
the United States, has this to say: "The convention proceeded to do, and did accomplish, what they
were not authorized to do by a resolution of Congress that called them together. That resolution
plainly contemplated amendments to the articles of confederation, to be submitted to and passed by
the Congress, and afterwards ratified by all the State legislatures, in the manner pointed out by the
existing organic law. But the convention soon became convinced that any amendments were
powerless to effect a cure; that the disease was too deeply seated to be reached such tentative
means. They saw that the system they were called to improve must be totally abandoned, and that
the national idea must be re-established at the center of their political society. It was objected by
some members, that they had no power, no authority, to construct a new government. They had no
authority, if their decisions were to be final; and no authority whatsoever, under the articles of
confederation, to adopt the course they did. But they knew that their labors were only to be
suggestions; and that they as well as any private individuals, and any private individuals as well as
they, had a right to propose a plan of government to the people for their adoption. They were, in fact,
a mere assemblage of private citizens, and their work had no more binding sanction than a
constitution drafted by Mr. Hamilton in his office would have had. The people, by their expressed will,
transformed this suggestion, this proposal, into an organic law, and the people might have done the
same with a constitution submitted to them by a single citizen."

xxx xxx xxx

... When the people adopt a completely revised or new constitution, the framing or submission of the
instrument is not what gives it binding force and effect. The fiat of the people and only the fiat of the
people, can breathe life into a constitution.

xxx xxx xxx

... We do not hesitate to say that a court is never justified in placing by implication a limitation upon
the sovereign. This would be an authorized exercise of sovereign power by the court. In State v.
Swift, 69 Ind. 505, 519, the Indiana Supreme Court said: "The people of a State may form an original
constitution, or abrogate an old one and form a new one, at any time, without any political restriction
except the constitution of the United States; ... ." (37 SE 327-328, 329, emphasis supplied.)

In the 1903 case of Weston vs. Ryan, the Court held:

It remains to be said that if we felt at liberty to pass upon this question, and were compelled to hold
that the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any
means follow that the amendment is not a part of our state Constitution. In the recent case of Taylor
vs. Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia hold that their state Constitution
of 1902, having been acknowledged and accepted by the officers administering the state
government, and by the people, and being in force without opposition, must be regarded as an
existing Constitution irrespective of the question as to whether or not the convention which
promulgated it had authority so to do without submitting it to a vote of the people. In Brittle v. People,
2 Neb. 198, is a similar holding as to certain provisions of the Nebraska Constitution of 1886, which
were added by the Legislature at the requirement of Congress, though never submitted to the people
for their approval." (97 NW 349-350; emphasis supplied).

Against the decision in the Wheeler case, supra, confirming the validity of the ratification and
adoption of the American Constitution, in spite of the fact that such ratification was in clear violation
of the prescription on alteration and ratification of the Articles of Confederation and Perpetual Union,
petitioners in G.R. No. L-36165 dismissed this most significant historical fact by calling the Federal
Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16,
Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the
requirement that the Articles of Confederation and Perpetual Union can be amended only with the
consent of all thirteen (13) state legislatures. This opinion does not cite any decided case, but merely
refers to the footnotes on the brief historic account of the United States Constitution on p. 679 of Vol.
12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the Oxford History of
the American People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of
Confederation and Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution Making,
1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in Politics, 1785-1788," Professor
Morison delineates the genesis of the Federal Constitution, but does not refer to it even implicitly as
revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered
revolutionary from the view point of McIver if the term revolution is understood in "its wider sense to
embrace decisive changes in the character of government, even though they do not involve the
violent overthrow of an established order, ... ." (R.M. MacIver, The Web of Government, 1965 ed., p.
203).

It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The

Articles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged
as it was during the war of independence was a revolutionary constitution of the thirteen (13) states.
In the existing Federal Constitution of the United States which was adopted seven (7) or nine (9)
years after the thirteen (13) states won their independence and long after popular support for the
government of the Confederation had stabilized was not a product of a revolution. The Federal
Constitution was a "creation of the brain and purpose of man" in an era of peace. It can only be
considered revolutionary in the sense that it is a radical departure from its predecessor, the Articles
of Confederation and Perpetual Union.

It is equally absurd to affirm that the present Federal Constitution of the United States is not the
successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is so
obvious that no further refutation is needed.

As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the validity and
enforceability of the 1973 Constitution and of the government established and operating thereunder.
Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). If Proclamation
No. 1102 is nullified, then there is no valid ratification of the 1973 Constitution and the inevitable
conclusion is that the government organized and functioning thereunder is not a legitimate
government.

That the issue of the legitimacy of a government is likewise political and not justiciable, had long
been decided as early as the 1849 case of Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in
the 1900 case of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the
case of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56
L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is
sufficient for us to quote the decision in Pacific States Telephone and Telegraph Co., supra, penned
by Mr. Chief Justice White, who re-stated:

In view of the importance of the subject, the apparent misapprehension on one side and seeming
misconception on the other, suggested by the argument as to the full significance of the previous
doctrine, we do not content ourselves with a mere citation of the cases, but state more at length than
we otherwise would the issues and the doctrine expounded in the leading and absolutely controlling
case — Luther v. Borden, 7 How. 1, 12 L.ed. 581.

xxx xxx xxx

... On this subject it was said (p. 38):

"For if this court is authorized to enter upon this inquiry, proposed by the plaintiff, and it should be
decided that the character government had no legal existence during the period of time above
mentioned, — if it had been annulled by the adoption of the opposing government, — then the laws
passed by its legislature during that time were nullities; its taxes wrongfully collected, its salaries and
compensations to its officers illegally paid ; its public accounts improperly settled and the judgments
and sentences of its courts in civil and criminal cases null and void, and the officers who carried their
decisions into operation answerable as trespassers, if not in some cases as criminals."

xxx xxx xxx

"The fourth section of the fourth article of the Constitution of the United States shall guarantee to
every state in the Union a republican form of government, and shall protect each of them against
invasion; and on the application of the Legislature or of the Executive (when the legislature cannot
be convened) against domestic violence.

"Under this article of the Constitution it rests with Congress to decide what government is
established one in a state. For, as the United State guarantee to each state a republican
government, Congress must necessarily decide what government is established in the state before it
can determine whether it is republican or not. And when the senators and representatives of a state
are admitted into the Councils of the Union, the authority of the government under which they were
appointed, as well as its republican character, is recognized by the proper constitutional authority.
And its decision is binding on every other department of the government, and could not be
questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to
bring the matter to this issue; and as no senators or representatives were elected under the authority
of the government of which Mr. Dorr was the head, Congress was not called upon to decide the
controversy. Yet the right to decide is placed there and not in the courts."

xxx xxx xxx

... We do not stop to cite other cases which indirectly or incidentally refer to the subject, but conclude
by directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in
Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after
disposing of a contention made concerning the 14th Amendment, and coming to consider a
proposition which was necessary to be decided concerning the nature and effect of the guaranty of S
4 of article 4, it was said (p. 578):

"But it is said that the 14th Amendment must be read with S 4 of article 4, of the Constitution,
providing that the United States shall guarantee to every state in this Union a republican form of
government, and shall protect each of them against invasion; and on application of the legislature, or
the Executive (when the legislature cannot be convened), against domestic violence."

xxx xxx xxx

"It was long ago settled that the enforcement of this guaranty belonged to the political department.
Luther v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was held that the question, which of the two
opposing governments of Rhode Island, namely, the charter government or the government
established by a voluntary convention, was the legitimate one, was a question for the determination
of the political department; and when that department had decided, the courts were bound to take
notice of the decision and follow it."

xxx xxx xxx

As the issues presented, in their very essence, are, and have long since by this Court been,
definitely determined to be political and governmental, and embraced within the scope of the scope
of the powers conferred upon Congress, and not, therefore within the reach of judicial power, it
follows that the case presented is not within our jurisdiction, and the writ of error must therefore be,
and it is, dismissed for want of jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).

Even a constitutional amendment that is only promulgated by the Constitutional Convention without
authority therefor and without submitting the same to the people for ratification, becomes valid, when
recognized, accepted and acted upon the by Chief of State and other government functionaries, as
well as by the people. In the 1903 case of Taylor vs. Commonwealth (44 SE 754-755), the Court
ruled:

The sole ground urged in support of the contention that Constitution proclaimed in 1902 is invalid is
that it was ordained and promulgated by the convention without being submitted for ratification or
rejection by the people of the commonwealth.

The Constitution of 1902 was ordained and proclaimed by convention duly called by direct vote of
the people of the state to revise and amend the Constitution of 1869. The result of the work that the
convention has been recognized, accepted, and acted upon as the only valid Constitution of the
state by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the
Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of
June 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by
its having been engaged for nearly a year in legislating under it and putting its provisions into
operation but the judiciary in taking the oath prescribed thereby to support and by enforcing its
provisions; and by the people in their primary capacity by peacefully accepting it and acquiescing in
it, registering as voters under it to the extent of thousands through the state, and by voting, under its
provisions, at a general election for their representatives in the Congress of the United States. (p.
755).

The Court in the Taylor case above-mentioned further said:

While constitutional procedure for adoption or proposal to amend the constitution must be duly
followed, without omitting any requisite steps, courts should uphold amendment, unless satisfied that
the Constitution was violated in submitting the proposal. ... Substance more than form must be
regarded in considering whether the complete constitutional system for submitting the proposal to
amend the constitution was observed.

In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:

There may be technical error in the manner in which a proposed amendment is adopted, or in its
advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes part of the
Constitution. Legal complaints to the submission may be made prior to taking the vote, but, if once
sanctioned, the amendment is embodied therein, and cannot be attacked, either directly or
collaterally, because of any mistake antecedent thereto. Even though it be submitted at an improper
time, it is effective for all purposes when accepted by the majority. Armstrong v. King, 281 Pa. 207,
126 A. 263. (130 A 409).

Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon
ratification or adoption or acquiescence by the people. Thus, in the 1905 case of Ex
parte Birmingham and A.R. Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld
this principle and stated that: "The authorities are almost uniform that this ratification of an
unauthorized act by the people (and the people are the principal in this instance) renders the act
valid and binding."

It has likewise been held that it is not necessary that voters ratifying the new Constitution are
registered in the book of voters; it is enough that they are electors voting on the new Constitution.
(Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of
Wisconsin ruled that "irregularity in the procedure for the submission of the proposed constitutional
amendment will not defeat the ratification by the people."

Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme
Court pronounced that "the irregularity in failing to publish the proposed constitutional amendment
once in each of the 4 calendar weeks next preceding the calendar week in which the election was
held or once in each of the 7-day periods immediately preceding the day of the election as required
by the Constitution, did not invalidate the amendment which was ratified by the people."

The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes, et al. v.
Ladner (131) SO 2nd 45 462), where they admitted irregularities or illegalities committed in the
procedure for submission of the proposed constitutional amendment to the people for ratification
consisted of: "(a) the alleged failure of the county election commissioners of the several counties to
provide a sufficient number of ballot boxes 'secured by good and substantial locks,' as provided by
Section 3249, Code of 1942, Rec., to be used in the holding of the special election on the
constitutional amendment, and (b) the alleged failure of the State Election Commissioners to comply
with the requirements of Code Sections 3204 and 3205 in the appointment of election
commissioners in each of the 82 counties. The irregularities complained of, even if proved, were not
such irregularities would have invalidated the election." (Emphasis supplied; see also Sylvester vs.
Tindall, 8 SO 2nd 892; 154 Fla. 663).

Even prior to the election in November, 1970 of delegates of the Constitutional Convention and
during the deliberations of the Constitutional Convention from June 1, 1971 until martial law was
proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973 Constitution which have
long been desired by the people, had been thoroughly discussed in the various committees of the
Constitutional Convention, on the floor of the Convention itself, in civic forums and in all the media of
information. Many of the decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan.
17, 1973 implement some of the reforms and had been ratified in Sec. 3(2) of Article XVII of the
1973 Constitution.

Petitioners cannot safely state that during martial law the majority of the people cannot freely vote for
these reforms and are not complying with the implementing decrees promulgated by the President.

Free election is not inevitably incompatible with martial law. We had free elections in 1951 and 1971
when the opposition won six out of eight senatorial seats despite the suspension of the privileges of
the writ of habeas corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which
suspension implies constraint on individual freedom as the proclamation of martial law. In both
situations, there is no total blackout of human rights and civil liberties.

All the local governments, dominated either by Nacionalistas or Liberals, as well as officials of the
Legislative and Executive branches of the government elected and/or appointed under the 1935
Constitution have either recognized or are now functioning under the 1973 Constitution, aside from
the fact of its ratification by the sovereign people through the Citizens Assemblies. Ninety-five (95) of
a total of one hundred ten (110) members of the House of Representatives including the Speaker
and the Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the Liberal
Party and fifteen (15) of a total of twenty-four (24) senators including Liberal senators Edgar U.
Ilarde and John Osmeña opted to serve in the Interim Assembly, according to the certification of the
Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of
petitioners in L-36165). Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. All
the other functionaries recognize the new government and are performing their duties and exercising
their powers under the 1973 Constitution, including the lower courts. The civil courts, military
tribunals and quasi-judicial bodies created by presidential decrees have decided some criminal, civil
and administrative cases pursuant to such decrees. The foreign ambassadors who were accredited
to the Republic of the Philippines before martial law continue to serve as such in our country; while
two new ambassadors have been accepted by the Philippines after the ratification of the 1973
Constitution on January 17, 1973. Copies of the 1973 Constitution had been furnished the United
Nations Organization and practically all the other countries with which the Philippines has diplomatic
relations. No adverse reaction from the United Nations or from the foreign states has been
manifested. On the contrary, our permanent delegate to the United Nations Organization and our
diplomatic representatives abroad appointed before martial law continue to remain in their posts and
are performing their functions as such under the 1973 Constitution.

Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by
requiring all election registrars to register 18-year olds and above whether literates or not, who are
qualified electors under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of
respondents Puyat and Roy in L-36165).

In brief, it cannot be said that the people are ignoring the 1973 Constitution and the government
which is enforcing the same for over 10 weeks now With the petitioners herein, secessionists, rebels
and subversives as the only possible exceptions, the rest of the citizenry are complying with
decrees, orders and circulars issued by the incumbent President implementing the 1973
Constitution.

Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW 522:

If a set of men, not selected by the people according to the forms of law, were to formulate an
instrument and declare it the constitution, it would undoubtedly be the duty of the courts declare its
work a nullity. This would be revolution, and this the courts of the existing government must resist
until they are overturned by power, and a new government established. The convention, however,
was the offspring of law. The instrument which we are asked to declare invalid as a constitution has
been made and promulgated according to the forms of law. It is a matter of current history that both
the executive and legislative branches of the government have recognized its validity as a
constitution, and are now daily doing so. Is the question, therefore, one of a judicial character? It is
our undoubted duty, if a statute be unconstitutional to so declare it; also, if a provision of the state
constitution be in conflict with the federal constitution, to hold the former invalid. But this is a very
different case. It may be said, however, that, for every violation of or non-compliance with the law,
there should be a remedy in the courts. This is not, however, always the case. For instance, the
power of a court as to the acts of the other departments of the government is not an absolute one,
but merely to determine whether they have kept within constitutional limits, it is a duty rather than a
power, The judiciary cannot compel a co-equal department to perform a duty. It is responsible to the
people; but if it does act, then, when the question is properly presented, it is the duty of the court to
say whether it has conformed to the organic law. While the judiciary should protect the rights of the
people with great care and jealousy, because this is its duty, and also because, in times of great
popular excitement, it is usually their last resort, yet it should at the same time be careful to overstep
the proper bounds of its power, as being perhaps equally dangerous; and especially where such
momentous results might follow as would be likely in this instance, if the power of the judiciary
permitted, and its duty required, the overthrow of the work of the convention.

After the American Revolution the state of Rhode Island retained its colonial character as its
constitution, and no law existed providing for the making of a new one. In 1841 public meetings were
held, resulting in the election of a convention to form a new one, — to be submitted to a popular
vote. The convention framed one, submitted it to a vote, and declared it adopted. Elections were
held for state officers, who proceeded to organize a new government. The charter government did
not acquiesce in these proceedings, and finally declared the state under martial law. It called another
convention, which in 1843 formed a new constitution. Whether the charter government, or the one
established by the voluntary convention, was the legitimate one, was uniformly held by the courts of
the state not to be a judicial, but a political question; and the political department having recognized
the one, it was held to be the duty of the judiciary to follow its decision. The supreme court of the
United States, in Luther v. Borden, 7 How. 1, while not expressly deciding the principle, as it held the
federal court, yet in the argument approves it, and in substance says that where the political
department has decided such a matter the judiciary should abide by it.

Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold that
the convention, when it reassembled, had no power to make any material amendment, and that such
as were made are void by reason of the people having theretofore approved the instrument. Then,
next, this court must determine what amendments were material; and we find the court, in effect,
making a constitution. This would be arrogating sovereignty to itself. Perhaps the members of the
court might differ as to what amendments are material, and the result would be confusion and
anarchy. One judge might say that all the amendments, material and immaterial, were void; another,
that the convention had then the implied power to correct palpable errors, and then the court might
differ as to what amendments are material. If the instrument as ratified by the people could not be
corrected or altered at all, or if the court must determine what changes were material, then the
instrument, as passed upon by the people or as fixed by the court would be lacking a promulgation
by the convention; and, if this be essential, then the question would arise, what constitution are we
now living under, and what is the organic law of the state? A suggestion of these matters shows
what endless confusion and harm to the state might and likely would arise. If, through error of
opinion, the convention exceeded its power, and the people are dissatisfied, they have ample
remedy, without the judiciary being asked to overstep the proper limits of its power. The instrument
provides for amendment and change. If a wrong has been done, it can, in the proper way in which it
should be remedied, is by the people acting as a body politic. It is not a question of whether merely
an amendment to a constitution, made without calling a convention, has been adopted, as required
by that constitution. If it provides how it is to be done, then, unless the manner be followed, the
judiciary, as the interpreter of that constitution, will declare the amendment invalid. Koehler v. Hill, 60
Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep.
835. But it is a case where a new constitution has been formed and promulgated according to the
forms of law. Great interests have already arisen under it; important rights exist by virtue of it;
persons have been convicted of the highest crime known to the law, according to its provisions; the
political power of the government has in many ways recognized it; and, under such circumstances, it
is our duty to treat and regard it as a valid constitution, and now the organic law of our
commonwealth.

We need not consider the validity of the amendments made after the convention reassembled. If the
making of them was in excess of its powers, yet, as the entire instrument has been recognized as
valid in the manner suggested, it would be equally an abuse of power by the judiciary and violative of
the rights of the people, — who can and properly should remedy the matter, if not to their liking, — if
it were to declare the instrument of a portion invalid, and bring confusion and anarchy upon the
state. (emphasis supplied).

If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of
the 1973 Constitution it would be exercising a veto power on the act of the sovereign people, of
whom this Court is merely an agent, which to say the least, would be anomalous. This Court cannot
dictate to our principal, the sovereign people, as to how the approval of the new Constitution should
be manifested or expressed. The sovereign people have spoken and we must abide by their
decision, regardless of our notion as to what is the proper method of giving assent to the new
Charter. In this respect, WE cannot presume to know better than the incumbent Chief Executive,
who, unlike the members of this Court, only last January 8, 1973, We affirmed in Osmeña vs.
Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million
electors in 1969 for another term of four years until noon of December 30, 1973 under the 1935
Constitution. This Court, not having a similar mandate by direct fiat from the sovereign people, to
execute the law and administer the affairs of government, must restrain its enthusiasm to sally forth
into the domain of political action expressly and exclusively reserved by the sovereign people
themselves.

The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific
procedure for popular ratification of their organic law. That would be incompatible with their
sovereign character of which We are reminded by Section 1, of Article II of both the 1935 and the
1973 Constitutions.

The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the
procedure for ratification which they themselves define in their Constitution, cannot apply to a unitary
state like the Republic of the Philippines. His opinion expressed in 1868 may apply to a Federal
State like the United States, in order to secure and preserve the existence of the Federal Republic of
the United States against any radical innovation initiated by the citizens of the fifty (50) different
states of the American Union, which states may be jealous of the powers of the Federal government
presently granted by the American Constitution. This dangerous possibility does not obtain in the
case of our Republic.

Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus
"Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu
vastly different from 1868 to 1898, he might have altered his views on the matter.

Even if conclusiveness is to be denied to the truth of the declaration by the President in

Proclamation No. 1102 that the people through their Citizens' Assemblies had overwhelmingly
approved the new Constitution due regard to a separate, coordinate and co-equal branch of the
government demands adherence to the presumption of correctness of the President's declaration.
Such presumption is accorded under the law and jurisprudence to officials in the lower levels of the
Executive branch, there is no over-riding reason to deny the same to the Chief of State as head of
the Executive Branch. WE cannot reverse the rule on presumptions, without being presumptuous, in
the face of the certifications by the Office the Secretary of the Department of Local Government and
Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with
manifestation filed by the Solicitor General on behalf of the respondents public officers dated March
7, 1973). There is nothing in the records that contradicts, much less overthrow the results of the
referendum as certified. Much less are We justified in reversing the burden of proof — by shifting it
from the petitioners to the respondents. Under the rules on pleadings, the petitioners have the duty
to demonstrate by clear and convincing evidence their claim that the people did not ratify through the
Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And have failed to do so.

No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the basis
of reports relayed to him from private sources which could be biased and hearsay, aside from the
fact that such reports are not contained in the record. Proclamation No. 1102 is not just an ordinary
act of the Chief Executive. It is a well-nigh solemn declaration which announces the highest act of
the sovereign people — their imprimatur to the basic Charter that shall govern their lives hereafter —
may be for decades, if not for generations.

Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the
Citizens' Assemblies, despite their admission that the term "Filipino people" in the preamble as well
as "people" in Sections 1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of Article III
of the Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether literate or illiterate,
whether peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex-
convicts voted in the referendum, about which no proof was even offered, these sectors of our
citizenry, whom petitioners seem to regard with contempt or decision and whom petitioners would
deny their sovereign right to pass upon the basic Charter that shall govern their lives and the lives of
their progenies, are entitled as much as the educated, the law abiding, and those who are 21 years
of age or above to express their conformity or non conformity to the proposed Constitution, because
their stake under the new Charter is not any less than the stake of the more fortunate among us. As
a matter of fact, these citizens, whose juridical personality or capacity to act is limited by age, civil
interdiction or ignorance deserve more solicitude from the State than the rest of the citizenry. In the
ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts and
the ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to
the express affirmation in Section 1 of Article II of the Declaration of Principles that "sovereignty
resides in the people and all government authority emanates from them."

Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned
from voting. Only those who had been sentenced to at least one year imprisonment are
disenfranchised but they recover their right of suffrage upon expiration of ten years after service of
sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a
very negligible number in any locality or barrio, including the localities of petitioners.

Included likewise in the delegated authority of the President, is the prerogative to proclaim the
results of the plebiscite or the voting the Citizens' Assemblies. Petitioners deny the accuracy or
correctness of Proclamation No. 1102 that the 1973 Constitution was ratified by the overwhelming
vote of close to 15 million citizens because there was no official certification to the results of the
same from the Department of Local Governments. But there was such certification as per Annex 1 to
1-A to the Notes submitted by the Solicitor General counsel for respondents public officers. This
should suffice to dispose of this point. Even in the absence of such certification, in much the same
way that in passing law, Congress or the legislative body is presumed to be in possession of the
facts upon which such laws are predicated (Justice Fernando, The Power of Judicial Review, 1967
Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford,
etc., [1931] 282 U.S. 251), it should likewise be presumed that the President was in possession of
the fact upon which Proclamation No. 1102 was based. This presumption is further strengthened by
the fact that the Department of Local Governments, the Department National Defense and the
Philippine Constabulary as well the Bureau of Posts are all under the President, which offices as his
alter ego, are presumptively acting for and in behalf of the President and their acts are valid until
disapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of
Interior, 67 Phil. 451). To deny the truth or the proclamation of the President as to the overwhelming
majority vote in the Citizens' Assemblies in favor of the new Constitution, is to charge the President
with falsification, which is a most grievous accusation. Under the, rules of pleadings and evidence,
the petitioners have the burden of proof by preponderance of evidence in civil cases and by proof
beyond reasonable doubt in criminal prosecutions, where the accused is always presumed to be
innocent. Must this constitutional right be reversed simply because the petitioner all assert the
contrary? Is the rule of law they pretend invoke only valid as long as it favors them?

The presumption of regularity in the performance of official functions is accorded by the law and
jurisprudence to acts of public officers whose category in the official hierarchy is very much lower
than that of the Chief of State. What reason is there to withhold such a presumption in favor of the
President? Does the fact that the President belong to the party in power and that four (4) of the five
(5) senators who are petitioners in L-36165 belong to the opposition party, justify a discrimination
against the President in matters of this nature? Unsupported as their word is by any credible and
competent evidence under the rules of evidence, must the word of the petitioners prevail over that of
the Chief Executive, because they happen to be former senators and delegates to the Constitutional
Convention? More than any of the petitioners herein in all these cases, the incumbent President
realizes that he risks the wrath of his people being visited upon him and the adverse or hostile
verdict of history; because of the restrictions on the civil liberties of his people, inevitable
concomitants of martial law, which necessarily entail some degree of sacrifice on the part of the
citizenry. Until the contrary is established or demonstrated, herein petitioners should grant that the
Chief Executive is motivated by what is good for the security and stability of the country, for the
progress and happiness of the people. All the petitioners herein cannot stand on the proposition that
the rights under the 1935 Constitution are absolute and invulnerable to limitations that may be
needed for the purpose of bringing about the reforms for which the petitioners pretend to be
clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of the seven
(7) petitioners in L-36164 were all participants in the political drama of this country since 1946. They
are witness to the frustrations of well-meaning Presidents who wanted to effect the reforms,
especially for the benefit of the landless and the laboring class — how politics and political
bargaining had stymied the effectuation of such reforms thru legislation. The eight (8) petitioners in
L-36164 and L-36165 may not have participated in the systematic blocking of the desired reforms in
Congress or outside of it; but the question may be asked as to what exactly they did to support such
reforms. For the last seven (7) decades since the turn of the century, for the last thirty-five (35) years
since the establishment of the Commonwealth government in 1935 and for the last twenty seven
(27) years since the inauguration of the Republic on July 4, 1946, no tangible substantial reform had
been effected, funded and seriously implemented, despite the violent uprisings in the thirties, and
from 1946 to 1952, and the violent demonstrations of recent memory. Congress and the oligarchs
acted like ostriches, "burying their heads in timeless sand. "Now the hopes for the long-awaited
reforms to be within a year or to are brighter. It would seem therefore to the duty of everyone
including herein petitioners to give the present leadership the opportunity to institute and carry out
the needed reforms as provided for in the new or 1973 Constitution and thru the means prescribed in
that same Constitution.

As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing by implication a
limitation upon the sovereign."

This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached
upon the province exclusively reserved to and by the sovereign people. This Court did not heed to
the principle that the courts are not the fountain of all remedies for all wrongs. WE cannot presume
that we alone can speak with wisdom as against the judgment of the people on the basic instrument
which affects their very lives. WE cannot determine what is good for the people or ought to be their
fundamental law. WE can only exercise the power delegated to Us by the sovereign people, to apply
and interpret the Constitution and the laws for the benefit of the people, not against them nor to
prejudice them. WE cannot perform an act inimical to the interest of Our principal, who at any time
may directly exercise their sovereign power ratifying a new Constitution in the manner convenient to
them.

It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution
without being a part of the government established pursuant thereto. Unlike in the Borden
case, supra, where there was at least another government claiming to be the legitimate organ of the
state of Rhode Island (although only on paper as it had no established organ except Dorr who
represented himself to be its head; in the cases at bar there is no other government distinct from and
maintaining a position against the existing government headed by the incumbent Chief Executive.
(See Taylor vs. Commonwealth, supra). There is not even a rebel government duly organized as
such even only for domestic purposes, let alone a rebel government engaged in international
negotiations. As heretofore stated, both the executive branch and the legislative branch established
under the 1935 Constitution had been supplanted by the government functioning under the 1973
Constitution as of January 17, 1973. The vice president elected under the 1935 Constitution does
not asset any claim to the leadership of the Republic of the Philippines. Can this Supreme Court
legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of Chief
Justice Roger Brooke Taney whom he calls the "hero of the American Bar," because during the
American civil war he apparently had the courage to nullify the proclamation of President Lincoln
suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Federal Case No.
9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol.
21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he
was born in 1777 in Calvert County, Maryland, of parents who were landed aristocrats as well as
slave owners. Inheriting the traditional conservatism of his parents who belonged to the landed
aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney
General of Maryland. He also was a member of the Maryland state legislature for several terms. He
was a leader of the Federalist Party, which disintegrated after the war of 1812, compelling him to join
the Democratic Party of Andrew Jackson, also a slave owner and landed aristocrat, who later
appointed him first as Attorney General of the United States, then Secretary of the Treasury and in
1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall, in
which position he continued for 28 years until he died on October 21, 1864. His death "went largely
unnoticed and unregretted." Because he himself was a slave owner and a landed aristocrat, Chief
Justice Taney sympathized with the Southern States and, even while Chief Justice, hoped that the
Southern States would be allowed to secede peacefully from the Union. That he had no sympathy
for the Negroes was revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where
he pronounced that the American Negro is not entitled to the rights of an American citizen and that
his status as a slave is determined by his returning to a slave state. One can therefore discern his
hostility towards President Lincoln when he decided Ex parte Merryman, which animosity to say the
least does no befit a judicial mind. Such a man could hardly be spoken of as a hero of the American
Bar, least of all of the American nation. The choice of heroes should not be expressed
indiscriminately just to embellish one's rhetoric.

Distinguished counsel in L-36165 appears to have committed another historical error, which may be
due to his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On
the contrary, Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-733),
refers to Marshal Henri Philippe Petain as the genuine hero or "Savior of Verdun"; because he held
Verdun against the 1916 offensive of the German army at the cost of 350,000 of his French soldiers,
who were then demoralized and plotting mutiny. Certainly, the surviving members of the family of
Marshal Petain would not relish the error. And neither would the members of the clan of Marshal
Foch acknowledge the undeserved accolade, although Marshal Foch has a distinct place in history
on his own merits. The foregoing clarification is offered in the interest of true scholarship and
historical accuracy, so that the historians, researchers and students may not be led astray or be
confused by esteemed counsel's eloquence and mastery of the spoken and written word as well as
by his eminence as law professor, author of law books, political leader, and member of the newly
integrated Philippine Bar.

It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address likewise
his challenge to the five (5) senators who are petitioners in L-36165 to also act as "heroes and
idealists," to defy the President by holding sessions by themselves alone in a hotel or in their houses
if they can muster a quorum or by causing the arrest of other senators to secure a quorum and
thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17),
if they believe most vehemently in the justice and correctness of their position that the 1973
Constitution has not been validly ratified, adopted or acquiesced in by the people since January 18,
1973 until the present. The proclaimed conviction of petitioners in L-36165 on this issue would have
a ring of credibility, if they proceeded first to hold a rump session outside the legislative building;
because it is not unreasonable to demand or to exact that he who exhorts others to be brave must
first demonstrate his own courage. Surely, they will not affirm that the mere filing of their petition in L-
36165 already made them "heroes and idealists." The challenge likewise seems to insinuate that the
members of this Court who disagree with petitioners' views are materialistic cowards or mercenary
fence-sitters. The Court need not be reminded of its solemn duty and how to perform it. WE refuse to
believe that petitioners and their learned as well as illustrious counsels, scholars and liberal thinkers
that they are, do not recognize the sincerity of those who entertain opinions that clash with their own.
Such an attitude does not sit well with the dictum that "We can differ without being difficult; we can
disagree without being disagreeable," which distinguished counsel in L-36165 is wont to quote.

WE reserve the right to prepare an extensive discussion of the other points raised by petitioners,
which We do not find now necessary to deal with in view of Our opinion on the main issue.

IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES SHOULD BE
DISMISSED.

MAKASIAR, J., concurring:

Pursuant to Our reservation, We now discuss the other issues raised by the petitioners.

II

EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR ACQUIESCENCE

CREATES STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION.

As intimated in the aforecited cases, even the courts, which affirm the proposition that the question
as to whether a constitutional amendment or the revised or new Constitution has been validly
submitted to the people for ratification in accordance with the procedure prescribed by the existing
Constitution, is a justiciable question, accord all presumption of validity to the constitutional
amendment or the revised or new Constitution after the government officials or the people have
adopted or ratified or acquiesced in the new Constitution or amendment, although there was an
illegal or irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935 [1934],
Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep.
34; Thompson vs. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69
Ohio St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga.
780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs. Cooney, 70 Mont. 355, 225
P 1007, 1009). As late as 1971, the courts stressed that the constitutional amendment or the new
Constitution should not be condemned "unless our judgment its nullity is manifest beyond
reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the
1956 case of Tipton vs. Smith, et al., supra).

Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of
constitutionality must persist in the absence of factual foundation of record to overthrow such
presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).

III

CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF CONGRESS,

EXECUTIVE AND JUDICIARY.

The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the three
grand departments of the Government, namely, the legislative, the executive and the judicial. As a
fourth separate and distinct branch, to emphasize its independence, the Convention cannot be
dictated to by either of the other three departments as to the content as well as the form of the
Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the
aforesaid branches of the Government in its proceedings, including the printing of its own journals
(Tañada and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel,
Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in that independence, for the purpose
of maintaining the same unimpaired and in order that its work will not be frustrated, the Convention
has the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention
such prerogative, would leave it at the tender mercy of both legislative and executive branches of the
Government. An unsympathetic Congress would not be disposed to submit the proposed
Constitution drafted by the Constitutional Convention to the people for ratification, much less
appropriate the necessary funds therefor. That could have been the fate of the 1973 Constitution,
because the same abolished the Senate by creating a unicameral National Assembly to be presided
by a Prime Minister who wields both legislative and executive powers and is the actual Chief
Executive, for the President contemplated in the new Constitution exercises primarily ceremonial
prerogatives. The new Constitution likewise shortened abruptly the terms of the members of the
present Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that
the new Constitution shall take effect immediately upon its ratification (Sec. 16, Article XVII, 1973
Constitution). The fact that Section 2 of the same Article XVIII secures to the members of Congress
membership in the interim National Assembly as long as they opt to serve therein within thirty (30)
days after the ratification of the proposed Constitution, affords them little comfort; because the
convening of the interim National Assembly depends upon the incumbent President (under Sec. 3[1],
Art. XVII, 1973 Constitution). Under the foregoing circumstances, the members of Congress, who
were elected under the 1935 Constitution, would not be disposed to call a plebiscite and appropriate
funds therefor to enable the people to pass upon the 1973 Constitution, ratification of which means
their elimination from the political scene. They will not provide the means for their own liquidation.

Because the Constitutional Convention, by necessary implication as it is indispensable to its

independence and effectiveness, possesses the power to call a plebiscite and to appropriate funds
for the purpose, it inescapably must have the power to delegate the same to the President, who, in
estimation of the Convention can better determine appropriate time for such a referendum as well as
the amount necessary to effect the same; for which reason the Convention thru Resolution No. 29
approved on November 22, 1972, which superseded Resolution No. 5843 adopted on November 16,
1972, proposed to the President "that a decree be issued calling a plebiscite for the ratification of the
proposed new Constitution such appropriate date as he shall determine and providing for the
necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constitutional
Convention expected to complete its work by the end of November, 1972 that the urgency of
instituting reforms rendered imperative the early approval of the new Constitution, and that the
national and local leaders desire that there be continuity in the immediate transition from the old to
the new Constitution.

If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate
subordinate rules and regulations to implement the law, this authority to delegate implementing rules
should not be denied to the Constitutional Convention, a co-equal body.

Apart from the delegation to the Chief Executive of the power to call a plebiscite and to appropriate
funds therefor by the Constitutional Convention thru its Resolution No. 29, the organization of the
Citizens' Assemblies for consultation on national issues, is comprehended within the ordinance-
making power of the President under Section 63 of the Revised Administrative Code, which
expressly confers on the Chief Executive the power to promulgate administrative acts and
commands touching on the organization or mode of operation of the government or re-arranging or
re-adjusting any district, division or part of the Philippines "or disposing of issues of general
concern ... ." (Emphasis supplied). Hence, as consultative bodies representing the localities
including the barrios, their creation by the President thru Presidential Decree No. 86 of December
31, 1972, cannot be successfully challenged.
The employment by the President of these Citizens' Assemblies for consultation on the 1973
Constitution or on whether there was further need of a plebiscite thereon, — both issues of national
concern — is still within the delegated authority reposed in him by the Constitutional Convention as
aforesaid.

It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does not
prescribe that the plebiscite must be conducted by the Commission on Elections in accordance with
the provisions of the 1971 Revised Election Code. If that were the intention of the Constitutional
Convention in making the delegation, it could have easily included the necessary phrase for the
purpose, some such phrase like "to call a plebiscite to be supervised by the Commission on
Elections in accordance with the provisions of the 1971 Revised Election Code (or with existing
laws)." That the Constitutional Convention omitted such phrase, can only mean that it left to the
President the determination of the manner by which the plebiscite should be conducted, who shall
supervise the plebiscite, and who can participate in the plebiscite. The fact that said Resolution No.
29 expressly states "that copies of this resolution as approved in plenary session be transmitted to
the President of the Philippines and the Commission on Elections for implementation," did not in
effect designate the Commission on Elections as supervisor of the plebiscite. The copies of said
resolution that were transmitted to the Commission on Elections at best serve merely to notify the
Commission on Elections about said resolution, but not to direct said body to supervise the
plebiscite. The calling as well as conduct of the plebiscite was left to the discretion of the President,
who, because he is in possession of all the facts funnelled to him by his intelligence services, was in
the superior position to decide when the plebiscite shall be held, how it shall be conducted and who
shall oversee it.

It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself
recognized the validity of, or validated Presidential Proclamation No. 1081 placing the entire country
under martial law by resolving to "propose to President Ferdinand E. Marcos that a decree be issued
calling a plebiscite ... ." The use of the term "decree" is significant for the basic orders regulating the
conduct of all inhabitants are issued in that form and nomenclature by the President as the
Commander in Chief and enforcer of martial law. Consequently, the issuance by the President of
Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on January 15, 1973 and
appropriating funds therefor pursuant to said Resolution No. 29, is a valid exercise of such delegated
authority.

Such delegation, unlike the delegation by Congress of the rule-making power to the Chief Executive
or to any of his subalterns, does not need sufficient standards to circumscribe the exercise of the
power delegated, and is beyond the competence of this Court to nullify. But even if adequate criteria
should be required, the same are contained in the "Whereas" clauses of the Constitutional
Convention Resolution No. 29, thus:

WHEREAS, the 1971 Constitutional Convention is expected to complete its work of drafting a
proposed new Constitution for the Republic by the end of November, 1972;

WHEREAS, in view of the urgency of instituting reforms, the early approval of the New Constitution
has become imperative;

WHEREAS, it is the desire of the national and local leaders that there be continuity in the immediate
political transition from the old to the New Constitution;" (Annex "1" of Answer, Res. No. 29,
Constitutional Convention).

As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in
the Plebiscite Cases, stated:
... Once this work of drafting has been completed, it could itself direct the submission to the people
for ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congress
not being in session, could the President, by the decree under question, call for such a plebiscite?
Under such circumstances, a negative answer certainly could result in the work of the Convention
being rendered nugatory. The view has been repeatedly expressed in many American state court
decisions that to avoid such undesirable consequence the task of submission becomes ministerial,
with the political branches devoid of any discretion as to the holding of an election for that purpose.
Nor is the appropriation by him of the amount necessary to be considered as offensive to the
Constitution. If it were done by him in his capacity as President, such an objection would indeed
have been formidable, not to say insurmountable. If the appropriation were made in his capacity as
agent of the Convention to assure that there be submission to the people, then such an argument
loses force. The Convention itself could have done so. It is understandable why it should be thus. If it
were otherwise, then a legislative body, the appropriating arm of the government, could conceivably
make use of such authority to compel the Convention to submit to its wishes, on pain of being
rendered financially distraught. The President then, if performing his role as its agent, could be held
as not devoid of such competence. (pp. 2-3, concurring opinion of J. Fernando in L-35925, etc.,
emphasis supplied).

IV

VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE

1973 CONSTITUTION

(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments
during the hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of
questionable or ambiguous provisions does not affect the validity of the ratification or adoption of the
1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966).

Alexander Hamilton, one of the leading founders and defenders of the American Constitution,
answering the critics of the Federal Constitution, stated that: "I never expect to see a perfect work
from imperfect man. The result of the deliberations of all collective bodies must necessarily be a
compound, as well of the errors and prejudices as of the good sense and wisdom, of the individuals
of whom they are composed. The compacts which are to embrace thirteen distinct States in a
common bond of amity and union, must necessarily be a compromise of as many dissimilar interests
and inclinations. How can perfection spring from such materials?" (The Federalist, Modern Library
Ed., pp. xx-xxi).

(2) The 1973 Constitution is likewise impugned on the ground that it contains provisions which
are ultra vires or beyond the power of the Constitutional Convention to propose.

This objection relates to the wisdom of changing the form of government from Presidential to
Parliamentary and including such provisions as Section 3 of Article IV, Section 15 of Article XIV and
Sections 3(2) and 12 of Article XVII in the 1973 Constitution.

Article IV —

Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall issue except upon probable cause to be determined
by the judge, or such other responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses may produce, and particularly describing
the place to be searched, and the persons or things to be seized.
Article XIV —

Sec. 15. Any provision of paragraph one, Section fourteen, Article Eight and of this Article
notwithstanding, the Prime Minister may enter into international treaties or agreements as the
national welfare and interest may require." (Without the consent of the National Assembly.)

Article XVII —

Sec. 3(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by
the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding
and effective even after lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of
the incumbent President, or unless expressly and explicitly modified or repealed by the regular
National Assembly.

xxx xxx xxx

Sec. 12. All treaties, executive agreements, and contracts entered into by the Government, or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations, are hereby recognized as legal, valid and binding. When the national interest so
requires, the incumbent President of the Philippines or the interim Prime Minister may review all
contracts, concessions, permits, or other forms of privileges for the exploration, development,
exploitation, or utilization of natural resources entered into, granted, issued or acquired before the
ratification of this Constitution.

In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-35953, L-35961, L-35965,
& L-35979), Chief Justice Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio
and the writer, overruled this objection, thus:

... Regardless of the wisdom and moral aspects of the contested provisions of the proposed
Constitution, it is my considered view that the Convention was legally deemed fit to propose — save
perhaps what is or may be insistent with what is now known, particularly in international law, as Jus
Cogens — not only because the Convention exercised sovereign powers delegated thereto by the
people — although insofar only as the determination of the proposals to be made and formulated by
said body is concerned — but also, because said proposals cannot be valid as part of our
Fundamental Law unless and until "approved by the majority of the votes cast at an election which"
said proposals "are submitted to the people for their ratification," as provided in Section 1 of Article
XV of the 1935 Constitution. (Pp. 17-18, Decision in L-35925, etc.).

This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20, 1970, 35 SCRA 367)
that the Constitutional Convention has the authority to "entirely overhaul the present Constitution and
propose an entirely new Constitution based on an ideology foreign to the democratic system ...;
because the same will be submitted to the people for ratification. Once ratified by the sovereign
people, there can be no debate about the validity of the new Constitution."

Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement
in the Del Rosario case, supra, and added: "... it seems to me a sufficient answer that once
convened, the area open for deliberation to a constitutional convention ..., is practically limitless"
(citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632
[1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 Miss.
543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533,
212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P
365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, 247 NW 474, 262 Mich. 338 [1933]).

Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "that
when the people elected the delegates to the Convention and when the delegates themselves were
campaigning, such limitation of the scope of their function and objective was not in their minds."

1973 CONSTITUTION DULY ADOPTED AND

PROMULGATED.

Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972
without officially promulgating the said Constitution in Filipino as required by Sections 3(1) of Article
XV on General Provisions of the 1973 Constitution. This claim is without merit because their Annex
"M" is the Filipino version of the 1973 Constitution, like the English version, contains the certification
by President Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary,
that the proposed Constitution, approved on second reading on the 27th day of November, 1972 and
on third reading in the Convention's 291st plenary session on November 29, 1972 and accordingly
signed on November 1972 by the delegates whose signatures are thereunder affixed. It should be
recalled that Constitutional Convention President Diosdado Macapagal was, as President of the
Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the petitioners in
L-36165 including their counsel, former Senator Jovito Salonga, belong. Are they repudiating and
disowning their former party leader and benefactor?

VI

ARTICLE XV OF 1935 CONSTITUTION DOES NOT

PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.

(1) Article XV of the 1935 Constitution simply 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 ratification."

But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of
this Constitution when approved by a majority of the votes cast at an election called by Congress at
which the amendments are submitted for ratification by the qualified electors defined in Article V
hereof, supervised by the Commission on Elections in accordance with the existing election law and
after such amendments shall have been published in all the newspapers of general circulation for at
least four months prior to such election."

This position certainly imposes limitation on the sovereign people, who have the sole power of
ratification, which imposition by the Court is never justified (Wheeler vs. Board of Trustees, supra).

In effect, petitioners and their counsels are amending by a strained and tortured construction Article
XV of the 1935 Constitution. This is a clear case of usurpation of sovereign power they do not
possess — through some kind of escamotage. This Court should not commit such a grave error in
the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due to absence of
substantial compliance with the procedure prescribed by the Constitution and/or the law, nullifies the
proposed amendment or the new Constitution, the procedure prescribed by the state Constitution is
so detailed that it specifies that the submission should be at a general or special election, or at the
election for members of the State legislature only or of all state officials only or of local officials only,
or of both state and local officials; fixes the date of the election or plebiscite limits the submission to
only electors or qualified electors; prescribes the publication of the proposed amendment or a new
Constitution for a specific period prior to the election or plebiscite; and designates the officer to
conduct the plebiscite, to canvass and to certify the results, including the form of the ballot which
should so state the substance of the proposed amendments to enable the voter to vote on each
amendment separately or authorizes expressly the Constitutional Convention or the legislature to
determine the procedure or certain details thereof. See the State Constitutions of Alabama [1901];
Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connecticut [1818]; Florida [1887]; Georgia
[1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana
[1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi
[1890]; and Missouri [1945]).

As typical examples:
Constitution of Alabama (1901):

Article XVIII. Mode of Amending the Constitution

Sec. 284. Legislative Proposals. Amendments may be proposed to this Constitution by the
legislature in the manner following: The proposed amendments shall be read in the house in which
they originate on three several days, and, if upon the third reading, three-fifths of all the members
elected to that house shall vote in favor thereof, the proposed amendments shall be sent to the other
house, in which they shall likewise be read on three several days, and if upon the third reading,
three-fifths of all the members elected that house shall vote in favor of the proposed amendments,
the legislature shall order an election by the qualified electors of the state upon such proposed
amendments, to be held either at the general election next succeeding the session of the legislature
at which the amendments are proposed or upon another day appointed by the legislature, not less
than three months after the final adjournment of the session of the legislature at which the
amendments were proposed. Notice of such election, together with the proposed amendments, shall
be given by proclamation of the governor, which shall be published in every county in such manner
as the legislature shall direct, for at least eight successive weeks next preceding the day appointed
for such election. On the day so appointed an election shall be held for the vote of the qualified
electors of the state upon the proposed amendments. If such election be held on the day of the
general election, the officers of such general election shall open a poll for the vote of the qualified
electors upon the proposed amendments; if it be held on a day other than that of a general election,
officers for such election shall be appointed; and the election shall be held in all things in accordance
with the law governing general elections. In all elections upon such proposed amendments, the
votes cast thereat shall be canvassed, tabulated, and returns thereof be made to the secretary of
state, and counted, in the same manner as in elections for representatives to the legislature; and if it
shall thereupon appear that a majority of the qualified electors who voted at such election upon the
proposed amendments voted in favor of the same, such amendments shall be valid to all intents and
purposes as parts of this Constitution. The result of such election shall be made known by
proclamation of the governor. Representation in the legislature shall be based upon population, and
such basis of representation shall not be changed by constitutional amendments.

Sec. 285. Form of ballot for amendment. Upon the ballots used at all elections provided for in section
284 of this Constitution, the substance or subject matter of each proposed amendment shall be so
printed that the nature thereof shall be clearly indicated. Following each proposed amendment on
the ballot shall be printed the word "Yes" and immediately under that shall be printed the word "No".
The choice of the elector shall be indicated by a cross mark made by him or under his direction,
opposite the word expressing his desire, and no amendment shall be adopted unless it receives the
affirmative vote of a majority of all the qualified electors who vote at such election.

Constitution of Arkansas (1874):

Article XIX. Miscellaneous Provisions.

Sec. 22. Constitutional amendments. Either branch of the General Assembly at a regular session
thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of
all the members, elected to each house, such proposed amendments shall be entered on the journal
with the yeas and nays, and published in at least one newspaper in each county, where a
newspaper is published, for six months immediately preceding the next general election for Senators
and Representatives, at which time the same shall be submitted to the electors of the State for
approval or rejection, and if a majority of the electors voting at such election adopt such
amendments, the same shall become a part of this Constitution; but no more than three
amendments shall be proposed or submitted at the same time. They shall be so submitted as to
enable the electors to vote on each amendment separately.

Constitution of Kansas (1861):

Article XIV. Amendments.

Sec. 1. Proposal of amendments; publications; elections. Propositions for the amendment of this
constitution may be made by either branch of the legislature; and if two thirds of all the members
elected to each house shall concur therein, such proposed amendments, together with the yeas and
nays, shall be entered on the journal; and the secretary of state shall cause the same to be
published in at least one newspaper in each county of the state where a newspaper is published, for
three months preceding the next election for representatives, at which time, the same shall be
submitted to the electors, for their approval or rejection; and if a majority of the electors voting on
said amendments, at said election, shall adopt the amendments, the same shall become a part of
the constitution. When more than one amendment shall be submitted at the same time, they shall be
so submitted as to enable the electors to vote on each amendments separately; and not more than
three propositions to amend shall be submitted at the same election.

Constitution of Maryland (1867):

Article XIV. Amendments to the Constitution.

Sec. 1. Proposal in general assembly; publication; submission to voters; governor's proclamation.

The General Assembly may propose Amendments to this Constitution; provided that each
Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will
stand when amended and passed by three fifths of all the members elected to each of the two
Houses, by yeas and nays, to be entered on the Journals with the proposed Amendment. The bill or
bills proposing amendment or amendments shall be published by order of the Governor, in at least
two newspapers, in each County, where so many may be published, and where not more than one
may be published, then in the newspaper, and in three newspapers published in the City of
Baltimore, once a week for four weeks immediately preceding the next ensuing general election, at
which the proposed amendment or amendments shall be submitted, in a form to be prescribed by
the General Assembly, to the qualified voters of the State for adoption or rejection. The votes cast
for and against said proposed amendment or amendments, severally, shall be returned to the
Governor, in the manner prescribed in other cases, and if it shall appear to the Governor that a
majority of the votes cast at said election on said amendment or amendments, severally, were cast
in favor thereof, the Governor shall, by his proclamation, declare the said amendment or
amendments having received said majority of votes, to have been adopted by the people of
Maryland as part of the Constitution thereof, and henceforth said amendment or amendments shall
be part of the said Constitution. When two or more amendments shall be submitted in the manner
aforesaid, to the voters of this State at the same election, they shall be so submitted as that each
amendment shall be voted on separately.

Constitution of Missouri (1945):

Article XII. Amending the Constitution.

Sec. 2(b). Submission of amendments proposed by general assembly or by the initiative. All
amendments proposed by the general assembly or by the initiative shall be submitted to the electors
for their approval or rejection by official ballot title as may be provided by law, on a separate ballot
without party designation, at the next general election, or at a special election called by the governor
prior thereto, at which he may submit any of the amendments. No such proposed amendment shall
contain more than one amended and revised article of this constitution, or one new article which
shall not contain more than one subject and matters properly connected therewith. If possible, each
proposed amendment shall be published once a week for two consecutive weeks in two newspapers
of different political faith in each county, the last publication to be not more than thirty nor less than
fifteen days next preceding the election. If there be but one newspaper in any county, publication of
four consecutive weeks shall be made. If a majority of the votes cast thereon is in favor of any
amendment, the same shall take effect at the end of thirty days after the election. More than one
amendment at the same election shall be so submitted as to enable the electors to vote on each
amendment separately.

Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed
procedure for submission or ratification. As heretofore stated, it does not specify what kind of
election at which the new Constitution shall be submitted; nor does it designate the Commission on
Elections to supervise the plebiscite. Neither does it limit the ratification to the qualified electors as
defined in Article V of the 1935 Constitution. Much less does it require the publication of the
proposed Constitution for any specific period before the plebiscite nor does it even insinuate that the
plebiscite should be supervised in accordance with the existing election law.

(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed
Constitution to the people for ratification. It does not make any reference to the Commission on
Elections as the body that shall supervise the plebiscite. And Article XV could not make any
reference to the Commission on Elections because the original 1935 Constitution as ratified on May
14, 1935 by the people did not contain Article X on the Commission on Elections, which article was
included therein pursuant to an amendment by that National Assembly proposed only about five (5)
years later — on April 11, 1940, ratified by the people on June 18, 1940 as approved by the
President of the United States on December 1940 (see Sumulong vs. Commission, 70 Phil. 703,
713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers
of the 1935 Constitution as ratified May 14, 1935 intended that a body known as the Commission on
Elections should be the one to supervise the plebiscite, because the Commission on Elections was
not in existence then as was created only by Commonwealth Act No. 607 approved on August 22,
1940 and amended by Commonwealth Act No. 657 approved on June 21, 1941 (see Tañada &
Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission,
170 Phil. 703, 708-715; 73 Phil. 288, 290-300; Tañada & Fernando, Constitution of the Philippines,
1953 ed., Vol. I, p. 5, Vol. II,
pp. 11-19).
Because before August, 1940 the Commission on Election was not yet in existence, the former
Department of Interior (now Department of Local Governments and Community Development)
supervised the plebiscites on the 1937 amendment on woman's suffrage, the 1939 amendment to
the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of the U.S. Congress)
and the three 1940 amendments on the establishment of a bicameral Congress, the re-election of
the President and the Vice-President, and the creation of the Commission on Elections (ratified on
June 18, 1940). The supervision of said plebiscites by the then Department of Interior was not
automatic, but by virtue of an express authorization in Commonwealth Act Nos. 34, 49 and 517.

If the National Assembly then intended that the Commission on Elections should also supervise the
plebiscite for ratification of constitutional amendments or revision, it should have likewise proposed
the corresponding amendment to Article XV by providing therein that the plebiscite on amendments
shall be supervised by the Commission on Elections.

3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14, 1935
wanted that only the qualified voters under Article V of the 1935 Constitution should participate in the
referendum on any amendment or revision thereof, they could have provided the same in 1935 or in
the 1940 amendment by just adding a few words to Article XV by changing the last phrase to
"submitted for ratification to the qualified electors as defined in Article V hereof," or some such
similar phrases.

Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified
electors under Article V of the 1935 Constitution because the said term "people" as used in several
provisions of the 1935 Constitution, does not have a uniform meaning. Thus in the preamble, the
term "Filipino people" refer, to all Filipino citizens of all ages of both sexes. In Section 1 of Article II
on the Declaration of Principles, the term "people" in whom sovereignty resides and from whom all
government authority emanates, can only refer also to Filipino citizens of all ages and of both sexes.
But in Section 5 of the same Article II on social justice, the term "people" comprehends not only
Filipino citizens but also all aliens residing in the country of all ages and of both sexes. Likewise, that
is the same connotation of the term "people" employed in Section 1(3) of Article III on the Bill of
Rights concerning searches and seizures.

When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it does
so expressly as the case of the election of senators and congressmen. Section 2 Article VI expressly
provides that the senators "shall be chosen at large by the qualified electors of the Philippines as
may provided by law." Section 5 of the same Article VI specifically provides that congressmen shall
"be elected by the qualified electors." The only provision that seems to sustain the theory of
petitioners that the term "people" in Article XV should refer to the qualified electors as defined in
Article V of the 1935 Constitution is the provision that the President and Vice-President shall be
elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone
cannot be conclusive as to such construction, because of explicit provisions of Sections 2 and 5 of
Article VI, which specifically prescribes that the senators and congressmen shall be elected by the
qualified electors.

As aforesaid, most of the constitutions of the various states of the United States, specifically
delineate in detail procedure of ratification of amendments to or revision of said Constitutions and
expressly require ratification by qualified electors, not by the generic term "people".

The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35
Constitutional Convention satisfied that the amendment shall be submitted to qualified election for
ratification. This proposal was not accepted indicating that the 1934-35 Constitutional Convention did
intend to limit the term "people" in Article XV of the 1935 Constitution to qualified electors only. As
above demonstrated, the 1934-35 Constitutional Convention limits the use of the term "qualified
electors" to elections of public officials. It did not want to tie the hands of succeeding future
constitutional conventions as to who should ratify the proposed amendment or revision.

(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment
contemplates the automatic applicability of election laws to plebiscites on proposed constitutional
amendments or revision.

The very phraseology of the specific laws enacted by the National Assembly and later by Congress,
indicates that there is need of a statute expressly authorizing the application of the election laws to
plebiscites of this nature. Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on
September 30, 1936, consists of 12 sections and, aside from providing that "there shall be held
a plebiscite on Friday, April 30, 1937, on the question of woman's suffrage ... and that said
amendment shall be published in the Official Gazette in English and Spanish for three consecutive
issues at least fifteen (15) days prior to said election, ... and shall be posted in a conspicuous place
in its municipal and provincial office building and in its polling place not later than April 22, 1937"
(Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding, the holding
of a special election, insofar as said provisions are not in conflict with it, should apply to the said
plebiscite (Sec. 3, Com. Act No. 34)1; and, that the votes cast according to the returns of the board
of inspectors shall be counted by the National Assembly (Sec. 10, Com. Act No. 34).

The election laws then in force before 1938 were found in Sections 392-483 of the Revised
Administrative Code.

Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes it
expressly applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517
and Rep. Act No. 73 calling for the plebiscite on the constitutional amendments in 1939, 1940 and
1946, including the amendment creating the Commission on Elections, specifically provided that the
provisions of the existing election law shall apply to such plebiscites insofar as they are not
inconsistent with the aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus —

Commonwealth Act No. 492, enacted on September 19, 1939, calling for a plebiscite on the
proposed amendments to the Constitution adopted by the National Assembly on September 15,
1939, consists of 8 sections and provides that the proposed amendments to the Constitution
adopted in Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino people for
approval or disapproval at a general election to be held throughout the Philippines on Tuesday,
October 24, 1939"; that the amendments to said Constitution proposed in "Res. No. 38, adopted on
the same date, shall be submitted at following election of local officials," (Sec. 1, Com. Act No. 492)
that the said amendments shall be published in English and Spanish in three consecutive issues of
the Official Gazette at least ten (10) days prior to the elections; that copies thereof shall be posted
not later than October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be
conducted according to provisions of the Election Code insofar as the same may be applicable; that
within thirty (30) days after the election, Speaker of the National Assembly shall request the
President to call a special session of the Assembly for the purpose of canvassing the returns and
certify the results thereof (Sec. 6, Com. Act No. 492).

Commonwealth Act No. 517, consisting of 11 sections, was approved on April 25, 1940 and
provided, among others: that the plebiscite on the constitutional amendments providing bicameral
Congress, re-election of the President and Vice-President, and the creation of a Commission on
Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said amendments shall
be published in three consecutive issues of the Official Gazette in English and Spanish at least 20
days prior to the election and posted in every local government office building and polling place not
later than May 18, 1940 (Sec. 2); that the election shall be conducted in conformity with the Election
Code insofar as the same may be applicable (Sec. 3) that copies of the returns shall be forwarded to
the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly
shall canvass the returns to certify the results at a special session to be called by President (Sec. 8).

Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity amendment
consists of 8 sections provides that the Amendment "shall be submitted to the people, for approval
or disapproval, at a general election which shall be held on March 11, 1947, in accordance with the
provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendment shall be published in English
and Spanish in three consecutive issues of the Official Gazette at least 20 days prior to the election;
that copies of the same shall be posted in a conspicuous place and in every polling place not later
than February 11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act No. 357 (Election
Code) and Com. Act No. 657 creating the Commission on Elections, shall apply to the election
insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days after
the election, the Senate and House of Representatives shall hold a joint session to canvass the
returns and certify the results thereof (Section 6, R.A. No. 73).

From the foregoing provisions, it is patent that Article XV of the 1935 Constitution does not
contemplate nor envision the automatic application of the election law; and even at that, not all the
provisions of the election law were made applicable because the various laws aforecited contain
several provisions which are inconsistent with the provisions of the Revised Election Code (Com. Act
No. 357). Moreover, it should be noted that the period for the publication of the copies of the
proposed amendments was about 10 days, 15 days or 20 days, and for posting at least 4 days, 8
days or 30 days.

Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply to
plebiscites (See. 2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388).

If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution, there
would be no need for Congress to expressly provide therefor in the election laws enacted after the
inauguration of the Commonwealth government under the 1935 Constitution.

(5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. Unlike
the various State Constitutions of the American Union (with few exceptions), Article XV does not
state that only qualified electors can vote in the plebiscite. As above-intimated, most of the
Constitutions of the various states of the United States provide for very detailed amending process
and specify that only qualified electors can vote at such plebiscite or election.

Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter, which
was approved on June 17, 1967 and superseded Republic Act No. 2370, expanded the membership
of the barrio assembly to include citizens who are at least 18 years of age, whether literate or not,
provided they are also residents of the barrio for at least 6 months (Sec. 4, R.A. No. 3590).

Sec. 4. The barrio assembly. — The barrio assembly shall consist of all persons who are residents
of the barrio for at least six months, eighteen years of age or over, citizens of the Republic of the
Philippines and who are duly registered in the list of barrio assembly members kept by the Barrio
Secretary.

The barrio assembly shall meet at least once a year to hear the annual report of the barrio council
concerning the activities and finances of the barrio.
It shall meet also at the case of the barrio council or upon written petition of at least One-Tenth of the
members of the barrio assembly.

No meeting of the barrio assembly shall take place unless notice is given one week prior to the
meeting except in matters involving public safety or security in which case notice within a reasonable
time shall be sufficient. The barrio captain, or in his absence, the councilman acting as barrio
captain, or any assembly member selected during the meeting, shall act as presiding officer at all
meetings of the barrio assembly. The barrio secretary or in his absence, any member designated by
the presiding officer to act as secretary shall discharge the duties of secretary of the barrio
assembly.

For the purpose of conducting business and taking any official action in the barrio assembly, it is
necessary that at least one-fifth of the members of the barrio assembly be present to constitute a
quorum. All actions shall require a majority vote of these present at the meeting there being a
quorum.

Sec. 5. Powers of the barrio assembly. — The powers of the barrio assembly shall be as follows:

a. To recommend to the barrio council the adoption of measures for the welfare of the barrio;

b. To decide on the holding of a plebiscite as provided for in Section 6 of this Act;

c. To act on budgetary and supplemental appropriations and special tax ordinances submitted for its
approval by the barrio council; and

d. To hear the annual report council concerning the activities and finances of the assembly.

Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote of the
members present in the barrio assembly, there being a quorum, or when called by at least four
members of the barrio council; Provided, however, That no plebiscite shall be held until after thirty
days from its approval by either body, and such plebiscite has been given the widest publicity in the
barrio, stating the date, time, and place thereof, the questions or issues to be decided, action to be
taken by the voters, and such other information relevant to the holding of the plebiscite.

All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Voting
procedures may be made either in writing as in regular election, and/or declaration by the voters to
the board of election tellers. The board of election tellers shall be the same board envisioned by
section 8, paragraph 2 of this Act, in case of vacancies in this body, the barrio council may fill the
same.

A plebiscite may be called to decide on the recall of any member of the barrio council. A plebiscite
shall be called to approve any budgetary, supplemental appropriations or special tax ordinances.

For taking action on any of the above enumerated measures, majority vote of all the barrio assembly
members registered in the list of barrio secretary is necessary.

xxx xxx xxx

Sec 10. Qualifications of voters and candidates. — Every citizen of the Philippines, twenty-one years
of age or over, able to read and write, who has been a resident of the barrio during the six months
immediately preceding the election, duly registered in the list of voters kept by the barrio secretary,
who is not otherwise disqualified, may vote or be a candidate in the barrio elections.

The following persons shall not be qualified to vote:

a. Any person who has been sentenced by final judgment to suffer one year or more of
imprisonment, within two years after service of his sentence;

b. Any person who has violated his allegiance to the Republic of the Philippines; and

c. Insane or feeble-minded persons.

All these barrio assembly members, who are at least 18 years of age, although illiterate, may vote at
the plebiscite on the recall of any member of the barrio council or on a budgetary, supplemental
appropriation, or special ordinances, a valid action on which requires "a majority vote of all of the
barrio assembly members registered in the list of the barrio secretary" (par. 5, Sec. 6, R.A. No.
3590). Such plebiscite may be authorized by a majority vote of the members present in the barrio
assembly, there being a quorum (par. 1, Sec. 6).

However, in the case of election of barrio officials, only Filipino citizens, who are at least 21 years of
age, able to read and write, residents of the barrio during the 6 months immediately preceding the
election and duly registered in the list of voters kept by the barrio secretary, not otherwise
disqualified, may vote (Sec. 10, R.A. No. 3590).

Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may
be made ... either in writing as in regular elections, and/or declaration by the voters to the board of
election tellers."

That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members
qualified to vote may vote in the plebiscite," cannot sustain the position of petitioners in G.R. No. L-
36165 that only those who are 21 years of age and above and who possess all other qualifications of
a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred to in Section 6;
because paragraph 3 of Section 6 does not expressly limit the voting to those with the qualifications
under Section 10 as said Section 6 does not distinguish between those who are 21 or above on the
one hand and those 18 or above but below 21 on the other, and whether literate or not, to constitute
a quorum of the barrio assembly.

Consequently, on questions submitted for plebiscite, all the registered members of the barrio
assembly can vote as long as they are 18 years of age or above; and that only those who are 21
years of age or over and can read and write, can vote in the elections of barrio officials.

Otherwise there was no sense in extending membership in the barrio assembly to those who are at
least 18 years of age, whether literate or not. Republic Act No. 3590 could simply have restated
Section 4 of Republic Act No. 2370, the old Barrio Charter, which provided that only those who are
21 and above can be members of the barrio assembly.

Counsels Salonga and Tañada as well as all the petitioners in L-36165 and two of the petitioners in
L-36164 participated in the enactment of Republic Act No. 3590 and should have known the
intendment of Congress in expanding the membership of the barrio assembly to include all those 18
years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a constituent assembly, can
include 18-year olds as qualified electors for barrio plebiscites, this prerogative can also be
exercised by the Chief Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.

As heretofore stated, the statement by the President in Presidential Proclamation No. 1102 that the
1973 Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in a
referendum conducted from January 10 to 15, 1973, should be accorded the presumption of
correctness; because the same was based on the certification by the Secretary of the Department of
Local Government and Community Development who tabulated the results of the referendum all
over the country. The accuracy of such tabulation and certification by the said Department Secretary
should likewise be presumed; because it was done in the regular performance of his official
functions aside from the fact that the act of the Department Secretary, as an alter ego of the
President, is presumptively the act of the President himself unless the latter disapproves or
reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by
the Department Secretary and the Chief Executive on the results of the referendum, is further
strengthened by the affidavits and certifications of Governor Isidro Rodriguez of Rizal, Mayor
Norberto S. Amoranto of Quezon City and Councilor Eduardo T. Parades of Quezon City.

The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939 amendment
to the ordinance appended to the 1935 Constitution, the 1940 amendments establishing the
bicameral Congress, creating the Commission on Elections and providing for two consecutive terms
for the President, and the 1947 parity amendment, cannot be invoked; because those amendments
were proposed by the National Assembly as expressly authorized by Article V of the 1935
Constitution respecting woman suffrage and as a constituent assembly in all the other amendments
aforementioned and therefore as such, Congress had also the authority to prescribe the procedure
for the submission of the proposed amendments to the 1935 Constitution.

In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional
Convention, which as heretofore discussed, has the equal power to prescribe the modality for the
submission of the 1973 Constitution to the people for ratification or delegate the same to the
President of the Republic.

The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could be
utilized as the basis for the extrapolation of the Citizens' Assemblies in all the other provinces, cities
and municipalities in all the other provinces, cities and municipalities, and the affirmative votes in the
Citizens' Assemblies resulting from such extrapolation would still constitute a majority of the total
votes cast in favor of the 1973 Constitution.

As claimed by petitioners in L-36165, against the certification of the Department of Local

Government and Community Development that in Rizal there were 1,126,000 Yes votes and
100,310 No votes, the certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes
votes against 292,530 No votes. In Cavite province, there were 249,882 Yes votes against 12,269
No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department
of Local Government and Community Development), while the alleged certification of Governor Lino
Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such a ratio is extended by
way of extrapolation to the other provinces, cities and towns of the country, the result would still be
an overwhelming vote in favor of the 1973 Constitution.

The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his duly
acknowledged certification dated March 16, 1973, he states that since the declaration of martial law
and up to the present time, he has been under house arrest in his residence in Urdaneta Village,
Makati, Rizal; that he never participated in the conduct of the Citizens' Assemblies on January 10 15,
1973 in the province of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies
at that time was Vice-Governor Dominador Camerino; and that he was shown a letter for his
signature during the conduct of the Citizens' Assemblies, which he did not sign but which he referred
to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973).

Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15,
1973, he caused the preparation of a letter addressed to Secretary Jose Roño of the Department of
Local Government and Community Development showing the results of the referendum in Pasay
City; that on the same day, there were still in any Citizens' Assemblies holding referendum in Pasay
City, for which reason he did not send the aforesaid letter pending submittal of the other results from
the said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he indorsed the
complete certificate of results on the referendum in Pasay City to the Office of the President (Annex
5-Rejoinder of Sol. Gen. dated March 20, 1973).

Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also issued an
affidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga Law Office
asked him for the results of the referendum; that he informed her that he had in his possession
unsigned copies of such results which may not be considered official as they had then no knowledge
whether the original thereof had been signed by the mayor; and that in spite of his advice that said
unsigned copies were not official, she requested him if she could give her the unofficial copies
thereof, which he gave in good faith (Annex C-Rejoinder to the Sol. Gen.).

There were 118,010 Yes votes as against 5,588 No votes in the Citizens' Assemblies of Quezon city
(Annex V to Petitioners' Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of
alleged barrio treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far
as we know, there has been no Citizens' Assembly meeting in our Area, particularly in January of
this year," does not necessarily mean that there was no such meeting in said barrio; for she may not
have been notified thereof and as a result she was not able to attend said meeting. Much less can it
be a basis for the claim that there was no meeting at all in the other barrios of Quezon City. The
barrio captain or the secretary of the barrio assembly could have been a credible witness.

Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and
Coordinating Council, certified on March 12, 1973 that as such chairman he was in charge of the
compilation and tabulation of the results of the referendum among the Citizens' Assemblies in
Quezon City based on the results submitted to the Secretariat by the different Citizens' Assemblies;
but many results of the referendum were submitted direct to the national agencies having to do with
such activity and all of which he has no knowledge, participation and control (Annex 4 Rejoinder of
the Sol. Gen.).

Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973 that he prepared a
letter to the President dated January 15, 1973 informing him of the results of the referendum in
Rizal, in compliance with the instruction of the National Secretariat to submit such letter 2 or 3 days
from January 10 to show the trend of voting in the Citizens' Assemblies; that the figures 614,157 and
292,530 mentioned in said letter were based on the certificates of results in his possession as of
January 14, 1973, which results were made the basis of the computation of the percentage of voting
trend in the province; that his letter was never intended to show the final or complete result in the
referendum in the province as said referendum was then still going on from January 14-17, 1973, for
which reason the said letter merely stated that it was only a "summary result"; and that after January
15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalities of Rizal
for final tabulation (Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and
Community Development, issued a certificate dated March 16, 1973 that she was shown xerox
copies of unsigned letters allegedly coming from Governor Lino Bocalan dated January 15, 1973
and marked "Rejoinder Annex Cavite" addressed to the President of the Philippines through the
Secretary of the Department of Local Government and Community Development and another
unsigned letter reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder
Annex Pasay City" addressed to the Secretary of the Department of Local Government and
Community Development; that both xerox copies of the unsigned letters contain figures showing the
results of the referendum of the Citizens' Assemblies in those areas; and that the said letters were
not received by her office and that her records do not show any such documents received by her
office (Annex 2-Rejoinder of the Sol. Gen.).

Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing
said unsigned letters and/or certificates as duly signed and/or containing the complete returns of the
voting in the Citizens' Assemblies.

The observation We made with respect to the discrepancy between the number of Yes votes and No
votes contained in the summary report of Governor Rodriguez of Rizal as well as those contained in
the alleged report of Governor Lino Bocalan of Cavite who repudiated the same as not having been
signed by him for he was then under house arrest, on the one hand, and the number of votes
certified by the Department of Local Government and Community Development, on the other, to the
effect that even assuming the correctness of the figures insisted on by counsel for petitioners in L-
36165, if they were extrapolated and applied to the other provinces and cities of the country, the Yes
votes would still be overwhelmingly greater than the No votes, applies equally to the alleged
discrepancy between the figures contained in the certification of the Secretary of the Department of
Local Government and Community Development and the figures furnished to counsel for petitioners
in L-36165 concerning the referendum in Camarines Sur, Bataan and Negros Occidental.

The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows that there were
more votes in favor of the plebiscite to be held later than those against, only serve to emphasize that
there was freedom of voting among the members of the Citizens' Assemblies all over the country
during the referendum from January 10 to 15, 1973 (Annex-6 Camarines Sur to Rejoinder of
Petitioners in L-36165). If there was no such freedom of choice, those who wanted a plebiscite
would not outnumber those against holding such plebiscite.

The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of
approval of the new Constitution by almost 97% by the members of the Citizens' Assemblies in
Camarines Sur" (Annex-Camarines Sur to Rejoinder of Petitioners in L-36165).

The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens'
Assemblies voted overwhelmingly in favor of the new Constitution despite the fact that the second
set of questions including the question "Do you approve of the new Constitution?" was received only
on January 10. Provincial Governor Pascual stated that "orderly conduct and favorable results of the
referendum" were due not only to the coordinated efforts and cooperation of all teachers and
government employees in the area but also to the enthusiastic participation by the people, showing
"their preference and readiness to accept this new method of government to people consultation in
shaping up government policies." (Annex-Bataan to Rejoinder of Petitioners in L-36165).

As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in
the book of voters; it is enough that they are electors voting on the new Constitution (Bott vs. Wurts,
40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in the
referendum in certain localities may exceed the number of voters actually registered for the 1971
elections, can only mean that the excess represents the qualified voters who are not yet registered
including those who are at least 15 years of age and the illiterates. Although ex-convicts may have
voted also in the referendum, some of them might have been granted absolute pardon or were
sentenced to less than one year imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election
Code). At any rate, the ex-convicts constitute a negligible number, discounting which would not tilt
the scale in favor of the negative votes.

Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to the Liberal Party,
stated in his letter dated March 13, 1973 that he does not "feel authorized by the proper authorities
to confirm or deny the data" concerning the number of participants, the Yes votes and No votes in
the referendum on the new Constitution among the members of the Citizens' Assemblies in
Caloocan City, does not necessarily give rise to the inference that Mayor Samson of Caloocan City
is being intimidated, having been recently released from detention; because in the same letter of
Mayor Samson, he suggested to counsel for petitioners in L-36165 that he can secure "the true and
legitimate results of the referendum" from the Office of the President (Annex Caloocan-B to
Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed such
suggestion?

Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the
estimated turnover in the Citizens' Assemblies referendum on January 10 to 15, 1973 by a certain
Professor Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a close relative of
former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165 (Annex M-as
amended, to Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments and
Memorandum of respondents). Professor Salonga is not a qualified statistician, which all the more
impairs his credibility. Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter
dated March 16, 1973 address to the Secretary of the Department of Local Government and
Community Development, refutes the said computation of Professor Benjamin R. Salonga, thus:

1) I do not quite understand why (Problem 1) all qualified registered voters and the 15-20-year-old
youths (1972) will have to be estimated in order to give a 101.9% estimate of the percentage
participation of the "15-20 year old plus total number of qualified voters" which does not deem to
answer the problem. This computation apparently fails to account for some 5.6 million persons "21
years old and over" who were not registered voters (COMELEC), but who might be qualified to
participate at the Citizen's Assembly.

2) The official population projection of this office (medium assumption) for "15 year olds and over" as
of January 1, 1973 is 22.506 million. If total number of participants at the Citizens' Assembly
Referendum held on January 10-15, 1973 was 16.702 million, participation rate will therefore be the
ratio of the latter figure to the former which gives 74.2%.

3) 1 cannot also understand c-2 "Solution to Problem 11." The "difference or implied number of 15-
20 year olds" of 5,039,906 would represent really not only all 15-year olds and over who participated
at the Citizens' Assembly but might not have been registered voters at the time, assuming that all the
11,661,909 registered voted at Citizens' Assembly. Hence, the "estimate percentage participation of
15-20 years olds" of 105.6% does not seem to provide any meaningful information.

To obtain the participation rate of "15-20 years old" one must divide the number in this age group,
which was estimated to be 4.721 million as of January 1, 1973 by the population of "15 years old and
over" for the same period which was estimated to be 22.506 million, giving 21.0%.

In Problem III, it should be observed that registered voters also include names of voters who are
already dead. It cannot therefore be assumed that all of them participated at the Citizens' Assembly.
It can therefore be inferred that "a total number of persons 15 and over unqualified/disqualified to
vote" will be more than 10,548,197 and hence the "difference or implied number of registered voters
that participated" will be less than 6,153,618.

I have reservations on whether an "appropriate number of qualified voters that supposedly voted"
could be meaningfully estimated.

5) The last remark will therefore make the ratio (a) [Solution to Problem] more than 1.71 and that for
(b), accordingly, will also be less than 36.8%." (Annex F Rejoinder).

From the foregoing analysis of the Director of Census and Statistics as of January 21, 1973, the
official population projection for 15-year olds and over is 22,506,000. If 16,702,000 voted in the
referendum, the participation ratio would be 74.2% of 22,506,000.

If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the
difference between 16,702,000 who participated in the referendum and the registered electors of
11,661,909 for the November 8, 1971 elections, is 5,040,091, which may include not only the 15-
year olds and above but below 21 but also the qualified electors who were not registered before the
November 8, 1971 elections as well as illiterates who are 15 years old and above but below 21.

Moreover, in the last Presidential election in November, 1969, We found that the incumbent
President obtained over 5,000,000 votes as against about 3,000,000 votes for his rival LP Senator
Sergio Osmeña, Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmeña, Jr. vs.
Marcos, Presidential Election Contest No. 3, Jan. 8, 1973).

The petitioners in all the cases at bar cannot state with justification that those who voted for the
incumbent President in 1969 did not vote in favor of the 1973 Constitution during the referendum
from January 10 to 15, 1973. It should also be stressed that many of the partisans of the President in
the 1969 Presidential elections, have several members in their families and relatives who are
qualified to participate in the referendum because they are 15 years or above including illiterates,
which fact should necessarily augment the number of votes who voted for the 1973 Constitution.

(6) It is also urged that martial law being the rule of force, is necessarily inconsistent with freedom of
choice, because the people fear to disagree with the President and Commander-in-Chief of the
Armed Forces of the Philippines and therefore cannot voice views opposite to or critical of the
position of the President on the 1973 Constitution and on the mode of its ratification.

It is also claimed or urged that there can be no free choice during martial law which inevitably
generates fear in the individual. Even without martial law, the penal, civil or administrative sanction
provided for the violation of ordinarily engenders fear in the individual which persuades the individual
to comply with or obey the law. But before martial law was proclaimed, many individuals fear such
sanctions of the law because of lack of effective equal enforcement or implementation thereof — in
brief, compartmentalized justice and extraneous pressures and influences frustrated the firm and just
enforcement of the laws. The fear that is generated by martial law is merely the fear of immediate
execution and swift enforcement of the law and therefore immediate infliction of the punishment or
sanction prescribed by the law whenever it is transgressed during the period of martial law. This is
not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973
Constitution. Those who cringe in fear are the criminals or the law violators. Surely, petitioners do
not come under such category.

(7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the secrecy of
the ballot as by the election laws. But the 1935 Constitution does not require secret voting. We
search in vain for such guarantee or prescription in said organic law. The Commission on Elections
under the 1940 Amendment, embodied as Article X is merely mandated to insure "free, orderly and
honest election." Congress, under its plenary law-making authority, could have validly prescribed in
the election law open voting in the election of public officers, without trenching upon the Constitution.
Any objection to such a statute concerns its wisdom or propriety, not its legality or constitutionality.
Secret balloting was demanded by partisan strife in elections for elective officials. Partisanship
based on party or personal loyalties does not generally obtain in a plebiscite on proposed
constitutional amendments or on a new Constitution. We have seen even before and during martial
law that voting in meetings of government agencies or private organizations is usually done openly.
This is specially true in sessions of Congress, provincial boards, city councils, municipal boards and
barrio councils when voting on national or local issues, not on personalities.

Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might have
been true in certain areas, but that does not necessarily mean that it was done throughout the
country.

The recent example of an open voting is the last election on March 3, 1973 of the National Press
Club officers who were elected by acclamation presided over by its former president, petitioner
Eduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no
more hardboiled group of persons than newspapermen, who cannot say that voting among them by
acclamation was characterized by fear among the members of the National Press Club.

Moreover, petitioners would not be willing to affirm that all the members of the citizenry of this
country are against the new Constitution. They will not deny that there are those who favor the
same, even among the 400,000 teachers among whom officers of the Department of Education
campaigned for the ratification of the new Constitution.

Not one of the petitioners can say that the common man — farmer, laborer, fisherman, lowly
employee, jeepney driver, taxi driver, bus driver, pedestrian, salesman, or salesgirl — does not want
the new Constitution, or the reforms provided for therein.

(8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This
is quite inaccurate; because even before the election in November, 1970 of delegates to the
Constitutional Convention, the proposed reforms were already discussed in various forums and
through the press as well as other media of information. Then after the Constitutional Convention
convened in June, 1971, specific reforms advanced by the delegates were discussed both in
committee hearings as well as in the tri-media — the press, radio and television. Printed materials
on the proposed reforms were circulated by their proponents. From June, 1971 to November 29,
1972, reforms were openly discussed and debated except for a few days after the proclamation of
martial law on September 21, 1972. From the time the Constitutional Convention reconvened in
October, 1972 until January 7, 1973, the provisions of the new Constitution were debated and
discussed in forums sponsored by private organizations universities and debated over the radio and
on television. The Philippines is a literate country, second only to Japan in the Far East, and more
literate perhaps than many of mid-western and southern states of the American Union and Spain.
Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the
illiterates listened to radio broadcasts on and discussed the provisions of the 1973 Constitution.

As reported by the eminent and widely read columnist, Teodoro Valencia in his column in Bulletin
Today, March 4, 1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) went
around the country doing a 30-minute documentary on the Philippines for American television stated
that what impressed him most in his travel throughout the country was the general acceptance of the
New Society by the people which he saw in his 6-week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express, March 3, and
Sunday Express, March 4), Secretary of the United States Senate, who conducted a personal
survey of the country as delegate of Senator Mike Mansfield, Chairman, Committee on US-
Philippine relations, states:

Martial law has paved the way for a re-ordering of the basic social structure of the Philippines.
President Marcos has been prompt and sure-footed in using the power of presidential decree under
martial law for this purpose. He has zeroed in on areas which have been widely recognized as prime
sources of the nation's difficulties — land tenancy, official corruption, tax evasion and abuse of
oligarchic economic power. Clearly, he knows the targets. What is not yet certain is how accurate
have been his shots. Nevertheless, there is marked public support for his leadership and tangible
alternatives have not been forthcoming. That would suggest that he may not be striking too far from
the mark.

The United States business community in Manila seems to have been re-assured by recent
developments ... . (Emphasis supplied.)

Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute the
majority of the population, do not like the reforms stipulated in the new Constitution, as well as the
decrees, orders and circulars issued to implement the same. It should be recalled, as hereinbefore
stated, that all these reforms were the subject of discussion both in the committee hearings and on
the floor of the Constitutional Convention, as well as in public forums sponsored by concerned
citizens or civic organizations at which Con-Con delegates as well as other knowledgeable
personages expounded their views thereon and in all the media of information before the
proclamation of martial law on September 21, 1972. This is the reason why the Constitutional
Convention, after spending close to P30 million during the period from June 1, 1971 to November
29, 1972, found it expedient to accelerate their proceedings in November, 1972 because all views
that could possibly be said on the proposed provisions of the 1973 Constitution were already
expressed and circulated. The 1973 Constitution may contain some unwise provisions. But this
objection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of the
aforesaid provisions, which issue is not for this Court to decide; otherwise We will be substituting
Our judgment for the judgment of the Constitutional Convention and in effect acting as a constituent
assembly.

VI

PRESIDENT AS COMMANDER IN CHIEF EXERCISES

LEGISLATIVE POWERS DURING MARTIAL LAW.

The position of the respondent public officers that undermartial law, the President as Commander-in-
Chief is vested with legislative powers, is sustained by the ruling in the 1949 case of Kuroda vs.
Jalandoni, et al. (83 Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs. Styer (75
Phil. 563, 571-72). The trial of General Kuroda was after the surrender of Japan on October 2, 1945
(23 Encyc. Brit. 1969 ed., p. 799) and hence no more martial law in the Philippines.

... Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of
the Philippines has acted in conformity with the generally accepted principles and policies of
international law which are part of our Constitution.

The promulgation of said executive order is an exercise by the President of his powers as
Commander in Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs.
Styver (L-129, 42 Off. Gaz., 664) when we said —
"War is not ended simply because hostilities have ceased. After cessation of armed hostilities,
incidents of war may remain pending which should be disposed of as in time of war. "An important
incident to a conduct of war is the adoption measures by the military command not only to repel and
defeat the enemies but to seize and subject to disciplinary measures those enemies who in their
attempt to thwart or impede our military effort have violated the law of war." (Ex parte Quirin, 317
U.S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a military commission for the trial and
punishment of war criminals is an aspect of waging war. And, in the language of a writer, a military
commission "has jurisdiction so long as the technical state of war continues. This includes the period
of an armistice, or military occupation, up to the effective date of treaty of peace, and may extend
beyond, by treaty agreement." (Cowles, Trial of War Criminals by Military Tribunals, American Bar
Association Journal, June, 1944).

Consequently, the President as Commander-in-Chief is fully empowered to consummate this

unfinished aspect of war, namely the trial and punishment of war criminals, through the issuance and
enforcement of Executive Order No. 68. (83 Phil. 177-178; emphasis supplied).

Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view,
when, in his concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined
martial law as "the exercise of the power which resides in the executive branch of the government to
preserve order and insure the public safety in times of emergency, when other branches of the
government are unable to function, or their functioning would itself threaten the public safety."
(Emphasis supplied). There is an implied recognition in the aforesaid definition of martial law that
even in places where the courts can function, such operation of the courts may be affected by
martial law should their "functioning ... threaten the public safety." It is possible that the courts, in
asserting their authority to pass upon questions which may adversely affect the conduct of the
punitive campaign against rebels, secessionists, dissidents as well as subversives, martial law may
restrict such judicial function until the danger to the security of the state and of the people shall have
been decimated.

The foregoing view appears to be shared by Rossiter when he stated:

Finally, this strong government, which in some instances might become an outright dictatorship, can
have no other purposes than the preservation of the independence of the state, the maintenance of
the existing constitutional order, and the defense of the political and social liberties of the people. It
is important to recognize the true and limited ends of any practical application of the principle of
constitutional dictatorship. Perhaps the matter may be most clearly stated in this way: the
government of a free state is proceeding on its way and meeting the usual problems of peace and
normal times within the limiting framework of its established constitutional order. The functions of
government are parceled out among a number of mutually independent offices and institutions; the
power to exercise those functions is circumscribed by well-established laws, customs, and
constitutional prescriptions; and the people for whom this government was instituted are in
possession of a lengthy catalogue of economic, political, and social rights which their leaders
recognize as inherent and inalienable. A severe crisis arises — the country is invaded by a hostile
power, or a dissident segment of the citizenry revolts, or the impact of a world-wide depression
threatens to bring the nation's economy in ruins. The government meets the crisis by assuming more
powers and respecting fewer rights. The result is a regime which can act arbitrarily and even
dictatorially in the swift adaption of measures designed to save the state and its people from the
destructive effects of the particular crisis. And the narrow duty to be pursued by this strong
government, this constitutional dictatorship? Simply this and nothing more: to end the crisis and
restore normal times. The government assumes no power and abridges no right unless plainly
indispensable to that end; it extends no further in time than the attainment of that end; and it makes
no alteration in the political, social and economic structure of the nation which cannot be eradicated
with the restoration of normal times. In short, the aim of constitutional dictatorship is the complete
restoration of the status quo ante bellum. This historical fact does not comport with philosophical
theory, that there never has been a perfect constitutional dictatorship, is an assertion that can be
made without fear of contradiction. But this is true of all institutions of government, and the principle
of constitutional dictatorship remains eternally valid no matter how often and seriously it may have
been violated in practice. (Constitutional Dictatorship, 1948 ed., by Clinton L. Rossiter, p. 7;
emphasis supplied.)

Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises
legislative power, whether of temporary or permanent character, thus:

The measures adopted in the prosecution of a constitutional dictatorship should never be permanent
in character or effect. Emergency powers are strictly conditioned by their purpose and this purpose
is the restoration of normal conditions. The actions directed to this end should therefore be
provisional. For example, measures of a legislative nature which work a lasting change in the
structure of the state or constitute permanent derogations from existing law should not be
adopted under an emergency enabling act, at least not without the positively registered approval of
the legislature. Permanent laws, whether adopted in regular or irregular times, are for parliaments to
enact. By this same token, the decisions and sentences of extraordinary courts should be reviewed
by the regular courts after the termination of the crisis.

But what if a radical act of permanent character, one working lasting changes in the political and
social fabric, is indispensable to the successful prosecution of the particular constitutional
dictatorship? The only answer can be: it must be resolutely taken and openly acknowledged.
President Lincoln found it necessary to proceed to the revolutionary step of emancipation in aid of
his conservative purpose of preserving the Union; as a constitutional dictator he had a moral right to
take this radical action. Nevertheless, it is imperative that any action with such lasting effects should
eventually receive the positive approval of the people or of their representatives in the legislature. (P.
303, emphasis supplied).

From the foregoing citations, under martial law occasioned by severe crisis generated by revolution,
insurrection or economic depression or dislocation, the government exercises more powers and
respects fewer rights in order "to end the crisis and restore normal times." The government can
assume additional powers indispensable to the attainment of that end — the complete restoration of
peace. In our particular case, eradication of the causes that incited rebellion and subversion as
secession, is the sine qua non to the complete restoration of normalcy. Exercise of legislative power
by the President as Commander in Chief, upon his proclamation of martial law, is justified because,
as he professes, it is directed towards the institution of radical reforms essential to the elimination of
the causes of rebellious, insurgent or subversive conspiracies and the consequent dismantling of the
rebellious, insurgent or subversive apparatus.

Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102 is
indispensable to the effectuation of the reforms within the shortest possible time to hasten the
restoration of normalcy.

"Must the government be too strong for the liberties of the people; or must it be too weak to maintain
its existence?" That was the dilemma that vexed President Lincoln during the American Civil War,
when without express authority in the Constitution and the laws of the United States, he suspended
one basic human freedom — the privilege of the writ of habeas corpus — in order to preserve with
permanence the American Union, the Federal Constitution of the United States and all the civil
liberties of the American people. This is the same dilemma that presently confronts the Chief
Executive of the Republic of the Philippines, who, more than the Courts and Congress, must, by
express constitutional mandate, secure the safety of our Republic and the rights as well as lives of
the people against open rebellion, insidious subversion secession. The Chief Executive announced
repeatedly that in choosing to proclaim martial law, the power expressly vested in him by the 1935
Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our national and individual survival in
peace and freedom, he is in effect waging a peaceful, democratic revolution from the center against
the violent revolution and subversion being mounted by the economic oligarchs of the extreme right,
who resist reforms to maintain their economic hegemony, and the communist rebels a Maoist
oriented secessionists of the extreme left who demand swift institution of reforms. In the exercise of
his constitutional and statutory powers, to save the state and to protect the citizenry against actual
and threatened assaults from insurgents, secessionists and subversives, doctrinaire concepts and
principles, no matter how revered they may be by jurisprudence and time, should not be regarded as
peremptory commands; otherwise the dead hand of the past will regulate and control the security
and happiness of the living present. A contrary view would be to deny the self-evident proposition
that constitutions and laws are mere instruments for the well-being, peace, security and prosperity of
the country and its citizenry. The law as a means of social control is not static but dynamic.
Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the
imprisonment of the past, but the enfolding of the future. In the vein of Mr. Justice Holmes, the
meaning of the words of the Constitution is not to be determined by merely opening a dictionary. Its
terms must be construed in the context of the realities in the life of a nation it is intended to serve.
Because experience may teach one generation to doubt the validity and efficacy of the concepts
embodied in the existing Constitution and persuade another generation to abandon them entirely,
heed should be paid to the wise counsel of some learned jurists that in the resolution of
constitutional questions — like those posed before Us — the blending of idealism and practical
wisdom or progressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court
and the Idea of Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency for
human betterment" and constitutional law "is applied politics using the word in its noble sense."
(Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supplied). Justice Brandeis gave
utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it
is capable of growth — or expansion and adaptation to new conditions. Growth implies changes,
political, economic and social." (Brandeis Papers, Harvard Law School; emphasis supplied). Harvard
Professor Thomas Reed Powell emphasizes "practical wisdom," for "the logic of constitutional law is
the common sense of the Supreme Court." (Powell, the Validity of State Legislation, under the
Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's Opus, supra;
emphasis supplied).

The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except
change. Living organisms as well as man-made institutions are not immutable. Civilized men
organize themselves into a State only for the purpose of serving their supreme interest — their
welfare. To achieve such end, they created an agency known as the government. From the savage
era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of
sophisticated electronics and nuclear weaponry, states and governments have mutated in their
search for the magic instrument for their well-being. It was trial and error then as it is still now.
Political philosophies and constitutional concepts, forms and kinds of government, had been
adopted, overturned, discarded, re-adopted or modified to suit the needs of a given society at a
particular given epoch. This is true of constitutions and laws because they are not "the infallible
instruments of a manifest destiny." No matter how we want the law to be stable, it cannot stand still.
As Mr. Justice Holmes aptly observed, every "constitution is an experiment as all life is an
experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but
experience." In the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as society is
inconstant, there can be no constancy in law," and "there will be change whether we will it or not." As
Justice Jose P. Laurel was wont to say, "We cannot, Canute-like, command the waves of progress
to halt."
Thus, political scientists and jurists no longer exalt with vehemence a "government that governs
least." Adherents there are to the poetic dictum of Alexander Pope: "For forms of government let
fools contest; whatever is best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750).
In between, the shades vary from direct democracy, representative democracy, welfare states,
socialist democracy, mitigated socialism, to outright communism which degenerated in some
countries into totalitarianism or authoritarianism.

Hence, even the scholar, who advances academic opinions unrelated to factual situations in the
seclusion of his ivory tower, must perforce submit to the inexorable law of change in his views,
concepts, methods and techniques when brought into the actual arena of conflict as a public
functionary — face to face with the practical problems of state, government and public
administration. And so it is that some learned jurists, in the resolution of constitutional issues that
immediately affect the lives, liberties and fortunes of the citizens and the nation, recommend the
blending of idealism with practical wisdom which legal thinkers prefer to identify as progressive legal
realism. The national leader, who wields the powers of government, must and has to innovate if he
must govern effectively to serve the supreme interests of the people. This is especially true in times
of great crises where the need for a leader with vision, imagination, capacity for decision and
courageous action is greater, to preserve the unity of people, to promote their well-being, and to
insure the safety and stability of the Republic. When the methods of rebellion and subversion have
become covert, subtle and insidious, there should be a recognition of the corresponding authority on
the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques to
suppress the peril to the security of the government and the State.

Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the American
Constitution and former President of the United States, who personifies the progressive liberal,
spoke the truth when he said that some men "ascribe men of the preceding age a wisdom more than
human, and suppose what they did to be beyond amendment. ... But I know also, that laws and
institutions must go hand in hand with the progress of the human mind. As that becomes more
developed, more enlightened, as new discoveries are made, new truths disclosed and manners and
opinions change, with the change of circumstances, institutions must also advance, and keep pace
with the times." (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989).

The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. It
cannot be adequately and fairly appraised within the present ambience, charged as it is with so
much tension and emotion, if not partisan passion. The analytical, objective historians will write the
final verdict in the same way that they pronounced judgment on President Abraham Lincoln who
suspended the privilege of the writ of habeas corpus without any constitutional or statutory authority
therefor and of President Franklin Delano Roosevelt who approved the proclamation of martial law in
1941 by the governor of Hawaii throughout the Hawaiian territory. President Lincoln not only
emancipated the Negro slaves in America, but also saved the Federal Republic of the United States
from disintegration by his suspension of the privilege of the writ of habeas corpus, which power the
American Constitution and Congress did not then expressly vest in him. No one can deny that the
successful defense and preservation of the territorial integrity of the United States was due in part, if
not to a great extent, to the proclamation of martial law over the territory of Hawaii — main bastion of
the outer periphery or the outpost of the American defense perimeter in the Pacific — which
protected the United States mainland not only from actual invasion but also from aerial or naval
bombardment by the enemy. Parenthetically, the impartial observer cannot accurately conclude that
the American Supreme Court acted with courage in its decision in the cases of Ex parte Milligan and
Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided on April 3,
1866, and opinion delivered on December 17, 1866) after the lifting of the proclamation suspending
the privilege of the writ of habeas corpus, long after the Civil War and the Second World ended
respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on
September 2, 1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p. 799). Was the delay on the part
of the American Supreme Court in deciding these cases against the position of the United States
President — in suspending the privilege of the writ of habeas corpus in one case and approving the
proclamation of martial law in the other — deliberate as an act of judicial statesmanship and
recognition on their part that an adverse court ruling during the period of such a grave crisis might
jeopardize the survival of the Federal Republic of the United States in its life-and-death struggle
against an organized and well armed rebellion within its own borders and against a formidable
enemy from without its territorial confines during the last global armageddon?

VIII

DOCTRINE OF SEPARATION OF POWERS PRECLUDES

MANDAMUS AGAINST SENATORS.

In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat and Jose Roy to
convene the Senate of the Philippines even on the assumption that the 1935 Constitution still
subsists; because pursuant to the doctrine of separation of powers under the 1935 Constitution, the
processes of this Court cannot legally reach a coordinate branch of the government or its head. This
is a problem that is addressed to the Senate itself for resolution; for it is purely an internal problem of
the Senate. If a majority of the senators can convene, they can elect a new Senate President and a
new Senate President Pro Tempore. But if they have no quorum, those present can order the arrest
of the absent members (Sec. 10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy
except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and certainly does
not justify the invocation of the power of this Court to compel action on the part of a co-equal body or
its leadership. This was emphasized with sufficient clarity by this Court in the 1949 case of Avelino
vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished counsels for the petitioners in L-36164
and L-36165 are familiar. We stress that the doctrine of separation of powers and the political nature
of the controversy such as this, preclude the interposition of the Judiciary to nullify an act of a
coordinate body or to command performance by the head of such a co-ordinate body of his
functions..

Mystifying is the posture taken by counsels for petitioners in referring to the political question
doctrine — almost in mockery — as a magic formula which should be disregarded by this Court,
forgetting that this magic formula constitutes an essential skein in the constitutional fabric of our
government, which, together with other basic constitutional precepts, conserves the unity of our
people, strengthens the structure of the government and assures the continued stability of the
country against the forces of division, if not of anarchy.

Moreover, if they have a quorum, the senators can meet anywhere. Validity of the acts of the Senate
does not depend on the place of session; for the Constitution does not designate the place of such a
meeting. Section 9 of Article VI imposes upon Congress to convene in regular session every year on
the 4th Monday of January, unless a different date is fixed by law, or on special session called by the
President. As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy in L-36165,
stated, the duty to convene is addressed to all members of Congress, not merely to its presiding
officers. The fact that the doors of Congress are padlocked, will not prevent the senators —
especially the petitioners in L-36165 — if they are minded to do so, from meeting elsewhere — at
the Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels or theaters,
in their own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitioner
Gerardo Roxas in L-36165.

However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly
meet without the lower House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five
former senators for mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and
Roy, mandamus will lie only if there is a law imposing on the respondents the duty to convene the
body. The rule imposing such a duty invoked by petitioners in L-36165 is purely an internal rule of
the Senate; it is not a law because it is not enacted by both Houses and approved by the President.

The Constitutional provision on the convening of Congress, is addressed to the individual members
of the legislative body (Sec. 9, Art. VI of 1935 Constitution).

IX

TO NULLIFY PROCLAMATION NO. 1102 AND 1973

CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF
SUPREME COURT.

The petitioners in L-36164 and L-36236 specifically pray for a declaration that the alleged ratification
of the 1973 Constitution is null and void and that the said 1973 Constitution be declared
unenforceable and inoperative.

As heretofore stated, Proclamation No. 1102 is an enactment of the President as Commander-in-

Chief during martial law as directly delegated to him by Section 10(2) of Article VII of the 1935
Constitution.

A declaration that the 1973 Constitution is unenforceable and inoperative is practically deciding that
the same is unconstitutional. The proposed Constitution is an act of the Constitutional Convention,
which is co-equal and coordinate with as well as independent of either Congress or the Chief
Executive. Hence, its final act, the 1973 Constitution, must have the same category at the very least
as the act of Congress itself.

Consequently, the required vote to nullify Proclamation No. 1102 and the 1973 Constitution should
be eight (8) under Section 10 of Article VIII of the 1935 Constitution in relation to Section 9 of the
Judiciary Act or Republic Act No. 296, as amended, or should be ten (10) under Section 2(2) of
Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), as the case may
be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must
be deemed to be valid, in force and operative.

ARTICLE OF FAITH

WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We
swear "eternal hostility towards any form of tyranny over the mind of man" as well as towards bigotry
and intolerance, which are anathema to a free spirit. But human rights and civil liberties under a
democratic or republican state are never absolute and never immune to restrictions essential to the
common weal. A civilized society cannot long endure without peace and order, the maintenance of
which is the primary function of the government. Neither can civilized society survive without the
natural right to defend itself against all dangers that may destroy its life, whether in the form of
invasion from without or rebellion and subversion from within. This is the first law of nature and ranks
second to none in the hierarchy of all values, whether human or governmental. Every citizen, who
prides himself in being a member or a civilized society under an established government, impliedly
submits to certain constraints on his freedom for the general welfare and the preservation of the
State itself, even as he reserves to himself certain rights which constitute limitations on the powers
of government. But when there is an inevitable clash between an exertion of governmental authority
and the assertion of individual freedom, the exercise of which freedom imperils the State and the
civilized society to which the individual belongs, there can be no alternative but to submit to the
superior right of the government to defend and preserve the State. In the language of Mr. Justice
Holmes — often invoked by herein petitioners — "when it comes to a decision involving its (state life,
the ordinary rights of individuals must yield to what he (the President) deems the necessities of the
moment. Public danger warrants the substitution of executive process for judicial process. (See
Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with regard to killing
men in the actual clash of arms. And we think it is obvious, although it was disputed, that the same is
true of temporary detention to prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53
L ed., 411, 417).

The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order and
security for all, that should be the shibboleth; for freedom cannot be enjoyed in an environment of
disorder and anarchy.

The incumbent Chief Executive who was trying to gain the support for his reform program long
before September 21, 1972, realized almost too late that he was being deceived by his partymates
as well as by the opposition, who promised him cooperation, which promises were either offered as
a bargaining leverage to secure concessions from him or to delay the institution of the needed
reforms. The people have been victimized by such bargaining and dilly-dallying. To vert a terrifying
blood bath and the breakdown of the Republic, the incumbent President proclaimed martial law to
save the Republic from being overrun by communists, secessionists and rebels by effecting the
desired reforms in order to eradicate the evils that plague our society, which evils have been
employed by the communists, the rebels and secessionists to exhort the citizenry to rise against the
government. By eliminating the evils, the enemies of the Republic will be decimated. How many of
the petitioners and their counsels have been utilizing the rebels, secessionists and communists for
their own personal or political purposes and how many of them are being used in turn by the
aforesaid enemies of the State for their own purposes?

If the petitioners are sincere in their expression of concern for the greater mass of the populace,
more than for their own selves, they should be willing to give the incumbent Chief Executive a
chance to implement the desired reforms. The incumbent President assured the nation that he will
govern within the framework of the Constitution and if at any time, before normalcy is restored, the
people thru their Citizens' Assemblies, cease to believe in his leadership, he will step down
voluntarily from the Presidency. But if, as apprehended by the petitioners, he abuses and brutalizes
the people, then to the battlements we must go to man the ramparts against tyranny. This, it is
believed, he knows only too well; because he is aware that he who rides the tiger will eventually end
inside the tiger's stomach. He who toys with revolution will be swallowed by that same revolution.
History is replete with examples of libertarians who turned tyrants and were burned at stake or
beheaded or hanged or guillotined by the very people whom they at first championed and later
deceived. The most bloody of such mass executions by the wrath of a wronged people, was the
decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French revolution,
like Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the lessons of history.

HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.

ESGUERRA, J., concurring:

These petitions seek to stop and prohibit the respondents Executive Officers from implementing the
Constitution signed on November 30, 1972; in L-36165, to compel respondents Gil Puyat and Jose
J. Roy, President and President Pro-Tempore, respectively, of the Senate under the 1935
Constitution, to convene the Senate in regular session which should have started on January 22,
1973; to nullify Proclamation No. 1102 of the President, issued on January 17, 1973, which declared
the ratification of the Constitution on November 30, 1972, by the Filipino people, through the
barangays or Citizens Assemblies established under Presidential Decree No. 86 issued on
December 31, 1972, which were empowered under Presidential Decree No. 86-A, issued on
January 5, 1973, to act in connection with the ratification of said Constitution.

Grounds for the petitions are as follows:

1. That the Constitutional Convention was not a free forum for the making of a Constitution after the
declaration of Martial Law on September 21, 1972.

2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution
because they are highly unwise and objectionable and the people were not sufficiently informed
about them.

3. The President had no authority to create and empower the Citizens' Assemblies to ratify the new
Constitution at the referendum conducted in connection therewith, as said assemblies were merely
for consultative purposes, and

4. The provisions of Article XV of the 1935 Constitution prescribing the manner of amending the
same were not duly observed.

The petitions were not given due course immediately but were referred to the Solicitor General as
counsel for the respondents for comment, with three members of the Court, including the
undersigned, voting to dismiss them outright. The comments were considered motions to dismiss
which were set for hearing and extensively argued. Thereafter both parties submitted their notes and
memoranda on their oral arguments.

I.

The issues raised for determination, on which the resolution of the Motion to Dismiss hinges, are as
follows:

1. Is the question presented political and, hence, beyond the competence of this Court to decide, or
is it justiciable and fit for judicial determination?

2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending
process prescribed by Article XV of the 1935 Constitution?

3. Has the new Constitution been accepted and acquiesced in by the Filipino people?

4. Is the new Constitution actually in force and effect?

5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners entitled to the reliefs
prayed for?

II.

The pivotal question in these cases is whether the issue raised is highly political and, therefore, not
justiciable. I maintain that this Court should abstain from assuming jurisdiction, but, instead, as an
act of judicial statesmanship, should dismiss the petitions. In resolving whether or not the question
presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a
logical conclusion. For after the acceptance of a new Constitution and acquiescence therein by the
people by putting it into practical operation, any question regarding its validity should be foreclosed
and all debates on whether it was duly or lawfully ushered into existence as the organic law of the
state become political and not judicial in character.

The undisputed facts that led to the issuance of Proclamation No. 1102 and Presidential Decrees
Nos. 86 and 86-A are fully set forth in the majority and dissenting opinions in the Plebiscite cases
decided on January 22, 1973, and need not be repeated here.

Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A,
claiming that the ratification of the new Constitution pursuant to the said decrees is invalid and of no
effect. Presidential Decree No. 86 organized the barangays or Citizens Assemblies composed of all
citizens at least fifteen years of age, and through these assemblies the proposed 1972 Constitution
was submitted to the people for ratification. Proclamation No. 1102 of the President announced or
declared the result of the referendum or plebiscite conducted through the Citizens Assemblies, and
that 14,976,561 members thereof voted for the ratification of the new Constitution and 743,869 voted
against it. Petitioners assail these two acts of the President as unauthorized and devoid of legal
effect.

But looking through the veneer of judicial conformity with which the petitions have been adroitly
contrived, what is sought to be invalidated is the new Constitution itself — the very framework of the
present Government since January 17, 1973. The reason is obvious. The Presidential decrees set
up the means for the ratification and acceptance of the new Constitution and Proclamation No. 1102
simply announced the result of the referendum or plebiscite by the people through the Citizens
Assemblies. The Government under the new Constitution has been running on its tracks normally
and apparently without obstruction in the form of organized resistance capable of jeopardizing its
existence and disrupting its operation. Ultimately the issue is whether the new Constitution may be
set aside by this Court. But has it the power and authority to assume such a stupendous task when
the result of such invalidation would be to subject this nation to divisive controversies that may totally
destroy the social order which the Government under the new Constitution has been admirably
protecting and promoting under Martial Law? That the new Constitution has taken deep root and the
people are happy and contended with it is a living reality which the most articulate critics of the new
order cannot deny. 95 out of 108 members of the House of Representatives have opted to serve in
the interim National Assembly provided for under the new Constitution. 15 out of 24 Senators have
done likewise. The members of the Congress did not meet anymore last January 22, 1973, not
because they were really prevented from so doing but because of no serious effort on their parts to
assert their offices under the 1935 Constitution. In brief, the Legislative Department under the 1935
Constitution is a thing of the past. The Executive Department has been fully reorganized; the
appointments of key executive officers including those of the Armed Forces were extended and they
took an oath to support and defend the new Constitution. The courts, except the Supreme Court by
reason of these cases, have administered justice under the new constitution. All government offices
have dealt with the public and performed their functions according to the new Constitution and laws
promulgated thereunder.

If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its
assumption of jurisdiction when no power has ... conferred upon it the jurisdiction to declare the
Constitution or any part thereof null and void? It is the height of absurdity and impudence for a court
to wage open war against the organic act to which it owes its existence. The situation in which this
Court finds itself does not permit it to pass upon the question whether or not the new Constitution
has entered into force and has superseded the 1935 Constitution. If it declares that the present
Constitution has not been validly ratified, it has to uphold the 1935 Constitution as still the prevailing
organic law. The result would be too anomalous to describe, for then this Court would have to
declare that it is governed by one Constitution or the 1935 Constitution, and the legislative and
executive branches by another or the 1972 Constitution.

If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion in
these cases when it would have no other choice but to uphold the new Constitution as against any
other one? In the circumstances it would be bereft of judicial attributes as the matter would then be
not meet for judicial determination, but one addressed to the sovereign power of the people who
have already spoken and delivered their mandate by accepting the fundamental law on which the
government of this Republic is now functioning. To deny that the new Constitution has been
accepted and actually is in operation would be flying in the face of reason and pounding one's bare
head against a veritable stone wall or a heavily reinforced concrete, or simply "kicking the deadly
pricks" with one's bare foot in an effort to eliminate the lethal points.

When a Constitution has been in operation for sometime, even without popular ratification at that,
submission of the people thereto by the organization of the government provided therein and
observance of its prescriptions by public officers chosen thereunder, is indicative of approval. Courts
should be slow in nullifying a Constitution claimed to have been adopted not in accordance with
constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs
Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan, 70
Neb. 211; 97 N.W. 347].

In Miller vs. Johnson, supra, the Court said:

... But it is a case where a new constitution has been formed and promulgated according to the
forms of law. Great interests have already arisen under it; important rights exist by virtue of it;
persons have been convicted of the highest crimes known to the law, according to its provisions; the
political power of the government has in many ways recognized it; and, under such circumstances, it
is our duty to treat and regard it as a valid constitution, and now the organic law of our state. We
need not consider the validity of the amendments made after the convention reassembled. If the
making of them was in excess of its power, yet as the entire instrument has been recognized as
valid in the manner suggested, it would be equally an abuse of power by the judiciary, and violative
of the rights of the people, — who can and properly should remedy the matter, if not to their liking, —
if it were to declare the instrument or a portion invalid, and bring confusion and anarchy upon the
state. (Emphasis supplied)

In Smith vs. Good, supra, the Court said:

It is said that a state court is forbidden from entering upon such an inquiry when applied to a new
constitution, and not an amendment, because the judicial power presupposes an established
government, and if the authority of that government is annulled and overthrown, the power of its
courts is annulled with it; therefore, if a state court should enter upon such an inquiry, come to the
conclusion that the government under which it acted had been displaced by an opposing
government, it would cease to be a court, and it would be incapable of pronouncing a judicial
decision upon the question before it; but, if it decides at all, it must necessarily affirm the existence of
the government under which it exercises its judicial powers. (Emphasis supplied)

These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed. 581, 598 (1849) where
it was held:

Judicial power presupposes an established government capable of enacting laws and enforcing their
execution, and appointing judges to expound and administer them. The acceptance of the judicial
office is a recognition of the authority of government from which it is derived. And if the authority of
the government is annulled and overthrown, the power of its courts and other officers is annulled
with it. And if a State court should enter upon the inquiry proposed in this case, and should come to
conclusion that the government under which it acted had been put aside and displaced by an
opposing government it would cease to be a court, and be incapable of pronouncing a judicial
decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the
existence and authority of the government under which it is exercising judicial power.

The foreign relations of the Republic of the Philippines have been normally conducted on the basis
of the new Constitution and no state with which we maintain diplomatic relations has withdrawn its
recognition of our government. (For particulars about executive acts done under the new
Constitution, see pages 22-25 of the Comments of the Solicitor General, dated February 3, 1973.)

Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by
this Court would smack of plain political meddling which is described by the United States Supreme
Court as "entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it
would be the part of wisdom for this Court to adopt the proper attitude towards political upheavals
and realize that the question before Us is political and not fit for judicial determination. For a political
question is one entrusted to the people for judgment in their sovereign capacity (Tañada vs. Cuenco,
G.R. No. L-10520, Feb. 28,1967; 100 Phil. 1101), or to a co-equal and coordinate branch of the
Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs.
Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a political
question when there would be "the impossibility of undertaking independent resolutions without
expressing a lack of respect due to coordinate branches of government", or when there is "the
potentiality of embarrassment from multifarious pronouncements by various departments on one
question."

To preserve the prestige and eminence that this Court has long enjoyed as the "ultimate organ of the
"Supreme Law of the Land" in that vast range of legal problems often strongly entangled in popular
feeling on which this Court must pronounce", let us harken to the following admonition of Justice
Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:

The Court's authority — possessed neither of the purse nor the sword — ultimately rests on
sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's
complete detachment, in fact and appearance, from political entanglements and abstention from
injecting itself into the clash of political forces in political settlement. ..." (Emphasis supplied)

The people have accepted and submitted to a Constitution to replace the 1935 Constitution. The
new organic law is now in the plenitude of its efficacy and vigor. We are now living under its aegis
and protection and only the cynics will deny this. This Court should not in the least attempt to act as
a super-legislature or a super-board of canvassers and sow confusion and discord among our
people by pontificating there was no valid ratification of the new Constitution. The sober realization
of its proper role and delicate function and its consciousness of the limitations on its competence,
especially situations like this, are more in keeping with the preservation of our democratic tradition
than the blatant declamations of those who wish the Court to engage in their brand of activism and
would not mind plunging it into the whirlpool of passion and emotion in an effort to capture the
intoxicating applause of the multitude.

For all the foregoing, I vote to dismiss all petitions.

ZALDIVAR, J., concurring and dissenting:

In these five cases, the main issue to be resolved by Court is whether or not the Constitution
proposed by the Constitutional Convention of 1971 had been ratified in accordance with the
provisions of Article XV of the 1935 Constitution. In the plebiscite cases, which were decided by this
Court on January 22, 19731, I held the view that this issue could be properly resolved by this Court,
and that it was in the public interest that this Court should declare then whether or not the proposed
Constitution had been validly ratified. The majority of this Court, however, was of the view that the
issue was not squarely raised in those cases, and so the Court, as a body, did make any categorical
pronouncement on the question of whether or not the Constitution proposed by the 1971 Convention
was validly ratified. I was the only one who expressed the opinion that the proposed Constitution
was not validly ratified and therefore "it should not be given force and effect."

The Court is now called upon to declare, and to inform the people of this country, whether or not that
proposed Constitution had been validly ratified and had come into effect.

The Solicitor General, however, contends that this Court has no jurisdiction to resolve the issue that
we have mentioned because that issue is a political question that cannot be decided by this Court.
This contention by the Solicitor General is untenable. A political question relates to "those questions
which under the Constitution are to be decided by the people in their sovereign capacity or in regard
to which full discretionary authority has been delegated to the legislative, or to the executive, branch
of the government.2 The courts have the power to determine whether the acts of the executive are
authorized by the Constitution and the laws whenever they are brought before the court in a judicial
proceeding. The judicial department of the government exercises a sort of controlling, or rather
restraining, power over the two other departments of the government. Each of the three
departments, within its proper constitutional sphere, acts independently of the other, and restraint is
only placed on one department when that sphere is actually transcended. While a court may not
restrain the executive from committing an unlawful act, it may, when the legality of such an act is
brought before it in a judicial proceeding, declare it to be void, the same as it may declare a law
enacted by the legislature to be unconstitutional.3 It is a settled doctrine that every officer under a
constitutional government must act according to law and subject to its restrictions, and every
departure therefrom, or disregard thereof, must subject him to the restraining and controlling power
of the people, acting through the agency of the judiciary. It must be remembered that the people act
through the courts, as well as through the executive or the legislature. One department is just as
representative as the other, and judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official actions4 . In the case of Gonzales v.
Commission on Elections5, this Court ruled that the issue as to whether or not a resolution of
Congress acting as a constituent assembly violates the Constitution is not a political question and is
therefore subject to judicial review. In the case of Avelino v. Cuenco6, this Court held that the
exception to the rule that courts will not interfere with a political question affecting another
department is when such political question involves an issue as to the construction and interpretation
of the provision of the constitution. And so, it has been held that the question of whether a
constitution shall be amended or not is a political question which is not in the power of the court to
decide, but whether or not the constitution has been legally amended is a justiciable question.7

My study on the subject of whether a question before the court is political or judicial, based on
decisions of the courts in the United States — where, after all, our constitutional system has been
patterned to a large extent — made me arrive at the considered view that it is in the power of this
Court, as the ultimate interpreter of the Constitution, to determine the validity of the proposal, the
submission, and the ratification of any change in the Constitution. Ratification or non-ratification of a
constitutional amendment is a vital element in the procedure to amend the constitution, and I believe
that the Court can inquire into, and decide on, the question of whether or not an amendment to the
constitution, as in the present cases, has been ratified in accordance with the requirements
prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe that
the question of whether or not the Constitution proposed by the 1971 Constitutional Convention had
been validly ratified or not is a justiciable question.

The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases,
before Us involve a political, or a judicial, question. I fully concur with his conclusion that the
question involved in these cases is justiciable.

On the question now of whether or not the Constitution proposed by the 1971 Constitutional
Convention has been validly ratified, I am reproducing herein pertinent portions of my dissenting
opinion in the plebiscite cases:

The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines,
which reads:

"Section 1. The Congress in joint session assembled by a vote of three fourths of all the Members of
the Senate and of the House of Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification."

It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16, 1967,
the Congress of the Philippines Resolution No. 2 calling a convention to propose amendments to the
Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:

"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.

It follows that from the very resolution of the Congress of the Philippines which called for the 1971
Constitutional Convention, there was a clear mandate that the amendments proposed by the 1971
Convention, in order to be valid and considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are submitted to the people for the ratification
as provided in the Constitution.

This Court, in the case of Tolentino vs. Commission Elections, L-35140, October 16, 1971 (41 SCRA
715), speaking through Mr. Justice Barredo, said:

"The Constitutional Convention of 1971, as any other convention of the same nature, owes its
existence and 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 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 restraint and omnipotent all wise, and it as to such conventions that the remarks
of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer.
No amount of rationalization can belie the fact that the current convention came into being only
because it was called by a resolution of a joint session of Congress acting as a constituent assembly
by authority of Section 1, Article XV of the present Constitution ... ."

xxx xxx xxx

"As to matters not related to its internal operation and the performance of its assigned mission to
propose amendments to the Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now we hold that even as to its latter task of
proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV."

In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that
as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines, the President proclaimed that the Constitution proposed by
the 1971 Convention has been ratified and has thereby come into effect.

It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of
Article XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be
produced before this Court to show that no elections were held in accordance with the provisions of
the Election Code. Proclamation No. 1102 unequivocally states that the proposed Constitution of
1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the qualified and registered voters of
the country would cast their votes, where official ballots prepared for the purpose are used, where
the voters would prepare their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country, where the election is conducted
by election inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to
the Constitution to increase the number of Members of the House of Representatives and to allow
the Members of Congress to run in the elections for Delegates to the Constitutional Convention of
1971 were rejected.

I cannot see any valid reason why the practice or procedure in the past, in implementing the
constitutional provision requiring the holding, of an election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.

It is my view that the President of the Philippines cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No.
1102 was issued in complete disregard or in violation, of the provisions of Section 1 of Article X of
the 1935 Constitution.

Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people
would still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the
barangays answered that there was no need for a plebiscite but that the vote of the barangays
should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the
power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.
The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.

"An election is the embodiment of the popular will, the expression of the sovereign power of the
people. In common parlance, an election is the act of casting and receiving the ballots, counting
them, and making the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637).

"Election" implies a choice by an electoral body at the time and substantially in the manner and with
the safeguards provided by law with respect to some question or issue. (Leffel v. Brown, Com. P1.,
159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).

"... the statutory method whereby qualified voters or electors pass on various public matters
submitted to them — the election of officers, national, state, county, township — the passing on
various other questions submitted for their determination." (29 C.J.S. 13, citing Iowa-Illinois Gas &
Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358).

"Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W. 2d 438, 254
Ky. 720, in Words and Phrases, Permanent Edition, p. 234).

"The right to vote may be exercised only on compliance with such statutory requirements as have
been set by the legislature." (People ex rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63;
Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied).

In this connection I herein quote the pertinent provisions of the Election Code of 1971:

"Sec. 2. Applicability of this Act. — All elections of public officers except barrio officials and
plebiscites shall be conducted in the manner provided by this Code."

"Sec 99. Necessity of registration to be entitled to vote. — In order that a qualified voter may vote in
any regular or special election or in any plebiscite, he must be registered in the permanent list of
voters for the city, municipality or municipal district in which he resides: Provided, that no person
shall register more than once without first applying for cancellation of his previous registration."
(Emphasis supplied). (Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388)

It is stated in Proclamation No. 1102 that the voting was done by the members of citizens
assemblies who are 15 years of age or over. Under the provision of Section I of Article V of the 1935
Constitution, the age requirement to be a qualified voter is 21 years or over.

But what is more noteworthy is the fact that the voting in the barangays, except in very few
instances, was done by the raising of hands by the persons indiscriminately gathered to participate
in the voting, where even children below 15 years of age were included. This is a matter of common
observation, or of common knowledge, which the Court may take judicial notice of. To consider the
votes in the barangays as expressive of the popular will and use them as the basis in declaring
whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which is would
mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the supreme law of the land, should be
ratified or not, must not be decided by simply gathering people and asking them to raise their hands
in answer to the question of whether the vote for or against a proposed Constitution. The election as
provided by law should be strictly observed in determining the will of the sovereign people in a
democracy. In our Republic, the will of the people must be expressed through the ballot in a manner
that is provided by law.
It is said that in a democracy, the will of the people is the supreme law. Indeed, the people are
sovereign, but the will of the people must be expressed in a manner as the law and the demands a
well-ordered society require. The rule of law must prevail even over the apparent will of the majority
of the people, if that will had not been expressed, or obtained, in accordance with the law. Under the
rule of law, public questions must be decided in accordance with the Constitution and the law. This is
specially true in the case of adoption of a constitution or in the ratification of an amendment to the
Constitution.

The following citations are, to me, very relevant in the effort to determine whether the proposed
Constitution of 1972 had been validly ratified, or not:

"When it is said that "the people" have the right to alter or amend the constitution, it must not be
understood that term necessarily includes all the inhabitants of the state. Since the question of the
adoption or rejection of a proposed new constitution or constitutional amendment must be answered
a vote, the determination of it rests with those who, by existing constitution, are accorded the right of
suffrage. But the qualified electors must be understood in this, as in many other cases, as
representing those who have not the right to participate in the ballot. If a constitution should be
abrogated and a new one adopted, by the whole mass of people in a state acting through
representatives not chosen by the "people" in political sense of the term, but by the general body of
the populace, the movement would be extra-legal." (BIack's Constitutional Law, Second Edition, pp.
47-48).

"The theory of our political system is that the ultimate sovereignty is in the people, from whom
springs all legitimate authority. The people of the Union created a national constitution, and
conferred upon it powers of sovereignty on certain subjects, and the people of each State created a
State government, to exercise the remaining powers of sovereignty so far as they were disposed to
allow them to be exercised at all. By the constitution which they establish, they not only tie up the
hands of their official agencies, but their own hands as well; and neither the officers of the State, nor
the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental
law." (Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v. Jones, 3 So.
2d. 761, 782).

"The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend a
constitution, may cure, render innocuous, all or any antecedent failures to observe commands of that
Constitution in respect of the formulation or submission of proposed amendments thereto, does not
prevail in Alabama, where the doctrine of the stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome constitutional principles in Collier v.
Frierson, supra, as quoted in the original opinion, ante. The people themselves are bound by the
Constitution; and, being so bound, are powerless, whatever their numbers, to change or thwart its
mandates, except through the peaceful means of a constitutional convention, or of an amendment
according to the mode therein prescribed, or through the exertion of the original right of revolution.
"The Constitution may be set aside by revolution, but it can only be amended in the way it provides,"
said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et
al., 87 So. 375, 385, 387, On Rehearing).

"The fact that a majority voted for the amendment, unless the vote was taken as provided by the
Constitution, is not sufficient to make a change in that instrument. Whether a proposed amendment
has been legally adopted is a judicial question, for the court must uphold and enforce the
Constitution as written until it is amended in the way which it provides for." Wood v. Tooker, 15 Mont.
8, 37 Pac 840, 25 L.R.A. 560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving
Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am.
St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104).
"Provisions of a constitution regulating its own amendment, ... are not merely directory, but are
mandatory; and a strict observance of every substantial mandatory; and a strict observance of every
substantial requirement is essential to the validity of the proposed amendment. These provisions are
as binding on the people as on the legislature, and the former are powerless by vote of acceptance
to give legal sanction to an amendment the submission of which was made in disregard of the
limitations contained in the constitution." (16 C.J.S. 35-36. cited in Graham v. Jones, 3 So. 2d 761,
782).

"It is said that chaos and confusion in the government affairs of the State will result from the Court's
action in declaring the proposed constitutional amendment void. This statement is grossly and
manifestly inaccurate. If confusion and chaos should ensue, it will not be due to the action of the
Court but will be the result of the failure of the drafters joint resolution to observe, follow and obey
the plain essential provisions of the Constitution. Furthermore, to say that, the Court disregards its
sworn duty to enforce the Constitution, chaos and confusion will result, is an inherently weak
argument in favor of the alleged constitutionality of the proposed amendment. It is obvious that, if the
Court were to countenance the violations of the sacramental provisions Constitution, those who
would thereafter desire to violate it disregard its clear mandatory provisions would resort to the
scheme of involving and confusing the affairs of the State then simply tell the Court that it was
powerless to exercise one of its primary functions by rendering the proper decree to make the
Constitution effective." (Graham v. Jones, 3 So. 2d. 761, 793-794).

In our jurisprudence I find an instance where this Court did not allow the will of the majority to
prevail, because the requirements of the law were not complied with. In the case of Monsale v. Nico,
83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao,
Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of candidacy
before the expiration of the period for the filing of the same. However, on October 10, 1947, after the
period for the filing of the certificate of candidacy, Monsale withdrew his certificate of candidacy. But
on November 7, 1947 Monsale attempted to revive his certificate of candidacy by withdrawing the
withdrawal of certificate of candidacy. The Commission on Elections, November 8, 1947, ruled that
Monsale could no longer be a candidate. Monsale nevertheless proceeded with his candidacy. The
boards of inspectors in Miagao, however, did not count the votes cast for Monsale upon the ground
that the votes cast for him were stray votes, because he was considered as having no certificate of
candidacy. On the other hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was
proclaimed elected. Monsale filed a protest against the election of Nico in the Court of First Instance
of Iloilo. In the count of the ballots during the proceedings in the trial court, it appeared that Monsale
had obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of
Monsale. The Court of First Instance of Iloilo decided the election protest in favor of Monsale. Upon
appeal by Nico, this Court reversed the decision of the lower court. This Court declared that because
Monsale withdrew his certificate of candidacy, his attempt to revive it by withdrawing his withdrawal
of his certificate of candidacy did not restore the effectiveness of his certificate of candidacy, and this
Court declared Nico the winner in spite of the fact that Monsale had obtained more votes than he.

We have cited this Monsale case to show that the will of the majority of the voters would not be
given effect, as declared by this Court, if certain legal requirements have not been complied with in
order to render the votes valid and effective to decide the result of an election.

And so, in the cases now before this Court, the fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the
basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was
reported that 14,976,561 members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law mast
be upheld.

My last observation: One of the valid grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
to exercise their right of choice because of the existence of martial law in our country. The same
ground holds true as regards to the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of Presidential Decree No. 73 in so far as they allow free
public discussion of the proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open
debate on the proposed constitution, be suspended in the meantime." It is, therefore, my view that
voting in the barangays on January 10, 1973 was not free, and so this is one added reason why the
results of the voting in the barangays should not be made the basis for proclamation of the
ratification of the proposed Constitution.

It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935 Constitution, and so it is
invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Constitutional
Convention should be considered as not yet ratified by the people of this Republic, and so it should
not be given force and effect.

It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a
substantial compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor
General maintains that the primary thrust of the provision of Article XV of the 1935 Constitution is
that "to be valid, amendments must gain the approval of the majority recognition of the democratic
postulate that sovereign resides in the people." It is not disputed that in a democratic sovereignty
resides in the people. But the term "people" must be understood in its constitutional meaning, and
they are "those persons who are permitted by the Constitution to exercise the elective
franchise."8 Thus, in Section 2 of Article VII of the 1935 Constitution, it is provided that "the
President shall hold his office during a term of four years and, together with the Vice-President
chosen for the same term, shall be elected by direct vote of the people..." Certainly under that
constitutional provision, the "people" who elect directly the President and the Vice-President are no
other than the persons who, under the provisions of the same Constitution, are granted the right to
vote. In like manner the provision in Section 1 of Article II of the 1935 Constitution which says
"Sovereignty resides in the people and all government authority emanates from them", the "people"
who exercise the sovereign power are no other than the persons who have the right to vote under
the Constitution. In the case of Garchitorena vs. Crescini9, this Court, speaking through Mr. Justice
Johnson, said, "In democracies, the people, combined, represent the sovereign power of the State.
Their sovereign authority is expressed through the ballot, of the qualified voters, in duly appointed
elections held from time to time, by means of which they choose their officials for definite fixed
periods, and to whom they entrust, for the time being, as their representatives, the exercise of the
powers of government." In the case of Moya v. Del Fierro, 10 this Court, speaking through Mr.
Justice Laurel, said, "As long as popular government is an end to be achieved and safeguarded,
suffrage, whatever may be the modality and form devised, must continue to be the means by which
the great reservoir of power must be emptied into the receptacular agencies wrought by the people
through their Constitution in the interest of good government and the common weal. Republicanism,
in so far as it implies the adoption of a representative type of government, necessarily points to
the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the
established authority." And in the case of Abanil v. Justice of the Peace of Bacolod, 11 this Court
said: "In the scheme of our present republican government, the people are allowed to have a voice
therein through the instrumentality of suffrage to be availed of by those possessing certain
prescribed qualifications. The people, in clothing a citizen with the elective franchise for the purpose
of securing a consistent and perpetual administration of the government they ordain, charge him with
the performance of a duty in the nature of a public trust, and in that respect constitute him a
representative of the whole people. This duty requires that the privilege thus bestowed exclusively
for the benefit of the citizen or class of citizens professing it, but in good faith and with an intelligent
zeal for the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no
question, therefore, that when we talk of sovereign people, what is meant are the people who act
through the duly qualified and registered voters who vote during an election that is held as provided
in the Constitution or in the law.

The term "election" as used in Section 1 of Article XV of the 1935 Constitution should be construed
along with the term "election" as used in the Provisions of Section 4 of the Philippine Independence
Act of the Congress of the United States, popularly known as the Tydings-McDuffie Law (Public Act
No. 127). Said Section 4 of the Tydings-McDuffie Law provides as follows:

Section 4. After the President of the United States certified that the constitution conforms with the
provisions of this act, it shall be submitted to the people of the Philippine Islands for their ratification
or rejection at an election to he held within months after the date of such certification, on a date to be
fixed by the Philippine Legislature at which election, the qualified voters of the Philippine Islands
shall have an opportunity to vote directly or against the proposed constitution and ordinances
append thereto. Such election shall be held in such manner as may prescribed by the Philippine
Legislature to which the return of the election shall be made. The Philippine Legislature shall certify
the result to the Governor-General of the Philippine Islands, together with a statement of the votes
cast, and a copy of said constitution ordinances. If a majority of the votes cast shall be for the
constitution, such vote shall be deemed an expression of the will of the people of the Philippine
Independence, and the Governor-General shall, within thirty days after receipt of the certification
from the Philippine Legislature, issue a proclamation for the election of officers of the government of
the Commonwealth of the Philippine Islands provided for in the Constitution...

It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word
"election" in Section I Article XV of the 1935 Constitution they had no other idea in mind except the
elections that were periodically held in the Philippines for the choice of public officials prior to the
drafting of the 1935 Constitution, and also the "election" mentioned in the Independence Act at
which "the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or
against the proposed constitution..." It is but logical to expect that the framers of the 1935
Constitution would provide a mode of ratifying an amendment to that Constitution similar to the mode
of ratifying the original Constitution itself.

It is clear therefore, that the ratification or any amendment to the 1935 Constitution could only be
done by holding an election, as the term "election" was understood, and practiced, when the 1935
Constitution as drafted. The alleged referendum in the citizens assemblies — participated in by
persons aged 15 years or more, regardless of whether they were qualified voters or not, voting by
raising their hands, and the results of the voting reported by the barrio or ward captain, to the
municipal mayor, who in turn submitted the report to the provincial Governor, and the latter
forwarding the reports to the Department of Local Governments, all without the intervention of the
Commission on Elections which is the constitutional body which has exclusive charge of the
enforcement and administration of all laws, relative to the conduct of elections — was not only a
non-substantial compliance with the provisions of Section 1 of Article XV of the 1935 Constitution but
a downright violation of said constitutional provision. It would be indulging in sophistry to maintain
that the voting in the citizens assemblies amounted to a substantial compliance with the
requirements prescribed in Section 1 of Article XV of the 1935 Constitution.

It is further contended by the Solicitor General, that even if the Constitution proposed by the 1971
Constitutional Convention was not ratified in accordance with the provisions of Section 1 of Article
XV of the 1935 Constitution, the fact is that after the President of the Philippines had issued
Proclamation No. 1102 declaring that the said proposed Constitution "has been ratified by
overwhelming majority of all the votes cast by the members of all the barangays (citizens
assemblies) throughout the Philippines and had thereby come into effect" the people have accepted
the new Constitution. What appears to me, however, is that practically it is only the officials and
employees under the executive department of the Government who have been performing their
duties apparently in observance of the provisions of the new Constitution. It could not be otherwise,
because the President of the Philippines, who is the head of the executive department, had
proclaimed that the new Constitution had come into effect, and his office had taken the steps to
implement the provisions of the new Constitution. True it is, that some 92 members of the House of
Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed
their option to serve in the interim National Assembly that is provided for in Section 2 of Article XVII
of the proposed Constitution. It must be noted, however, that of the 15 senators who expressed their
option to serve in the interim National Assembly only one them took his oath of office; and of the 92
members of the House of Representatives who opted to serve in the interim National Assembly, only
22 took their oath of office. The fact that only one Senator out of 24, and only 22 Representative out
of 110, took their oath of office, is an indication that only a small portion of the members of Congress
had manifested the acceptance of the new Constitution. It is in the taking of the oath of office where
the affiant says that he swears to "support and defend the Constitution" that the acceptance of the
Constitution is made manifest. I agree with counsel petitioners in L-36165 (Gerardo Roxas, et al. v.
Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the
interim National Assembly did only ex abundante cautela, or by way of a precaution, making sure,
that in the event the new Constitution becomes definitely effective and the interim National Assembly
convened, they can participate in legislative work in the capacity as duly elected representatives of
the people, which otherwise they could not do if they did not manifest their option to serve, and that
option had to be made within 30 day from January 17, 1973, the date when Proclamation No. 110
was issued. Of course, if the proposed Constitution does not become effective, they continue to be
members of Congress under the 1935 Constitution. Let it be considered that the members of the
House of Representatives were elected in 1969 to serve a term which will yet expire on December
31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of
some of them will yet expire on December 31, 1973, some on December 31, 1975, and the rest on
December 31, 1977. Let if be noted that 9 Senators did not opt to serve in the interim National
Assembly, and 18 members of the House of Representatives also did not opt to serve in the interim
National Assembly.

Neither can it be said that the people have accepted the new Constitution. I cannot, in conscience,
accept the reported affirmative votes in the citizens assemblies as a true and correct expression by
the people of their approval, or acceptance, of the proposed Constitution. I have my serious doubts
regarding the freedom of the people to express their views regarding the proposed Constitution
during the voting in the citizens assemblies, and I have also my serious doubts regarding the
truthfulness and accuracy of the reports of the voting in the citizens assemblies. This doubt has been
engendered in my mind after a careful examination and study of the records of these cases,
particularly with respect to the reports of the voting in the citizens assemblies. Perhaps, it may be
said that the people, or the inhabitants of this country, have acquiesced to the new Constitution, in
the sense that they have continued to live peacefully and orderly under the government that has
been existing since January 17, 1973 when it was proclaimed that the new Constitution came into
effect. But what could the people do? In the same way that the people have lived under martial law
since September 23, 1972, they also have to live under the government as it now exists, and as it
has existed since the declaration of martial law on September 21, 1972, regardless of what
Constitution is operative — whether it is the 1935 Constitution or the new Constitution. Indeed, there
is nothing that the people can do under the circumstances actually prevailing in our country today —
circumstances, known to all, and which I do not consider necessary to state in this opinion. I cannot
agree, therefore, with my worthy colleagues in the Court who hold the view that the people have
accepted the new Constitution, and that because the people have accepted it, the new Constitution
should be considered as in force, regardless of the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution.

It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not
come into effect. I do not say, however, that the proposed Constitution is invalid. To me, the validity
of the proposed Constitution is not in issue in the cases before Us. What the petitioners assail is not
the validity of the proposed Constitution but the validity of Presidential Proclamation No. 1102 which
declares the proposed Constitution as having been ratified and has come into effect. It being my
considered view that the ratification of the proposed Constitution, as proclaimed in Proclamation No.
1102, is not in accordance with the provisions of Section 1 of Article XV, of the 1935 Constitution, I
hold that Proclamation No. 1102 is invalid and should not be given force and effect. Their proposed
Constitution, therefore, should be considered as not yet validly ratified, and so it is not in force. The
proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV
of the 1935 Constitution. Incidentally, I must state that the Constitution is still in force, and this Court
is still functioning under the 1935 Constitution.

I sincerely believe that the proposed Constitution may still be submitted to the people in an election
or plebiscite held in accordance with the provisions of Section 1 of Article XV of the 1935
Constitution. In fact, as we have adverted to in this opinion, this was the mandate of Congress when,
on March 16, 1967, it passed Resolution No. 2 calling a convention to propose amendments to the
1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippines
has reassured the nation that the government of our Republic since the declaration of martial law is
not a revolutionary government, and that he has been acting all the way in consonance with his
powers under the Constitution. The people of this Republic has reason to be happy because,
according to the President, we still have a constitutional government. It being my view that the 1935
Constitution is still in force, I believe Congress may still convene and pass a law calling for an
election at which the Constitution proposed by the 1971 Constitutional Convention will be submitted
to the people their ratification or rejection. A plebiscite called pursuant to Section 1 of Article XV of
the 1935 Constitution is an assurance to our people that we still have in our country the Rule of Law
and that the democratic system of government that has been implanted in our country by the
Americans, and which has become part of our social and political fabric, is still a reality.

The views that I have expressed in this opinion are inspired by a desire on my part to bring about
stability in democratic and constitutional system in our country. I feel that if this Court would give its
imprimatur to the ratification of the proposed Constitution, as announced in Proclamation No. 1102, it
being very clear that the provisions of Section 1 of Article XV of the 1935 Constitution had not been
complied with, We will be opening the gates for a similar disregard of the Constitution in the future.
What I mean is that if this Court now declares that a new Constitution is now in force because the
members of the citizens assemblies had approved the said new Constitution, although that approval
was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution,
it can happen again in some future time that some amendments to the Constitution may be adopted,
even in a manner contrary to the existing Constitution and the law, and then said proposed
amendment is submitted to the people in any manner and what will matter is that a basis is claimed
that there was approval by the people. There will not be stability in our constitutional system, and
necessarily no stability in our government. As a member of this Court I only wish to contribute my
humble efforts to prevent the happening of such a situation in the future.

It appearing to me that the announced ratification of the proposed Constitution through the voting in
the citizens assemblies is a clear violation of the 1935 Constitution, what I say in this opinion is
simply an endeavor on my part to be true to my oath of office to defend and support the 1935
Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, and the
protection and vindication of popular rights will be safe and secure in their reverential guardianship.

I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our
land, because, as Justice George Sutherland of the U. S. Supreme Court said:

(t)he saddest epitaph which can be carved in memory of a vanished liberty is that it was lost
because its possessors failed to stretch forth a saving hand while yet there was time.

I concur fully with the personal views expressed by the Chief Justice in the opinion that he has
written in these cases. Along with him, I vote to deny the motion to dismiss and give due course to
the petitions in these cases.

FERNANDO, J., dissenting:

No question more momentous, none impressed with such transcendental significance is likely to
confront this Court in the near or distant future as that posed by these petitions. For while the
specific substantive issue is the validity of Presidential Proclamation No. 1102, an adverse judgment
may be fraught with consequences that, to say the least, are far-reaching in its implications. As
stressed by respondents, "what petitioners really seek to invalidate is the new Constitution."1 Strict
accuracy would of course qualify such statement that what is in dispute, as noted in the opinion of
the Chief Justice, goes only as far as the validity of its ratification. It could very well be though that
the ultimate outcome is not confined within such limit, and this is not to deny that under its aegis,
there have been marked gains in the social and economic sphere, but given the premise of
continuity in a regime under a fundamental law, which itself explicitly recognizes the need for change
and the process for bringing it about,2 it seems to me that the more appropriate course is this Court
to give heed to the plea of petitioners that the most serious attention be paid to their submission that
the challenged executive act fails to meet the test of constitutionality. Under the circumstances, with
regret and with due respect for the opinion of my brethren, I must perforce dissent. It would follow
therefore that the legal position taken by the Chief Justice as set forth with his usual lucidity and
thoroughness has, on the whole, my concurrence, subject, of course, to reservations insofar as it
contains views and nuances to which I have in the past expressed doubts. Nonetheless, I feel that a
brief expression of the reasons for the stand I take would not be amiss.

In coping with its responsibility arising from the function of judicial review, this Court is not expected
to be an oracle given to utterances of eternal verities, but certainly it is more than just a keen but
passive observer of the contemporary scene. It is, by virtue of its role under the separation of powers
concept, involved not necessarily as a participant in the formation of government policy, but as an
arbiter of its legality. Even then, there is realism in what Lerner did say about the American Supreme
Court as "the focal point of a set of dynamic forces which [could play] havoc with the landmarks of
the American state and determine the power configuration of the day."3 That is why there is
this caveat. In the United States as here, the exercise of the power of judicial review is conditioned
on the necessity that the decision of a case or controversy before it so requires. To repeat, the
Justices of the highest tribunal are not, as Justice Frankfurter made clear, "architects of policy. They
can nullify the policy of others, they are incapable of fashioning their own solutions for social
problems."4 Nonetheless, as was stressed by Professors Black5 and Murphy,6 a Supreme Court by
the conclusion it reaches and the decision it renders does not merely check the coordinate
branches, but also by its approval stamps with legitimacy the action taken. Thus in affirming
constitutional supremacy, the political departments could seek the aid of the judiciary. For the assent
it gives to what has been done conduces to its support in a regime where the rule of law holds sway.
In discharging such a role, this Court must necessarily take in account not only what the exigent
needs of the present demand but what may lie ahead in the unexplored and unknown vistas of the
future. It must guard against the pitfall of lack of understanding of the dominant forces at work to
seek a better life for all, especially those suffering from the pangs of poverty and disease, by a blind
determination to adhere to the status quo. It would be tragic, and a clear case of its being recreant to
its trust, if the suspicion can with reason be entertained that its approach amounts merely to a
militant vigilantism that is violently opposed to any form of social change. It follows then that it does
not suffice that recourse be had only to what passes for scholarship in the law that could be marred
by inapplicable erudition and narrow legalism. Even with due recognition, such factors, however, I
cannot, for reasons to be set more lengthily and in the light of the opinion of the Chief Justice, reach
the same result as the majority of my brethren. For, in the last analysis, it is my firm conviction that
the institution of judicial review speaks too clearly for the point to be missed that official action, even
with due allowance made for the good faith that invariably inspires the step taken, has to face the
gauntlet of a court suit whenever there is a proper case with the appropriate parties.

1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would
seek a dismissal of these petitions. For them, the question raised is political and thus beyond the
jurisdiction of this Court. Such an approach cannot be indicted for unorthodoxy. It is implicit in the
concept of the rule of law that rights belong to the people and the government possesses powers
only. Essentially then, unless such an authority may either be predicated on express or implied grant
in the Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its validity.
Respondents through Solicitor-General Mendoza would deny our competence to proceed further. It
is their view, vigorously pressed and plausibly asserted, that since what is involved is not merely the
effectivity of an amendment but the actual coming into effect of a new constitution, the matter is not
justiciable. The immediate reaction is that such a contention is to be tested in the light of the
fundamental doctrine of separation of powers that it is not only the function but the solemn duty of
the judiciary to determine what the law is and to apply it in cases and controversies that call for
decision.7 Since the Constitution pre-eminently occupies the highest rung in the hierarchy of legal
norms, it is in the judiciary, ultimately this Tribunal, that such a responsibility is vested. With the 1935
Constitution containing, as above noted, an explicit article on the subject of amendments, it would
follow that the presumption to be indulged in is that the question of whether there has been
deference to its terms is for this Court to pass upon. What is more, the Gonzales,8 Tolentino9 and
Planas 10 cases speak unequivocally to that effect. Nor is it a valid objection to this conclusion that
what was involved in those cases was the legality of the submission and not ratification, for from the
very language of the controlling article, the two vital steps are proposal and ratification, which as
pointed out in Dillon v. Gloss, 11 "cannot be treated as unrelated acts, but as succeeding steps in a
single endeavor." 12 Once an aspect thereof is viewed as judicial, there would be no justification for
considering the rest as devoid of that character. It would be for me then an indefensible retreat,
deriving no justification from circumstances of weight and gravity, if this Court were to accede to
what is sought by respondents and rule that the question before us is political.

On this point, it may not be inappropriate to refer to a separate opinion of mine in Lansang v.
Garcia. 13 Thus: "The term has been made applicable to controversies clearly non-judicial and
therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its
cognizance, as to which there has been a prior legislative or executive determination to which
deference must be paid. It has likewise been employed loosely to characterize a suit where the party
proceeded against is the President or Congress, or any branch thereof. If to be delimited with
accuracy, "political questions" should refer to such as would under the Constitution be decided by
the people in their sovereign capacity or in regard to full discretionary authority is vested either in the
President or Congress. It is thus beyond the competence of the judiciary to pass upon. Unless
clearly falling within the formulation, the decision reached by the political branches whether in the
form of a congressional act or an executive order could be tested in court. Where private rights are
affected, the judiciary has no choice but to look into its validity. It is not to be lost sight of that such a
power comes into play if there be an appropriate proceeding that may be filed only after each
coordinate branch has acted. Even when the Presidency or Congress possesses plenary powers, its
improvident exercise or the abuse thereof, if shown, may give rise to a justiciable controversy. For
the constitutional grant of authority is usually unrestricted. There are limits to what may be done and
how it is to be accomplished. Necessarily then, the courts in the proper exercise of judicial review
could inquire into the question of whether or not either of the two coordinate branches has adhered
to what is laid down by the Constitution. The question thus posed is judicial rather than
political." 14 The view entertained by Professor Dodd is not too dissimilar. For him such a term "is
employed to designate certain types of functions committed to the political organs of government
(the legislative and executive departments, or either of them) and not subject to judicial
investigation." 15 After a thorough study of American judicial decisions, both federal and state, he
could conclude: "The field of judicial nonenforceability is important, but is not large when contrasted
with the whole body of written constitutional texts. The exceptions from judicial enforceability fall
primarily within the field of public or governmental interests." 16 Nor was Professor Weston's
formulation any different. As was expressed by him: "Judicial questions, in what may be thought the
more useful sense, are those which the sovereign has set to be decided in the courts. Political
questions, similarly, are those which the sovereign has entrusted to the so-called political
departments of government or has reserved to be settled by its own extra-governmental
action." 17 What appears undeniable then both from the standpoint of Philippine as well as American
decisions is the care and circumspection required before the conclusion is warranted that the matter
at issue is beyond judicial cognizance, a political question being raised.

2. The submission of respondents on this subject of political question, admittedly one of complexity
and importance, deserves to be pursued further. They would derive much aid and comfort from the
writings of both Professor Bickel 18 of Yale and Professor Freund 19 of Harvard, both of whom in
turn are unabashed admirers of Justice Brandeis. Whatever be the merit inherent in their lack of
enthusiasm for a more active and positive role that must be played by the United States Supreme
Court in constitutional litigation, it must be judged in the light of our own history. It cannot be denied
that from the well nigh four decades of constitutionalism in the Philippines, even discounting an
almost similar period of time dating from the inception of American sovereignty, there has sprung a
tradition of what has been aptly termed as judicial activism. Such an approach could be traced to the
valedictory address before the 1935 Constitutional Convention of Claro M. Recto. He spoke of the
trust reposed in the judiciary in these words: "It is one of the paradoxes of democracy that the people
at times place more confidence in instrumentalities of the State other than those directly chosen by
them for the exercise of their sovereignty." 20 It would thus appear that even then this Court was
expected not to assume an attitude of timidity and hesitancy when a constitutional question is posed.
There was the assumption of course that it would face up to such a task, without regard to political
considerations and with no thought except that of discharging its trust. Witness these words Justice
Laurel in an early landmark case, People v. Vera, 21 decided in 1937: "If it is ever necessary for us
to make vehement affirmance during this formative period of political history, it is that we are
independent of the Executive no less than of the Legislative department of our government —
independent in the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see
it and as we understand it." 22 The hope of course was that such assertion of independence
impartiality was not mere rhetoric. That is a matter more appropriately left to others to determine. It
suffices to stake that what elicits approval on the part of our people of a judiciary ever alert to inquire
into alleged breaches of the fundamental law is the realization that to do so is merely to do what is
expected of it and that thereby there is no invasion of spheres appropriately belonging to the political
branches. For it needs to be kept in kind always that it can act only when there is a suit with proper
parties before it, wherein rights appropriate for judicial enforcement are sought to be vindicated.
Then, too, it does not approach constitutional questions with dogmatism or apodictic certainty nor
view them from the shining cliffs of perfection. This is not to say though that it is satisfied with an
empiricism untroubled by the search for jural consistency and rational coherence. A balance has to
be struck. So juridical realism requires. Once allowance made that for all its care and circumspection
this Court manned by human beings fettered by fallibility, nonetheless earnestly and sincerely
striving to do right, the public acceptance of its vigorous pursuit of the task of assuring that the
Constitution be obeyed is easy to understand. It has not in the past shirked its responsibility to
ascertain whether there has been compliance with and fidelity to constitutional requirements. Such is
the teaching of a host of cases from Angara v. Electoral
Commission 23 to Planas v. Commission on Elections. 24 It should continue to exercise its
jurisdiction, even in the face of a plausible but not sufficiently persuasive insistence that the matter
before it is political.

Nor am I persuaded that the reading of the current drift in American legal scholarship by the
Solicitor-General and his equally able associates presents the whole picture. On the question of
judicial review, it is not a case of black and white; there are shaded areas. It goes too far, in my view,
if the perspective is one of dissatisfaction, with its overtones of distrust. This expression of
disapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legal
essays. The Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of
guilt, colors the literature about judicial review. Many of those who have talked, lectured, and written
about the Constitution have been troubled by a sense that judicial review is undemocratic." 25 He
went on to state: "Judicial review, they have urged, is an undemocratic shoot on an otherwise
respectable tree. It should be cut off, or at least kept pruned and
inconspicuous." 26 His view was precisely the opposite. Thus: "The power of constitutional review, to
be exercised by some part of the government, is implicit in the conception of a written constitution
delegating limited powers. A written constitution would promote discord rather than order in society if
there were no accepted authority to construe it, at the least in case of conflicting action by different
branches of government or of constitutionally unauthorized governmental action against individuals.
The limitation and separation of powers, if they are to survive, require a procedure for independent
mediation and construction to reconcile the inevitable disputes over the boundaries of constitutional
power which arise in the process of government." 27 More than that, he took pains to emphasize:
"Whether another method of enforcing the Constitution could have been devised, the short answer is
that no such method developed. The argument over the constitutionality of judicial review has long
since been settled by history. The power and duty of the Supreme Court to declare statutes or
executive action unconstitutional in appropriate cases is part of the living Constitution. 'The course of
constitutional history,' Mr. Justice Frankfurter recently remarked, 'has cast responsibilities upon the
Supreme Court which it would be "stultification" for it to evade.' " 28 Nor is it only Dean Rostow who
could point Frankfurter, reputed to belong to the same school of thought opposed to judicial activism,
if not its leading advocate during his long stay in the United States Supreme Court, as one fully
cognizant of the stigma that attaches to a tribunal which neglects to meet the demands of judicial
review. There is a statement of similar importance from Professor Mason: "In Stein v. New
York Frankfurter remarked, somewhat self-consciously perhaps, that the 'duty of deference cannot
be allowed imperceptibly to slide into abdication.' " 29 Professor Konefsky, like Dean Rostow, could
not accept characterization of judicial review as undemocratic. Thus his study of Holmes and
Brandeis, the following appears: "When it is said that judicial review is an undemocratic feature of
our political system, it ought also to be remembered that architects of that system did not equate
constitutional government with unbridled majority rule. Out of their concern for political stability and
security for private rights, ..., they designed a structure whose keystone was to consist of barriers to
the untrammeled exercise of power by any group. They perceived no contradiction between effective
government and constitutional checks. To James Madison, who may legitimately be regarded as the
philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he
viewed as the chief problem in erecting a system of free representative government: 'In framing a
government which is to be administered by men over men, the great difficulty lies in this: you must
first enable the government to control the governed; and in the next place oblige it to control itself.'
" 30

There is thus an inevitability to the flowering of judicial review. Could it be that the tone of discontent
apparent in the writings of eminent authorities on the subject evince at the most fears that the
American Supreme Court might overstep the bounds allotted to the judiciary? It cannot be a denial of
the fitness of such competence being vested in judges and of their being called upon to fulfill such a
trust whenever appropriate to the decision of a case before them. That is why it has been correctly
maintained that notwithstanding the absence of any explicit provision in the fundamental law of the
United States Constitution, that distinguished American constitutional historian, Professor Corwin,
could rightfully state that judicial review "is simply incidental to the power of courts to interpret the
law, of which the Constitution is part, in connection with the decision of cases." 31 This is not to deny
that there are those who would place the blame or the credit, depending upon one's predilection, on
Marshall's epochal opinion in Marbury v. Madison. 32 Curtis belonged to that persuasion. As he put
it: "The problem was given no answer by the Constitution. A hole was left where the Court might
drive in the peg of judicial supremacy, if it could. And that is what John Marshall did." 33 At any rate
there was something in the soil of American juristic thought resulting in this tree of judicial power so
precariously planted by Marshall striking deep roots and showing wonderful vitality and hardiness. It
now dominates the American legal scene. Through it, Chief Justice Hughes, before occupying that
exalted position, could state in a lecture: "We are under a Constitution, but the Constitution is what
the judges say it is ... ." 34 The above statement is more than just an aphorism that lends itself to
inclusion in judicial anthologies or bar association speeches. It could and did provoke from Justice
Jackson, an exponent of the judicial restraint school of thought, this meaningful query: "The
Constitution nowhere provides that it shall be what the judges say it is. How, did it come about that
the statement not only could be but could become current as the most understandable
comprehensive summary of American Constitutional law?" 35 It is no wonder that Professor Haines
could pithily and succinctly sum up the place of the highest American tribunal in the scheme of
things in this wise: "The Supreme Court of the United States has come to be regarded as the unique
feature of the American governmental system." 36 Let me not be misunderstood. There is here no
attempt to close one's eyes to a discernible tendency on the part of some distinguished faculty minds
to look askance at what for them may be inadvisable extension of judicial authority. For such indeed
is the case as reflected in two leading cases of recent vintage, Baker v. Carr, 37 decided in 1962
and Powell v. MacCormack, 38 in 1969, both noted in the opinion of the Chief Justice. The former
disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 about the American
Supreme Court declining jurisdiction on the question of apportionment as to do so would cut very
deep into the very being of Congress." 40 For him, the judiciary "ought not to enter this political
thicket." Baker has since then been followed; it has spawned a host of cases. 41 Powell, on the
question of the power of a legislative body to exclude from its ranks a person whose qualifications
are uncontested, for many the very staple of what is essentially political, certainly goes even further
than the authoritative Philippine decision of Vera v. Avelino, 42 It does look then that even in the
United States, the plea for judicial self-restraint, even if given voice by those competent in the field of
constitutional law, has fallen on deaf ears. There is in the comments of respondents an excerpt from
Professor Freund quoting from one of his essays appearing in a volume published in 1968. It is not
without interest to note that in another paper, also included therein, he was less than assertive about
the necessity for self-restraint and apparently mindful of the claims of judicial activism. Thus: "First of
all, the Court has a responsibility to maintain the constitutional order, the distribution of public power,
and the limitations on that power." 43 As for Professor Bickel, it has been said that as counsel for the
New York Times in the famous Vietnam papers case, 44 he was less than insistent on the American
Supreme Court exercising judicial self-restraint. There are signs that the contending forces on such
question, for some an unequal contest, are now quiescent. The fervor that characterized the
expression of their respective points of view appears to have been minimized. Not that it is to be
expected that it will entirely disappear, considering how dearly cherished are, for each group, the
convictions, prejudices one might even say, entertained. At least what once was fitly characterized
as the booming guns of rhetoric, coming from both directions, have been muted. Of late, scholarly
disputations have been centered on the standards that should govern the exercise of the power of
judicial review. In his celebrated Holmes lecture in 1959 at the Harvard Law School, Professor
Wechsler advocated as basis for decision what he termed neutral principles of constitutional
law. 45 It has brought forth a plethora of law review articles, the reaction ranging from guarded
conformity to caustic criticism. 46 There was, to be sure, no clear call to a court in effect abandoning
the responsibility incumbent on it to keep governmental agencies within constitutional channels. The
matter has been put in temperate terms by Professor Frank thus: "When allowance has been made
for all factors, it nevertheless seems to me that the doctrine of political questions ought to be very
sharply confined to where the functional reasons justify it and that in a give involving its expansion
there should be careful consideration also of the social considerations which may militate against it.
The doctrine has a certain specious charm because of its nice intellectualism and because of the
fine deference it permits to expertise, to secret knowledge, and to the prerogatives of others. It
should not be allowed to grow as a merely intellectual plant." 47

It is difficult for me at least, not to be swayed by appraisal, coming from such impeccable sources of
the worth and significance of judicial review in the United States. I cannot resist the conclusion then
that the views advanced on this subject by distinguished counsel for petitioners, with Senators
Lorenzo M. Tañada and Jovito Salonga at the van, rather than the advocacy of the Solicitor-General,
possess the greater weight and carry persuasion. So much then for the invocation of the political
question principle as a bar to the exercise of our jurisdiction.

3. That brings me to the issue of the validity of the ratification. The crucial point that had to be met is
whether Proclamation No. 1102 manifests fidelity to the explicit terms of Article XV. There is, of
course, the view not offensive to reason that a sense of the realities should temper the rigidity of
devotion to the strict letter of the text to allow deference to its spirit to control. With due recognition of
its force in constitutional litigation, 48 if my reading of the events and the process that led to such
proclamation, so clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it cannot
be confidently asserted that there was such compliance. It would be to rely on conjectural
assumptions that did founder on the rock of the undisputed facts. Any other conclusion would, for
me, require an interpretation that borders on the strained. So it has to be if one does not lose sight of
how the article on amendments is phrased. A word, to paraphrase Justice Holmes may not be a
crystal, transparent and unchanged, but it is not, to borrow from Learned Hand, that eminent jurist, a
rubber band either. It would be unwarranted in my view then to assert that the requirements of the
1935 Constitution have been met. There are American decisions, 49 and they are not few in number,
which require that there be obedience to the literal terms of the applicable provision. It is
understandable why it should be thus. If the Constitution is the supreme law, then its mandate must
be fulfilled. No evasion is tolerated. Submission to its commands can be shown only if each and
every word is given meaning rather than ignored or disregarded. This is not to deny that a
recognition conclusive effect attached to the electorate manifesting its will to vote affirmatively on the
amendments proposed poses an obstacle to the judiciary being insistent on the utmost regularity.
Briefly stated, substantial compliance is enough. A great many American State decisions may be
cited in support of such a doctrine. 50

Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be misread,
so that this Court is called upon to give meaning and perspective to what could be considered words
of vague generality, pregnant with uncertainty, still whatever obscurity it possesses is illumined when
the light of the previous legislation is thrown on it. In the first Commonwealth Act, 51 submitting to
the Filipino people for approval or disapproval certain amendments to the original ordinance
appended to the 1935 Constitution, it was made that the election for such purpose was to "be
conducted in conformity with the provisions of the Election Code insofar as the same may be
applicable." 52 Then came the statute, 53 calling for the plebiscite on the three 1940 amendments
providing for the plebiscite on the three 1930 amendments providing for a bicameral Congress or a
Senate and a House of Representatives to take the place of a unicameral National
Assembly, 54 reducing the term of the President to four years but allowing his re-election with the
limitation that he cannot serve more than eight consecutive years, 55 and creating an independent
Commission on Elections. 56 Again, it was expressly provided that the election "shall be conducted
in conformity with the provisions of the Election Code in so far as the same may be
applicable." 57 The approval of the present parity amendment was by virtue of a Republic
Act 58 which specifically made applicable the then Election Code. 59 There is a similar provision in
the
legislation, 60 which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an
increase in the membership of the House of Representatives a maximum of one hundred eighty and
assured the eligibility of senators and representatives to become members of such constituent body
without forfeiting their seats, as proposed amendments to be voted on in the 1967 elections. 61 That
is the consistent course of interpretation followed by the legislative branch. It is most persuasive, if
not controlling. The restraints thus imposed would set limits to the Presidential action taken, even on
the assumption that either as an agent of the Constitutional Convention or under his martial law
prerogatives, he was not devoid of power to specify the mode of ratification. On two vital points, who
can vote and how they register their will, Article XV had been given a definitive construction. That is
why I fail to see sufficient justification for this Court affixing the imprimatur of its approval on the
mode employed for the ratification of the revised Constitution as reflected in Proclamation No. 1102.

4. Nor is the matter before us solely to be determined by the failure to comply with the requirements
of Article XV. Independently of the lack of validity of the ratification of the new Constitution, if it be
accepted by the people, in whom sovereignty resides according to the Constitution, 62 then this
Court cannot refuse to yield assent to such a political decision of the utmost gravity, conclusive in its
effect. Such a fundamental principle is meaningless if it does not imply, to follow Laski, that the
nation as a whole constitutes the "single center of ultimate reference," necessarily the possessor of
that "power that is able to resolve disputes by saying the last word." 63 If the origins of the
democratic polity enshrined in the 1935 Constitution with the declaration that the Philippines is a
republican state could be traced back to Athens and to Rome, it is no doubt true, as McIver pointed
out, that only with the recognition of the nation as the separate political unit in public law is there the
juridical recognition of the people composing it "as the source of political authority." 64 From them,
as Corwin did stress, emanate "the highest possible embodiment of human will," 65 which is
supreme and must be obeyed. To avoid any confusion and in the interest of clarity, it should be
expressed in the manner ordained by law. Even if such is not the case, however, once it is
manifested, it is to be accepted as final and authoritative. The government which is merely an
agency to register its commands has no choice but to submit. Its officials must act accordingly. No
agency is exempt such a duty, not even this Court. In that sense, the lack of regularity in the method
employed to register its wishes is fatal in its consequences. Once the fact of acceptance by people
of a new fundamental law is made evident, the judiciary is left with no choice but to accord it
recognition. The obligation to render it obeisance falls on the courts as well.

There are American State decisions that enunciate such a doctrine. While certainly not controlling,
they are not entirely bereft of persuasive significance. In Miller v. Johnson, 66 decided in 1892, it
was set forth in the opinion of Chief Justice Holt that on May 3, 1890, an act was passed in
Kentucky, providing for the calling of a convention for the purpose of framing a new constitution and
the election of delegates. It provided that before any form of constitution made by them should
become operative, it should be submitted to the vote of the state and ratified by a majority of those
voting. The constitution then in force authorized the legislature, the preliminary steps having been
taken, to call a convention "for the purpose of readopting, amending, or changing" it contained no
provision giving the legislature the power to require a submission of its work to a vote of the people.
The convention met in September, 1890. By April, 1891, it completed a draft of a constitution,
submitted it to a popular vote, and then adjourned until September following. When the convention
reassembled, the delegates made numerous changes in instrument. As thus amended, it was
promulgated by the convention of September 28, 1891, as the new constitution. An action was
brought to challenge its validity. It failed in the lower court. In affirming such judgment dismissing the
action, Chief Justice Holt stated: "If a set of men, not selected by the people according to the forms
of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the
duty of the courts to declare its work a nullity. This would be revolution, and this the courts of the
existing government must resist until they are overturned by power, and a new government
established. The convention, however, was the offspring of law. The instrument which we are asked
to declare invalid as a constitution has been made and promulgated according to the forms of law. It
is a matter of current history that both the executive and legislative branches of the government have
recognized its validity as a constitution, and are now daily doing so. ... While the judiciary should
protect the rights of the people with great care and jealousy, because this is its duty, and also
because; in times of great popular excitement, it is usually their last resort, yet it should at the same
time be careful not to overstep the proper bounds of its power, as being perhaps equally dangerous;
and especially where such momentous results might follow as would be likely in this instance, if the
power of the judiciary permitted, and its duty requires, the overthrow of the work of the
convention." 67 In Taylor v. Commonwealth, 68 a 1903 decision, it was contended that the Virginia
Constitution reclaimed in 1902 is invalid as it was ordained and promulgated by the convention
without being submitted for ratification or rejection by the people. The Court rejected such a view. As
stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordained and proclaimed by
a convention duly called by direct vote of the people of the state to revise and amend the
Constitution of 1869. The result of the work of the convention has been recognized, accepted, and
acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and
proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint
resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled
in the city of Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by the
individual oaths of members to support it, and by enforcing its provisions; and the people in their
primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to
the extent of thousands throughout the state, and by voting, under its provisions, at a general
election for their representatives in the Congress of the United States. The Constitution having been
thus acknowledged and accepted by the office administering the government and by the people of
the state, and there being no government in existence under the Constitution of 1869 opposing or
denying its validity, we have no difficulty in holding that the Constitution in question, which went into
effect at noon on the 10th day of July, 1902, is the only rightful, valid, and existing Constitution of this
state, and that to it all the citizens of Virginia owe their obedience and loyal allegiance." 69

It cannot be plausibly asserted then that premises valid in law are lacking for the claim that the
revised Constitution has been accepted by the Filipino people. What is more, so it has been argued,
it is not merely a case of its being implied. Through the Citizens Assemblies, there was a plebiscite
with the result as indicated in Proclamation No. 1102. From the standpoint of respondents then, they
could allege that there was more than just mere acquiescence by the sovereign people. Its will was
thus expressed formally and unmistakably. It may be added that there was nothing inherently
objectionable in the informal method followed in ascertaining its preference. Nor is the fact that
Filipinos of both sexes above the age of fifteen were given the opportunity to vote to be deplored.
The greater the base of mass participation, the more there is fealty to the democratic concept. It
does logically follow likewise that such circumstances being conceded, then no justifiable question
may be raised. This Court is to respect what had thus received the people's sanction. That is not for
me though whole of it. Further scrutiny even then is not entirely foreclosed. There is still an aspect
that is judicial, an inquiry may be had as to whether such indeed was the result. This is no more than
what the courts do in election cases. There are other factors to bear in mind. The fact that the
President so certified is well-nigh conclusive. There is in addition the evidence flowing from the
conditions of peace and stability. There thus appears to be conformity to the existing order of things.
The daily course of events yields such a conclusion. What is more, the officials under the 1935
Constitution, including practically all Representatives and a majority of the Senators, have signified
their assent to it. The thought persists, however, that as yet sufficient time has not elapsed to be
really certain.

Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment of
popular will did take place during a period of martial law. It would have been different had there been
that freedom of debate with the least interference, thus allowing a free market of ideas. If it were
thus, it could be truly said that there was no barrier to liberty of choice. It would be a clear-cut
decision either way. One could be certain as to the fact of the acceptance of the new or of
adherence to the old. This is not to deny that votes are cast by individuals with their personal
concerns uppermost in mind, worried about their immediate needs and captive to their existing
moods. That is inherent in any human institution, much more so in a democratic polity. Nor is it open
to any valid objection because in the final analysis the state exists for the individuals who in their
collectivity compose it. Whatever be their views, they are entitled to respect. It is difficult for me,
however, at this stage to feel secure in the conviction that they did utilize the occasion afforded to
give expression to what was really in their hearts. This is not to imply that such doubt could not be
dispelled by evidence to the contrary. If the petitions be dismissed however, then such opportunity is
forever lost.

5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed
brethren who vote for the dismissal of these petitions. I cannot yield an affirmative response to the
plea of respondents to consider the matter closed, the proceedings terminated once and for all. It is
not an easy decision to reach. It has occasioned deep thought and considerable soul-searching. For
there are countervailing considerations that exert a compulsion not easy to resist. It can be asserted
with truth, especially in the field of social and economic rights, that with the revised Constitution,
there is an auspicious beginning for further progress. Then too it could resolve what appeared to be
the deepening contradictions of political life, reducing at times governmental authority to near
impotence and imparting a sense of disillusionment in democratic processes. It is not too much to
say therefore that there had indeed been the revision of a fundamental law to vitalize the very values
out of which democracy grows. It is one which has all the earmarks of being responsive to the
dominant needs of the times. It represents an outlook cognizant of the tensions of a turbulent era
that is the present. That is why for some what was done represented an act of courage and faith,
coupled with the hope that the solution arrived at is a harbinger of a bright and rosy future.

It is such a comfort then that even if my appraisal of the situation had commanded a majority, there
is not, while these lawsuits are being further considered, the least interference, with the executive
department. The President in the discharge of all his functions is entitled to obedience. He remains
commander-in-chief with all the constitutional powers it implies. Public officials can go about their
accustomed tasks in accordance with the revised Constitution. They can pursue even the tenor of
their ways. They are free to act according to its tenets. That was so these past few weeks, even
petitions were filed. There was not at any time any thought of any restraining order. So it was before.
That is how things are expected to remain even if the motions to dismiss were not granted. It might
be asked though, suppose the petitions should prevail? What then? Even so, the decision of this
Court need not be executory right away. Such a disposition of a case before this Court is not novel.
That was how it was done in the Emergency Powers Act controversy. 70 Once compliance is had
with the requirements of Article XV of the 1935 Constitution, to assure that the coming force of the
revised charter is free from any taint of infirmity, then all doubts are set at rest.

For some, to so view the question before us is to be caught in a web of unreality, to cherish illusions
that cannot stand the test of actuality. What is more, it may give the impression of reliance on what
may, for the practical man of affairs, be no more than gossamer distinctions and sterile refinements
unrelated to events. That may be so, but I find it impossible to transcend what for me are the
implications of traditional constitutionalism. This is not to assert that an occupant of the bench is
bound to apply with undeviating rigidity doctrines which may have served their day. He could at
times even look upon them as mere scribblings in the sands to be washed away by the advancing
tides of the present. The introduction of novel concepts may be carried only so far though. As
Cardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or
of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to
spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the
primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion
that remains." 71 Moreover what made it difficult for this Court to apply settled principles, which for
me have not lost their validity, is traceable to the fact that the revised Constitution was made to take
effect immediately upon ratification. If a period of time were allowed to elapse precisely to enable the
judicial power to be exercised, no complication would have arisen. Likewise, had there been only
one or two amendments, no such problem would be before us. That is why I do not see sufficient
justification for the orthodoxies of constitutional law not to operate.

Even with full realization then that the approach pursued is not all that it ought to have been and the
process of reasoning not without its shortcomings, the basic premises of a constitutional democracy,
as I understand them and as set forth in the preceding pages, compel me to vote the way I did.

TEEHANKEE, J., dissenting:

The masterly opinion of the Chief Justice wherein he painstakingly deals with the momentous issues
of the cases at bar in all their complexity commands my concurrence.

I would herein make an exposition of the fundamental reasons and considerations for my stand.

The unprecedented and precedent-setting issue submitted by petitioners for the Court's resolution is
the validity and constitutionality of Presidential Proclamation No. 1102 issued on January 17, 1973,
certifying and proclaiming that the Constitution proposed by the 1971 Constitutional Convention "has
been ratified by an overwhelming majority of all the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come into effect."

More specifically, the issue submitted is whether the purported ratification of the proposed
Constitution by means of the Citizens Assemblies has substantially complied with the mandate of
Article XV of the existing Constitution of 1935 that duly proposed amendments thereto, in toto or
parts thereof, "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."1

A necessary corollary issue is whether the purported ratification of the proposed Constitution as
signed on November 30, 1972 by the 1971 Constitutional Convention may be said also to have
substantially complied with its own mandate that "(T)his Constitution shall take immediately upon
its ratification by a majority of the votes cast in a plebiscite called for the purpose and except as
herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five and all
amendments thereto."2

Respondents contend that "(A)lthough apparently what is sought to be annulled is Proclamation No.
1102, what petitioners really seek to invalidate is the new Constitution", and their actions must be
dismissed, because:

— "the Court may not inquire into the validity of the procedure for ratification" which is "political in
character" and that "what is sought to be invalidated is not an act of the President but of the people;

— "(T)he fact of approval of the new Constitution by an overwhelming majority of the votes cast
as declared and certified in Proclamation No. 1102 is conclusive on the courts;
— "Proclamation No. 1102 was issued by the President in the exercise of legislative power under
martial law. ... Alternatively, or contemporaneously, he did so as "agent" of the Constitutional
Convention;"

— "alleged defects, such as absence of secret voting, enfranchisement of persons less than 21
years, non supervision (by) the Comelec are matters not required by Article XV of the 1935
Constitution"; (sic)

— "after ratification, whatever defects there might have been in the procedure are overcome
and mooted (and muted) by the fact of ratification"; and

— "(A)ssuming finally that Article XV of the 1935 Constitution was not strictly followed, the ratification
of the new Constitution must nonetheless be respected. For the procedure outlined in Article XV
was not intended to be exclusive of other procedures, especially one which contemplates popular
and direct participation of the citizenry ... ."3

To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102
would really be "invalidating the new Constitution", the terms and premises of the issues have to be
defined.

— Respondents themselves assert that "Proclamation No. 1102 ... is plainly merely declaratory of
the fact that the 1973 Constitution has been ratified and has come into force.4

— The measure of the fact of ratification is Article XV of the 1935 Constitution. This has been
consistently held by the Court in the Gonzales:5 and Tolentino6 cases.

— In the Tolentino case, this Court emphasized "that the provisions of Section 1 of Article XV of the
Constitution, dealing with the procedure or manner of amending the fundamental law are binding
upon the Convention and the other departments of the government. It must be added that ... they are
no less binding upon the people."7

— In the same Tolentino case, this Court further proclaimed that "as long as any amendment is
formulated and submitted under the aegis of the present Charter, any proposal for such amendment
which is not in conformity with the letter, spirit and intent of the Charter for effecting amendments,
cannot receive the sanction of this Court."8

— As continues to be held by a majority of this Court, proposed amendments to the Constitution

"should be ratified in only one way, that is, in an election or plebiscite held in accordance with law
and participated in only by qualified and duly registered voters"9 and under the supervision of the
Commission on Elections. 10

— Hence, if the Court declares Proclamation 1102 null and void because on its face, the purported
ratification of the proposed Constitution has not faithfully nor substantially observed nor complied
with the mandatory requirements of Article XV of the (1935) Constitution, it would not be
"invalidating" the proposed new Constitution but would be simply declaring that the announced fact
of ratification thereof by means of the Citizens Assemblies referendums does not pass
the constitutional test and that the proposed new Constitution has not constitutionally come into
existence.
— Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory" of the
disputed fact of ratification, they cannot assume the very fact to be established and beg the issue by
citing the self-same declaration as proof of the purported ratification therein declared.

What complicates the cases at bar is the fact that the proposed 1972 Constitution was enforced as
having immediately taken effect upon the issuance on January 17, 1973 of Proclamation 1102 and
the question of whether "confusion and disorder in government affairs would (not) result" from a
judicial declaration of nullity of the purported ratification is raised by the Solicitor-General on behalf
of respondents.

A comparable precedent of great crisis proportions is found in the Emergency Powers

cases, 11 wherein the Court in its Resolution of September 16, 1949 after judgment was
initially not obtained on August 26, 1949 for lack of the required six (6) votes, finally declared in
effect that the pre-war emergency powers delegated by Congress to the President, under
Commonwealth Act 671 in pursuance of Article VI, section 26 of the Constitution, had ceased and
became inoperative at the latest in May, 1946 when Congress met in its first regular session on May
25, 1946.

Then Chief Justice Manuel V. Moran recited the great interests and important rights that had arisen
under executive orders "issued in good faith and with the best of intentions by three successive
Presidents, and some of them may have already produced extensive effects on the life of the nation"
— in the same manner as may have arisen under the bona fide acts of the President now in the
honest belief that the 1972 Constitution had been validly ratified by means of the Citizens
Assemblies referendums — and indicated the proper course and solution therefor, which were duly
abided by and confusion and disorder as well as harm to public interest and innocent parties thereby
avoided as follows:

Upon the other hand, while I believe that the emergency powers had ceased in June 1945, I am not
prepared to hold that all executive orders issued thereafter under Commonwealth Act No. 671,
are per se null and void. It must be borne in mind that these executive orders had been issued in
good faith and with the best of intentions by three successive Presidents, and some of them may
have already produced extensive effects in the life of the nation. We have, for instance, Executive
Order No. 73, issued on November 12, 1945, appropriating the sum of P6,750,000 for public works;
Executive Order No. 86, issued on January 7, 1946, amending a previous order regarding the
organization of the Supreme Court; Executive Order No. 89, issued on January 1, 1946,
reorganizing Courts of First Instance; Executive Order No. 184, issued on November 19, 1948,
controlling rice and palay to combat hunger; and other executive orders appropriating funds for other
purposes. The consequences of a blanket nullification of all these executive orders will be
unquestionably serious and harmful. And I hold that before nullifying them, other important
circumstances should be inquired into, as for instance, whether or not they have been ratified by
Congress expressly or impliedly, whether their purposes have already been accomplished entirely or
partially, and in the last instance, to what extent; acquiescence of litigants; de facto officers; acts and
contracts of parties acting in good faith; etc. It is my opinion that each executive order must be
viewed in the light of its peculiar circumstances, and, if necessary and possible, nullifying it,
precautionary measures should be taken to avoid harm to public interest and innocent parties. 12

Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and
Guerrero petitions holding null and void the executive orders on rentals and export control but to
defer judgment on the Rodriguez and Barredo petitions for judicial declarations of nullity of the
executive orders appropriating the 1949-1950 fiscal year budget for the government and P6 million
for the holding of the 1949 national elections. After rehearsing, he further voted to also declare null
and void the last two executive orders appropriating funds for the 1949 budget and elections,
completing the "sufficient majority" of six against four dissenting justices "to pronounce a valid
judgment on that matter." 13

Then Chief Justice Moran, who penned the Court's majority resolution, explained his vote for
annulment despite the great difficulties and possible "harmful consequences" in the following
passage, which bears re-reading:

However, now that the holding of a special session of Congress for the purpose of remedying the
nullity of the executive orders in question appears remote and uncertain, I am compelled to, and do
hereby, give my unqualified concurrence in the decision penned by Mr. Justice Tuason declaring
that these two executive orders were issued without authority of law.

While in voting for a temporary deferment of the judgment I was moved by the belief that positive
compliance with the Constitution by the other branches of the Government, which is our prime
concern in all these cases, would be effected, and indefinite deferment will produce the opposite
result because it would legitimize a prolonged or permanent evasion of our organic law. Executive
orders which are, in our opinion, repugnant to the Constitution, would be given permanent life,
opening the way or practices which may undermine our constitutional structure.

The harmful consequences which, as I envisioned in my concurring opinion, would come to pass
should the said executive orders be immediately declared null and void are still real. They have not
disappeared by reason of the fact that a special session of Congress is not now forthcoming.
However, the remedy now lies in the hands of the Chief Executive and of Congress, for the
Constitution vests in the former the power to call a special session should the need for one arise,
and in the latter, the power to pass a valid appropriations act.

That Congress may again fail to pass a valid appropriations act is a remote possibility, for under the
circumstances it fully realizes its great responsibility of saving the nation from breaking down; and
furthermore, the President in the exercise of his constitutional powers may, if he so desires, compel
Congress to remain in special session till it approves the legislative measures most needed by the
country.

Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent way of
life in this country, if each of the great branches of the Government, within its own allocated sphere,
complies with its own constitutional duty, uncompromisingly and regardless of difficulties.

Our Republic is still young, and the vital principles underlying its organic structure should be
maintained firm and strong, hard as the best of steel, so as to insure its growth and development
along solid lines of a stable and vigorous democracy. 14

The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the
rental and export control executive orders) likewise observed that "(T)he truth is that under our
concept of constitutional government, in times of extreme perils more than in normal circumstances
'the various branches, executive, legislative, and judicial,' given the ability to act, are called upon 'to
perform the duties discharge the responsibilities committed to respectively.' " 15

It should be duly acknowledged that the Court's task of discharging its duty and responsibility has
been considerably lightened by the President's public manifestation of adherence to constitutional
processes and of working within the proper constitutional framework as per his press conference of
January 20,1973, wherein he stated that "(T)he Supreme Court is the final arbiter of the Constitution.
It can and will probably determine the validity of this Constitution. I did not want to talk about this
because actually there is a case pending before the Supreme Court. But suffice it to say that I
recognize the power of the Supreme Court. With respect to appointments, the matter falls under a
general provision which authorizes the Prime Minister to appoint additional members to the Supreme
Court. Until the matter of the new Constitution is decided, I have no intention of utilizing that
power." 16

Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that
the questions of whether the submission of the proposed constitutional amendment of the State
Constitution providing for an elective, instead of an appointive, judiciary and whether the proposition
was in fact adopted, were justifiable and not political questions, we may echo the words therein of
Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution.
We could not, if we would, escape the exercise of that jurisdiction which the Constitution has
imposed upon us. In the particular instance in which we are now acting, our duty to know what the
Constitution of the state is, and in accordance with our oaths to support and maintain it in its
integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but
one which, like all others, must be discharged." 17

In confronting the issues at bar, then, with due regard for my colleagues' contrary views, we are
faced with the hard choice of maintaining a firm and strict — perhaps, even rigid — stand that the
Constitution is a "superior paramount law, unchangeable by ordinary means" save in the particular
mode and manner prescribed therein by the people, who, in Cooley's words, so "tied up (not only)
the hands of their official agencies, but their own hands as well" 18 in the exercise of their sovereign
will or a liberal and flexible stand that would consider compliance with the constitutional article on the
amending process as merely directory rather than mandatory.

The first choice of a strict stand, as applied to the cases at bar, signifies that the Constitution may be
amended in toto or otherwise exclusively "by approval by a majority of the votes cast an election at
which the amendments are submitted to the people for their ratification", 19 participated
in only by qualified and duly registered voters twenty-one years of age or over 20 and
duly supervised by the Commission on Elections, 21 in accordance with the cited mandatory
constitutional requirements.

The alternative choice of a liberal stand would permit a disregard of said requirements on the theory
urged by respondents that "the procedure outlined in Article XV was not intended to be exclusive of
other procedures especially one which contemplates popular and direct participation of the
citizenry", 22 that the constitutional age and literacy requirements and other statutory safeguards for
ascertaining the will of the majority of the people may likewise be changed as "suggested, if not
prescribed, by the people (through the Citizens Assemblies) themselves", 23 and that the Comelec
is constitutionally "mandated to oversee ... elections (of public officers) and not plebiscites." 24

To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case
of Marbury vs. Madison 25 the U.S. Supreme Court's power of judicial review and to declare void
laws repugnant to the Constitution, there is no middle ground between these two alternatives. As
Marshall expounded it: "(T)he Constitution is either a superior paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, alterable when
the legislature shall please to alter it. If the former part of the alternative be true, then a legislative
act, contrary to the Constitution, is not law; if the latter part be true, then written constitutions are
absurd attempts on the part of a people, to limit a power, in its own nature, illimitable."

As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936 landmark
case of Angara vs. Electoral Commission, 26 "(T)he 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 of good
government and restrictions embodied in our Constitution are real as they should be in any living
Constitution."

Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine
Constitution as "a definition of the powers of government" placed upon the judiciary the great burden
of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments ... but only asserts the solemn and sacred obligation entrusted to it by the Constitution
to determine conflicting claims of authority under the Constitution and to establish for the parties in
an actual controversy the rights which the instrument secures and guarantees to them."

II

Marshall was to utter much later in the equally historic 1819 case of McCulloch vs. Maryland 27 the
"climactic phrase," 28 "we must never forget that it is a constitution we are expounding," — termed
by Justice Frankfurter as "the single most important utterance in the literature of constitutional law —
most important because most comprehensive and comprehending." 29 This enduring concept to my
mind permeated to this Court's exposition and rationale in the hallmark case of Tolentino, wherein
we rejected the contentions on the Convention's behalf "that the issue ... is a political question and
that the Convention being a legislative body of the highest order is sovereign, and as such, its acts
impugned by petitioner are beyond the control of Congress and the Courts." 30

This Court therein made its unequivocal choice of strictly requiring faithful (which really includes
substantial) compliance with the mandatory requirements of the amending process.

1. In denying reconsideration of our judgment of October 16, 1971 prohibiting the submittal in an
advance election of 1971 Constitutional Convention's Organic Resolution No. 1 proposing to amend
Article V, section 1 of the Constitution by lowering the voting age to 18 years (vice 21 years) 30a
"without prejudice to other amendments that will be proposed in the future ... on other portions of the
amended section", this Court stated that "the constitutional provision in question (as proposed)
presents no doubt which may be resolved in favor of respondents and intervenors. We do not
believe such doubt can exist only because it is urged that the end sought to be achieved is to
be desired. Paraphrasing no less than the President of Constitutional Convention of 1934, Claro M.
Recto, let those who would put aside, invoking grounds at best controversial, any mandate of the
fundamental law purportedly in order to attain some laudable objective bear in mind that someday
somehow others with purportedly more laudable objectives may take advantage of the precedent
and continue the destruction of the Constitution, making those who laid down the precedent of
justifying deviations from the requirements of the Constitution the victims of their own folly." 31

2. This Court held in Tolentino 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 1
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 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 powerful and omnipotent as their
original counterparts. 32

3. This Court in Tolentino likewise formally adopted the doctrine of proper submission first advanced
in Gonzales vs. Comelec33, thus:

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 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 hardly started considering the merits of hundreds, if not
thousands, proposals to amend the existing Constitution, to present to 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 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.' " 34

4. Four other members of the Court 35 in a separate concurrence in Tolentino, expressed their
"essential agreement" with Justice Sanchez' separate opinion in Gonzales on the need for "fair
submission (and) intelligent rejection" as "minimum requirements that must be met in order that there
can be a proper submission to the people of a proposed constitutional amendment" thus:

... amendments must be fairly laid before the people for their blessing or spurning. The people are
not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity
to mull over the original provisions, compare them with the proposed amendments, and try to reach
a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or
possibly insidious influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform every citizen of the provisions to
be amended, and the proposed amendments and the meaning, nature and effects thereof. By this,
we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as intended by the framers of
the Constitution. What the Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within its structural framework
to enlighten the people, educate them with respect to their act of ratification or rejection. For as we
have earlier stated, one thing is submission and another is ratification. There must be fair
submission, intelligent consent or rejection. 36

They stressed further the need for undivided attention, sufficient information and full debate,
conformably to the intendment of Article XV, section 1 of the Constitution, in this wise:

A number of doubts or misgivings could conceivably and logically assail the average voter. Why
should the voting age be lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old, so that there is no need of an educational qualification to entitle him to
vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having
this particular proposed amendment ratified at this particular time? Do some of the members of the
Convention have future political plans which they want to begin to subserve by the approval this year
of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should
not also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to
compulsory military service under the colors? Will the contractual consent be reduced to 18 years? If
I vote against the amendment, will I not be unfair to my own child who will be 18 years old, come
1973?

The above are just samplings from here, there and everywhere — from a domain (of searching
questions) the bounds of which are not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot except as the questions are debated
fully, pondered upon purposefully, and accorded undivided attention.

Scanning the contemporary scene, we say that the people are not, and by election time will not
be, sufficiently informed of the meaning, nature and effects of the proposed constitutional
amendment. They have not been afforded ample time to deliberate thereon conscientiously. They
have been and are effectively distracted from a full and dispassionate consideration of the merits
and demerits of the proposed amendment by their traditional pervasive involvement in local elections
and politics. They cannot thus weigh in tranquility the need for and the wisdom proposed
amendment. 37

5. This Court therein dismissed the plea of disregarding mandatory requirements of the amending
process "in favor of allowing the sovereign people to express their decision on the proposed
amendments" as "anachronistic in the real constitutionalism and repugnant to the essence of the rule
of law," in the following terms:

... The preamble of the Constitution says that the Constitution has been ordained by the 'Filipino
people, imploring the aid of Divine Providence.' Section 1 of Article XV is nothing than a part of the
Constitution thus ordained by the people. Hence, in construing said section, We must read it as if
the people had said, 'This Constitution may be amended, but it is our will that the amendment must
be proposed and submitted to Us for ratification only in the manner herein provided.' ... Accordingly,
the real issue here cannot be whether or not the amending process delineated by the present
Constitution may be disregarded in favor of allowing the sovereign people to express their decision
on the proposed amendments, if only because it is evident that the very idea of departing from the
fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of
the rule of law; rather, it is whether or not the provisional nature of the proposed amendment and
the manner of its submission to the people for ratification or rejection conform with the mandate of
the people themselves in such regard, as expressed in, the Constitution itself. 38

6. This Court, in not heeding the popular clamor, thus stated its position: "(I)t 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. 39

7. The Chief Justice, in his separate opinion in Tolentino concurring with this Court's denial of the
motion for reconsideration, succinctly restated this Court's position on the fundamentals, as follows:

— On the premature submission of a partial amendment proposal, with a "temporary provisional or

tentative character": — "... a partial amendment would deprive the voters of the context which is
usually necessary for them to make a reasonably intelligent appraisal of the issue submitted for their
ratification or rejection. ... Then, too, the submission to a plebiscite of a partial amendment, without
a definite frame of reference, is fraught with possibilities which may jeopardize the social fabric. For
one thing, it opens the door to wild speculations. It offers ample opportunities for overzealous
leaders and members of opposing political camps to unduly exaggerate the pros and cons of the
partial amendment proposed. In short, it is apt to breed false hopes and create wrong impressions.
As a consequence, it is bound to unduly strain the people's faith in the soundness and validity of
democratic processes and institutions.

— On the plea to allow submission to the sovereign people of the "fragmentary and incomplete"
proposal, although inconsistent with the letter and spirit of the Constitution: "The view, has, also,
advanced that the foregoing considerations are not decisive on the issue before Us, inasmuch as
the people are sovereign, and the partial amendment involved in this case is being submitted to
them. The issue before Us is whether or not said partial amendment may be validly submitted to the
people for ratification "in a plebiscite coincide with the local elections in November 1971,"
and this particular issue will not be submitted to the people. What is more, the Constitution
does not permit its submission to the people. The question sought to be settled in the scheduled
plebiscite is whether or not the people are in favor of the reduction of the voting age.

— On a "political" rather than "legalistic" approach: "Is this approach to the problem too "legalistic?"
This term has possible connotations. It may mean strict adherence to the law, which in the case at
bar is the Supreme Law of the land. On point, suffice it to say that, in compliance with the specific
man of such Supreme Law, the members of the Supreme Court taken the requisite "oath to support
and defend the Constitution." ... Then, again, the term "legalistic" may be used to suggest inversely
that the somewhat strained interpretation of the Constitution being urged upon this Court
be tolerated or, at least, overlooked, upon the theory that the partial amendment on voting age is
badly needed and reflects the will of the people, specially the youth. This course of action favors, in
effect, adoption of a political approach, inasmuch as the advisability of the amendment and an
appraisal of the people's feeling thereon political matters. In fact, apart from the obvious message of
the mass media, and, at times, of the pulpit, the Court has been literally bombarded with scores of
handwritten letters, almost all of which bear the penmanship and the signature of girls, as well as
letterhead of some sectarian educational institutions, generally stating that the writer is 18 years of
age and urging that she or he be allowed to vote. Thus, the pressure of public opinion has brought to
bear heavily upon the Court for a reconsideration of its decision in the case at bar.
As above stated, however, the wisdom of the amendment and the popularity thereof are political
questions beyond our province. In fact, respondents and the intervenors originally maintained that
We have no jurisdiction to entertain the petition herein, upon the ground that the issue therein raised
is a political one. Aside from the absence of authority to pass upon political question, it is obviously
improper and unwise for the bench to develop into such questions owing to the danger of getting
involved in politics, more likely of a partisan nature, and, hence, of impairing the image and the
usefulness of courts of justice as objective and impartial arbiters of justiciable controversies.

Then, too, the suggested course of action, if adopted, would constitute a grievous disservice to the
people and the very Convention itself. Indeed, the latter and the Constitution it is in the process of
drafting stand essentially for the Rule of Law. However, as the Supreme Law of the land, a
Constitution would not be worthy of its name, and the Convention called upon to draft it would be
engaged in a futile undertaking, if we did not exact faithful adherence to the fundamental tenets set
forth in the Constitution and compliance with its provisions were not obligatory. If we, in effect,
approved, consented to or even overlooked a circumvention of said tenets and provisions, because
of the good intention with which Resolution No. 1 is animated, the Court would thereby become
the Judge of the good or bad intentions of the Convention and thus be involved in a question
essentially political in nature.

This is confirmed by the plea made in the motions for reconsideration in favor of the exercise of
judicial statesmanship in deciding the present case. Indeed, "politics" is the word commonly used to
epitomize compromise, even with principles, for the sake of political expediency or the advancement
of the bid for power of a given political party. Upon the other hand, statesmanship is the expression
usually availed of to refer to high politics or politics on the highest level. In any event, politics,
political approach, political expediency and statesmanship are generally associated, and often
identified, with the dictum that "the end justifies the means." I earnestly hope that the administration
of justice in this country and the Supreme Court, in particular, will adhere to or approve or indorse
such dictum." 40

Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he primary purpose for the
submission of the proposed amendment lowering the voting age to the plebiscite on November 8,
1971 is to enable the youth 18 to 20 years who comprise more than three (3) million of our
population to participate in the ratification of the new Constitution in so far as "to allow young people
who would be governed by the Constitution to be given a say on what kind of Constitution they will
have" is a laudable end, ... those urging the vitality and importance of the proposed constitutional
amendment and its approval ahead of the complete and final draft of the Constitution must seek a
valid solution to achieve it in a manner sanctioned by the amendatory process ordained by our
people in the present Constitution" 41 — so that there may be "submitted, not piece-meal, but by
way of complete and final amendments as an integrated whole (integrated either with the subsisting
Constitution or with the new proposed Constitution)..."

9. The universal validity of the vital constitutional precepts and principles above-enunciated can
hardly be gainsaid. I fail to see the attempted distinction of restricting their application to proposals
for amendments of particular provisions of the Constitution and not to so-called entirely new
Constitutions. Amendments to an existing Constitution presumably may be only of certain parts or in
toto, and in the latter case would rise to an entirely new Constitution. Where this Court held
in Tolentino that "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", it would appeal that the reverse would equally be true; which is to say, that the
adoption of a whole new Constitution would be of no less importance than any particular amendment
and therefore the necessary care and deliberation as well as the mandatory restrictions and
safeguards in the amending process ordained by the people themselves so that "they (may)
be insulated against precipitate and hasty actions motivated by more or less passing political moods
or fancies" must necessarily equally apply thereto.

III

1. To restate the basic premises, the people provided in Article XV of the Constitution for the
amending process only "by approval by a majority of the votes cast at an election at which the (duly
proposed) amendments are submitted to the people for their ratification."

The people ordained in Article V, section 1 that only those thereby enfranchised and granted the
right of suffrage may speak the "will of the body politic", viz, qualified literate voters twenty one
years of age or over with one year's residence in the municipality where they have registered.

The people, not as yet satisfied, further provided by amendment duly approved in 1940 in
accordance with Article XV, for the creation of an independent Commission on Elections with
"exclusive charge" for the purpose of "insuring free, orderly and honest elections" and ascertaining
the true will of the electorate — and more, as ruled by this Court in Tolentino, in the case of
proposed constitutional amendments, insuring proper submission to the electorate of such
proposals. 42

2. A Massachussets case 43 with a constitutional system and provisions analogous to ours, best
defined the uses of the term "people" as a body politic and "people" in the political sense who are
synonymous with the qualified voters granted the right to vote by the existing Constitution and who
therefore are "the sole organs through which the will of the body politic can be expressed."

It was pointed out therein that "(T)he word 'people' may have somewhat varying significations
dependent upon the connection in which it is used. In some connections in the Constitution it is
confined to citizens and means the same as citizens. It excludes aliens. It includes men, women and
children. It comprehends not only the sane, competent, law-abiding and educated, but also those
who are wholly or in part dependents and charges upon society by reason of immaturity, mental or
moral deficiency or lack of the common essentials of education. All these persons are secured
fundamental guarantees of the Constitution in life, liberty and property and the pursuit of happiness,
except as these may be limited for the protection of society."

In the sense of "body politic (as) formed by voluntary association of individuals" governed by a
constitution and common laws in a "social compact ... for the common good" and in another sense of
"people" in a "practical sense" for "political purposes" it was therein fittingly stated that in this sense,
"people" comprises many who, by reason of want of years, of capacity or of the educational
requirements of Article 20 of the amendments of the Constitution, can have no voice in any
government and who yet are entitled to all the immunities and protection established by the
Constitution. 'People' in this aspect is coextensive with the body politic. But it is obvious that 'people'
cannot be used with this broad meaning of political signification. The 'people' in this connection
means that part of the entire body of inhabitants who under the Constitution are intrusted with the
exercise of the sovereign power and the conduct of government. The 'people' in the Constitution in a
practical sense means those who under the existing Constitution possess the right to exercise the
elective franchise and who, while that instrument remains in force unchanged, will be the sole
organs through which the will of the body politic can be expressed. 'People' for political
purposes must be considered synonymous with qualified voters.' "

As was also ruled by the U.S. Supreme Court, "... While the people are thus the source of political
power, their governments, national and state, have been limited by constitutions, and they have
themselves thereby set bounds to their own power, as against the sudden impulse of mere
majorities." 44

From the text of Article XV of our Constitution, requiring approval of amendment proposals "by a
majority of the votes cast at an election at which the amendments are submitted to the people for
their ratification", it seems obvious as above-stated that "people" as therein used must be
considered synonymous with "qualified voters" as enfranchised under Article V, section 1 of the
Constitution — since only "people" who are qualified voters can exercise the right of suffrage and
cast their votes.

3. Sound constitutional policy and the sheer necessity of adequate safeguards as ordained by the
Constitution and implementing statutes to ascertain and record the will of the people in free, orderly
and honest elections supervised by the Comelec make it imperative that there be strict adherence to
the constitutional requirements laid down for the process of amending in toto or in part the supreme
law of the land.

Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for the holding of barrio
plebiscites thus: "SEC. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a
majority vote of the members present in the barrio assembly, there being a quorum, or when called
by at least four members of the barrio council: Provided, however, That no plebiscite shall be held
until after thirty days from its approval by either body, and such plebiscite has been given the widest
publicity in the barrio, stating the date, time and place thereof, the questions or issues to be decided,
action to be taken by the voters, and such other information relevant to the holding of the
plebiscite." 46

As to voting at such barrio plebiscites, the Charter further requires that "(A)ll duly registered barrio
assembly members qualified to vote may vote in the plebiscite. Voting procedures may be made
either in writing as in regular elections, and/or declaration by the voters to the board of election
tellers." 47

The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may be called to
decide on the recall of any member of the barrio council. A plebiscite shall be called to approve any
budgetary, supplemental appropriations or special tax ordinances" and the required majority vote is
specified: "(F)or taking action on any of the above enumerated measures, majority vote of all the
barrio assembly members registered in the list of the barrio secretary is necessary." 48

The qualifications for voters in such barrio plebiscites and elections of barrio officials 49 comply with
the suffrage qualifications of Article V, section 1 of the Constitution and provide that "(S)EC.
10. Qualifications of Voters and Candidates. — Every citizen of the Philippines, twenty one years of
age or over, able to read and write, who has been a resident of the barrio during the six months
immediately preceding the election, duly registered in the list of voters by the barrio secretary, who is
not otherwise disqualified, may vote or be a candidate in the barrio elections." 50

IV

1. Since it appears on the face of Proclamation 1102 that the mandatory requirements under the
above-cited constitutional articles have not been complied with and that no election or plebiscite for
ratification as therein provided as well as in section 16 of Article XVII of the proposed Constitution
itself 51 has been called or held, there cannot be said to have been a valid ratification.

2. Petitioners raised serious questions as to the veracity and genuineness of the reports or
certificates of results purportedly showing unaccountable discrepancies in seven figures in just five
provinces 52 between the reports as certified by the Department of Local Governments and the
reports as directly submitted by the provincial and city executives, which latter reports respondents
disclaimed inter alia as not final and complete or as not signed; 53 whether the reported votes of
approval of the proposed Constitution conditioned upon the non-convening of the interim National
Assembly provided in Article XVII, section 1 thereof, 54 may be considered as valid; the allegedly
huge and uniform votes reported; and many others.

3. These questions only serve to justify and show the basic validity of the universal principle
governing written constitutions that proposed amendments thereto or in replacement thereof may be
ratified only in the particular mode or manner prescribed therein by the people. Under Article XV,
section 1 of our Constitution, amendments thereto may be ratified only in the one way therein
provided, i.e. in an election or plebiscite held in accordance with law and duly supervised by the
Commission on Elections, and which is participated in only by qualified and duly registered voters. In
this manner, the safeguards provided by the election code generally assure the true ascertainment
of the results of the vote and interested parties would have an opportunity to thresh out properly
before the Comelec all such questions in pre-proclamation proceedings.

4. At any rate, unless respondents seriously intend to question the very statements and
pronouncements in Proclamation 1102 itself which shows on its face, as already stated, that the
mandatory amending process required by the (1935) Constitution was not observed, the cases at
bar need not reach the stage of answering the host of questions, raised by petitioners against the
procedure observed by the Citizens Assemblies and the reported referendum results — since the
purported ratification is rendered nugatory by virtue of such non-observance.

5. Finally, as to respondents' argument that the President issued Proclamation 1102 "as "agent" of
the Constitutional Convention" 55 under Resolution No. 5844 approved on November 22, 1973, and
"as agent of the Convention the President could devise other forms of plebiscite to determine the will
of the majority vis-a-vis the ratification of the proposed Constitution." 56

The minutes of November 22, 1972, of the Convention, however, do not at all support this
contention. On the contrary, the said minutes fully show that the Convention's proposal and "agency"
was that the President issue a decree precisely calling a plebiscite for the ratification of the proposed
new Constitution on an appropriate date, under the charge of the Comelec, and with a reasonable
period for an information campaign, as follows:

12. Upon recognition by the Chair, Delegate Duavit moved for the approval of the resolution, the
resolution portion of which read as follows:

"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional Convention propose to

President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the
proposed New Constitution on such appropriate date as he shall determine and providing for the
necessary funds therefor, and that copies of this resolution as approved in plenary session be
transmitted to the President of the Philippines and the Commission on Elections for implementation."

He suggested that in view of the expected approval of the final draft of the new Constitution by the
end of November 1972 according to the Convention's timetable, it would be necessary to lay the
groundwork for the appropriate agencies of the government to undertake the necessary preparation
for the plebiscite.

xxx xxx xxx

12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was unnecessary because
section 15, Article XVII on the Transitory Provision, which had already been approved on second
and third readings, provided that the new constitution should be ratified in a plebiscite called for the
purpose by the incumbent President. Delegate Duavit replied that the provision referred to
did not include the appropriation of funds for the plebiscite and that, moreover, the resolution was
intended to serve formal notice to the President and the Commission on Elections to initiate the
necessary preparations.

xxx xxx xxx

12.4 Interpellating, Delegate Madarang suggested that a reasonable period for an information
campaign was necessary in order to properly apprise the people of the implications and significance
of the new charter. Delegate Duavit agreed, adding that this was precisely why the resolution was
modified to give the President the discretion to choose the most appropriate date for the plebiscite.

12.5 Delegate Laggui asked whether a formal communication to the President informing him of the
adoption of the new Constitution would not suffice considering that under Section 15 of the
Transitory Provisions, the President would be duty-bound to call a plebiscite for its ratification.
Delegate Duavit replied in the negative, adding that the resolution was necessary to serve notice to
the proper authorities to prepare everything necessary for the plebiscite.

12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the holding of
the plebiscite would be laid down by the Commission on Elections in coordination with the President.

12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a partial lifting of
martial law in order to allow the people to assemble peaceably to discuss the new Constitution.
Delegate Duavit suggested that the Committee on Plebiscite and Ratification could coordinate with
the COMELEC on the matter.

12.8 Delegate Guzman moved for the previous question. The Chair declared that there was one
more interpellant and that a prior reservation had been made for the presentation of such a motion.

1.8a Delegate Guzman withdrew his motion.

12.9 Delegate Astilla suggested in his interpellation that there was actually no need for such a
resolution in view of the provision of section 15, Article XVII on the Transitory Provisions. Delegate
Duavit disagreed, pointing out that the said provision did not provide for the funds necessary for the
purpose.

13. Delegate Ozamiz then moved to close the debate and proceed to the period of amendment.

13.1 Floor Leader Montejo stated that there were no reservations to amend the resolution.

13.2 Delegate Ozamiz then moved for the previous question. Submitted to a vote, the motion was
approved.

Upon request of the Chair, Delegate Duavit restated the resolution for voting.

14.1. Delegate Ordoñez moved for nominal voting. Submitted to a vote, the motion was lost.
14.2. Thereupon, the Chair submitted the resolution to a vote. It was approved by a show of
hands. 57

I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions.

Promulgated: June 4, 1973 *

ANTONIO, J., concurring:

In conformity with my reservation, I shall discuss the grounds for my concurrence.

It is my view that to preserve the independence of the State, the maintenance of the existing
constitutional order and the defense of the political and social liberties of the people, in times of a
grave emergency, when the legislative branch of the government is unable to function or its
functioning would itself threaten the public safety, the Chief Executive may promulgate measures
legislative in character, for the successful prosecution of such objectives. For the "President's power
as Commander- in-chief has been transformed from a simple power of military command to a vast
reservoir of indeterminate powers in time of emergency. ... In other words, the principal canons of
constitutional interpretation are ... set aside so far as concerns both the scope of the national power
and the capacity of the President to gather unto himself all constitutionally available powers in order
the more effectively to focus them upon the task of the hour." (Corwin, The President: Office &
Powers, pp. 317, 318, [1948]).

1. The proclamation of martial rule, ushered the commencement of a crisis government in this
country. In terms of power, crisis government in a constitutional democracy entails the concentration
of governmental power. "The more complete the separation of powers in a constitutional system, the
more difficult, and yet the more necessary" according to Rossiter, "will be their fusion in time of
crisis... The power of the state in crisis must not only be concentrated and expanded, it must be
freed from the normal system of constitutional and legal limitations. One of the basic features of
emergency powers is the release of the government from the paralysis of constitutional restraints"
(Rossiter, Constitutional Dictatorship, p. 290).

It is clearly recognized that in moments of peril the effective action of the government is channeled
through the person of the Chief Executive. "Energy in the executive," according to Hamilton, "is
essential to the protection of the community against foreign attacks ... to the protection of property
against those irregular and high-handed combinations which sometimes interrupt the ordinary
course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction,
and of anarchy." (The Federalist, Number 70). "The entire strength of the nation", said Justice
Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the
land the full and free exercise of all national powers and the security of all rights entrusted by the
constitution to its care." The marshalling and employment of the "strength of the nation" are matters
for the discretion of the Chief Executive. The President's powers in time of emergency defy precise
definition since their extent and limitations are largely dependent upon conditions and
circumstances.

2. The power of the President to act decisively in a crisis has been grounded on the broad
conferment upon the Presidency of the Executive power, with the added specific grant of power
under the "Commander-in-Chief" clause of the constitution. The contours of such powers have been
shaped more by a long line of historical precedents of Presidential action in times of crisis, rather
than judicial interpretation. Lincoln wedded his powers under the "commander-in-chief" clause with
his duty "to take care that the laws be faithfully executed," to justify the series of extraordinary
measures which he took — the calling of volunteers for military service, the augmentation of the
regular army and navy, the payment of two million dollars from unappropriated funds in the Treasury
to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence",
the blockade of southern ports, the suspension of the writ of habeas corpus, the arrest and detention
of persons "who were represented to him" as being engaged in or contemplating "treasonable
practices" — all this for the most part without the least statutory authorization. Those actions were
justified by the imperatives of his logic, that the President may, in an emergency thought by him to
require it, partially suspend the constitution. Thus his famous question: "Are all laws but one to be
unexecuted, and the Government itself go to pieces lest that one be violated?" The actions of
Lincoln "assert for the President", according to Corwin, "an initiative of indefinite scope and
legislative in effect in meeting the domestic aspects of a war emergency." (Corwin, The President:
Office & Powers, p. 280 [1948]). The facts of the civil war have shown conclusively that in meeting
the domestic problems as a consequence of a great war, an indefinite power must be attributed to
the President to take emergency measures. The concept of "emergency" under which the Chief
Executive exercised extraordinary powers underwent correlative enlargement during the first and
second World Wars. From its narrow concept as an "emergency" in time of war during the Civil War
and World War I, the concept has been expanded in World War II to include the "emergency"
preceding the war and even after it. "The Second World War" observed Corwin and Koenig, was the
First World War writ large, and the quasi-legislative powers of Franklin Roosevelt as "Commander-
in-Chief in wartime"... burgeoned correspondingly. The precedents were there to be sure, most of
them from the First World War, but they proliferated amazingly. What is more, Roosevelt took his
first step toward war some fifteen months before our entrance into shooting war. This step occurred
in September, 1940, when he handed over fifty so-called overage destroyers to Great Britain. The
truth is, they were not overage, but had been recently reconditioned and recommissioned. ...
Actually, what President Roosevelt did was to take over for the nonce Congress's power to dispose
of property of the United States (Article IV, Section 3) and to repeal at least two statutes." (Corwin &
Koenig, The Presidency Today, New York University Press, 1956; sf Corwin, The President: Office
and Powers, 1948.)

The creation of public offices is a power confided by the constitution to Congress. And yet President
Wilson, during World War I on the basis of his powers under the "Commander-in-Chief" clause
created "offices" which were copied in lavish scale by President Roosevelt in World War II. In April
1942, thirty-five "executive agencies" were purely of Presidential creation. On June 7, 1941 on the
basis of his powers as "Commander-in-Chief", he issued an executive order seizing the North
American Aviation plant of Inglewood, California, where production stopped as a consequence of a
strike. This was justified by the government as the exercise of presidential power growing out of the
"duty constitutionally and inherently resting upon the President to exert his civil and military as well
as his moral authority to keep the defense efforts of the United States a going concern" as well as "to
obtain supplies for which Congress has appropriated money, and which it has directed the President
to obtain." On a similar justification, other plants and industries were taken over by the government.
It is true that in Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153,
[1952]), the Supreme Court of the United States did not sustain the claims that the President could,
as the Nation's Chief Executive and Commander-in-Chief of the armed forces, validly order the
seizure of most of the country's steel mills. The Court however did not face the naked question of the
President's power to seize steel plants in the absence of any congressional enactment or
expressions of policy. The majority of the Court found that this legislative occupation of the field
made untenable the President's claim of authority to seize the plants as an exercise of inherent
executive power or as Commander-in-Chief. Justice Clark, in his concurrence to the main opinion of
the Court, explicitly asserted that the President does possess, in the absence of restrictive
legislation, a residual or resultant power above or in consequence of his granted powers, to deal with
emergencies that he regards as threatening the national security. The same view was shared with
vague qualification by Justices Frankfurter and Jackson, two of the concurring Justices. The three
dissenting Justices, speaking through Chief Justice Vinson, apparently went further by quoting with
approval a passage extracted from the brief of the government in the case of United States vs.
Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the power of
the President to order withdrawals from the public domain not only without Congressional sanction
but even contrary to Congressional statutes.

It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to support the
view that the President in times of a grave crisis does not possess a residual power above or in
consequence of his granted powers, to deal with emergencies that he regards as threatening the
national security. The lesson of the Steel Seizure case, according to Corwin and Koenig,
"Unquestionably ... tends to supplement presidential emergency power to adopt temporary remedial
legislation when Congress has been, in the judgment of the President, unduly remiss in taking
cognizance of and acting on a given situation." (Corwin and Koenig, The Presidency Today, New
York University Press, 1956).

The accumulation of precedents has thus built up the presidential power under emergency
conditions to "dimensions of executive prerogative as described by John Locke, of a power to wit, to
fill needed gaps in the law, or even to supersede it so far as may be requisite to realize the
fundamental law of nature and government, namely, that as much as may be all the members of
society are to be preserved." (Corwin and Koenig, The Presidency Today).

In the light of the accumulated precedents, how could it be reasonably argued therefore, that the
President had no power to issue Presidential Decree Nos. 86 and 86-A as well as Proclamation No.
1102, since these measures were considered indispensable to effect the desired reforms at the
shortest time possible and hasten the restoration of normalcy? It is unavailing for petitioners to
contend that we are not faced by an actual "shooting war" for today's concept of the emergency
which justified the exercise of those powers has of necessity been expanded to meet the exigencies
of new dangers and crisis that directly threaten the nation's continued and constitutional existence.
For as Corwin observed: "... today the concept of 'war' as a special type of emergency warranting
the realization of constitutional limitations tends to spread, as it were, in both directions, so that there
is not only "the war before the war," but the 'war after the war.' Indeed, in the economic crisis from
which the New Deal may be said to have issued, the nation was confronted in the opinion of the late
President with an 'emergency greater than war'; and in sustaining certain of the New Deal measures
the Court invoked the justification of 'emergency.' In the final result constitutional practices of
wartime have moulded the Constitution to greater or less extent for peacetime as well, seem likely to
do so still more pronouncedly under fresh conditions of crisis." (Corwin, Ibid. p. 318.)

The same view was expressed by Rossiter thus:

The second crisis is rebellion, when the authority of a constitutional government is resisted openly by
large numbers of citizens who are engaged in violent insurrection against enforcement of its laws or
are bent on capturing it illegally or destroying it altogether. The third crisis, one recognized
particularly in modern times as sanctioning emergency action by constitutional governments,
is economic depression. The economic troubles which plagued all the countries of the world in the
early thirties involved governmental methods of an unquestionably dictatorial character in many
democracies. It was thereby acknowledged that an economic existence as a war or a rebellion. And
these are not the only cases which have justified extraordinary governmental action in nations like
the United States. Fire, flood, drought, earthquake, riots, great strikes have all been dealt with by
unusual and of dictatorial methods. Wars are not won by debating societies, rebellions are not
suppressed by judicial injunctions, reemployment of twelve million jobless citizens will not be
effected through a scrupulous regard for the tenets of free enterprise, hardships caused by the
eruptions of nature cannot be mitigated letting nature take its course. The Civil War, the depression
of 1933 and the recent global conflict were not and could not have been successfully resolved by
governments similar to those of James Buchanan, William Howard Taft, or Calvin Coolidge.
(Rossiter, Constitutional Dictatorship — Crisis of Government in the Modern Democracies, p. 6
[1948).

II

We are next confronted with the insistence of Petitioners that the referendum in question not having
been done inaccordance with the provisions of existing election laws, which only qualified voters
who are allowed to participate, under the supervision of the Commission on Elections, the new
Constitution, should therefore be a nullity. Such an argument is predicated upon an assumption, that
Article XV of the 1935 Constitution provides the method for the revision of the constitution, and
automatically apply in the final approval of such proposed new Constitution the provisions of the
election law and those of Article V and X of the old Constitution. We search in vain for any provision
in the old charter specifically providing for such procedure in the case of a total revision or a rewriting
of the whole constitution.

1. There is clearly a distinction between revision and amendment of an existing constitution.

Revision may involve a rewriting of the whole constitution. The act of amending a constitution, on the
other hand, envisages a change of only specific provisions. The intention of an act to amend is not
the change of the entire constitution but only the improvement of specific parts of the existing
constitution of the addition of provisions deemed essential as a consequence of new constitutions or
the elimination of parts already considered obsolete or unresponsive to the needs of the times.1 The
1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new
fundamental charter embodying new political, social and economic concepts.

According to an eminent authority on Political Law, "The Constitution of the Philippines and that of
the United States expressly provide merely for methods of amendment. They are silent on the
subject of revision. But this is not a fatal omission. There is nothing that can legally prevent a
convention from actually revising the Constitution of the Philippines or of the United States even
were such conventions called merely for the purpose of proposing and submitting amendments to
the people. For in the final analysis, it is the approval of the people that gives validity to any proposal
of amendment or revision." (Sinco, Philippine Political Law, p. 49).

Since the 1935 Constitution does not specifically provide for the method or procedure for
the revision or for the approval of a new constitution, should it now be held, that the people have
placed such restrictions on themselves that they are not disabled from exercising their right as the
ultimate source of political power from changing the old constitution which, in their view, was not
responsive to their needs and in adopting a new charter of government to enable them to rid
themselves from the shackles of traditional norms and to pursue with new dynamism the realization
of their true longings and aspirations, except in the manner and form provided by Congress for
previous plebiscites? Was not the expansion of the base of political participation, by the inclusion of
the youth in the process of ratification who after all constitute the preponderant majority more in
accord with the spirit and philosophy of the constitution that political power is inherent in the people
collectively? As clearly expounded by Justice Makasiar, in his opinion, in all the cases cited where
the Courts held that the submission of the proposed amendment was illegal due to the absence of
substantial compliance with the procedure prescribed by the constitution, the procedure prescribed
by the state Constitution, is so detailed, that specified the manner in which such submission shall be
made, the persons qualified to vote for the same, the date of election and other definite standards,
from which the court could safely ascertain whether or not the submission was in accordance with
the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the
dissenting opinions involved in the application of the provisions of the state Constitution of
Minnesota which clearly prescribed in detail the procedure under which the Constitution may be
amended or revised.2 This is not true with our Constitution. In the case of revision there are no
"standards meet for judicial judgment."3

The framers of our Constitution were free to provide in the Constitution the method or procedure for
the revision or rewriting of the entire constitution, and if such was their intention, they could and
should have so provided. Precedents were not wanting. The constitutions of the various states of the
American Union did provide for procedures for their amendment and methods for their revision.4

Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the
1935 Charter. To declare what the law is, or has been, is a judicial power, but to declare what the
law shall be is not within Our judicial competence and authority.

Upon the other hand, since our fundamental charter has not provided the method or procedure for
the revision or complete change of the Constitution, it is evident that the people have reserved such
power in themselves. They decided to exercise it not through their legislature, but through a
Convention expressly chosen for that purpose. The Convention as an independent and sovereign
body has drafted not an amendment but a completely new Constitution, which decided to submit to
the people for approval, not through an act of Congress, but by means of decrees to be promulgated
by the President. In view of the inability of Congress to act, it was within the constitutional powers of
the President, either as agent of the Constitutional Convention, or under his authority under martial
law, to promulgate the necessary measures for the ratification of the proposed new Constitution. The
adoption the new Charter was considered as a necessary basis for all the reforms set in motion
under the new society, to root out the causes of unrest. The imperatives of the emergency
underscored the urgency of its adoption. The people in accepting such procedure and in voting
overwhelmingly for the approval of the new Constitution have, in effect, ratified the method and
procedure taken. "When the people adopt completely revised or new constitution," said the Court in
Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the
instrument is not what gives it binding force and effect. The fiat of the people, and only the fiat of the
people, can breathe life into a constitution."

This has to be so because, in our political system, all political power is inherent in the people and
free governments are founded on their authority and instituted for their benefit. Thus Section 1 of
Article II of the 1935 Constitution declares that: "Sovereignty resides in the people and all
government authority emanate from them." Evidently the term people refers to the
entire citizenry and not merely to the electorate, for the latter is only a fraction of the people and is
only an organ of government for the election of government officials.

III

The more compelling question, however is: Has this Court the authority to nullify an entire
Constitution that is already effective as it has been accepted and acquiesced in by the people as
shown by their compliance with the decree promulgated thereunder, their cooperation in its
implementation, and is now maintained by the Government that is in undisputed authority and
dominance?

Of course it is argued that acquiescence by the people can be deduced from their acts of conformity,
because under a regime of martial law the people are bound to obey and act in conformity with the
orders of the President, and has absolutely no other choice. The flaw of this argument lies in its
application of a mere theoretical assumption based on the experiences of other nations on an
entirely different factual setting. Such an assumption flounders on the rock of reality. It is true that as
a general rule martial law is the use of military forces to perform the functions of civil government.
Some courts have viewed it as a military regime which can be imposed in emergency situations. In
other words, martial rule exists when the military rises superior to the civil power in the exercise of
some or all the functions of government. Such is not the case in this country. The government
functions thru its civilian officials. The supremacy of the civil over the military authority is manifest.
Except for the imposition of curfew hours and other restrictions required for the security of the State,
the people are free to pursue their ordinary concerns.

In short, the existing regime in this Country, does not contain the oppressive features, generally
associated with a regime of Martial law in other countries. "Upon the other hand the masses of our
people have accepted it, because of its manifold blessings. The once downtrodden rice tenant has at
long last been emancipated — a consummation devoutly wished by every Philippine President since
the 1930's. The laborer now holds his head high because his rights are amply protected and
respected." * A new sense of discipline has swiftly spread beyond the corridors of government into the social order. Responding to the
challenges of the New Society, the people have turned in half a million loose firearms, paid their taxes on undecl ared goods and income in
unprecedented numbers and amount, lent their labors in massive cooperation — in land reform, in the repair of dikes, irrigation ditches,
roads and bridges, in reforestation, in the physical transformation of the environment to make ours a cleaner and greener land. "The entire
country is turning into one vast garden growing food for the body, for thought and for the soul." * More important the common man has at
long last been freed from the incubus of fear.

"Martial law has paved the way for a re-ordering of the basic social structure of the Philippines"
reported Frank Valeo to the United States Senate. "President Marcos has been prompt and sure-
footed in using the power of presidential decree under martial law for this purpose. He has zeroed in
on areas which have been widely recognized as prime sources of the nation's difficulties — land
tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows
his targets ... there is marked public support for his leadership..." (Bulletin Today, March 3 and 4,
1973)..

In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April 11 issue of The New
York Times:

During his first Presidential term (1965-1969), Mr. Marcos was discouraged by the failure of
legislators to approve urgently needed reforms. He found his second term further frustrated by
spread riots, a Maoist uprising in Luzon and a much more serious Moslem insurrection in the
southern islands from Mindanao across the Sulu archipelago to the frontier regions of Malaysia and
Indonesia. Manila claims this war is Maoist-coordinated.

Mr. Marcos has now in effect taken all the reins of power and makes no promise as to when he will
relinquish them. But, while fettering a free press, terminating Congress and locking up some
opponents (many of whom were later amnestied), he has hauled the Philippines out of stagnation.

Sharecropping is being ended as more than three million acres of arable land are redistributed with
state funds. New roads have been started. The educational system is undergoing revision, a
corruption is diminished. In non-communist Asia it is virtually impossible to wholly end it and this
disagreeable phenomenon still reaches very high.

Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarian middle-
class to replace the archaic sharecropper-absentee landlord relationship. He is even pushing for a
birth control program with the tacit acceptance of the Catholic Church. He has started labor reforms
and increased wages. (Daily Express, April 15, 1973)

As explained in this writer's opinion of April 24, 1973 on the "Constancia" and "Manifestation" of
counsel for petitioners:
The new Constitution is considered effective "if the norms created in conformity with it are by and
large applied and obeyed. As soon as the old Constitution loses its effectiveness and the new
Constitution has become effective, the acts that appear with the subjective meaning of creating or
applying legal norms are no longer interpreted by presupposing the old basic norm, but by
presupposing the new one. The statutes issued under the old Constitution and not taken over are no
longer regarded as valid, and the organs authorized by the old Constitution no longer competent."
(Kelsen, Pure Theory of Law, [1967].)

The essentially political nature of the question is at once made manifest by understanding that in the
final analysis, what is assailed is not merely the validity of Proclamation No. 1102 of the President,
which is merely declaratory of the fact of approval or ratification, but the legitimacy of the
government. It is addressed more to the framework and political character of this Government which
now functions under the new Charter. It seeks to nullify a Constitution that is already effective.

In such a situation, We do not see how the question posed by petitioners could be judicially decided.
"Judicial power presupposes an established government capable of enacting laws and enforcing
their execution, and of appointing judges to expound and administer them. If it decides at all as a
court, it necessarily affirms the existence and authority of the government under which it is
exercising judicial power." (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)

In other words, where a complete change in the fundamental law has been effected through political
action, the Court whose existence is affected by such change is, in the words of Mr. Melville Fuller
Weston, "precluded from passing upon the fact of change by a logical difficulty which is not to be
surmounted."5 Such change in the organic law relates to the existence of a prior point in the Court's
"chain of title" to its authority and "does not relate merely to a question of the horizontal distribution
of powers."6 It involves in essence a matter which "the sovereign has entrusted to the so-called
political departments of government or has reserved to be settled by its own extra governmental
action."7

The non-judicial character of such a question has been recognized in American law. "From its
earliest opinions this Court has consistently recognized," said Justice Frankfurter, in his illuminating
dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies
which do not lend themselves to judicial standards and judicial remedies. To classify the various
instances as "political questions" is rather a form of stating this conclusion than revealing of analysis
... The crux of the matter is that courts are not fit instruments of decision where what is essentially at
stake is the composition of those large contests of policy traditionally fought out in non-judicial
forums, by which governments and the actions of governments are made and unmade."

The diversity of views contained in the opinions of the members of this Court, in the cases at bar,
cannot be a case on "right" or "wrong" views of the Constitution. It is one of attitudes and values. For
there is scarcely any principle, authority or interpretation which has not been countered by the
opposite. At bottom, it is the degree of one's faith — in the nation's leadership and in the maturity of
judgment of our people.

IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this Court
in its judgment of March question becomes wholly moot except for this consideration, that, when the
judges as individuals or as a body of individuals come to decide which king or which constitution
they will support and assert to represent, it may often be good judgment for them to follow the lead
of the men who as a practical matter are likely to be looked to by the people as more representative
of themselves and conversely are likely to be more directly in touch with popular sentiment. If,
however, the judges hold too strong views of their own to be able to take this course, they may
follow their own leads at their own hazard. No question of law is involved. (Political Questions, 38
Harvard Law Review [1924-25], pp. 305-309.)

31, 1973 are fully justified.

Barredo, Makasiar and Esguerra, JJ., concur.

APPENDIX TO OPINION

(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)

PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY

PROVIDING FOR AMENDMENT AND REVISION @

1. Alaska (1959) — Art. XIII. Amendment and Revision.

Sec. 1. Amendments. Amendments to this constitution may be proposed by a two-thirds vote of each
house of the legislature. The secretary of state shall prepare a ballot title and proposition
summarizing each proposed amendment, and shall place them on the ballot for the next statewide
election. If a majority of the votes cast on the proposition favor the amendment, it becomes effective
thirty days after the certification of the election returns by the secretary of state.

Sec. 2. Convention. The legislature may call constitutional conventions at any time.

Sec. 3. Call by referendum. If during any ten-year period a constitutional convention has not been
held, the secretary of state shall place on the ballot for the next general election the question: "Shall
there be a Constitutional Convention?" If a majority of the votes cast on the question are in the
negative, the question need not be placed on the ballot until the end of the next ten-year period. If a
majority of the votes cast on the question are in the affirmative, delegates to the convention shall be
chosen at the next regular statewide election, unless the legislature provides for the election of the
election delegates at a special election. The secretary of state shall issue the call for the convention.
Unless other provisions have been made by law, the call shall conform as nearly as possible to the
act calling the Alaska Constitutional Convention of 1955, including, but not limited to, number of
members, districts, election and certification of delegates, and submission and ratification
of revisions and ordinances. ... .

Sec. 4. Powers. Constitutional conventions shall have plenary power to amend or revise the
constitution, subject only to ratification by the people. No call for a constitutional convention shall
limit these powers of the convention.

2. California (1879) — Art. XVIII. Amending and Revising the Constitution.

Sec. 1. Constitutional amendments. Any amendment or amendments to this Constitution may be

proposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the
houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in
their Journals, with the yeas and nays taken thereon; and it shall be the duty of the Legislature to
submit such proposed amendment or amendments to the people in such manner, and at such time,
and after such publication as may be deemed expedient. Should more amendments than one be
submitted at the same election they shall be so prepared and distinguished, by numbers or
otherwise, that each can be voted on separately. If the people shall approve and ratify such
amendment or amendments, or any of them, by a majority of the qualified electors voting thereon
such amendment or amendments shall become a part of this constitution.

Sec. 2. Constitutional convention. Whenever two-thirds of the members elected to each branch of
the Legislature shall deem it necessary to revise this Constitution, they shall recommend to the
electors to vote at the next general for or against a Convention for that purpose, and if a majority of
the electors voting at such election on the proposition for a Convention shall vote in favor thereof,
the Legislature shall, at its next session, provide by law for calling the same. The Convention shall
consist of a number of delegates not to exceed that of both branches of the Legislature, who shall be
chosen in the same manner, and have the same qualifications, as Members of the Legislature. The
delegates so elected shall meet within three months after their election at such place as the
Legislature may direct. At a special election to be provided for by law, the Constitution that may be
agreed upon by such Convention shall be submitted to the people for their ratification or rejection, in
such manner as the Convention may determine. The returns of such election shall, in such manner
as the Convention shall direct, be certified to the Executive of the State, who shall call to his
assistance the Controller, Treasurer, and Secretary of State, and compare the returns so certified to
him; and it shall be the duty of the Executive to declare, by his proclamation, such Constitution, as
may have been ratified by a majority of all the votes cast at such special election, to be the
Constitution of the State of California.

3. Colorado (1876) — Art. XIX. Amendments.

Sec. 1. Constitutional convention; how called. The general assembly may at any time be a vote of
two-thirds of the members elected to each house, recommend to the electors of the state, to vote at
the next general election for or against a convention to revise, alter and amend this constitution; and
if a majority of those voting on the question shall declare in favor of such convention, the general
assembly shall, at the next session, provide for the calling thereof. The number of members of the
convention shall be twice that of the senate and they shall be elected in the same manner, at the
same places, and in the same districts. The general assembly shall, in the act calling the convention,
designate the day, hour and place of its meeting; fix the pay of its members and officers, and provide
for the payment of the same, together with the necessary expenses of the convention. Before
proceeding, the members shall take an oath to support the constitution of the United States, and of
the state of Colorado, and to faithfully discharge their duties as members of the convention. The
qualifications of members shall be the same as of members of the senate; and vacancies occurring
shall be filled in the manner provided for filling vacancies in the general assembly.
Said convention shall meet within three months after such election and prepare such revisions,
alterations or amendments to the constitution as may be deemed necessary; which shall be
submitted to the electors for their ratification or rejection at an election appointed by the convention
for that purpose, not less than two nor more than six months after adjournment thereof; and unless
so submitted and approved by a majority of the electors voting at the election, no such revision,
alteration or amendment shall take effect.

Sec. 2. Amendments to constitution; how adopted. Any amendment or amendments to this

constitution may be proposed in either house of the general assembly, and if the same shall be
voted for by two-thirds of all the members elected to each house, such proposed amendment or
amendments, together with the ayes and noes of each house hereon, shall be entered in full on their
respective journals; the proposed amendment or amendments shall be published with the laws of
that session of the general assembly, and the secretary of state shall also cause the said
amendment or amendments to be published in full in not more than one newspaper of general
circulation in each county, for four successive weeks previous to the next general election for
members of the general assembly; and at said election the said amendment or amendments shall be
submitted to the qualified electors of the state for their approval or rejection, and such as are
approved by a majority of those voting thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any general election, each of said
amendments shall be voted upon separately and votes thereon cast shall be separately counted the
same as though but one amendment was submitted. But the general assembly shall have no power
to propose amendments to more than six articles of this constitution at the same session.

4. Delaware (1897) — Art. XVI. Amendments and Conventions.

Sec. 1. Proposal of constitutional amendments in general assembly; procedure. Any amendment or

amendments to this Constitution may be proposed in the Senate or House of Representatives; and if
the same shall be agreed to by two-thirds of all the members elected to each House, such proposed
amendment or amendments shall be entered on their journals, with the yeas and nays taken
thereon, and the Secretary of State shall cause such proposed amendment or amendments to be
published three months before the next general election in at least three newspapers in each County
in which such newspaper shall be published; and if in the General Assembly next after the said
election such proposed amendment or amendments shall upon yea and nay vote be agreed to by
two-thirds of all the members elected to each House, the same shall thereupon become part of the
Constitution.

Sec. 2. Constitutional conventions; procedure; compensation of delegates; quorum; powers and

duties; vacancies. The General Assembly by a two-thirds vote of all the members elected to each
House may from time to time provide for the submission to the qualified electors of the State at the
general election next thereafter the question, "Shall there be a Convention to revise the Constitution
and amend the same?;" and upon such submission, if a majority of those voting on said question
shall decide in favor of a Convention for such purpose, the General Assembly at its next session
shall provide for the election of delegates to such convention at the next general election. Such
Convention shall be composed of forty-one delegates, one of whom shall be chosen from each
Representative District by the qualified electors thereof, and two of whom shall be chosen from New
Castle County, two from Kent County and two from Sussex County by the qualified electors thereof
respectively. The delegates so chosen shall convene at the Capital of the State on the first Tuesday
in September next after their election. Every delegate shall receive for his services such
compensation as shall be provided by law. A majority of the Convention shall constitute a quorum for
the transaction of business. The Convention shall have the power to appoint such officers,
employees and assistants as it may be deem necessary, and fix their compensation, and provide for
the printing of its documents, journals, debates and proceedings. The Convention shall determine
the rules of its proceedings, and be the judge of the elections, returns and qualifications of its
members. Whenever there shall be a vacancy in the office of delegate from any district or county by
reason of failure to elect, ineligibility, death, resignation or otherwise, a writ of election to fill such
vacancy shall be issued by the Governor, and such vacancy shall be filled by the qualified electors of
such district or county.

5. Florida (1887) — Art. XVII. Amendments.

Sec. 1. Method of amending constitution. Either branch of the Legislature, at any regular session, or
at any special or extra-ordinary session thereof called for such purpose either in the governor's
original call or any amendment thereof, may propose the revision or amendment of any portion or
portions of this Constitution. Any such revision or amendment may relate to one subject or any
number of subjects, but no amendment shall consist of more than one revised article of the
Constitution.

If the proposed revision or amendment is agreed to by three-fifths of the members elected to each
house, it shall be entered upon their respective journals with the yeas and nays and published in one
newspaper in each county where a newspaper is published for two times, one publication to be
made not earlier than ten weeks and the other not later than six weeks, immediately preceding the
election at which the same is to be voted upon, and thereupon submitted to the electors of the State
for approval or rejection at the next general election, provided, however, that
such revision or amendment may be submitted for approval or rejection in a special election under
the conditions described in and in the manner provided by Section 3 of Article XVII of the
Constitution. If a majority of the electors voting upon the amendment adopt such amendment the
same shall become a part of this Constitution.

Sec. 2. Method of revising constitution. If at any time the Legislature, by a vote of two-thirds of all the
members of both Houses, shall determine that a revision of this Constitution is necessary, such
determination shall be entered upon their respective Journals, with yea's and nay's thereon. Notice
of said action shall be published weekly in one newspaper in every county in which a newspaper is
published, for three months preceding the next general election of Representatives, and in those
countries where no newspaper is published, notice shall be given by posting at the several polling
precincts in such counties for six weeks next preceding said election. The electors at said election
may vote for or against the revision in question. If a majority of the electors so voting be in favor of
revision, the Legislature chosen at such election shall provide by law for a Convention to revise the
Constitution, said Convention to be held within six months after the passage of such law. The
Convention shall consist of a number equal to the membership of the House of Representatives, and
shall be apportioned among the several counties in the same manner as members of said House.

6. Idaho (1890) — Art. XIX. Amendments.

Sec. 1. How amendments may be proposed. Any amendment or amendments to this Constitution
may be proposed in either branch of the legislature, and if the same shall be agreed to by two-thirds
of all the members of each of the two houses, voting separately, such proposed amendment or
amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the
duty of the legislature to submit such amendment or amendments to the electors of the state at the
next general election, and cause the same to be published without delay for at least six consecutive
weeks, prior to said election, in not less than one newspaper of the general circulation published in
each county; and if a majority of the electors shall ratify the same, such amendment or amendments
shall become a part of this Constitution.

Sec. 3. Revision or amendments by convention. Whenever two-thirds of the members elected to

each branch of the legislature shall deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote at the next general election, for or against
a convention, and if a majority of all the electors voting at said election shall have voted for a
convention, the legislature shall at the next session provide by law for calling the same; and such
convention shall consist of a number of members, not less than double the number of the most
numerous branch of the legislature.

7. Iowa (1857) — Art. X. Amendments to the Constitution.

Sec. 3. Convention. At the general election to be held in the year one thousand eight hundred and
seventy, and in each tenth year thereafter, and also at such times as the General Assembly may, by
law, provide, the question, "Shall there be a Convention to revise the Constitution, and amend the
same?" shall be decided by the electors qualified to vote for members of the General Assembly; and
in case a majority of the electors so qualified, voting at such election, for and against such
proposition, shall decide in favor of a Convention for such purpose, the General Assembly, at its next
session, shall provide by law for the election of delegates to such Convention.

8. Michigan (1909) — Art. XVII. Amendments and Revision.

Sec. 1. Amendments to constitution; proposal by legislature; submission to electors. Any
amendment or amendments to this constitution may be proposed in the senate or house of
representatives. If the same shall be agreed to by 2/3 of the members elected to each house,
such amendment or amendments shall be entered on the journals, respectively, with the yeas and
nays taken thereon; and the same shall be submitted to the electors at the next spring or autumn
election thereafter, as the legislature shall direct; and, if a majority of the electors qualified to vote for
members of the legislature voting thereon shall ratify and approve such amendment or amendments,
the same shall become part of the constitution.

Sec. 4. General revision; convention; procedure. At the Biennial Spring Election to be held in the
year 1961, in each sixteenth year thereafter and at such times as may be provided by law, the
question of a General Revision of the Constitution shall be submitted to the Electors qualified to vote
for members of the Legislature. In case a majority of the Electors voting on the question shall decide
in favor of a Convention for such purpose, at an Election to be held not later than four months after
the Proposal shall have been certified as approved, the Electors of each House of Representatives
District as then organized shall Elect One Delegate for each Electors of each Senatorial District as
then organized shall Elect One Delegate for each State Senator to which the District is entitled. The
Delegates so elected shall convene at the Capital City on the First Tuesday in October next
succeeding such election, and shall continue their sessions until the business of the convention shall
be completed. A majority of the delegates elected shall constitute a quorum for the transaction of
business. ... No proposed constitution or amendment adopted by such convention shall be submitted
to the electors for approval as hereinafter provided unless by the assent of a majority of all the
delegates elected to the convention, the yeas and nays being entered on the journal. Any proposed
constitution or amendments adopted by such convention shall be submitted to the qualified
electors in the manner provided by such convention on the first Monday in April following the final
adjournment of the convention; but, in case an interval of at least 90 days shall not intervene
between such final adjournment and the date of such election. Upon the approval of such
constitution or amendments by a majority of the qualified electors voting thereon such constitution or
amendments shall take effect on the first day of January following the approval thereof.

9. Minnesota (1857) — Art. XIV. Amendments to the Constitution.

Sec. 1. Amendments to constitution; majority vote of electors voting makes amendment valid.
Whenever a majority of both houses of the legislature shall deem it necessary to alter or amend this
Constitution, they may proposed such alterations or amendments, which proposed amendments
shall be published with the laws which have been passed at the same session, and said
amendments shall be submitted to the people for their approval or rejection at any general election,
and if it shall appear, in a manner to be provided by law, that a majority of all the electors voting at
said election shall have voted for and ratified such alterations or amendments, the same shall be
valid to all intents and purposes as a part of this Constitution. If two or more alterations
or amendments shall be submitted at the same time, it shall be so regulated that the voters shall
vote for or against each separately.

Sec. 2. Revision of constitution. Whenever two-thirds of the members elected to each branch of the
legislature shall think it necessary to call a convention to revise this Constitution, they shall
recommend to the electors to vote at the next general election for members of the legislature, for or
against a convention; and if a majority of all the electors voting at said election shall have voted for a
convention, the legislature shall, at their next session, provide by law for calling the same. The
convention shall consist of as many members as the House of Representatives, who shall be
chosen in the same manner, and shall meet within three months after their election for the purpose
aforesaid.
Sec. 3. Submission to people of revised constitution drafted at convention. Any convention called to
revise this constitution shall submit any revision thereof by said convention to the people of the State
of Minnesota for their approval or rejection at the next general election held not less than 90 days
after the adoption of such revision, and, if it shall appear in the manner provided by law that three-
fifths of all the electors voting on the question shall have voted for and ratified such revision, the
same shall constitute a new constitution of the State of Minnesota. Without such submission and
ratification, said revision shall be of no force or effect. Section 9 of Article IV of the Constitution shall
not apply to election to the convention.

10. Nevada (1864) — Art. 16. Amendments.

Sec. 1. Constitutional amendments; procedure. Any amendment or amendments to this Constitution

may be proposed in the Senate or Assembly; and if the same shall be agreed to by a Majority of all
the members elected to each of the two houses, such proposed amendment or amendments shall
be entered on their respective journals, with the Yeas and Nays taken thereon, and referred to the
Legislature then next to be chosen, and shall be published for three months next preceding the time
of making such choice. And if in the Legislature next chosen as aforesaid, such proposed
amendment or amendments shall be agreed to by a majority of all the members elected to each
house, then it shall be the duty of the Legislature to submit such proposed amendment or
amendments to the people, in such manner and at such time as the Legislature shall prescribe; and
if the people shall approve and ratify such amendment or amendments by a majority of the electors
qualified to vote for members of the Legislature voting thereon, such amendment or amendments
shall become a part of the Constitution.

Sec. 2. Convention for revision of constitution; procedure. If at any time the Legislature by a vote of
two-thirds of the Members elected to each house, shall determine that it is necessary to cause a
revision of this entire Constitution they shall recommend to the electors at the next election for
Members of the Legislature, to vote for or against a convention, and if it shall appear that a majority
of the electors voting at such election, shall have voted in favor of calling a Convention, the
Legislature shall, at its next session provide by law for calling a Convention to be holden within six
months after the passage of such law, and such Convention shall consist of a number of Members
not less that of both branches of the legislature. In determining what is a majority of the electors
voting such election, reference shall be had to the highest number of vote cast at such election for
the candidates of any office or on any question.

11. New Hamspire (1784) —

Art. 99. Revision of constitution provided for. It shall be the duty of the selectmen, and assessors, of
the several towns and places in this state, in warning the first annual meetings for the choice of
senators, after the expiration of seven years from the adoption of this constitution, as amended, to
insert expressly in the warrant this purpose, among the others for the meeting, to wit, to take the
sense of the qualified voters on the subject of a revision of the constitution; and, the meeting being
warned accordingly, and not otherwise, the moderator shall take the sense of the qualified voters
present as to the necessity of a revision; and a return of the number of votes for and against such
necessity, shall be made by the clerk sealed up, and directed to the general court at their then next
session; and if, it shall appear to the general court by such return, that the sense of the people of the
state has taken, and that, in the opinion of the majority of the qualified voters in the state, present
and voting at said meetings, there is a necessity for a revision of the constitution, it shall be the duty
of the general court to call a convention for that purpose, otherwise the general court shall direct the
sense of the people to be taken, and then proceed in the manner before mentioned. The delegates
to be chosen in the same manner, and proportioned, as the representatives to the general court;
provided that no alterations shall be made in this constitution, before the same shall be laid before
the towns and unincorporated places, and approved by two thirds of the qualified voters present and
voting on the subject.

12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.

Sec. 1. Amendments proposed by legislature; a submission to vote.

Any amendment or amendments to this Constitution may be proposed in either branch of the
Legislature, and if the same shall be agreed to by a majority of all the members elected to each of
the two houses, such proposed amendment or amendments shall, with yeas and nays thereon, be
entered in their journals and referred by the Secretary of State to the people for their approval or
rejection, at the next regular general election, except when the Legislature, by a two-thirds vote of
each house, shall order a special election for that purpose. If a majority of all the electors voting at
such election shall vote in favor of any amendment thereto, it shall thereby become a part of this
Constitution.

If two or more amendments are proposed they shall be submitted in such manner that electors may
vote for or against them separately.

No proposal for the amendment or alteration of this Constitution which is submitted to the voters
shall embrace more than one general subject and the voters shall vote separately for or against
each proposal submitted; provided, however, that in the submission of proposals for
the amendment of this Constitution by articles, which embrace one general subject, each proposed
article shall be deemed a single proposals or proposition

Sec. 2. Constitutional convention to propose amendments or new constitution. No convention shall

be called by the Legislature to propose alterations, revisions, or amendments to this Constitution, or
to propose a new Constitution, unless the law providing for such convention shall first be approved
by the people on a referendum vote at a regular or special election, and any amendments,
alterations, revisions, or new Constitution, proposed by such convention, shall be submitted to the
electors of the State at a general or special election and be approved by a majority of the electors
voting thereon, before the same shall become effective Provided, That the question of such
proposed convention shall be submitted to the people at least once in every twenty years.

13. Oregon (1859) — Art. XVII. Amendments and Revisions.

Sec. 1. Method of amending constitution. Any amendment or amendments to this Constitution may
be proposed in either branch of the legislative assembly, and if the same shall be agreed to by a
majority of all the members elected to each of the two houses, such proposed amendment or
amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the
secretary of state to the people for their approval or rejection, at the next regular election, except
when the legislative assembly shall order a special election for that purpose. If a majority of the
electors voting on any such amendment shall vote in favor thereof, it shall thereby become a part of
this Constitution. The votes for and against such amendment, or amendments, severally, whether
proposed by the legislative assembly or by initiative petition, shall be canvassed by the secretary of
state in the presence of the governor, and if it shall appear to the governor that the majority of the
votes cast at said election on said amendment, or amendments, severally, are cast in favor thereof,
it shall be his duty forthwith after such canvass, by his proclamation, to declare the said amendment,
or amendments, severally, having received said majority of votes to have been adopted by the
people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of the
Constitution from the date of such proclamation. When two or more amendments shall be submitted
in the manner aforesaid to the voters of this state at the same election, they shall be so submitted
that each amendment shall be voted on separately. No convention shall be called to amend or
propose amendments to this Constitution, or to propose a new Constitution, unless the law providing
for such convention shall first be approved by the people on a referendum vote at a regular general
election. This article shall not be construed to impair the right of the people to amend this
Constitution by vote upon an initiative petition therefor.

Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution
granted by section 1, Article IV, and section 1 of this Article, a revision of all or part of this
Constitution may be proposed in either house of the Legislative Assembly and, if the proposed
revision is agreed to by at least two-thirds of all the members of each house, the proposed revision
shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of
State to the people for their approval or rejection, notwithstanding section 1, Article IV of this
Constitution, at the next regular state-wide primary election, except when the Legislative Assembly
orders a special election for that purpose. A proposed revision may deal with more than one subject
and shall be voted upon as one question. The votes for and against the proposed revision shall be
canvassed by the Secretary of State in the presence of the Governor and, if it appears to the
Governor that the majority of the votes cast in the election on the proposed revision are in favor of
the proposed revision, he shall, promptly following the canvass, declare, by his proclamation, that
the proposed revision has received a majority of votes and has been adopted by the people as the
Constitution of the State of Oregon, as the case may be. The revision shall be in effect as the
Constitution or as a part of this Constitution from the date of such proclamation.

14. Utah (1896) — Art. 23. Amendments.

Sec. 1. Amendments; method of proposal and approval. Any amendments to his Constitution may
be proposed in either house of the Legislature, and if two-thirds of all the members elected of the
two houses, shall vote in favor thereof, such proposed amendment or amendments shall be entered
on their respective journals with the yeas and nays taken thereon; and the Legislature shall cause
the same to be published in at least one newspaper in every county of the State, where a newspaper
is published, for two months immediately preceding the next general election, at which time the said
amendment or amendments shall be submitted to the electors of the State, for their approval or
rejection, and if a majority of the electors voting thereon shall approve the same, such amendment
or amendments shall become part of this Constitution. If two or more amendments are proposed,
they shall be so submitted as to enable the electors to vote on each of them separately.

Sec. 2. Revision of the Constitution by convention. Whenever two-thirds of the members, elected to
each branch of the Legislature, shall deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote at the next general election, for or against
a convention, and, if a majority of all the electors, voting at such election, shall vote for a convention.
The Legislature, at its next session, shall provide by law for calling the same. The convention shall
consist of not less than the number of members in both branches of the Legislature.

15. Wyoming (1890) — Art. XX. Amendments.

Sec. 1. Procedure for amendments. Any amendment or amendments to this Constitution may be
proposed in either branch of the legislature, and, if the same shall be agreed to by two-thirds of all
the members of the two houses, voting separately, such proposed amendment or amendments
shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the
legislature to submit such amendment or amendments to the electors of the state at the next general
election, in at least one newspaper of general circulation, published in each county, and if a majority
of the electors shall ratify the same, such amendment or amendments shall become a part of this
constitution.
Sec. 2. How voted for. If two or more amendments are proposed, they shall be submitted in such
manner that the electors shall vote for or against each of them separately.

Sec. 3. Constitutional convention; provision for. Whenever two-thirds of the members elected to
each branch of the legislature shall deem it necessary to call a convention to revise or amend this
constitution, they shall recommend to the electors to vote at the next general election for or against a
convention, and if a majority of all the electors voting at such election shall have voted for a
convention, the legislature shall at the next session provide by a law for calling the same; and such
convention shall consist of a number of members, not less than double that of the most numerous
branch of the legislature.

Sec. 4. New constitution. Any constitution adopted by such convention shall have no validity until it
has been submitted to and adopted by the people.

Footnotes

1 Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra.

2 Chief Justice Concepcion and Justices Fernando and Teehankee.

3 Justice Zaldivar.

4 Case G.R. No. L-36164.

5 Case G.R. No. L-36236.

6 Case G.R. No. L-36293.

7 Who withdrew as petitioner on January 25, 1973.

8 Originally, Gerardo Roxas, Ambrosio Padilla and Salvador H. Laurel. Now, after the withdrawal of
the latter, the first two (2) only.

9 Namely, Jovito R. Salonga, Ramon V. Mitra, Jr. and Eva Estrada-Kalaw.

10 Napoleon V. Dilag, et al. v. Executive Secretary, et al.

11 Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v. Commission on Elections,
L-28196 & L-28224, Nov. 9, 1967. Emphasis ours.

12 Art. VI, sec. 20(1), Constitution.

13 Art. VII, sec. 10(7), Constitution.

14 Emphasis ours.

15 See page 4, last paragraph, of his Comment dated Feb. 6, 1973.

16 In re Opinion of Justices, 107 Atl. 673, 5 A.L.R. 1412; Crawford v. Gilchrist, 59 So. Rep. 963;
McAdams v. Henley, 273 S.W. 355; Egbert v. City of Dunseith, 74 N.D. 1, 168 A.L.R. 621, 24 N.W.
2d. 907; State ex rel. Landis, Atty. Gen. v. Thompson, 163 So. Rep. 270; St. Louis Brewing
Association v. Moore, 64 L. ed. 947; Ellingham v. Dye, 99 N.E. Rep. 1, 18; Johnson v. Craft, 87 So.
Rep. 375.

17 Mun. of Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA v. Piguing, et al., L-35573, Oct.
11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967; Gonzales v. Commission on
Elections, L-28224, Nov. 29, 1967; Bara Lidasan v. COMELEC, L-28089, Oct. 25, 1967; Mun. of San
Juan v. NAWASA, L-22047, Aug. 31, 1967; Mun. of San Joaquin v. Siva, L-19870, Mar. 18, 1967;
Pelayo v. Auditor General, L-23825, Dec. 24, 1965; Philippine Constitution Association v. Gimenez,
L-23326, Dec. 18, 1965; Mun. of La Carlota v. NAWASA, L-20232, Sept. 30, 1964; Guevara v.
Inocentes, L-25577, Mar. 15, 1966; Gillera v. Fernandez, L-20741, Jan. 31, 1964; Siguiente v.
Secretary of Justice, L-20370, Nov. 29, 1963; Mun. of Naguilian v. NAWASA, L-18540, Nov. 29,
1963; Herrera v. Liwag, L-20079, Sept. 30, 1963; Aytona v. Castillo, L-19313, Jan. 19, 1962; La
Mallorca, etc. v. Ramos, et al., L-15476, Sept. 19, 1961; Tan v. De Leon, et al., L-15254, Sept. 16,
1961; Macias v. Commission on Elections, L-18684, Sept. 14, 1961; Philippine Tobacco Flue-Curing
& Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31, 1961; Miller v. Mardo, L-15138, July 31, 1961;
Cu Bu Liong v. Estrella, et al., L-14212, July 31, 1961; Pampanga Sugar Development Co., Inc. v.
Fuentes, et al., L-14738, July 31, 1961; Earnshaw Docks & Honolulu Iron Works v. Mardo, et al., L-
14759, July 31, 1961; Liwanag v. Central Azucarera Don Pedro, L-15372, July 31, 1961; Lecura v.
Regional Office No. 3, etc., L-15582, July 31, 1961; Pitogo v. Sen Bee Trading Co., et al., L-15693,
July 31, 1961; Pascual v. Sec. of Public Works and Communications, L-10405, Dec. 29, 1960;
Corominas, Jr. v. Labor Standards Commission, L-14837, June 30, 1961; City of Baguio v.
NAWASA, L-12032, Aug. 31, 1959; City of Cebu v. NAWASA, L-12892, April 20,1960; Montes v.
Civil Service Board of Appeals, 101 Phil. 490, Rutter v. Esteban, 93 Phil. 68; Araneta v. Dinglasan,
84 Phil. 368; Borromeo v. Mariano, 41 Phil. 322.

18 G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961,
L-35965 and L-35979, decided on January 22, 1973..

19 L-33964, Teodosio Lansang, et al. v. Brigadier-General Eduardo M. Garcia; L-33965, Rogelio V.

Arienda v. Secretary of National Defense, et al.; L-33973, Luzvimindo David v. Gen. Eduardo
Garcia, et al.; L-33962, Felicidad G. Prudente v. General Manuel Yan, et al.; L-34004, Domingo E.
de Lara v. Brigadier-General Eduardo M. Garcia; L-34013, Reynaldo Rimando v. Brig. Gen. Eduardo
M. Garcia; L-34039, Carlos C. Rabago v. Brig. Gen. Eduardo Garcia, et al.; L-34265, Antolin Oreta,
Jr. v. Gen. Eduardo Garcia, et al.; and L-34339, Gary B. Olivar, et al. v. Gen. Eduardo Garcia, et al.

20 5 Phil. 87.

21 91 Phil. 882.

22 G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.

23 78 Phil. 1.

24 Supra.

25 In re McConaughy, 119 N.W. 408, 417.

26 103 Phil. 1051, 1067.

27 119 N.W. 408, 411, 417.

28 92 Ky. 589,18 S.W. 522, 523.

29 Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tufly, 19
Nev. 391, 12 Pac. Rep. 835.

30 Angara v. Electoral Commission, 63 Phil. 139, 157. Emphasis ours.

31 12 L. ed. 581 (1849).

32 Luther v. Borden, supra, p. 598. Emphasis ours.

33 In re McConaughy, supra, p. 416. Emphasis ours.

34 369 U.S. 186, 7 L. ed. 2d. 663, 82 S. Ct. 691 (March 26, 1962).

35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).

36 In re McConaughy, 119 N.W. 408, 415. Emphasis ours. The observation as to the uniformity of
authorities on the matter has been reiterated in Winget v. Holm, 244 N.W. 329, 332.

37 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d 663, 686, 82 S. Ct. 691.

38 See p. 5 of the Petition.

39 Emphasis ours.

40 The Framing of the Philippine Constitution, by Aruego, Vol. I p. 215.

41 The Framing of the Philippine Constitution, by Aruego, Vol. I pp. 215, 221, 227-228.

42 Ibid., pp. 222-224.

43 Id., pp. 224-227.

44 SEC. 431. Qualifications prescribed for voters. — Every male person who is not a citizen or
subject of a foreign power, twenty-one years of age or over, who shall have been a resident of the
Philippines for one year and of the municipality in which he shall offer to vote for six months next
preceding the day of voting is entitled to vote in all elections if comprised within either of the
following three classes:

"(a) Those who, under the laws in force in the Philippine Islands upon the twenty-eighth day of
August, nineteen hundred and sixteen, were legal voters and had exercised the right of suffrage.

"(b) Those who own real property to the value of five hundred pesos, declared in their name for
taxation purposes for a period not less than one year prior to the date of the election, or who
annually pay thirty pesos or more of the established taxes.

"(c) Those who are able to read and write either Spanish, English, or a native language.

"SEC. 432. Disqualifications. — The following persons shall be disqualified from voting:
"(a) Any person who, since the thirteenth day of August, eighteen hundred and ninety-eight, has
been sentenced by final judgment to suffer not less than eighteen months of imprisonment, such
disability not having been removed by plenary pardon.

"(b) Any person who has violated an oath of allegiance taken by him to the United States.

"(c) Insane or feeble-minded persons.

"(d) Deaf-mutes who cannot read and write.

"(e) Electors registered under subsection (c) of the next preceding section who, after failing to make
a sworn statement to the satisfaction of the board of inspectors at any of its two meetings for
registration and revision, that they are incapacitated preparing their ballots due to permanent
physical disability, present themselves at the hour of voting as incapacitated, irrespective whether
such incapacity be real or feigned."

45 L-34150, October 16 and November 4, 1971.

46 "For taking action on any of the above enumerated measures, majority vote of all the barrio
assembly members registered in the list of the barrio secretary is necessary."

47 "All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Voting
procedures may be made either in writing as in regular elections, and/or declaration by the voters to
the board of election tellers. The board of election tellers shall be the same board envisioned by
section 8, paragraph 2 of this Act, in case of vacancies in this body, the barrio council may fill the
same."

48 Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County, 113 N.W. 1071; Ellingham
v. Dye (1912), 178 Ind. 336, 99 N.E. 1; State v. Marcus, 160 Wis. 354, 152 N.W. 419.

49 In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court held that "when a state
constitution enumerates and fixes the qualifications of those who may exercise the right of suffrage,
the legislature cannot take from nor add to said qualifications unless the power to do so is conferred
upon it by the constitution itself."

Since suffrage, according to Webster, is a voice given not only in the choice of a man for an office or
trust, but, also, in deciding a controverted question, it follows, considering the said ruling in
Alcantara, that the constitutional qualifications for voters apply equally to voters in elections to public
office and to voters in a plebiscite.

Similarly, the Revised Election Code provides in its section 2 that all elections of public officers by
the people and all votings in connection with plebiscites shall be conducted in conformity with the
provisions of said Code.

50 Republic Act No. 6388, section 101 of which, in part, provides:

"SEC. 101. Qualifications prescribed for a voter. — Every citizen of the Philippines, not otherwise
disqualified by law, twenty-one years of age or over, able to read and write, who shall have resided
in the Philippines for one year and in the city, municipality or municipal district wherein he proposes
to vote for at least six months immediately preceding the election, may vote at any election.
xxx xxx xxx

51 "SEC. 102. Disqualifications. — The following persons shall not be qualified to vote:

"(a) Any person who has been sentenced by final judgment to suffer an imprisonment of not less
than one year, such disability not having been removed by plenary pardon: Provided, however, That
any person disqualified to vote under this paragraph shall automatically reacquire the right to vote
upon expiration of ten years after service of sentence unless during such period, he shall have been
sentenced by final judgment to suffer an imprisonment of not less than one year.

"(b) Any person who has been adjudged by final judgment by competent court of having violated his
allegiance to the Republic of the Philippines.

"(c) Insane or feeble-minded persons.

"(d) Persons who cannot prepare their ballots themselves."

52 "SEC. 10. ...

"The following persons shall not be qualified to vote:

"a. Any person who has been sentenced by final judgment to suffer one year or more of
imprisonment, within two years after service of his sentence;

"b. Any person who has violated his allegiance to the Republic of the Philippines; and

"c. Insane or feeble-minded persons."

53 20 C.J., 179-181, quoted in Demetrio v. Lopez, 50 Phil. 45, 60. See, also, Garchitorena v.
Crescini, 39 Phil. 258.

54 Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323, Glenn v. Gnau, 64
S.W. 2d. 168. Emphasis ours.

55 L-33325 and L-34043, December 29, 1971.

56 Hopkins v. City of Duluth, 83 N.W. 536, 538. Emphasis ours.

57 Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Emphasis ours.

58 Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Emphasis ours.

59 Art. X, section 1 of the 1935 Constitution.

60 Ten (10) years.

61 Art. X, section 2 of the 1935 Constitution.

62 Ibid.
63 Art. X, section 3 of the 1935 Constitution.

64 "SEC. 5. Organization of the Commission on Elections. — The Commission shall adopt its own
rules of procedure. Two members of the Commission shall constitute a quorum. The concurrence of
two members shall be necessary for the pronouncement or issuance of a decision, order or ruling.

"The Commission shall have an executive and such other subordinate officers and employees as
may be necessary for the efficient performance of its functions and duties, all of whom shall be
appointed by the Commission in accordance with the Civil Service Law and rules.

"The executive officer of the Commission, under the direction of the Chairman, shall, have charge of
the administrative business of the Commission, shall have the power to administer oaths in
connection with all matters involving the business of the Commission, and shall perform such, other
duties as may he required of him by the Commission.

"SEC. 6. Power of the Commission to Investigate and to Hear Controversy and Issue
Subpoena. — The Commission or any of the members thereof shall, in compliance with the
requirement of due process, have the power to summon the parties to a controversy pending before
it, issue subpoenae and subpoenae duces tecum and otherwise take testimony in any investigation
or hearing pending before it, and delegate such power to any officer of the Commission who shall be
a member of the Philippine Bar. In case of failure of a witness to attend, the Commission, upon proof
of service of the subpoenae to said witness, may issue a warrant to arrest the witness land bring him
before the Commission or officer before whom his attendance is required. The Commission shall
have the power to punish contempts provided for in the Rules of Court under the controversy
submitted to the Commission shall after complaince with the requirements of due process be heard
and decided by it within thirty days after submission of the case.

"The Commission may, when it so requires, deputized any member of any national or local law
enforcement agency and/or instrumentality of the government to execute under its direct and
immediate supervision any of its final decisions, orders, instructions or rulings.

"Any decision, order or ruling of the Commission on election controversies may be reviewed by the
Supreme Court by writ of a certiorari in accordance with the Rules of Court or such applicable laws
as may enacted.

"Any violation of any final executory decision, order or ruling of the Commission shall constitute
contempt thereof."

65 64 S.W. 2d. 168.

66 L-35538, Roses, et al. v. Secretary of National Defense, et al.; L-35539, Diokno v. Hon. Enrile, et
al.; L-35540, Soliven, et al. v. Secretary of National Defense, et al.; L-35546, Aquino, Jr., et al. v.
Hon. Enrile, et al.; L-35547, Garcia II v. Hon. Enrile, et al.; L-35567 Doronila, et al. v. Secretary of
National Defense, et al.; L-35573, Randon v. Hon. Enrile, et al.

67 "PRESIDENTIAL DECREE NO. 86-A

"STRENGTHENING AND DEFINING THE ROLE OF

BARANGAYS (CITIZENS ASSEMBLIES).
"WHEREAS, on the basis of preliminary and initial reports from the field as gathered from barangays
(citizens assemblies) have so far been established, the people would like to decide themselves
questions or issues, both local and national, affecting their day to day lives and their future.

"WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for
expressing the views of the people on important national issues;

"WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and due
recognition as constituting the genuine, legitimate and valid expression of the popular will; and

"WHEREAS, the people would like the citizens assemblies to conduct immediately a referendum on
certain specified questions such as the ratification of the new Constitution, continuance of martial
law, the convening of Congress on January 22, 1973, and the elections in November 1973 pursuant
to the 1935 Constitution.

"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the
Philippines, do hereby declare as part of the law of the land the following.

"1. The present barangays (citizens assemblies) are created under Presidential Decree No. 86 dated
December 31, 1972, shall constitute the base for citizen participation in governmental affairs and
their collective views shall be considered in the formulation of national policies or programs and,
wherever practicable, shall be translated into concrete and specific decision;

"2. Such barangays (citizens assemblies) shall consider vital national issues now confronting the
country, like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the
convening of Congress on January 22, 1973, and the holding of elections in November 1973, and
others in the future, which shall serve as guide or basis for action or decision by the national
government;

"3. The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a
referendum on important national issues, including those specified in paragraph 2 hereof, and
submit the results thereof to the Department of Local Governments and Community Development
immediately thereafter, pursuant to the express will of the people as reflected in the reports gathered
from the many thousands of barangays (citizens assemblies) throughout the country.

"4. This Decree shall take effect immediately.

"Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen hundred and
seventy-three." (Emphasis ours.).

68 McKinney v. Baker, 180 Ky. 526 203 S.W. 303, 304. Emphasis ours.

69 Art. VII, section 2, 1935 Constitution.

70 Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515 (Dec. 17, 1969); State ex rel. Sathre v. Bryne,
258 N.W. 121; State ex rel. Shriver v. Hayes, 76 N.E. 2d. 869; Smith v. Bangham, 76 p 2d. 1022.
McKim v. Brast, 117 S.E. 875; Head v. Wood, 107 So. 854; State ex rel. Watson v. Pigg, 46 N.E. 2d.
232.
71 See cases cited in the preceding footnote. See, also, Tiegs v. Patterson, 318 P. 2d. 588; State ex
rel. Brown v. St. Joseph Circuit Court, 95 N.E. 2d. 632; Williamson v. State Election Board, 431 P.
2d. 352, Baker v. Conway, 108 So. 18; Cohoon v. Swain, 5 S.E. 2d. 1; State ex rel. Mitchell v.
Walcott, 83 A. 2d. 762; Doyle v. Ries, 285 N.W. 480; Grossglaus v. Board of Elections of Stark
County, 88 N.E. 2d. 245; Walker v. Hughes, 36 A. 2d. 47; Reese v. Dempsey, 152 P. 2d. 157; Dodd
v. Gower, 62 S.W. 2d. 1; Galloway v. Bradburn, 82 S.W. 1013; Hagan v. Henry, 76 S.W. 2d. 994.

72 106 Minn 392, 119 N.W. 408, 409.

73 63 N.J. Law, 289, cited in In re McConaughy, supra.

74 78 Ark. 439, 96 S.W. 396, cited in In re McConaughy, supra.

75 See cases listed on pages 105-106, footnotes 56, 57 and 58.

76 On December 19, 1972.

77 24 Kansas 700, 714. See, also, State ex rel. Williams v. Robb, 183 P. 2d. 223, 228; Harris v.
Shanahan, 387 P. 2d. 771, 784, 785.

78 369 U.S. 186, 7 L.ed. 2d. 663, 684, citing Chaselton Corp. v. Sinclair, 264 U.S. 543, 547, 548, 68
L. ed. 841, 843, 44 S. Ct. 405.

79 Art. VII, section 10, paragraph (1).

80 101 Va. 529, 44 S.E. 754.

81 Marifosque, et al. v. Luna, 101 Phil. 1223 (unreported); 37 Am. Jur. 669; 62 C.J.S. 749-750;
Guevara v. Inocentes, L-25577, March 15, 1966.

82 Which, in some respects, is regarded as an organ of the Administration, and the news items
published therein are indisputably censored by the Department of Public Information.

83 Daily Express, November 29, 1972, p. 4. Emphasis ours.

84 231 U.S. 28, 58 L. ed. 107, 114, 34 S. Ct. 1.

85 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691.

86 Justice Barredo's opinion in the plebiscite cases.

87 Joint Opinion of Justices Makalintal and Castro, p. 153.

88 Justice Barredo's language.

89 At p. 153, joint opinion of Justices Makalintal and Castro.

90 Joint Opinion of Justices Makalintal and Castro, p. 153.

91 At p. 8, Idem.
ANNEX B

* The undersigned (Justice Querube C. Makalintal) who had reserved his right to do so, filed a
separate dissenting opinion when the Court denied a motion for reconsideration, and voted in favor
of the validity of the questioned Resolution. Mr. Justice Enrique M. Fernando joined in the dissent.

* Thus by Presidential Decree No. 86 what the Constitutional Convention itself had proposed
unsuccessfully as an amendment to the 1935 Constitution, reducing the voting age from 21 to 18,
but the submission of which to a plebiscite was declared invalid by this Court in Tolentino vs.
COMELEC, became a reality of an even more far-reaching import — since fifteen-year olds were
included in the Citizens Assemblies.

* According to the Solicitor General 92 Congressmen and 15 Senators (both numbers constituting
majorities) have expressed their option.

* Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).

BARREDO, J., CONCURRING:

1 Charito Planas vs. Comelec, et al., L-35925, January 22, 1973; Pablo C. Sanidad vs. Comelec,
L-35929, January 22, 1973; Gerardo Roxas, etc., et al. vs. Comelec, et al., L-35940, January 22,
1973; Eddie B. Monteclaro vs. Comelec, et al., L-35941, January 22, 1973; Sedfrey A. Ordoñez, et
al., vs. The National Treasurer of the Philippines, et al., L-35942, January 22, 1973; Vidal Tan, et al.,
vs. Comelec, et al., L-35948, January 22, 1973; Jose W. Diokno, et al., vs. Comelec,
L-35953, January 22, 1973; Jacinto Jimenez vs. Comelec, et al., L-35961, January 22, 1973; Raul
M. Gonzales vs. Comelec, et al., L-35965, January 22, 1973 and Ernesto Hidalgo vs. Comelec, et
al., L-35979, January 22, 1973.

2 Executive Agreements are not included in the corresponding provision of the 1935 Constitution.

3 It Must be recalled that in the Tolentino case, the Constitutional Convention intended to submit one
amendment which was to form part of the Constitution still being prepared by it separately from the
rest of the other parts of such constitution still unfinished, and We held that a piece-meal submission
was improper. We had no occasion to express any view as to how a whole new Constitution may be
ratified.

* In 1880, he also wrote his "Constitutional Law." Judge Cooley, who was born in Attica, New York in
1824, died in 1898. Judge Cooley was also professor and later dean of the Law Department of the
University of Michigan and Justice of the State Supreme Court of Michigan from 1864 to 1885, when
he failed to win re-election to the court.

ESGUERRA, J., CONCURRING:

1 Charito Planas v. Commission on Elections, et al., L-35925; Pablo C. Sanidad v. Commission on

Elections, L-35929; Gerardo Roxas, etc., et al. v. Commission on Elections, et al., L-35940; Eddie B.
Monteclaro v. The Commission on Elections, et al., Sedfrey A. Ordoñez, et al. v. The National
Treasurer of Philippines, et al., L-35942; Vidal Tan, et al. v. Commission on Elections, et al., L-
35948; Jose W. Diokno, et al. v. The Commission on Elections, L-35953; Jacinto Jimenez v.
Commission on Elections, et al., L-35961; Raul M. Gonzales v. The Honorable Commission on
Elections, et al., L-35965; Ernesto Hidalgo v. Commission Elections, et al.,
L-35979.
2 See Tañada, et al. v. Cuenco, L-10520, Feb. 28, 1957; Baker v. Carr, 369 U.S. 186 (1962).

3 See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.

4 Cooke v. Iverson, 108 Minn. 388, 122 NW 251.

5 L-38196, November 9, 1967, 21 SCRA 774.

6 83 Phil. 1957.

7 McConaughy v. Secretary of State, 119 N.W. 408, 413; 32A Words and Phrases p. 516. See also
the plebiscite cases, mentioned in footnote 1, ante.

8 Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.

9 39 Phil. 258, 268.

10 69 Phil. 199, 204.

11 70 Phil. 28, 31.

FERNANDO, J., dissenting:

1 Memorandum for Respondents, 2.

2 According to the 1935 Constitution: "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." Art. XV, Section 1.

3 Lerner, Ideas are Weapons, 426 (1939). Earlier, in this collection of essays, Lerner made this not-
entirely-inaccurate observation: "No governmental institution that consists of a group of legal
technicians appointed for life can ever hope to cope with, much less solve, the exigent problems of
our polity." Ibid, 231. He was referring of course to the Supreme Court of the United States.

4 Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26 (1938).

5 Black, The People and the Court (1960).

6 Murphy, Elements of Judicial Strategy (1964).

7 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); Tañada v. Cuenco, 103 Phil. 1051
(1957); Vera v. Arca, L-25721, May 26, 1969, 28 SCRA 351.

8 Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.

9 Tolentino v. Commission on Elections, L-24150, Oct. 16, 1971, 41 SCRA 702.

10 Planas v. Commission on Elections, L-35925, Jan. 25, 1973.

11 256 US 368 (1921).

12 Ibid, 374-375.

13 L-33964, Dec. 11, 1971, 42 SCRA 448.

14 Ibid, 504-505.

15 Dodd, Judicially Nonenforceable Provisions of Constitutions, in I Selected Essays on

Constitutional Law 355, 387 (1938).

16 Ibid, 395.

I7 Weston, Political Questions, I Selected Essays an Constitutional Law 418, 422 (1938)..

18 Cf. Bickel, The Least Dangerous Branch (1962).

19 Cf. Freund, On Understanding the Supreme Court (1950). Also his The Supreme Court of the
United States (1962).

20 Laurel, S., VII Proceedings of the Philippine Constitutional Convention (1934-1935), Appendix L,
800.

21 65 Phil. 56 (1937).

22 Ibid, 96.

23 63 Phil. 139 (1936).

24 L-35925, January 22, 1973.

25 Rostow, The Democratic Character of Judicial Review in Selected Essays on Constitutional Law
1938 1962, 1, 2 (1963).

26 Ibid.

27 Ibid, 3.

28 Ibid, 3-4. The decision of Justice Frankfurter referred to is that of Rochin v. People of California,
342 US 165 (1952).

29 Mason, The Supreme Court from Taft to Warren, 154 (1967). The words of Justice Frankfurter
found in his opinion in Stein v. New York, 346 US 156 (1953).

30 Konefsky, The Legacy of Holmes and Brandeis, 293 (1956).

31 Corwin, Judicial Review in I Selected Essays on Constitutional Law, 449, 450 (1938).

32 1 Cranch 137 (1803).

33 Curtis, Lions Under the Throne, 12 (1947).

34 Addresses and Papers of Charles Evans Hughes, 139-140 (1908).

35 Jackson, Robert H. The Struggle for Judicial Supremacy, 3 (1949).

36 Haines, Charles Grove, The Role of the Supreme Court in American Government and Politics,
1789-1835, 3 (1960).

37 369 US 186.

38 395 US 486.

39 328 US 549 (1946).

40 Ibid, 556.

41 Cf. Wesberry v. Sanders, 376 US 1, 11 L ed 2d 481, 84 S Ct. (1964); Wright v. Rockefeller, 376
US 52, 11 L ed 2d 512, 84 S Ct (1964); Reynolds v. Sims, 377 US 533, 12 L ed 2d 506, 84 S Ct
1362 (1964); WMCA v. Lomenzo, 377 US 633, 12 L ed 2d 568, 84 S Ct. (1964); Maryland
Committee v. Tauses, 377 US 656, 12 L ed 2d 595, 84 S Ct. 1442 (1964); Davis v. Mann, 377 US
678, 12 L ed 2d 609, 84 S Ct. 1453 (1964); Roman v. Sincock, 377 US 695, 12 L ed 2d 620, 84
S.Ct. 1462 (1964); Lucas v. Colorado General Assembly, 377 US 713, L ed 2d 632, 84 S Ct. 1472
(1964); Fortson v. Dorsey, 379 us 433, 13 L ed 2d 401, 85 S Ct. 498 (1965); Burns v. Richardson,
384 US 73, 16 L ed 2d 376, 86 S Ct. 1286 (1966); Sailors v. Kent Board of Education, 387 US 105,
18 L ed 2d 650, 87 S Ct. 1549 (1967); Dusch v. Davis, 387 US 112, 18 L ed 2d 656, 87 S Ct. 1554
(1967).

42 77 Phil. 192 (1946).

43 Ibid, 56.

44 New York Times Company v. United States, 29 L ed. 822 (1971).

45 Wechsler, Toward Neutral Principles of Constitutional Law, 72 Harv. Law Review 77 (1959). It is
the first essay in his Principles, Politics and Fundamental Law.

46 The principal articles are: Pollak, Constitutional Adjudication: Relative or Absolute Neutrality, 11
J. Pub. L. 48 (1962); Rostow, American Legal Realism and the Sense of Profession, 34 Rocky Mt. L.
Rev. 123, 136-46 (1962); Henkin, Some Reflections on Current Constitutional Controversy, 109 U.
Pa. L. Rev. 637 (1961); Henson, A Criticism of Criticism: In re Meaning, 29 Fordham L. Rev. 553
(1961); Miller, A Note on the Criticism of Supreme Court Decisions, 10 J. Pub. L. 139 (1961), Wright,
The Supreme Court Cannot be Neutral, 40 Texas L. Rev. 599 (1961); Arnold, Professor Hart's
Theology, 73 Harv. L. Rev. 1298 (1960); Black, The Lawfulness of the Segration Decisions, 69 Yale
L. J. 421 (1960); Griswold, Of Time and Attitudes: Professor art and Judge Arnold, 74 Harv. L. Rev.
81 (1960); Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court Rev. 75; Miller
and Howell The Myth of Neutrality in Constitutional Adjudication, 27U. Chi. L. Rev. 661 (1960);
Mueller & Schwartz, The Principle of Neutral Principles, 7 U.C.L.A.L. Rev. 571 (1960); Hart,
Forward, The Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959); Pollak, Racial Domination and
Judicial Integrity: A Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1 (1959).
47 Cahn, Supreme Court and Supreme Law, 40 (1954).

46 Cf. Tañada v. Cuenco, 103 Phil. 1051, 1089 (1957).

49 Collier v. Frierson, 124 Ala. 100 (1854); Green v. Weller, 32 Miss. 650 (1856); Penn v. Tollison,
26 Ark. 545 (1871); Koehler v. Hill, 60 Iowa 543, 14 NW 738 (1883); McMillan v. Blattner, 67 Iowa
287, 25 NW 245 (1885); State v. Davis, 2D Neb. 220, 19 Pac. 894 (1888); State v. Tooker, 15 Mont.
8, 37 Pac. 840 (1894); Russie v. Brazzell, 128 Mo. 93, 30 SW 526 (1895); State v. Powell, 77 Miss.
543, 27 So. 927 (1900); State v. Brookhart, 113 Iowa 250, 84 NW 1064 (1901); In re Denny, 156 Ind.
104, 59 NE 359 (1901); Utter v. Moseley, 16 Idaho 274, 100 P. 1058 (1909); Willis v. Kalbach, 109
Va. 475, 64 SE 342 (1909); People ex rel. Swift v. Luce, 74 Misc. Rep. 551, 133 US 9 (1912);
McCreary v. Speer, 156 Ky. 783, 162 SW 99 (1914); State v. Donald, 160 Wis. 21, 151 NW 331
(1915); State v. Marcus, 160 Wis. 354, 152 NW 419 (1915); State v. Campbell, 94 Ohio St. 403, 115
NE 29 (1916); In re Opinion of Justices, 226 Mars. 607, 115 NE 921 (1917); Scott v. Vouchan, 202
Mich. 692, 168 NW 709 (1918); Hooper v. State, 89 So. 593, 206 Ala. 371 (1921); Switzer v. State,
103 Ohio St. 306, 133 NE 552 (1921); Johnson v. Craft, 87 So. 375, 205 Ala. 386 (1921); In re
Opinion of the Justices, 237 Mars. 589, 130 NE 202 (1921); Power v. Robertson, 130 Miss. 188, 93
So. 769 (1922); Hamilton v. Deland, 191 NW 829, 221 Mich. 541 (1923); In re Initiative Petition, 89
Okl. 124, 214 P. 186 (1923); Armstrong v. King, 281 Pa. 207, 126 A. 263 (1924); McAdams v.
Henley, 169 Ark. 97, 273 SW 355 (1925); Heinitsh v. Floyd, 130 SC 434, 126 SE 336 (1925); State
v. Zimmerman, 187 Wis. 180, 204 NW 803 (1925); Brown v. City of New York, 125 Misc. Rep. 1, 210
NYS 786 (1926); State ex rel. Bahns v. City of New Orleans, 163 La. 777 So. 718 (1927); Duncan v.
Record Pub. Co., 145 SC 196, 143 SE 31 (1928); Lane v. Lukens, 48 Idaho 517, 283 P. 532 (1929);
School Dist. of City of Pontiac v. City of Pontiac, 262 Mich. 338, 247 NW 474 (1933); Collier v. Gray,
116 Fla. 845, 157 So. 40 (1934); In re Opinion to Governor, 55 R.I. 56, 178 A. 433 (1935); State ex
rel Landis v. Thompson, 120 Fla. 860,163 So. 270 (1935); Tausig v. Lawrence, 328 Pa. 408, 197 A.
235 (1938); Downs v. City of Bromingham, 240 Ala. 177, 198 So. 231 (1940); Graham v. Jones, 198
La. 507, 3 So. 2d 761 (1941); Pearson v. Taylor, 159 Fla. 775, 32 So. 2d 826 (1947); Palmer v.
Dunn, 216 SC 558, 59 SE 158 (1950).

50 Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); Senate File No. 31, 25 Neb. 864, 41
NW 981 (1889); State v. Grey, 21 Nev. 378, 32 Pac. 190 (1893); Nesbit v. People, 19 Colo. 441, 36
Pac. 221 (1894); Hays v. Hays, 5 Idaho 154, 47 P. 732 (1897); Lovett v. Ferguson, 10 SD 44, 71
NW 756 (1897); Russell v. Grey, 164 Mo. 69, 63 SW 849 (1901); Gabbert v. Chicago, R.I. Ry. Co.
171 Mo. 84, 70 SW (1902); People v. Sours, 31 Colo. 369, 102 74 P. 167 (1903); People v. Loomis,
135 Mich. 556, 98 NW 262 (1904); West v. State, 50 Fla. 154, 39 So. 412 (1905); State v. Winnett,
78 Neb. 379, 110 NW 113 (1907); Farrell v. Port of Columbia, 50 Or. 169, 93 P. 254 (1908); In re
Mcconaughy, 106 Minn. 392, 119 NW 408 (1909); Fletcher v. Gifford, 20 Idaho 18, 115 P. 824
(1911); Hammond v. Clark, 136 Ga. 313, 71 SE 479 (1911), Crawford v. Gilchrist, 64 Fla. 41, 59 So.
963 (1912); Cudihee v. Phelps, 76 Wash. 314, 136 P. 367 (1913); State v. Fairley, 76 Wash. 332,
136 P. 374 (1913); Tabor v. City of Walla Walla, 77 Wash. 579, 137 P. 1040 (1914); State v.
Alderson, 49 Mont. 387, 142 P. 210 (1914); Ramsey v. Persinger, 43 Okl. 41,141 P. 13 (1914);
Cress v. Estes, 43 Okl. 213 P. 411 (1914); Cooney v. Foote, 142 Ga. 647, 83 SE 537 (1914);
Hildreth v. Taylor, 117 Ark. 465, 175 SW 40 (1915); Jones v. McDade, 200 Ala. 230, 75 So. 988
(1917); State v. Wetz, 40 N.D. 299, 168 NW 835 (1918); Ex Parte Ming, 42 Nev. 472, 181 P. 319
(1919); Lee V. Price, 54 Utah, 474, 181 P. 948 (1919), Erwin v. Nolan, 280 Mo. 401, 217 SW 752
(1922); Boyd v. Olcott, 102 Or. 327, 202 P. 431 (1921); Thompson v. Livingston, 116 S.C. 412, 107
SE 581 (1921); Thrailkill v. Smith, 106 Ohio St. 1, 138 NE 532 (1922); Brawner v. Curran, 141 Ind.
586, 119 A. 250 (1922); Fahey v. Hackmann, 291 Mo. 351 SW 752 (1922); Goolsby v. Stephens,
155 Ga. 529, 117 SE 439 (1923); Manos v. State, 98 Tax. Cr. 87, 263 SW 310 (1924); State v.
Zimmermann, 187 Wis. 180, 208 NW 803 (1925); Taylor v. King, 284 Pa. 235, 130 A. 407 (1925);
Board of Liquidation of State Debt of Louisiana v. Whitney-Central Trust and Savings Bank, 168 La.
560, 122 So. 850 (1929); State v. Cline, 118 Neb. 150, 224 NW 6 (1929); California Teacher's Ass'n.
v. Collins, 1 Cal. 2d 202, 34 P. 2d 134 (1934); Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934); State
ex rel. v. State Bldg. Commission v. Smith, 335 Mo. 840, 74 SW 2d 27 (1934); Mayer v. Adams, 182
Ga. 524, 186 SE 420 (1936); Doody v. State ex rel. Mobile County, 233 Ala. 287, 171 So. 504
(1937); Swanson v. State, 132 Neb. 82, 271 NW 264 (1937); Stonns v. Heck, 238 Ala. 196, 190 So.
78 (1939); Graham v. Jones, 198 La. 507, 3 So. 2d 761 (1941); In re Initiative Petition No. 224, 197
Okl. 432, 172 P. 2d 324 (1946); City of Jackson v. Nims, 316 Mich. 694, 26 NW 2d 569 (1947);
Keenan v. Price, 68 Idaho 423, 195 P. 2d 662 (1948).

51 Commonwealth Act No. 492 (1939).

52 Ibid, Section 3.

53 Commonwealth Act No. 517 (1940).

54 Article VI of the 1935 Constitution.

55 Article VII of the 1935 Constitution.

56 It is to be noted that under Commonwealth Act No. 607 (1940), subsequently amended by
Commonwealth Act No. 657 (1940), there was a statutory creation of an independent Commission
on Elections.

57 Section 3, Commonwealth Act No. 517.

58 Republic Act No. 73 (1946).

59 Section 3 of Republic Act 73 reads as follows: "The provisions of Commonwealth Act Numbered
Three Hundred and fifty-seven, otherwise known as the Election Code, and Commonwealth
Numbered Six hundred and fifty-seven, entitled "An Act to Reorganize the Commission on
Elections," is so far as they are not inconsistent herewith, are hereby made applicable to the election
provided for in this Act."

60 Republic Act 4913 (1967).

61 Section 3 of Republic Act 4913 reads thus: "The provisions of Republic Act Numbered One
hundred eighty, as amended, insofar as they are not inconsistent herewith, are made applicable to
the election provided for in this Act." It is to be remembered that in the plebiscite held, the two
proposals last. Cf. on this point, Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21
SCRA 774.

62 The 1935 Constitution provides: "The Philippines is a republican state. Sovereignty resides in the
people and all government authority emanates from them." Article II, Section 1.

63 Laski, Grammar of Politics, 4th ed., 34 (1937).

64 Mclver, The Web of Government, 84 (1947).

65 Corwin, The Higher Law Background of American Constitutional Law, in 1 Selected Essays on
Constitutional Law 3 (1938).

66 92 Ky. 589, 18 SW 522.

67 Ibid, 523.

68 101 Va. 829, 44 SE 754.

69 Ibid, 755. A similar approach may be noted in Arie v. State, 23 Okl. 166, 100 P. 23 (1909) and
Hammond v. Clark, 136 Ga. 313, 71 SE 479 (1911).

70 Araneta v. Dinglasan. 84 Phil. 368 (1949).

71 Cardozo, The Nature of the Judicial Process, 141 (1921).

TEEHANKEE, J., dissenting:

1 Section 1, which is the lone section of Art. XV; emphasis supplied.

2 Article XVII, section 16, proposed Constitution of Nov. 30,1972; emphasis supplied.

3 All quotations from respondents' memo of arguments dated March 2, 1973, pp. 2-5; emphasis
supplied.

4 Respondents' memo dated March 2, 1973, p. 8; emphasis supplied.

5 Gonzales vs. Comelec, 21 SCRA 774 (No. 9, 1967).

6 Tolentino vs. Comelec, 41 SCRA 702 (Oct. 16, 1971).

7 Resolution on motion for reconsideration in Tolentino Comelec, L-34150; dated Nov. 4, 1971, at
page 3, per Barredo, J. with seven Justices concurring; emphasis supplied.

8 Idem, at page 4, emphasis supplied.

9 Joint opinion of JJ. Makalintal and Castro, p. 153.

10 Article X, sec. 1 of the Constitution entrusts "exclusive charge" of the conduct of elections to the
Comelec. See also the Election Code of 1971.

11 Araneta vs. Dinglasan (L-2044); Araneta vs. Angeles (L-2756); Rodriguez vs. Treasurer
(L-3054); Guerrero vs. Commissioner of Customs; and Barredo vs. Comelec (L-3056), jointly
decided and reported in 84 Phil. 368.

12 Idem, at pp. 384-385; emphasis supplied.

13 Idem, at p. 437.

14 Idem, at pp. 435-437.

15 Idem, at p. 383. Justice Tuason further duly noted that "These observations, though beyond the
issue as formulated in this decision, may, we trust, also serve to answer the vehement plea that for
good of the Nation, the President should retain his extraordinary powers as long as turmoil and other
ills directly or indirectly traceable to the late war harass the Philippines."
16 Petitioner Monteclaro's notes of oral argument dated February 23, 1973, p. 2, and Annex A
thereof.

17 State vs. Powell, 77 Miss. 543, 27 south 927.

18 Cooley's Constitutional Limitations, 8th Ed., Vol. I, p. 81.

19 Article XV, sec. 1, Constitution.

20 Article V, sec. 1, Constitution.

21 Article X, sec. 2, Constitution.

22 Respondents' memo dated March 2, 1973, p. 5.

23 Respondents' Comment dated Feb. 3, 1973, p. 67.

24 Idem, at p. 46; note in parentheses supplied.

25 1 Cranch 137 (1803).

26 63 Phil. 134 (1936).

27 4 Wheaton 316 (1819).

28 Dean Pollak's "The Constitution and the Supreme Court", Vol. 1, p. 221.

29 Justice Felix Frankfurter, Of Law and Men (1956), p. 5.

30 Tolentino vs. Comelec L-34150; decision of October 16, 1971, per Barredo, J. at p. 8.

30a Con-Con Res. No. 1 proposing the urgent lowering of the voting age to enfranchise the 18-year
olds retained the "permissive" language of section 1, Art. V. Thus, the proposed amendment read
"Section 1. Suffrage may be exercised by (male) citizens of the Philippines not otherwise disqualified
by law, who are (twenty one) EIGHTEEN years of age or over and are able to read and write ..."

31 Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.

32 Decision of Oct. 16, 1971, at p. 21.

33 21 SCRA 774 (Nov. 9, 1967).

34 Decision of Oct. 16, 1971, at p. 24.

35 Reyes, J.B.L. (now retired), Zaldivar, Castro and Makasiar, JJ.

36 Idem at pp. 1-2.

37 Idem at p. 3.
38 Resolution of Nov. 4, 1971 in Tolentino, per Barredo, J.; pp. 3-4.

39 Decision of Oct. 16, 1971 in Tolentino, per Barredo, J. at p. 19.

40 All quotations are from the Chief Justice's concurring opinion in Tolentino, pp. 4-7.

41 Separate op. of J. Teehankee concurring in Res. of No. 4, 1971 in Tolentino, pp. 8, 9, 10.

42 This Court thus declared in Tolentino the Con-Con voting age reduction resolution as null and
void and prohibited its submittal at the 1971 elections for lack of proper submission since it did not
"provide the voter ... ample basis for an intelligent appraisal of the amendment. "Dec. of October 16,
1971, per Barredo, J.

43 In re-Opinion of Justices, 115 N.E. Rep. 922-923.

44 Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.

45 "Barrios are units of municipalities or municipal districts in which they are situated ... ." Rep. Act
3590, sec. 2.

46 Rep. Act 3590, sec. 6, par. 1.

47 Idem, par. 2.

48 Idem, par. 3 and 4, emphasis supplied.

49 One barrio lieutenant and six barrio councilmen; "Voting shall be by secret ballot. ... ." Idem,
sec. 8.

50 Idem, sec. 10, italics supplied. The same section further disqualifies persons convicted by final
judgment to suffer one year or more of imprisonment "within two years after service" or who have
violated their allegiance to the Republic and insane or feeble-minded persons.

51 Supra, p. 2.

52 Rizal, Cavite, Bataan, Camarines Sur and Negros Occidental, petitioners' manifestation and
supplemental rejoinder dated March 21, 1973 in L-36165.

53 Respondents' rejoinder dated March 20, 1973 and sur-rejoinder dated March 29, 1973.

54 Under Proclamation No. 1103 dated Jan. 17, 1973, it is recited that "fourteen million nine hundred
seventy six thousand five hundred sixty one (14,976,561) members of all the Barangays voted for
the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight
hundred sixty nine (743,869) who voted for its rejection; but a majority of those who approved the
new Constitution conditioned their votes on the demand that the interim National Assembly provided
in its Transitory Provisions should not be convened."

55 Respondents' memo dated March 2, 1973, supra, p. 2.

56 As restated by Barredo, J. in his separate op. in the plebiscite cases, who, however, did not look
on the same with favor, since the constitutional point (that the Comelec has exclusive charge of the
conduct of elections and plebiscites) seems to have been overlooked in the Assemblies."

57 Convention Minutes of Nov. 22, 1972 submitted as Annex A of petitioner-delegate Sedfrey A.

Ordoñez et. al. in the plebiscite case L-359042, par. 12 of petition and admitted in par. 4 of answer
of therein respondents dated Dec. 15, 1972.

ANTONIO, J., CONCURRING:

* First decision promulgated by First Division of the Supreme Court.

1 "When a house is completely demolished and another is erected on the same location, do you
have a changed, repaired and altered house, or do you have a new house? Some of the material
contained in the old house may be used again, some of the rooms may be constructed the same,
but this does not alter the fact that you have altogether another or a new house. We conclude that
the instrument as contained in Ga. L. 1945, pp. 8 to 89, inclusive, is not an amendment to the
constitution of 1877; but on the contrary it is a completely revised or new Constitution." (Wheeler v.
Board of Trustees, 37 S.E. 2d 322, 327).

"Every proposal which affects a change in a Constitution or adds or takes away from it is an
"amendment', while a "revision" implies a re-examination and statement of the Constitution, or some
part of it, in a corrected or improved form." (Const. Secs. 196, 197, Staples v. Gilmer, 33 S.E. 2d 49,
53 183 Va. 613).

"Amendment" and "revision" of constitution are separate procedures each having a substantial field
of application not mere alternative procedures in the same field." (McFadden v. Jordan, 196 P. 2d
787, 797 32 Cal. 2d 330).

2 Cf. Sections 1 and 2 of Article XIV, Constitution of Minnesota in Appendix.

3 Baker v. Carr, 369 U.S. 186; 7 L. ed. 663.

4 Cf. State Constitutions of Alaska, California, Delaware, Florida, Michigan, Minnesota, Nevada,
New Hampshire, Oklahoma, Oregon, Utah and Wyoming in Appendix to this opinion.

* Leon O. Ty, Seven Months of Martial Law, Daily Express.

* Panorama, May 6, 1973.

5 "A written constitution is susceptible of change in two ways: by revolution, which implies action not
pursuant to any provision of the constitution itself; and by revision, which implies action pursuant to
some procedural provision in the constitution. This distinction is concerned with the quare and not
with the quantum of change. It may be significant, however, that the alleged alteration does or does
not purport to affect the existence of the court itself. In the nature of things, a revolutionary charge
does not admit judicial power as such to determine the fact of its occurrence. If revolutionary
constitution sets up a court differently constituted from the pre-revolutionary court, neither tribunal is
confronted with a substantial problem, for neither can deny the act by which it was created without
denying the fact of its creation. Thus the Supreme Court in Luther v. Borden (supra) uses language
substantially parallel with what has been indicated above as logical explanation of the Duke of
York's case. For the court to give serious judicial consideration to such a question would present "the
singular spectacle of a court sitting as a court to declare that we are not a court." (Brittle v. People, 2
Neb. 198, 214 [1873].) And even the alleged new constitution purports to leave intact the former
court and to permit its work to go on without hiatus, the decision which the judges must make is still
an individual choice to be made by them as a matter of practical politics. Two commissions are being
held out to them, and if they will act as a court they must assess under which commission they are
acting. To put the matter another way, it must be true that in the first case above — of two
constitutions purporting to establish two different courts, — the men who were judges under the old
regime and the men who are called to be judges under the new have each to decide as individuals
what they are to do; and it may be that they choose at grave peril with the factional outcome still
uncertain. And, although it is equally obvious, the situation is logically identical where the same men
are nominated to constitute the court under both the old and new constitution, at a time when the
alleged change is occurring — if it is — peaceably and against a placid popular background. Men
under such circumstances may write most praiseworthily principles of statesmanship, upon
sovereignty and, its nature modes of action, and upon the bases of government, to justify the choice
between the two commissions. They can assert their choice in the course of purported judicial
action. But they cannot decide as a court, for the decision, once made, by a retroactive hypothesis
excludes any assumption of controversiality in the premises..

"Where the alleged change occurs not through revolutionary measures but through what has been
called revision, these logical difficulties disappear in one aspect, but become far more embarrassing
in another. Where the alteration purports to be made along the lines of a procedural method laid
down in the constitution, there is a standard which the court can apply and, by so doing, it can
perceive judicially whether or not the change has followed the prescribed lines. If it has, there is no
difficulty in pronouncing as a matter of law its accomplishment. Only one exception is possible,
namely, the ease where the alteration purports at once to abolish the court or to depose its
personnel. Then, although there would be a question of law to be decided, it may be wondered who
there is to decide it. Suppose, however, the mode of change has failed in some way to conform to a
directory provision of the amending clause of the constitution; is the court to declare the attempt at
alteration unsuccessful? It would seem as a matter of law that it must do so; and yet what is the
situation if the proponents of the change say, "It is true that this measure failed under the amending
clause, but as a revolutionary measure it was a success and we insist upon its recognition." Clearly
the members of the court are now more badly than ever entangled in the logical difficulties which
attend a purported judicial pronouncement upon the achievement or non-achievement of
revolutionary change. For the temptation will be great to treat the matter as a legal question. The
times are peaceful. The changes probably do no affect the tenure of many offices of any branch of
the government. The popular inertia is likely to allow the court successfully to assume the question
to be one of law. The path of fallacy is not too strikingly fallacious to the uncritical observer. It may
lead to just results. The judges' personal inclinations will be to show deference to the expression of
popular sentiment which has been given. And yet, if they declare the change in force, they are truly
making a personal declaration that they believe the change to be the directly expressed will of the
sovereign, which will they assert to be law, but the fact of existence of which will — and this is the
real decision — is not ascertainable in the given case by any legal means. It is submitted that this is
true, and that the conclusions offered in the discussion of revolutionary change are true, also,
whether the quantum of change involved be vast or almost negligible.

"The net result of the preceding discussion is this: that in almost the whole field of problems which
the Duke of York's case and the American constitutional amendment cases present, the court as a
court is precluded from passing upon the fact of change by a logical difficulty which is not to be
surmounted. It follows that there is no room for considering whether the court ought graciously and
deferentially to look to the executive or legislative for a decision that a change has or has not taken
place.

6 & 7 Ibid. pp. 301, 305.

APPENDIX TO OPINION.

@ The inclusion in the Appendix of provisions for Amendment and Revision in State Constitutions,
adopted after 1935, is only to stress the fact that the distinction between Amendment and Revision
of Constitution, which existed at the time of the adoption of the 1935 Constitution, has continued up
to the present.

The Lawphil Project - Arellano Law Foundation

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AUSL Exclusive

G.R. No. L-44640

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-44640 October 12, 1976

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,

vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.

G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner,

vs.
COMMISSION ELECTIONS, respondent.

G.R. No. L-44714. October 12,1976

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners,

vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.

MARTIN, J,:
The capital question raised in these prohibition suits with preliminary injunction relates to the power
of the incumbent President of the Philippines to propose amendments to the present Constitution in
the absence of the interim National Assembly which has not been convened.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling
for a national referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve,
among other things, the issues of martial law, the I . assembly, its replacement, the powers of such
replacement, the period of its existence, the length of the period for tile exercise by the President of
his present powers.1

Twenty days after or on September 22, 1976, the President issued another related decree,
Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring the
provisions of presidential Decree No. 229 providing for the manner of voting and canvass of votes in
"barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of October 16,
1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of Presidential Decree No.
991, the full text of which (Section 4) is quoted in the footnote below.2

On the same date of September 22, 1976, the President issued Presidential Decree No. 1033,
stating the questions to be submitted to the people in the referendum-plebiscite on October 16,
1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the
convening of the National Assembly evinces their desire to have such body abolished and replaced
thru a constitutional amendment, providing for a legislative body, which will be submitted directly to
the people in the referendum-plebiscite of October 16.

The questions ask, to wit:

(1) Do you want martial law to be continued?

(2) Whether or not you want martial law to be continued, do you approve the following amendments
to the Constitution? For the purpose of the second question, the referendum shall have the effect of
a plebiscite within the contemplation of Section 2 of Article XVI of the Constitution.

PROPOSED AMENDMENTS:

1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members
of the interim Batasang Pambansa which shall not be more than 120, unless otherwise provided by
law, shall include the incumbent President of the Philippines, representatives elected from the
different regions of the nation, those who shall not be less than eighteen years of age elected by
their respective sectors, and those chosen by the incumbent President from the members of the
Cabinet. Regional representatives shall be apportioned among the regions in accordance with the
number of their respective inhabitants and on the basis of a uniform and progressive ratio while the
sectors shall be determined by law. The number of representatives from each region or sector and
the, manner of their election shall be prescribed and regulated by law.

2. The interim Batasang Pambansa shall have the same powers and its members shall have the
same functions, responsibilities, rights, privileges, and disqualifications as the interim National
Assembly and the regular National Assembly and the members thereof. However, it shall not
exercise the power provided in Article VIII, Section 14(l) of the Constitution.

3. The incumbent President of the Philippines shall, within 30 days from the election and selection of
the members, convene the interim Batasang Pambansa and preside over its sessions until the
Speaker shall have been elected. The incumbent President of the Philippines shall be the Prime
Minister and he shall continue to exercise all his powers even after the interim Batasang Pambansa
is organized and ready to discharge its functions and likewise he shall continue to exercise his
powers and prerogatives under the nineteen hundred and thirty five. Constitution and the powers
vested in the President and the Prime Minister under this Constitution.

4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and
discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be
subject only to such disqualifications as the President (Prime Minister) may prescribe. The President
(Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many Deputy Prime
Ministers as he may deem necessary.

5. The incumbent President shall continue to exercise legislative powers until martial law shall have
been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a
threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any reason that in his judgment
requires immediate action, he may, in order to meet the exigency, issue the necessary decrees,
orders or letters of instructions, which shall form part of the law of the land.

7. The barangays and sanggunians shall continue as presently constituted but their functions,
powers, and composition may be altered by law.

Referenda conducted thru the barangays and under the Supervision of the Commission on Elections
may be called at any time the government deems it necessary to ascertain the will of the people
regarding any important matter whether of national or local interest.

8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in
full force and effect.

9. These amendments shall take effect after the incumbent President shall have proclaimed that
they have been ratified by I majority of the votes cast in the referendum-plebiscite."

The Commission on Elections was vested with the exclusive supervision and control of the October
1976 National Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son,
commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on
Elections from holding and conducting the Referendum Plebiscite on October 16; to declare without
force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the
Constitution, as well as Presidential Decree No. 1031, insofar as it directs the Commission on
Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on October
16, 1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent
President to exercise the constituent power to propose amendments to the new Constitution. As a
consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis.

On October 5, 1976, the Solicitor General filed the comment for respondent Commission on
Elections, The Solicitor General principally maintains that petitioners have no standing to sue; the
issue raised is political in nature, beyond judicial cognizance of this Court; at this state of the
transition period, only the incumbent President has the authority to exercise constituent power; the
referendum-plebiscite is a step towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-
44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention,
asserting that the power to propose amendments to, or revision of the Constitution during the
transition period is expressly conferred on the interim National Assembly under Section 16, Article
XVII of the Constitution.3

Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL
M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to
restrain the implementation of Presidential Decrees relative to the forthcoming Referendum-
Plebiscite of October 16.

These last petitioners argue that even granting him legislative powers under Martial Law, the
incumbent President cannot act as a constituent assembly to propose amendments to the
Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973; the
submission of the proposed amendments in such a short period of time for deliberation renders the
plebiscite a nullity; to lift Martial Law, the President need not consult the people via referendum; and
allowing 15-.year olds to vote would amount to an amendment of the Constitution, which confines
the right of suffrage to those citizens of the Philippines 18 years of age and above.

We find the petitions in the three entitled cases to be devoid of merit.

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito
V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos.
991, 1031, and 1033. It is now an ancient rule that the valid source of a stature Presidential Decrees
are of such nature-may be contested by one who will sustain a direct injuries as a in result of its
enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may
be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the
purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4 The
breadth of Presidential Decree No. 991 carries all appropriation of Five Million Pesos for the effective
implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million
Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the
lawful expenditure of these amounts of public money sufficiently clothes them with that personality to
litigate the validity of the Decrees appropriating said funds. Moreover, as regards taxpayer's suits,
this Court enjoys that open discretion to entertain the same or not. 7 For the present case, We deem
it sound to exercise that discretion affirmatively so that the authority upon which the disputed
Decrees are predicated may be inquired into.

2. The Solicitor General would consider the question at bar as a pure political one, lying outside the
domain of judicial review. We disagree. The amending process both as to proposal and ratification,
raises a judicial question. 8 This is especially true in cases where the power of the Presidency to initiate the of normally exercised
by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments o the constitution
resides in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After that period, and the regular National
Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly
(Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the National Assembly to
constitute itself into a constituent assembly the incumbent President undertook the proposal of amendments and submitted the proposed
amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of
the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. T he
implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation ar e assailed
as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section
2 (2), Article X of the new Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall be
heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without the
concurrence of at least ten Members. ..." The Supreme Court has the last word in the construction not only of treaties and statutes, but also
of the Constitution itself The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power,
so that the Supreme Court is vested with that authorities to determine whether that power has been discharged within its limits.

Political questions are neatly associated with the wisdom, of the legality of a particular act. Where
the vortex of the controversy refers to the legality or validity of the contested act, that matter is
definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of
the incumbent President in proposing amendments to the Constitution, but his constitutional
authority to perform such act or to assume the power of a constituent assembly. Whether the
amending process confers on the President that power to propose amendments is therefore a
downright justiciable question. Should the contrary be found, the actuation of the President would
merely be a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the
interpreter of that Constitution, can declare whether the procedure followed or the authority assumed
was valid or not.10

We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that
the question of the President's authority to propose amendments and the regularity of the procedure
adopted for submission of the proposal to the people ultimately lie in the judgment of the A clear
Descartes fallacy of vicious circle. Is it not that the people themselves, by their sovereign act,
provided for the authority and procedure for the amending process when they ratified the present
Constitution in 1973? Whether, therefore, the constitutional provision has been followed or not is the
proper subject of inquiry, not by the people themselves of course who exercise no power of judicial
but by the Supreme Court in whom the people themselves vested that power, a power which
includes the competence to determine whether the constitutional norms for amendments have been
observed or not. And, this inquiry must be done a prior not a posterior i.e., before the submission to
and ratification by the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference
of the Court's majority to treat such issue of Presidential role in the amending process as one of non-
political impression. In the Plebiscite Cases, 11 the contention of the Solicitor General that the issue
on the legality of Presidential Decree No. 73 "submitting to the Pilipino people (on January 15, 1973)
for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention and appropriating fund s therefore "is a political one, was rejected and the
Court unanimously considered the issue as justiciable in nature. Subsequently in the Ratification
Cases12 involving the issue of whether or not the validity of Presidential Proclamation No. 1102.
announcing the Ratification by the Filipino people of the constitution proposed by the 1971
Constitutional Convention," partakes of the nature of a political question, the affirmative stand of' the
Solicitor General was dismissed, the Court ruled that the question raised is justiciable. Chief Justice
Concepcion, expressing the majority view, said, Thus, in the aforementioned plebiscite cases, We
rejected the theory of the respondents therein that the question whether Presidential Decree No. 73
calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed
new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed,
it partook of a political nature, and We unanimously declared that the issue was a justiciable one.
With Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus
cases, questioning Our authority to determine the constitutional sufficiency of the factual bases of
the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21,
1971, despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs.
Castaneda, insofar as it adhered to the former case, which view We, accordingly, abandoned and
refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales vs.
Commission on Elections, the political-question theory adopted in Mabanag vs. Lopez Vito." 13 The
return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was
decisively refused by the Court. Chief Justice Concepcion continued: "The reasons adduced in
support thereof are, however, substantially the same as those given in support on the political
question theory advanced in said habeas corpus and plebiscite cases, which were carefully
considered by this Court and found by it to be legally unsound and constitutionally untenable. As a
consequence. Our decisions in the aforementioned habeas corpus cases partakes of the nature and
effect of a stare decisis which gained added weight by its virtual reiteration."

II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the
National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention.
(2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional
convention or, by a majority vote of all its Members, submit the question of calling such a convention
to the electorate in an election.

SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not later than three months after the
approval of such amendment or revision.

In the present period of transition, the interim National Assembly instituted in the Transitory
Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads:

SECTION 15. The interim National Assembly, upon special call by the interim Prime Minister, may,
by a majority vote of all its Members, propose amendments to this Constitution. Such amendments
shall take effect when ratified in accordance with Article Sixteen hereof.

There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of
normalcy and period of transition. In times of normally, the amending process may be initiated by the
proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2)
by a Constitutional Convention called by a vote of two-thirds of all the Members of the National
Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in
an election voted upon by a majority vote of all the members of the National Assembly. In times of
transition, amendments may be proposed by a majority vote of all the Members of the National
Assembly upon special call by the interim Prime Minister,.

2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested
with that prerogative of discretion as to when he shall initially convene the interim National
Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The Constitutional
Convention intended to leave to the President the determination of the time when he shall initially
convene the interim National Assembly, consistent with the prevailing conditions of peace and order
in the country." Concurring, Justice Fernandez, himself a member of that Constitutional Convention,
revealed: "(W)hen the Delegates to the Constitutional Convention voted on the Transitory
Provisions, they were aware of the fact that under the same, the incumbent President was given the
discretion as to when he could convene the interim National Assembly; it was so stated plainly by
the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately',
made by Delegate Pimentel (V) was rejected. The President's decision to defer the convening of the
interim National Assembly soon found support from the people themselves. In the plebiscite of
January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the people
voted against the convening of the interim National Assembly. In the referendum of July 24, 1973,
the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the convening of the
interim National Assembly. Again, in the referendum of February 27, 1975, the proposed question of
whether the interim National Assembly shall be initially convened was eliminated, because some of
the members of Congress and delegates of the Constitutional Convention, who were deemed
automatically members of the I interim National Assembly, were against its inclusion since in that
referendum of January, 1973, the people had already resolved against it.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment
to a Constitution, that body is not in the usual function of lawmaking. lt is not legislating when
engaged in the amending process.16 Rather, it is exercising a peculiar power bestowed upon it by
the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of the 1973
Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the
National Assembly). While ordinarily it is the business of the legislating body to legislate for the
nation by virtue of constitutional conferment amending of the Constitution is not legislative in
character. In political science a distinction is made between constitutional content of an organic
character and that of a legislative character'. The distinction, however, is one of policy, not of
law.17 Such being the case, approval of the President of any proposed amendment is a
misnomer 18 The prerogative of the President to approve or disapprove applies only to the ordinary
cases of legislation. The President has nothing to do with proposition or adoption of amendments to
the Constitution. 19

III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is a crisis government
today are more or less concentrated in the President. 20 According to Rossiter, "(t)he concentration
of government power in a democracy faced by an emergency is a corrective to the crisis
inefficiencies inherent in the doctrine of the separation of powers. In most free states it has generally
been regarded as imperative that the total power of the government be parceled out among three
mutually independent branches executive, legislature, and judiciary. It is believed to be destructive of
constitutionalism if any one branch should exercise any two or more types of power, and certainly a
total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very
definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to
arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable
barrier to a decisive emergency action in behalf of the state and its independent existence. There
are moments in the life of any government when all powers must work together in unanimity of
purpose and action, even if this means the temporary union of executive, legislative, and judicial
power in the hands of one man. The more complete the separation of powers in a constitutional
system, the more difficult and yet the more necessary will be their fusion in time of crisis. This is
evident in a comparison of the crisis potentialities of the cabinet and presidential systems of
government. In the former the all-important harmony of legislature and executive is taken for
granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is
more easily established and more trustworthy than presidential dictatorship. The power of the state
in crisis must not only be concentrated and expanded; it must also be freed from the normal system
of constitutional and legal limitations. 21 John Locke, on the other hand, claims for the executive in
its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of
special exigencies for which the legislative power had not provided. 22 The rationale behind such
broad emergency powers of the Executive is the release of the government from "the paralysis of
constitutional restrains" so that the crisis may be ended and normal times restored.

2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at.
That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory
Provisions, thus:23

The incumbent President of the Philippines shall initially convene the interim National Assembly and
shall preside over its sessions until the interim Speaker shall have been elected. He shall continue to
exercise his powers and prerogatives under the nineteen hundred and thirty-five Constitution and the
powers vested in the President and the Prime Minister under this Constitution until the calls upon the
interim National Assembly to elect the interim President and the interim Prime Minister, who shall
then exercise their respective powers vested by this Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the law of the land, and shall remain valid, binding, and
effective even after lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of
the incumbent President, or unless expressly and explicitly modified or repealed by the regular
National Assembly.

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the
Constitutional Convention, while giving to the President the discretion when to call the interim
National Assembly to session, and knowing that it may not be convened soon, would create a
vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking
powers, there would be paralyzation of the entire governmental machinery." 24 Paraphrasing
Rossiter, this is an extremely important factor in any constitutional dictatorship which extends over a
period of time. The separation of executive and legislature ordained in the Constitution presents a
distinct obstruction to efficient crisis government. The steady increase in executive power is not too
much a cause for as the steady increase in the magnitude and complexity of the problems the
President has been called upon by the Filipino people to solve in their behalf, which involve
rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis greater than war.
In short, while conventional constitutional law just confines the President's power as Commander-in-
Chief to the direction of the operation of the national forces, yet the facts of our political, social, and
economic disturbances had convincingly shown that in meeting the same, indefinite power should be
attributed to tile President to take emergency measures 25

IV

Authority of the incumbent

President t to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National
Assembly during the transition period. However, the initial convening of that Assembly is a matter
fully addressed to the judgment of the incumbent President. And, in the exercise of that judgment,
the President opted to defer convening of that body in utter recognition of the people's preference.
Likewise, in the period of transition, the power to propose amendments to the Constitution lies in the
interim National Assembly upon special call by the President (See. 15 of the Transitory Provisions).
Again, harking to the dictates of the sovereign will, the President decided not to call the interim
National Assembly. Would it then be within the bounds of the Constitution and of law for the
President to assume that constituent power of the interim Assembly vis-a-vis his assumption of that
body's legislative functions? The answer is yes. If the President has been legitimately discharging
the legislative functions of the interim Assembly, there is no reason why he cannot validly discharge
the function of that Assembly to propose amendments to the Constitution, which is but adjunct,
although peculiar, to its gross legislative power. This, of course, is not to say that the President has
converted his office into a constituent assembly of that nature normally constituted by the legislature.
Rather, with the interim National Assembly not convened and only the Presidency and the Supreme
Court in operation, the urges of absolute necessity render it imperative upon the President to act as
agent for and in behalf of the people to propose amendments to the Constitution. Parenthetically, by
its very constitution, the Supreme Court possesses no capacity to propose amendments without
constitutional infractions. For the President to shy away from that actuality and decline to undertake
the amending process would leave the governmental machineries at a stalemate or create in the
powers of the State a destructive vacuum, thereby impeding the objective of a crisis government "to
end the crisis and restore normal times." In these parlous times, that Presidential initiative to reduce
into concrete forms the constant voices of the people reigns supreme. After all, constituent
assemblies or constitutional conventions, like the President now, are mere agents of the people .26

2. The President's action is not a unilateral move. As early as the referendums of January 1973 and
February 1975, the people had already rejected the calling of the interim National Assembly. The
Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng
mga Barangay, and the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays,
about the same number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities,
72 provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing sentiment
of the people is for the abolition of the interim National Assembly. Other issues concerned the lifting
of martial law and amendments to the Constitution .27 The national organizations of Sangguniang Bayan presently
proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for the
exercise by the President of its present powers in a referendum to be held on October 16 .28 The Batasang Bayan (legislative council)
created under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with c abinet rank, 91 members
of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to
the people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitut ion, including the issue of martial
law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments to the
people on October 16. All the foregoing led the President to initiate the proposal of amendments to the Constitution and the subsequent
issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions (proposed amendments) to the people in the
National Referendum-Plebiscite on October 16.

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the
Philippines, a republican and unitary state, sovereignty "resides in the people and all government
authority emanates from them .30 In its fourth meaning, Savigny would treat people as "that particular organized assembly of
individuals in which, according to the Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It means that the
constitutional legislator, namely the people, is sovereign 32 In consequence, the people may thus write into the Constitution their convictions
on any subject they choose in the absence of express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an
experiment, as all life is all experiment."34 "The necessities of orderly government," wrote Rottschaefer, "do not require that one generation
should be permitted to permanently fetter all future generations." A constitution is based, therefore, upon a self -limiting decision of the people
when they adopt it. 35

2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their

sovereign power as constitutional legislator. The proposed amendments, as earlier discussed,
proceed not from the thinking of a single man. Rather, they are the collated thoughts of the
sovereign will reduced only into enabling forms by the authority who can presently exercise the
powers of the government. In equal vein, the submission of those proposed amendments and the
question of martial law in a referendum-plebiscite expresses but the option of the people themselves
implemented only by the authority of the President. Indeed, it may well be said that the amending
process is a sovereign act, although the authority to initiate the same and the procedure to be
followed reside somehow in a particular body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to
be continued? - is a referendum question, wherein the 15-year olds may participate. This was
prompted by the desire of the Government to reach the larger mas of the people so that their true
pulse may be felt to guide the President in pursuing his program for a New Order. For the
succeeding question on the proposed amendments, only those of voting age of 18 years may
participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes of those 18 years old and above
which will have valid bearing on the results. The fact that the voting populace are simultaneously
asked to answer the referendum question and the plebiscite question does not infirm the
referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue,
which is of current one and submitting to them for ratification of proposed constitutional
amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily
dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots of
voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen
years of age and above. 37 The ballots in the ballot box for voters fifteen years of age and under
eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in
another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the
age groupings, i.e., ballots contained in each of the two boxes.38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely

consultative in character. It is simply a means of assessing public reaction to the given issues
submitted to the people foe their consideration, the calling of which is derived from or within the
totality of the executive power of the President.39 It is participated in by all citizens from the age of
fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex- convicts .40 A
"plebiscite," on the other hand, involves the constituent act of those "citizens of the Philippines not
otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote for at least six
months preceding the election Literacy, property or any other substantive requirement is not
imposed. It is generally associated with the amending process of the Constitution, more particularly,
the ratification aspect.

VII

1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the
freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the observation
of Justice Fernando, 41 is impressed with a mild character recorded no State imposition for a
muffled voice. To be sure, there are restraints of the individual liberty, but on certain grounds no total
suppression of that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes
all the embracing freedoms of expression and assembly The President himself had announced that
he would not countenance any suppression of dissenting views on the issues, as he is not interested
in winning a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at
hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out loud and clear
their adverse views on the proposed amendments and even (in the valid ratification of the 1973
Constitution, which is already a settled matter.43 Even government employees have been held by
the Civil Service Commission free to participate in public discussion and even campaign for their
stand on the referendum-plebiscite issues.44

VIII

Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free
debates or discussions on the referendum-plebiscite issues. The questions are not new. They are
the issues of the day. The people have been living with them since the proclamation of martial law
four years ago. The referendums of 1973 and 1975 carried the same issue of martial law. That
notwithstanding, the contested brief period for discussion is not without counterparts in previous
plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case, recalls:
"Under the old Society, 15 days were allotted for the publication in three consecutive issues of the
Official Gazette of the women's suffrage amendment to the Constitution before the scheduled
plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as
ordinance the complicated Tydings-Kocialskowski was published in only three consecutive issues of
the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940
Constitutional amendments providing for the bicameral Congress, the reelection of the President and
Vice President, and the creation of the Commission on Elections, 20 days of publication in three
consecutive issues of the Official Gazette was fixed (Com Act No. 517). And the Parity Amendment,
an involved constitutional amendment affecting the economy as well as the independence of the
Republic was publicized in three consecutive issues of the Official Gazette for 20 days prior to the
plebiscite (Rep. Act No. 73)."45

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date
when the plebiscite shall be held, but simply states that it "shall be held not later than three months
after the approval of such amendment or revision." In Coleman v. Miller, 46 the United States
Supreme court held that this matter of submission involves "an appraisal of a great variety of
relevant conditions, political, social and economic," which "are essentially political and not
justiciable." The constituent body or in the instant cases, the President, may fix the time within which
the people may act. This is because proposal and ratification are not treated as unrelated acts, but
as succeeding steps in a single endeavor, the natural inference being that they are not to be widely
separated in time; second, it is only when there is deemed to be a necessity therefor that
amendments are to be proposed, the reasonable implication being that when proposed, they are to
be considered and disposed of presently, and third, ratification is but the expression of the
approbation of the people, hence, it must be done contemporaneously. 47 In the words of Jameson,
"(a)n alteration of the Constitution proposed today has relation to the sentiment and the felt needs of
today, and that, if not ratified early while that sentiment may fairly be supposed to exist. it ought to be
regarded as waived, and not again to be voted upon, unless a second time proposed by proper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or
justiciable?

2. During the present stage of the transition period, and under, the environmental circumstances
now obtaining, does the President possess power to propose amendments to the Constitution as
well as set up the required machinery and prescribe the procedure for the ratification of his
proposals by the people?

3. Is the submission to the people of the proposed amendments within the time frame allowed
therefor a sufficient and proper submission?

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando,
Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and
Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices
Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio,
Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and
Munoz Palma voted in the negative. Associate Justice Fernando, conformably to his concurring and
dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that
there is concentration of powers in the Executive during periods of crisis, thus raising serious doubts
as to the power of the President to propose amendments.

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino,
Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of the
proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar
expressed the hope, however that the period of time may be extended. Associate Justices
Fernando, Makasiar and Antonio are of the view that the question is political and therefore beyond
the competence and cognizance of this Court, Associate Justice Fernando adheres to his
concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA
774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the President's
lack of authority to exercise the constituent power to propose the amendments, etc., as above
stated, there is no fair and proper submission with sufficient information and time to assure intelligent
consent or rejection under the standards set by this Court in the controlling cases of Gonzales,
supra, and Tolentino vs. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr.
and Martin voted to dismiss the three petitions at bar. For reasons as expressed in his separate
opinion, Associate Justice Fernando concurs in the result. Associate Justices Teehankee and
Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This
decision is immediately executory.

SO ORDERED.

Aquino, J, in the result.

Separate Opinions

CASTRO, C.J.:, concurring:

From the challenge as formulated in the three petitions at bar and the grounds advanced be the
Solicitor General in opposition thereto, as well as the arguments adduced by the counsels of the
parties at the hearing had on October 7 and 8, 1976, three vital issues readily project themselves as
the centers of controversy, namely:

(1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political
or justiciable?

(2) During the present stage of the transition period, and under the environmental circumstances
now obtaining, does the President possess power to propose amendments to the Constitution as
well as set up the required machineries and prescribe the procedure for the ratification of his
proposals by the people?

(3) Is the submission to the people of the proposed amendments within the time frame allowed
therefor a sufficient and proper, submission"

First Issue

The threshold question is not at all one of first impression Specifically on the matter of proposals to
amend the Constitution, this Court, in Mabanag vs. Lopez Vito (78 Phil. 1), inceptively announced
the dictum that-

Proposal to amend the Constitution is a highly political function performed by the Congress in its
sovereign legislative capacity and committed to its charges by the Constitution itself. The exercise of
this power is even independent of any intervention by the Chief Executive. If on grounds of
expediency scrupulous attention of the judiciary be needed to safeguard public interest, there is less
reason for judicial inquiry into the validity of a proposal than into that of a ratification.

In time, however, the validity of the said pronouncement was eroded. In the assessment of the Court
itself-

The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the
Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581, March 4 and 14, 1949), Tanada vs. Cuenco (L-
10520, February 28, 1957), and Macias vs. Commission on Elections (L-18684, September 14,
1961).

xxx xxx xxx

In short, the issue whether or not a Resolution of Congress-acting as a constituent assembly-

violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial review,
and, to the extent this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito the
latter should be deemed modified accordingly. The Members of the Court are unanimous on this
point." (Gonzales vs. Commission on Elections, et al, L-28196, November 9, 1967, 21 SCRA 774,
786-787).

The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been completed when,
in Javellana vs. Secretary, et al. (L-36142, March 3l, 1973, 50 SCRA 30), six members of the Court
concurred in the view that the question of whether the 1973 Constitution was ratified in accordance
with the provisions of Article XV (Amendments) of the 1935 Constitution is inherently and essentially
justiciable.

As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103 Phil. 1051)-

... the term 'political question' connotes, in legal parlance, what it means in ordinarily parlance,
namely, a question of policy in matters concerning the government of a State, as a body politic. In
other words, in the language of Corpus Juris Secundum (supra), it refers to 'those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the Legislature or executive branch of the
government.' It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure.'

Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on
whether or not the prescribed qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations - particularly
those prescribed or imposed by the Constitution - would be set at naught." (Javellana vs. Executive
Secretary, supra).

So it is in the situation here presented. The basic issue is the constitutional validity of the presidential
acts of proposing amendments to the Constitution and of calling a referendum-plebiscite for the
ratification of the proposals made. Evidently, the question does not concern itself with the wisdom of
the exercise of the authority claimed or of the specific amendments proposed. Instead the inquiry vel
non is focused solely on the existence of the said power in the President - a question purely of
legality determinable thru interpretation and construction of the letter and spirit of the Constitution by
the Court as the final arbiter in the delineation of constitutional boundaries and the allocation of
constitutional powers.

For the Court to shun cognizance of the challenge herein presented, especially in these parlous
years, would be to abdicate its constitutional powers, shirk its constitutional responsibility, and deny
the people their ultimate recourse for judicial determination.

I have thus no hesitancy in concluding that the question here presented is well within the periphery
of judicial inquiry.

II

Second Issue

The main question stands on a different footing; it appears unprecedented both here and elsewhere.
Its solution, I believe, can be found and unraveled only by a critical assessment of the existing legal
order in the light of the prevailing political and factual milieu.

To be sure, there is an impressive array of consistent jurisprudence on the proposition that, normally
or under normal conditions, a Constitution may be amended only in accord with the procedure set
forth therein. Hence, if there be any such prescription for the amendatory process as invariable there
is because one of the essential parts of a Constitution is the so-called "constitution of sovereignty"
which comprises the provision or provisions on the modes in accordance with which formal changes
in the fundamental law may be effected the same would ordinarily be the controlling criterion for the
validity of the amendments sought.
Unfortunately, however, during the present transition period of our political development, no express
provision is extant in the Constitution regarding the agency or agent by whom and the procedure by
which amendments thereto may be proposed and ratified fact overlooked by those who challenge
the validity of the presidential acts in the premises. This is so because there are at least two
distinctly in the transition from the old system of government under the 1935 Constitution to the new
one established by the 1973 Constitution.

The first stage comprises the period from the effectivity of the Constitution on January 17, 1973 to
the time the National Assembly is convened by the incumbent President and the interim President
and the interim Prime Minister are chosen Article XVII, Sections 1 and 3[1]. The existence of this
stage as an obvious fact of the nation's political life was recognized by the Court in Aquino vs.
Commission on Elections, et al. (L-40004, January 31, 1975, 62 SCRA 275), when it rejected the
claim that, under the 1973 Constitution, the President was in duty bound to convene the interim
National Assembly soon after the Constitution took effect.

The second stage embraces the period from the date the interim National Assembly is convened to
the date the Government described in Articles VII to IX of the Constitution is inaugurated, following
the election of the members of the regular National Assembly (Article XVII, Section 1) and the
election of the regular President and Prime Minister,. This is as it should be because it is recognized
that the President has been accorded the discretion to determine when he shall initially convene the
interim National Assembly, and his decision to defer the convocation thereof has found
overwhelming support by the sovereign people in two previous referenda, therein giving reality to an
interregnum between the effectivity of the Constitution and the initial convocation of the interim
National Assembly, which interregnum, as aforesaid, constitutes the first stage in the transition
period.

Against this factual backdrop, it is readily discernible that neither of the two sets of provisions
embodied in the Constitution on the amendatory process applied during the said first stage. Thus,
Section 15, Article XVII (Transitory Provisions) provides-

"Sec. 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a
majority vote of all its Members, propose amendments to this Constitution. Such amendments shall
take effect when ratified in accordance with Article Sixteen hereof."

Patently, the reference to the "interim National Assembly" and the "interim Prime Minister" limits the
application thereof to the second stage of the transition period, i.e.,., after the interim? National
Assembly shall have been convened and the interim Prime Minister shall have been chosen.

Upon the other hand, the provisions of Article XVI (Amendments), to wit-

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the
National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention.

(2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional
convention or, by a majority vote of all its Members, submit the question of ceiling such a convention
to the electorate in an election.

SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority
of the votes cast in a plebiscite which shall be held not later than three months after the approval of
such amendment or revision.
unequivocally contemplate amendments after the regular Government shall have become fully
operative, referring as they do to the National Assembly which will come into being only at that time.

In the face of this constitutional hiatus, we are confronted with the dilemma whether amendments to
the Constitution may be effected during the aforesaid first stage and, if in the affirmative, by whom
and in what manner such amendments may be proposed and ratified.

Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not being a mere
declaration of the traditions of a nation but more the embodiment of a people's hopes and
aspirations, its strictures are not unalterable. They are, instead, dynamic precepts intended to keep
in stride with and attuned to the living social organism they seek to fashion and govern. If it is
conceded that "the political or philosophical aphorism of one generation is doubted by the next and
entirely discarded by the third," then a Constitution must be able to adjust to the changing needs and
demands of society so that the latter may survive, progress and endure. On these verities, there can
be no debate.

During the first stage of the transition period in which the Government is at present - which is
understandably the most critical - the need for change may be most pressing and imperative, and to
disavow the existence of the right to amend the Constitution would be sheer political heresy. Such
view would deny the people a mechanism for effecting peaceful change, and belie the organic
conception of the Constitution by depriving it of its means of growth. Such a result obviously could
not have been intended by the framers of the fundamental law.

It seems, however, that the happenstance that the first period would come to pass before the
convocation of the interim National Assembly was not anticipated, hence, the omission of an express
mandate to govern the said situation in so far as amendments are concerned. But such omission
through inadvertence should not, because it cannot, negate the sovereign power of the people to
amend the fundamental charter that governs their lives and their future and perhaps even the very
survival of the nation.

Upon the other hand, it is clear from the afore-quoted provisions on the amendatory process that the
intent was, instead, to provide a simpler and more expeditious mode of amending the Constitution
during the transition period. For, while under Article XVI thereof, proposals for amendment may be
made directly by the regular National Assembly by a vote of at least three-fourths of all its members,
under Section 15 of Article XVII, a bare majority vote of all the members of the National Assembly
would suffice for the purpose. The relaxation and the disparity in the vote requirement are revealing.
The can only signify a recognition of the need to facilitate the adoption of amendments during the
second stage of the transition period so that the interim National Assembly will be able, in a manner
of speaking, to iron out the kinks in the new Constitution, remove imperfections therein, and provide
for changed or changing circumstances before the establishment of the regular Government. In this
contest, therefore, it is inutile speculation to assume that the Constitution was intended to render
impotent or ar the effectuation of needful change at an even more critical period - the first stage.
With greater reason, therefore, must the right and power to amend the Constitution during the first
stage of te transition period be upheld, albeit within its express and implied constraints.

Neither can it be successfully argued, in the same context and in the present posture, that the
Constitution may be amended during the said first stage only by convening the interim National
Assembly. That is to say and require that he said stage must first be brought to an end before any
amendment may be proposed and ratified. Settled jurisprudence does not square with such a
proposition. As aptly noted in Aquino vs. Commission on Elections, et al., supra, the framers of the
Constitution set no deadline for the convening of the interim National Assembly because they could
not have foreseen how long the crises which impelled the proclamation and justify the continued
state of martial law would last. Indeed, the framers committed to the sound judgment is not subject
to judicial review, save possibly to determine whether arbitrariness has infected such exercise;
absent such a taint, the matter is solely in the keeping of the President. To thus content that only by
convening the interim National Assembly may the Constitution be amended at this time would
effectively override the judgement vested in the President, even in default of any he has acted
arbitrarily or gravely abuse his discretion. Furthermore, to sustain such a contention would not only
negate the mandate so resoundingly expressed by the people in two national referenda against the
immediate convening of the interim National Assembly, but as well deride their overwhelming
approval of the manner in which the President has exercised the legislative power to issue
proclamations, orders, decrees and instructions having the stature and force of law.

Given the constitutional stalemate or impasse spawned by these supervening developments, the
logical query that compels itself for resolution is: By whom, then, may proposals for the amendment
of the Constitution be made and in what manner may said proposals be ratified by the people?

It is conventional wisdom that, conceptually, the constituent power is not to be confuse with
legislative power in general because the prerogative to propose amendments to the Constitution is
not in any sense embraced within the ambit of ordinary law-making. Hence, there is much to
recommend the proposition that, in default of an express grant thereof, the legislature - traditionally
the delegated repository thereof - may not claim it under a general grant of legislative authority. In
the same vein, neither would it be altogether unassailable to say that because by constitutional
tradition and express allocation the constituent power under the Constitution is locate in the law-
making agency and at this stage of the transition period the law-making authority is firmly recognized
as being lodged in the President, the said constituent power should now logically be in the hands of
te President who may thus exercise it in place of the interim National Assembly. Instead,, as pointed
out in Gonzales vs. Commission on Elections, et al., supra, the power to amend the Constitution or
to propose amendments thereto

... is part of the inherent powers of the people - as the repository of sovereignty in a republican state,
such as ours - t o make, and, hence, to amend their own Fundamental Law.

As such, it is undoubtedly a power that only the sovereign people, either directly by themselves or
through their chosen delegate, can wield. Since it has been shown that the people, inadvertently or
otherwise, have not delegated that power to inadvertently or otherwise, have not delegated that
power to any instrumentality during the current stage of our hegira from crisis to normalcy, it follows
of necessity that the same remains with them for them to exercise in the manner they see fit and
through the agency they choose. And, even if it were conceded that - as it is reputedly the rule in
some jurisdictions - a delegation of the constituent authority amounts to a complete divestiture from
the people of the power delegated which they may not thereafter unilaterally reclaim from the
delegate, there would be no violence donde to such rule, assuming it to be applicable here,
inasmuch as that power, under the environmental circumstance adverted to, has not been delegated
to anyone in the first place. The constituent power during the first stage of the transition period
belongs to and remains with the people, and accordingly may be exercised by them - how and when
- at their pleasure.

At this juncture, a flashback to the recent and contemporary political ferment in the country proves
revelatory. The people, shocked and revolted by the "obvious immorality" of the unabashed manner
by which the delegates to the Constitutional Convention virtually legislated themselves into office as
ipso facto members of the interim National Assembly by the mere fiat of voting for the transitory
provisions of the Constitution. and the stark reality that the unwieldy political monstrosity that the
interim Assembly portended to be would have proven to be a veritable drain on the meager financial
resources of a nation struggling for survival, have unequivocally put their foot down, as it were, on
the convocation thereof. But this patently salutary decision of the people proved to be double-edged.
It likewise bound the political machinery of the Government in a virtual straight-jacket and consigned
the political evolution of the nation into a state of suspended animation. Faced with the ensuing
dilemma, the people understandably agitated for a solution. Through consultations in the barangays
and sanggunian assemblies, the instrumentalities through which the people's voice is articulated in
the unique system of participatory democracy in the country today, the underpinnings for the
hastening of the return to constitutional normalcy quickly evolved into an overwhelming sentiment to
amend the Constitution in order to replace the discredited interim National Assembly with what the
people believe will be an appropriate agency to eventually take over the law-making power and thus
pave the way for the early lifting of martial rule. In pursuit of this sentiment, and to translate its
constraints into concrete action, the Pambansang Katipunan ng Barangay, the Pambansang
Katipunan ng mga Kabataang Barangay, the Lupong Tagapagpaganap of the Katipunan ng mga
Barangay, the Pambansang Katipunan ng mga Kabataang Barangay the Lupong Tagapagpaganap
of the Katipunan ng mga Sanggunian, and finally the Batasang Bayan, to a man and as one voice,
have come forward with definitive proposals for the amendment of the Constitution, and, choosing
the President the only political arm of the State at this time through which that decision could be
implemented and the end in view attained as their spokesman, proposed the amendments under
challenge in the cases at bar.

In the light of this milieu and its imperatives, one thing is inescapable: the proposals now submitted
to the people for their ratification in the forthcoming referendum-plebiscite are factually not of the
President; they are directly those of the people themselves speaking thru their authorized
instrumentalities. The President merely formalized the said proposals in Presidential Decree No.
1033. It being conceded in all quarters that sovereignty resides in the people and it having been
demonstrated that their constituent power to amend the Constitution has not been delegated by
them to any instrumentality of the Government during the present stage of the transition period of
our political development, the conclusion is ineluctable that their exertion of that residuary power
cannot be vulnerable to any constitutional challenge as being ultra vires. Accordingly, without
venturing to rule on whether or not the President is vested with constituent power as it does not
appear necessary to do so in the premises the proposals here challenged, being acts of the
sovereign people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the
concomitant authority to call a plebiscite and to appropriate funds therefor is even less vulnerable
not only because the President, in exercising said authority has acted as a mere alter ego of the
people who made the proposals, but likewise because the said authority is legislative in nature
rather than constituent.

III

Third Issue

Little need be said of the claimed insufficiency and impropriety of the submission of the proposed
amendments for ratification from the standpoint of time. The thesis cannot be disputed that a fair
submission presupposes an adequate time lapse to enable the people to be sufficiently enlightened
on the merits or demerits of the amendments presented for their ratification or rejection. However,
circumstances there are which unmistakably demonstrated that the is met. Even if the proposal
appear to have been formalized only upon the promulgation of Presidential Decree No. 1033 on
September 22, 1976, they are actually the crystallization of sentiments that for so long have
preoccupied the minds of the people and their authorized representatives, from the very lowest level
of the political hierarchy. Hence, unlike proposals emanating from a legislative body, the same
cannot but be said to have been mulled over, pondered upon, debated, discussed and sufficiently
understood by the great masses of the nation long before they ripened into formal proposals.
Besides. it is a fact of which judicial notice may well be taken that in the not so distant past when the
1973 Constitution was submitted to the people for ratification, an all-out campaign, in which all the
delegates of the Constitutional Convention reportedly participated, was launched to acquaint the
people with the ramifications and working of the new system of government sought to be
inaugurated thereunder. It may thus well be assumed that the people in general have since
acquired, in the least, a working knowledge of the entirety of the Constitution. The changes now
proposed the most substantial of which being merely the replacement of the interim National
assembly with another legislative arm for the Government during the transition period until the
regular National Assembly shall have been constituted do not appear to be of such complexity as to
require considerable time to be brought home to the full understanding of the people. And, in fact,
the massive and wide-ranging informational and educational campaign to this end has been and still
is in full swing, with all the media the barangay, the civic and sectoral groups, and even the religious
all over the land in acting and often enthusiastic if not frenetic involvement.

Indeed, when the people cast their votes on October 16, a negative vote could very well mean an
understanding of the proposals which they reject; while an affirmative vote could equally be
indicative Of such understanding and/or an abiding credence in the fidelity with which the President
has kept the trust they have confided to him as President and administrator of martial rule

IV

Conclusion

It is thus my considered view that no question viable for this court to pass judgment upon is posed.
Accordingly, I vote for the outright dismissal of the three petitions at bar.

FERNANDO, J., concurring and dissenting:

These three petitions, the latest in a series of cases starting from Planas v. Commission on Elections
continuing with the epochal resolution in Javellana v. Executive Secretary and followed successively
in three crucial decisions, Aquino v. Ponce Enrile Aquino v. Commission on Elections, and Aquino v
Military Commission,5 manifest to the same degree the delicate and awesome character of the
function of judicial review. While previous rulings supply guidance and enlightenment, care is to be
taken to avoid doctrinaire rigidity unmindful of altered circumstances and the urgencies of the times.
It is inappropriate to resolve the complex problems of a critical period without full awareness of the
consequences that flow from whatever decision is reached. Jural norms must be read in the context
of social facts, There is need therefore of adjusting inherited principles to new needs. For law, much
more so constitutional law, is simultaneously a reflection of and a force in the society that it controls.
No quality then can be more desirable in constitutional adjudication than that intellectual and
imaginative insight which goes into the heart of the matter. The judiciary must survey things as they
are in the light of what they must become It must inquire into the specific problem posed not only in
terms of the teaching of the past but also of the emerging political and legal theory, especially so
under a leadership notable for its innovative approach to social problems and the vigor of its
implementation. This, on the one side. It must equally be borne in mind through that this Court must
be conscious of the risk inherent in its being considered as a mere subservient instrument of
government policy however admittedly salutary or desirable. There is still the need to demonstrate
that the conclusion reached by it in cases appropriate for its determination has support in the law
that must be applied. To my mind that was the norm followed, the conclusion reached being that the
three petitions be dismissed. I am in agreement. It is with regret however that based on my reading
of past decisions, both Philippine and American, and more specifically my concurring opinion in
Aquino v. Ponce Enrile, I must dissent from the proposition set forth in the able and scholarly opinion
of Justice Martin that there is concentration of power in the President during a crisis government.
Consequently, I cannot see my way clear to accepting the view that the authority to propose
amendments is not open to question. At the very least, serious doubts could be entertained on the
matter.

1. With due respect then, I have to dissociate myself from my brethren who would rule that
governmental powers in a crisis government, following Rossiter, "are more or less concentrated in
the President." Adherence to my concurring and dissenting opinion in Aquino v. Ponce Enrile leaves
me no choice.

It must be stated at the outset that with the sufficiency of doctrines supplied by our past decisions to
point the way to what I did consider the appropriate response to the basic issue raised in the Aquino
and the other habeas corpus petitions resolved jointly, it was only in the latter portion of my opinion
that reference was made to United States Supreme Court pronouncements on martial law, at the
most persuasive in character and rather few in number "due no doubt to the, absence in the
American Constitution of any provision concerning it. " 7 It was understandable then that it was only after the landmark
Ex parte Milligan case, that commentators like Cooley in 1868 and Watson in 1910 paid attention, minimal by that, to the subj ect." It was next
set forth that in the works on American constitutional law published in this century specially after the leading cases of cases Sterling v.
Constant in and Duncan v. Kahanamoku, "there was a fuller treatment of the question of martial law While it is the formulatio n of Willoughby
that for me is most acceptable, my opinion did take note that anot her commentator, Burdick, came out earlier with a similar
appraisal.10 Thus: "So called martial law, except in occupied territory of an enemy is merely the calling in of the aid of military forces by the
executive, who is charged with the enforcement of the law, with or without special authorization by the legislature. Such d eclaration of martial
law does not suspend the civil law, though it may interfere with the exercise of one's ordinary rights. The right to call out the military forces to
maintain order and enforce the law is simply part of the Police power, It is only justified when it reasonably appears necessary, and only
justifies such acts as reasonably appear necessarily to meet the exigency, including the arrest, or in extreme cases the. killing of those who
create the disorder or oppose the authorities. When the exigency is over the members of the military forces are criminally and civilly habit for
acts done beyond the scope of reasonable necessity. When honestly and reasonably coping with a situation of insurrection or riot a member
of the military forces cannot be made liable for his acts, and persons reasonably arrested under such circumstances will not, during the
insurrection or riot, be free by writ of habeas corpus." 11 When the opinion cited Willoughby's concept of martial law, stress was laid on his
being "Partial to the claims of liberty."12 This is evident in the explicit statement from his work quoted by me: "There is, then, strictly
speaking, no such thing in American law as a declaration of martial law whereby military law is substituted for civil law. So-called declarations
of martial law are, indeed, often made but their legal effect goes no further than to warn citizens that the military powers have been called
upon by the executive to assist him in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest
and punishment not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law. Some of
the authorities stating substantially this doctrine are quoted in the footnote below Nor did I stop there. The words of Willis were likewise cited:
"Martial law proper, that is, military law in case of insurrection, riots, and invasions, is not a substitute for the civil law, but is rather an aid to
the execution of civil law. Declarations of martial law go no further than to warn citizens that the executive has called upon the military po wer
to assist him in the maintenance of law and order. While martial law is in force, no new powers are given to the executive and no civil rights
of the individual, other than the writ of habeas corpus, are suspended. The relations between the citizen and his stature unc hanged."14

The conclusion reached by me as to the state of American federal law on the question of martial law
was expressed thus: 4'1 It is readily evident that even when Milligan supplied the only authoritative
doctrine, Burdick and Willoughby did not ignore the primacy of civil liberties. Willis wrote after
Sterling. It would indeed be surprising if his opinion were otherwise. After Duncan, such an approach
becomes even more strongly fortified. Schwartz, whose treatise is the latest to be published, has this
summary of what he considers the present state of American law: 'The Milligan and Duncan cases
show plainly that martial law is the public law of necessity. Necessities alone calls it forth, necessity
justifies its exercise; and necessities measures the extended degree to which it may be It is, the high
Court has affirmed, an unbending rule of law that the exercise of military power, where the rights of
the citizen are concerned, may, never be pushed beyond what the exigency requires. If martial law
rule survive the necessities on which alone it rests, for even a single minute it becomes a mere
exercise of lawless violence.' Further: Sterling v. Constantin is of basic importance. Before it, a
number of decisions, including one the highest Court, went or on the theory that the executive had a
free hand in taking martial law measures. Under them, it has been widely supposed that in
proclamation was so far conclusive that any action taken under it was immune from judicial scrutiny.
Sterling v. Constantin definitely discredits these earlier decisions and the doctrine of conclusiveness
derived from them. Under Sterling v. Constantin, where martial law measures impinge upon personal
or property rights-normally beyond the scope of military power, whose intervention is lawful only
because an abnormal Actuation has made it necessary the executive's ipse dixit is not of itself
conclusive of the necessity.'"15
There was likewise an effort on my part to show what for me is the legal effect of martial law being
expressly provided for in the Constitution rather than being solely predicated on the common law
power based on the urgent need for it because of compelling circumstances incident to the state of
actual clash of arms: "It is not to be lost sight of that the basis for the declaration of martial law in the
Philippines is not mere necessity but an explicit constitutional provision. On the other hand, Milligan,
which furnished the foundation for Sterling and Duncan had its roots in the English common law.
There is pertinence therefore in ascertaining its significance under that system. According to the
noted English author, Dicey: 'Martial law,' in the proper sense of that term, , in which - it means the
suspension of ordinary law and the temporary government of a country or parts of it be military
tribunals, is unknown to the law of England. We have nothing equivalent to what is called in France
the "Declaration of the State of Siege," under which the authority ordinarily vested in the civil power
for the maintenance of order and police passes entirely to the army (autorite militaire). This is an
unmistakable proof of the permanent supremacy of the law under our constitution. There was this
qualification: 'Martial law is sometimes employed as a name for the common law right of the Crown
and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any
violent resistance to the law. This right, or power, is essential to the very existence of orderly
government, and is most assuredly recognized in the most ample manner by the law of England. It is
a power which has in itself no special connection with the existence of an armed force. The Crown
has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier,
whether what is called a servant of the government,' such for example as a policeman, or a person
in no way connected with the administration, not only has the right, but is, as a matter of legal duty,
bound to assist in putting down breaches of the peace. No doubt policemen or soldiers are the
persons who, as being specially employed in the maintenance of order, are most generally called
upon to suppress a riot, but it is clear that all loyal subjects are bound to take their part in the
suppression of riots."16

Commitment to such an approach results in my inability to subscribe to the belief that martial law in
terms of what is provided both in the 1935 and the present Constitution, affords sufficient justification
for the concentration of powers in the Executive during periods of crisis. The better view, considering
the juristic theory on which our fundamental law rests is that expressed by Justice Black in Duncan
v. Kahanamoku: "Legislatures and courts are not merely cherished American institutions; they are
indispensable to our government. 17 If there has been no observance of such a cardinal concept at
the present, it is due to the fact that before the former Congress could meet in regular session anew,
the present Constitution was adopted, abolishing it and providing for an interim National Assembly,
which has not been convened.18 So I did view the matter.

2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was made to the first
chapter on his work on Constitutional Dictatorship where he spoke of martial rule as "a device
designed for use in the crisis of invasion or rebellion. It may be most precisely defined as an
extension of military government to the civilian population, the substitution of the will of a military
commander for the will of the people's elected government."19 Since, for me at least, the Rossiter
characterization of martial law has in it more of the common law connotation, less than duly mindful
of the jural effects of its inclusion in the Constitution itself as a legitimate device for coping with
emergency conditions in times of grave danger, but always subject to attendant limitations in
accordance with the fundamental postulate of a charter's supremacy, I felt justified in concluding:
"Happily for the Philippines, the declaration of martial law lends itself to the interpretation that the
Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the primacy of liberty
possess relevance. lt cannot be said that the martial rule concept of Rossiter, latitudinarian in scope,
has been adopted, even on the assumption that it can be reconciled with our Constitution. What is
undeniable is that President Marcos has repeatedly maintained that Proclamation No. 1081 was
precisely based on the Constitution and that the validity of acts taken there under could be passed
upon by the Supreme court. For me that is quite reassuring, persuaded as I am likewise that the
week- of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on
freedom."20

3. Candor and accuracy compel the admission that such a conclusion his to be qualified. For in the
opinion of the Court in the aforecited Aquino v. Commission on Elections, penned by Justice
Makasiar, the proposition was expressly affirmed "that as Commander-in-Chief and enforcer or
administrator of martial law, the incumbent President of the Philippines can reclamations, orders and
decrees during the period Martial Law essential to the security and preservation of the Republic, to
the defense of the political and social liberties of the people and to the institution of reforms to
prevent the resurgence of rebellion or insurrection or secession or the threat thereof as well as to
meet the impact of a worldwide recession, inflation or economic crisis which presently threatens all
nations including highly developed countries." 21 To that extent, Rossiter's view mainly relied upon,
now possesses Juristic significant in this jurisdiction. What, for me at least, gives caused for concern
is that with the opinion of the Court this intrusion of what I would consider an alien element in the
limited concept of martial law as set forth in the Constitution would be allowed further incursion into
the corpus of the law, with the invocation of the view expressed in the last chapter of his work
approving tile "concentration of governmental power in a democracy [as] a corrective to the crisis
inefficiencies inherent in the doctrine of the separation of powers." 22 It is to the credit of the late
Professor Rossiter as an objective scholar that in the very same last chapter, just three pages later,
he touched explicitly on the undesirable aspect of a constitutional dictatorship. Thus: "Constitutional
Dictatorship is a dangerous thing. A declaration of martial law or the passage of an enabling act is a
step which must always be feared and sometimes bitterly resisted, for it is at once an admission of
the incapacity of democratic institutions to defend the order within which they function and a too
conscious employment of powers and methods long ago outlawed as destructive of constitutional
government. Executive legislation, state control of popular liberties, military courts, and arbitrary
executive action were governmental features attacked by the men who fought for freedom not
because they were inefficient or unsuccessful, but because they were dangerous and oppressive.
The reinstitution of any of these features is a perilous matter, a step to be taken only when the
dangers to a free state will be greater if the dictatorial institution is not adopted."23

4. It is by virtue of such considerations that I find myself unable to share the view of those of my
brethren who would accord recognition to the Rossiter concept of concentration of governmental
power in the Executive during periods of crisis. This is not to lose sight of the undeniable fact that in
this country through the zeal, vigor, and energy lavished on projects conducive to the general
welfare, considerable progress has been achieved under martial rule. A fair summary may be found
in a recent address of the First Lady before the delegates to the 1976 international Monetary Fund-
World Bank Joint Annual Meeting: "The wonder is that so much has been done in so brief a time.
Since September 1972, when President Marcos established the crisis government, peace and order
have been restored in a country once avoided as one of the most unsafe in the world. We have
liberated millions of Filipino farmers from the bondage of tenancy, in the most vigorous and
extensive implementation of agrarian reform."24 Further, she said: "A dynamic economy has
replaced a stagnant order, and its rewards are distributed among the many, not hoarded by a few.
Our foreign policy, once confined by fear and suspicion to a narrow alley of self-imposed isolation,
now travels the broad expressways of friendship and constructive interaction with the whole world,
these in a new spirit of confidence and self-reliance. And finally, forced to work out our own
salvation, the Filipino has re-discovered the well-springs of his strength and resilience As Filipinos,
we have found our true Identity. And having broken our crisis of Identity, we are no longer apologetic
and afraid. "25 The very Idea of a crisis, however, signifies a transitory, certainly not a permanent, state of things. President Marcos
accordingly has not been hesitant in giving utterance to his conviction that full implementation of the modified parliamentary system under the
present Constitution should not be further delayed. The full restoration of civilian rule can thus be expected. That is more in accord with the
imperatives of a constitutional order. It should not go unnoticed either that the President has referred to the present regime as one of
"constitutional authoritarianism." That has a less objectionable ring, authority being more Identified with the Idea of law, as based on right,
the very antithesis of naked force, which to the popular mind is associated with dictatorship, even if referred to as "consti tutional."
For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of the Court, while
no doubt a partisan of d strong Presidency, was not averse to constitutional restraints even during
periods of crisis. So I would interpret this excerpt from the fourth edition of his classic treatise on the
Presidency: "A regime of martial law may be compendiously, if not altogether accurately, defined as
one in which the ordinary law, as administered by the ordinary courts, is superseded for the time
being by the will of a military commander. It follows that, when martial law is instituted under national
authority, it rests ultimately on the will of the President of the United States in his capacity as
Commander-in-Chief. It should be added at once, nevertheless, that the subject is one in which the
record of actual practice fails often to support the niceties of theory. Thus, the employment of the
military arm in the enforcement of the civil law does not invariably, or even usually, involve martial
law in the strict sense, for, as was noted in the preceding section, soldiers are often placed simply at
the disposal and direction of the civil authorities as a kind of supplementary police, or posse
comitatus on the other hand be reason of the discretion that the civil authorities themselves are apt
to vest in the military in any emergency requiring its assistance, the line between such an
employment of the military and a regime of martial law is frequently any but a hard and fast one. And
partly because of these ambiguities the conception itself of martial law today bifurcates into two
conceptions, one of which shades off into military government and the other into the situation just
described, in which the civil authority remains theoretically in control although dependent on military
aid. Finally, there is the situation that obtained throughout the North during the Civil War, when the
privilege of the writ of habeas corpus was suspended as to certain classes of suspects, although
other characteristics of martial law were generally absent."26

It is by virtue of the above considerations that, with due respect to the opinion of my brethren, I
cannot yield assent to the Rossiter view of concentration of governmental powers in the Executive
during martial law.

5 There is necessity then, for me at least, that the specific question raised in all three petitions be
squarely faced. It is to the credit of the opinion of the Court that it did so. The basic issue posed
concerns the boundaries of the power of the President during this period of martial law, more
precisely whether it covers proposing amendments to the Constitution. There is the further
qualification if the stand of respondents be taken into account that the interim National Assembly has
not been convened and is not likely to be called into session in deference to the wishes of the people
as expressed in three previous referenda. It is the ruling of the majority that the answer be in the
affirmative, such authority being well within the area of presidential competence. Again I find myself
unable to join readily in that conviction. It does seem to me that the metes and bounds of the
executive domain, while still recognizable, do appear blurred. This is not to assert that there is
absolutely no basis for such a conclusion, sustained as it is by a liberal construction of the principle
that underlies Aquino v. Commission on Elections as to the validity of the exercise of the legislative
prerogative by the President as long as the interim National Assembly is not For me, the stage of
certitude has not been reached. I cannot simply ignore the vigorous plea of petitioners that there is a
constitutional deficiency consisting in the absence of any constituent power on the part of the
President, the express provision of the Constitution conferring it on the by team National
Assembly.27 The learned advocacy reflected in the pleadings as well as the oral discourse of
Solicitor General Estelito P. Mendoza 21 failed to erase the grave doubts in my mind that the Aquino
doctrine as to the possession of legislative competence by the President during this period of
transition with the interim lawmaking body not called into session be thus expanded. The majority of
my brethren took that step. I am not prepared to go that far. I will explain why.

The way for me, is beset with obstacles. In the first place, such an approach would lose sight of the
distinction between matters legislative and constituent. That is implicit in the treatise on the 1935
Constitution by Justices Malcolm and Laurel In their casebook published the same year, one of the
four decisions on the subject of constitutional amendments is Ellingham v. Dye 31 which
categorically distinguished between constituent and legislative powers. Dean Sinco, a well-known
authority on the subject, was quite explicit. Thus: "If there had been no express provision in the
Constitution granting Congress the power to propose amendments, it would be outside its authority
to assume that power. Congress may not claim it under the general grant of legislative power for
such grant does not carry with it the right 'to erect the state, institute the form of its government,'
which is considered a function inherent in the people. Congressional law- making authority is limited
to the power of approving the laws 'of civil conduct relating to the details and particulars of the
government instituted,' the government established by the people."12 If that distinction be preserved,
then for me the aforecited Aquino decision does not reach the heart of the matter. Nor is this all. In
the main opinion of Justice Makasiar as well as that of the then Justice, now Chief Justice, Castro,
support for the ruling that the President cannot be deemed as devoid of legislative power during this
transition stage is supplied by implications from explicit constitutional provisions.13 That is not the
case with the power to propose amendments. It is solely the interim National Assembly that is
mentioned. That is the barrier that for me is well-nigh insurmountable. If I limit myself to entertaining
doubts rather than registering a dissent on this point, it is solely because of the consideration,
possessed of weight and significance, that there may be indeed in this far-from-quiescent and static
period a need for al. amendments. I do not feel confident therefore that a negative vote on my part
would be warranted. What would justify the step taken by the President, even if no complete
acceptance be accorded to the view that he was a mere conduit of the barangays on this matter, is
that as noted in both qualified concurrences by Justices Teehankee and Munoz Palma in Aquino, as
far as the legislative and appropriately powers are concerned, is the necessity that unless such
authority be recognized, there may be paralyzation of governmental activities, While not squarely
applicable, such an approach has, to my mind, a persuasive quality as far as the power to propose
amendments is concerned.

Thus I would confine myself to the expression of serious doubts on the question rather than a
dissent.

6. The constitutional issue posed as thus viewed leaves me free to concur in the result that the
petitions be dismissed. That is to accord respect to the principle that judicial review goes no further
than to checking clear infractions of the fundamental law, except in the field of human rights where a
much greater vigilance is required, That is to make of the Constitution a pathway to rather than a
barrier against a desirable objective. -As shown by my concurring and dissenting opinion in
Tolentino Commission on Elections '34 a pre-martial law decision, the fundamental postulate that
sovereignty resides in the people exerts a compelling force requiring the judiciary to refrain as much
as possible from denying the people the opportunity to make known their wishes on matters of the
utmost import for the life of the nation, Constitutional amendments fall in that category. I am fortified
in that conviction by the teaching of persuasive American decisions There is reinforcement to such a
conclusion from retired Chief Justice Concepcion's concurring and dissenting opinion in Aytona v.
Castillo,17 Which I consider applicable to the present situation. These are his words: "It is well
settled that the granting of writs of prohibition and mandamus is ordinarily within the sound discretion
of the courts, to be exercised on equitable principles, and that said writs should be issued when the
right to the relief is clear * * by As he noted in his ponencia in the later case of Gonzales v.
Hechanova,19 an action for prohibition, while petitioner was sustained in his stand, no injunction was
issued. This was evident in the dispositive portion where judgment was rendered "declaring that
respondent Executive Secretary had and has no power to authorize the importation in question; that
he exceeded his jurisdiction in granting said authority; that said importation is not sanctioned by law
and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for
must be and is, accordingly, denied." 40 With the illumination thus supplied, it does not necessarily
follow that even a dissent on my part would necessarily compel that I vote for the relief prayed for.
Certainly this is not to belittle in any way the action taken by petitioners in filing these suits. That, for
me, is commendable. It attests to their belief in the rule of law. Even if their contention as to lack of
presidential power be accepted in their entirety, however, there is still discretion that may be
exercised on the matter, prohibition being an equitable remedy. There are, for me, potent
considerations that argue against acceding to the plea. With the prospect of the interim National
Assembly being convened being dim, if not non- existent, if only because of the results in three
previous referenda, there would be no constitutional agency other than the Executive who could
propose amendments, which, as noted. may urgently press for adoption. Of even greater weight, to
my mind, is the pronouncement by the President that the plebiscite is intended not only to solve a
constitutional anomaly with the country devoid of a legislative body but also to provide. the
machinery be which the termination of martial law could be hastened. That is a consummation
devoutly to be wished. That does militate strongly against the stand of petitioners. The obstruction
they would pose may be fraught with pernicious consequences. It may not be amiss to refer anew to
what I deem the cardinal character of the jural postulate explicitly affirmed in both the 1935 and the
present Constitutions that sovereignty resides in the people. So I made clear in Tolentino v.
Commission on Elections and thereafter in my dissent in Javellana v. The Executive Secretary" and
my concurrence in Aquino v. Commission on Elections. 42 The destiny of the country lies in their
keeping. The role of leadership is not to be minimized. It is crucial it is of the essence. Nonetheless,
it is their will, if given expression in a manner sanctioned by law and with due care that there be no
mistake in its appraisal, that should be controlling. There is all the more reason then to encourage
their participation in the power process. That is to make the regime truly democratic. Constitutional
orthodoxy requires, however, that the fundamental law be followed. So I would interpret
Laski, 43 Corwin, 44 Lerner,45, Bryn-Jones, 46 and McIver.47

7. There is reassurance in the thought that this Court has affirmed its commitment to the principle
that the amending process gives rise to a justiciable rather than a political question. So, it has been
since the leading case of Gonzales v. Commission on Election S.48 It has since then been followed
in Tolentino v. Commission on Elections 49 Planas v. Commission on Elections," and lastly, in
Javellana v. The Executive Secretary This Court did not heed the vigorous plea of the Solicitor
General to resurrect the political question doctrine announced in Mabanag v. Lopez Vito. 52 This is
not to deny that the federal rule in the United States as set forth in the leading case of Coleman v.
Miller , 53 a 1939 decision, and relatively recent State court decisions, supply ammunition to such a
contention.,51 That may be the case in the United States, but certainly not in this jurisdiction.
Philippine constitutional tradition is to the contrary. It can trace its origin to these words in the
valedictory address before the 1934-35 Constitutional Convention by the illustrious Claro M. Recto:
"It is one of the paradoxes a democracy that the people of times place more confidence in
instrumentalities of the State other than those directly chosen by them for the exercise of their
sovereignty It can be said with truth, therefore, that there has invariably been a judicial predisposition
to activism rather than self-restraint. The thinking all these years has been that it goes to the heart of
constitutionalism. It may be said that this Court has shunned the role of a mere interpreter; it did
exercise at times creative power. It has to that extent participated in the molding of policy, It has
always recognized that in the large and undefined field of constitutional law, adjudication partakes of
the quality of statecraft. The assumption has been that just because it cannot by itself guarantee the
formation, much less the perpetuation of democratic values or, realistically, it cannot prevail against
the pressure of political forces if they are bent in other directions. it does not follow that it should not
contribute its thinking to the extent that it can. It has been asked, it will continue to be asked, to
decide momentous questions at each critical stage of this nation's life.

There must be, however, this caveat. Judicial activism gives rise to difficulties in an era of
transformation and change. A society in flux calls for dynamism in "he law, which must be
responsive to the social forces at work. It cannot remain static. It must be sensitive to life. This Court
then must avoid the rigidity of legal Ideas. It must resist the temptation of allowing in the wasteland
of meaningless abstractions. It must face stubborn reality. It has to have a feel for the complexities of
the times. This is not to discount the risk that it may be swept too far and too fast in the surge of
novel concepts. The past too is entitled to a hearing; it cannot just be summarily ignored. History still
has its uses. It is not for this Court to renounce the virtue of systematic jural consistency. It cannot
simply yield to the sovereign sway of the accomplished fact. It must be deaf to the dissonant
dialectic of what appears to be a splintered society. It should strive to be a factor for unity under a
rule of law. There must be, on its part, awareness of the truth that a new juridical age born before its
appointed time may be the cause of unprecedented travail that may not end at birth. It is by virtue of
such considerations that I did strive for a confluence of principle and practicality. I must confess that
I did approach the matter with some misgivings and certainly without any illusion of omniscience. I
am comforted by the thought that immortality does not inhere in judicial opinions. 8. 1 am thus led by
my studies on the subject of constitutional law and, much more so, by previous judicial opinions to
concur in the dismissal of the petitions. If I gave expression to byes not currently fashionable, it is
solely due to deeply-ingrained beliefs. Certainly, I am the first to recognize the worth of' the social
and economic reforms so needed by the troubled present that have been introduced and
implemented. There is no thought then of minimizing, much less of refusing to concede, the
considerable progress that has been made and the benefits that have been achieved under this
Administration. Again, to reiterate one of my cherished convictions, I certainly approve of the
adherence to the fundamental principle of popular sovereignty which, to be meaningful however,
requires both freedom in its manifestation and accuracy in ascertaining what it wills. Then, too, it is
fitting and proper that a distinction was made between two aspects of the coming poll, the
referendum and the plebiscite. It is only the latter that is impressed with authoritative force. So the
Constitution requires. Lastly, there should be, as I did mention in my concurrence in Aquino v.
Commission on Elections,56 full respect for free speech and press, free assembly and free
association. There should be no thought of branding the opposition as the enemy and the
expression of its views as anathema, Dissent, it is fortunate to note, has been encouraged. It has not
been Identified with disloyalty. That ought to be the case, and not solely due to presidential decrees.
Constructive criticism is to be welcomed not so much because of the right to be heard but because
there may be something worth hearing. That is to ensure a true ferment of Ideas, an interplay of
knowledgeable minds. There are though well- defined limits, One may not advocate disorder in the
name of protest, much less preach rebellion under the cloak of dissent.. What I mean to stress is
that except on a showing of clear and present danger, there must be respect for the traditional
liberties that make a society truly free.

TEEHANKEE, J., dissenting:

1. On the merits: I dissent from the majority's dismissal of the petitions for lack of merit and vote to
grant the petitions for the following reasons and considerations: 1. It is undisputed that neither the
1935 Constitution nor the 1973 Constitution grants to the incumbent President the constituent power
to propose and approve amendments to the Constitution to be submitted to the people for ratification
in a plebiscite. The 1935 Constitution expressly vests the constituent power in Congress, be a three-
fourths vote of all its members, to propose amendments or call a constitutional convention for the
purpose The 1973 Constitution expressly vests the constituent power in the regular National
Assembly to propose amendments (by a three-fourths vote of all its members) or "call a
constitutional convention" (by a two-thirds vote of all its members) or "submit the question of calling
such convention to the electorate in an election" (by a majority vote of all its members ) .2

The transitory provisions of the 1973 Constitution expressing vest the constituent power during the
period of transition in the interim National Assembly "upon special call be the Prime Minister (the
incumbent President 3)... by a majority ore of all its members (to) propose amendments."

Since the Constitution provides for the organization of the essential departments of government,
defines and delimits the powers of each and prescribes the manner of the exercise of such powers,
and the constituent power has not been granted to but has been withheld from the President or
Prime Minister, it follows that the President's questioned decrease proposing and submitting
constitutional amendments directly to the people (without the intervention of the interim National
Assembly in whom the power is expressly vested) are devoid of constitutional and legal basis.
2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case at bar In
therein declaring null and void the acts of the 1971 Constitutional Convention and of the Comelec in
calling a plebiscite with the general elections scheduled for November 8, 1971 for the purpose of
submitting for the people's ratification an advance amendment reducing the voting age from 21 years
to 18 years, and issuing writs of prohibition and injunction against the holding of the plebiscite, this
Court speaking through Mr. Justice Barredo ruled that --The Constitutional provisions on
amendments "dealing with the procedure or manner of amending the fundamental law are binding
upon the Convention and the other departments of the government, (land) are no less binding upon
the people

As long as an amendment is formulated and submitted under the aegis of the present Charter, any
proposal for such amendment which is not in conformity with the letter, spirit and intent of the
Charter for effecting amendments, cannot receive the sanction of this Court ;8

The real issue here cannot be whether or not the amending process delineated by the present
Constitution may be disregarded in favor of allowing the sovereign people to express their decision
on the proposed amendments, if only because it is evident that the very Idea of departing from the
fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of
the rule of law,"; 9 and

-Accordingly barred the plebiscite as improper and premature, since "the provisional nature of the
proposed amendments and the manner of its submission to the people for ratification or rejection"
did not "conform with the mandate of the people themselves in such regard, as expressed in the
Constitution itself', 10 i.e. the mandatory requirements of the amending process as set forth in the
Article on Amendments.

3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis, it is clear that where
the proposed amendments are violative of the Constitutional mandate on the amending process not
merely for being a "partial amendment" of a "temporary or provisional character" (as in Tolentino) but
more so for not being proposed and approved by the department vested by the Constitution with the
constituent power to do so, and hence transgressing the substantive provision that it is only the
interim National Assembly, upon special call of the interim Prime Minister, bu a majority vote of all its
members that may propose the amendments, the Court must declare the amendments proposals
null and void.

4. This is so because the Constitution is a "superior paramount law, unchangeable by ordinary

means" 11 but only by the particular mode and manner prescribed therein by the people. As
stressed by Cooley, "by the Constitution which they establish, (the people) not only tie up the hands
of their official agencies but their own hands as well; and neither the officers of the State, nor the
whole people as an aggregate body, are at liberty to take action in opposition to this fundamental
law." 12

The vesting of the constituent power to propose amendments in the legislative body (the regular
National Assembly) or the interim National Assembly during the transition period) or in a
constitutional convention called for the purpose is in accordance with universal practice. "From the
very necessity of the case" Cooley points out "amendments to an existing constitution, or entire
revisions of it, must be prepared and matured by some body of representatives chosen for the
purpose. It is obviously impossible for the whole people to meet, prepare, and discuss the proposed
alterations, and there seems to be no feasible mode by which an expression of their will can be
obtained, except by asking it upon the single point of assent or disapproval." This body of
representatives vested with the constituent - power "submits the result of their deliberations" and
"puts in proper form the questions of amendment upon which the people are to pass"-for ratification
or rejection.13

5. The Court in Tolentino thus rejected the argument "that the end sought to be achieved is to be
desired" and in denying reconsideration in paraphrase of the late Claro M. Recto declared that "let
those who would put aside, invoking grounds at best controversial, any mandate of the fundamental
purportedly in order to attain some laudable objective bear in mind that someday somehow others
with purportedly more laudable objectives may take advantage of the precedent and continue the
destruction of the Constitution, making those who laid down the precedent of justifying deviations
from the requirements of the Constitution the victims of their own folly."

This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his dissenting
opinion in the Ratification cases 14 that "we will be opening the gates for a similar disregard to the
Constitution in the future. What I mean is that if this Court now declares that a new Constitution is
now in force because the members of the citizens assemblies had approved said new Constitution,
although that approval was not in accordance with the procedure and the requirements prescribed in
the 1935 Constitution, it can happen again in some future time that some amendments to the
Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and
then said proposed amendments is submitted to the people in any manner and what will matter is
that a basis is claimed that there was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government."

6. It is not legally tenable for the majority, without overruling the controlling precedent of Tolentino
(and without mustering the required majority vote to so overrule) to accept the proposed;
amendments as valid notwithstanding their being "not in conformity with the letter, spirit and intent of
the provision of the Charter for effecting amendments" on the reasoning that "If the President has
been legitimately discharging the legislative functions of the interim National Assembly, there is no
reason why he cannot validly discharge the functions. "15

In the earlier leading case of Gonzales vs. Comelec16, this Court speaking through now retired
Chief Justice Roberto Concepcion, pointer out that "Indeed, the power to Congress"17 or to the
National Assembly.18 Where it not for the express grant in the Transitory Provisions of the constituent power to the interim National
Assembly, the interim National Assembly could not claim the power under the general grant of legislative power d uring the transition period.

The majority's ruling in the Referendum cases19 that the Transitory Provision in section 3(2)
recognized the existence of the authority to legislate in favor of the incumbent President during the
period of martial law manifestly cannot be stretched to encompass the constituent power as
expressly vested in the interim National Assembly in derogation of the allotment of powers defined in
the Constitution.

Paraphrasing Cooley on the non-delegation of legislative power as one of the settled maxims of
constitutional law, 20 the contituent power has been lodged by the sovereign power of the people
with the interim National Assembly during the transition period and there it must remain as the sole
constitutional agency until the Constitution itself is changed.

As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of Angara vs. Electoral
Commissioner21, "(T)he Constitution sets forth in no uncertain language and restrictions and
limitations upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a mechanism by which
to direct the course of government along constitutional channels, for then the distribution of powers
sentiment, and the principles of good government mere political apothegms. Certainly, the limitations
and restrictions embodied in our Constitution are real as they should be in any living Constitution".
7. Neither is the justification of "constitutional impasses" tenable. The sentiment of the people
against the convening of the interim National Assembly and to have no elections for "at least seven
(7) years" Concededly could not ament the Constitution insofar as the interim National Assembly is
concerned (since it admittendly came into existence "immediately" upon the proclamation of
ratification of the 1973 Constitution), much less remove the constituent power from said interim
National Assembly.

As stressed in the writer's separate opinion in the Referendum cases22, "(W)hile it has been
advanced that the decision to defer the initial convocation of the interim National Assembly was
supported by the results of the referendum in January, 1973 when the people voted against the
convening of the interim National Assembly for at least seven years, such sentiment cannot be given
any legal force and effect in the light of the State's admission at the hearing that such referendums
are merely consultative and cannot amend the Constitution or Provisions which call for the
'immediate existence' and 'initial convening of the interim National Assembly to 'give priority to
measures for the orderly transition from the presidential to the parliamentary system' and the other
urgent measures enumerated in section 5 thereof".

While the people reportedly expressed their mandate against the convening of the interim National
Assembly to dischange its legislative tasks during the period of transition under martial law, they
certainly had no opportunity and did not express themselves against convening the interim National
Assembly to discharge the constituent power to propose amendments likewise vested in it by the
people's mandate in the Constitution.

In point of fact, when the holding of the October 16, 1976 referendum was first announced, the
newspapers reported that among the seven questions proposed by the sanggunian and barangay
national executive committies for the referendum was the convening of the interim National
Assembly.23

It was further reported that the proposals which were termed tentative "will be discussed and studied
by (the President), the members of the cabinet, and the security council" and that the barangays felt,
notwithstanding the previous referenda on the convening of the interim National Assembly that "it is
time to again ask the people's opinion of this matter "24

8. If proposals for constitutional amendments are now deemed necessary to be discussed and
adopted for submittal to the people, strict adherence with the mandatory requirements of the
amending process as provided in the Constitution must be complied with. This means, under the
teaching of Tolentino that the proposed amendments must validly come from the constitutional
agency vested with the constituent power to do so, namely, the interim National Assembly, and not
from the executive power as vested in the Prime Minister (the incumbent President) with the
assistance of the Cabinet 25 from whom such power has been withheld.

It will not do to contend that these proposals represent the voice of the people for as was aptly
stated by Cooley "Me voice of the people, acting in their sovereign capacity, can be of legal force
only when expressed at the times and under the conditions which they themselves have prescribed
and pointed out by the Constitution. ... ."26

The same argument was put forward and rejected by this Court in Tolentino which rejected the
contention that the "Convention being a legislative body of the highest order (and directly elected by
the people to speak their voice) is sovereign, in as such, its acts impugned by petitioner are beyond
the control of Congress and the Courts" and ruled that the constitutional article on the amending
process" is nothing more than a part of the Constitution thus ordained by the people. Hence, in
continuing said section, We must read it as if the people said, "The Constitution may be amended,
but it is our will that the amendment must be proposed and submitted to Us for ratification only in the
manner herein provided'".27

This Court therein stressed that "This must be so, because it is plain to Us that the framers of the
Constitution took care that the process of amending the same should not be undertaken with the
same ease and facility in changing an ordinary legislation. Constitution making is the most valued
power, second to none, of the people in a constitutional democracy such as the one our founding
fathers have chosen for this nation, and which we of the succeeding generations generally cherish.
And because the Constitution affects the lives, fortunes, future and every other conceivable aspect
of the lives of all the people within the country and those subject to its sovereignity, ever constitution
worthy of the people for which it is intended must not be prepared in haste without adequate
deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no
less importance than the whole Constitution itself, and perforce must be conceived and prepared
with as much care and deliberation;" and that "written constitutions are supposed to be designed so
as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs
and exigencies of the people, hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment."28

9. The convening of the interim National Assembly to exercise the constituent power to proposed
amendments is the only way to fulfill the express mandate of the Constitution.

As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in the setting as in of a
Comelec resolution banning the use of political taped jingles by candidates for Constitutional
Convention delegates int he special 1970 elections, "the concept of the Constitution as the
fundamental law, setting forth the criterion for the validity of any public act whether proceeding from
the highest official or the lowest functionary, is a postulate of our system of government. That is to
amnifst fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the
legal heirarchy. The three departments of government in the discharge of the functions with which it
is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must
be observed. Congress in the enactment of statutes must ever be on guart lest the restrictions on its
authority, whether substantive or formal, be transcended. The Presidency in the execution of the
laws cannot ignore of disregard what it ordains. In its task of applying the law to the facts as found in
deciding cases, the judiciary is called upon the maintain inviolate what is decreed by the
fundamental law."

This is but to give meaning to the plan and clear mandate of section 15 of the Transitory Provisions
(which allows of no other interpretation) that during the stage of transition the interim National
Assembly alone exercises the constituent power to propose amendments, upon special call therefor.
This is reinforced by the fact that the cited section does not grant to the regular National Assembly of
calling a constitutional convention, thus expressing the will of the Convention (and presumably of the
people upon ratification) that if ever the need to propose amendments arose during the limited
period of transition, the interim National Assembly alone would discharge the task and no
constitutional convention could be call for the purpose.

As to the alleged costs involved in convening the interim National Assembly to propose
amendments, among them its own abolition, (P24 million annually in salaries alone for its 400
members at P600,000.00 per annum per member, assuming that its deliberations could last for one
year), suffice it to recall this Court's pronouncement in Tolentino (in reflecting a similar argument on
the costs of holding a plebiscite separately from the general elections for elective officials) that "it is a
matter of public knowledge that bigger amounts have been spent or thrown to waste for many lesser
objectives. ... Surely, the amount of seventeen million pesos or even more is not too much a price to
pay for fealty and loyalty to the Constitution ... " 30 and that "while the financial costs of a separate
plebiscite may be high, it can never be as much as the dangers involved in disregarding clear
mandate of the Constitution, no matter how laudable the objective" and "no consideration of financial
costs shall deter Us from adherence to the requirements of the Constitution".11

10. The imposition of martial law (and "the problems of rebellion, subversion, secession, recession,
inflation and economic crisis a crisis greater than war") 32 cited by the majority opinion as justifying
the concentration of powers in the President, and the recognition now of his exercising the
constituent power to propose amendments to the Fundamental Law "as agent for and in behalf of
the people"33 has no constitutional basis.

In the post-war Emergency Powers 33*, former Chief Justice Ricardo Paras reaffirmed for the Court
the principle that emergency in itself cannot and should not create power. In our democracy the
hope and survival of the nation lie in the wisdom and unselfish patriotism of all officials and in their
faithful 'Adherence to the Constitution".

The martial law clause of the 1973 Constitution found in Article IX, section 12 , as stressed by the
writer in his separate opinion in the Referendum Cases,14 "is a verbatim reproduction of Article VII,
section 10 (2) of the 1935 Constitution and provides for the imposition of martial law only 'in case of
invasion, resurrection or rebellion, or imminent danger thereof, when the public safety requires it and
hence the use of the legislative power or more accurately 'military power' under martial rule is limited
to such necessary measures as will safeguard the Republic and suppress the rebellion (or
invasion)". 35

11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by the majority in the
Referendum Cases to be the recognition or warrant for the exercise of legislative power by the
President during the period of martial law is but a transitory provision. Together with the martial law
clause, they constitute but two provisions which are not to be considered in isolation from the
Constitution but as mere integral parts thereof which must be harmonized consistently with the entire
Constitution.

As Cooley restated the rule: "effect is to be given, if possible, to the whole instrument, and to every
section and clause. If different portions seem to conflict, the courts must harmonize them, if
practicable, and must lean in favor of a construction which will render every word operative, rather
than one which may make some words Idle and nugatory.

This rule is applicable with special force to written constitutions, in which the people will be
presumed to have expressed themselves in careful and measured terms, corresponding with the
immense importance of the powers delegated, leaving as little as possible to implication. It is
scarcelly conceivable that a case can arise where a court would bye justified in declaring any portion
of a written constitution nugatory because of ambiguity. One part may qualify another so as to
restrict its operation, or apply it otherwise than the natural construction would require if it stood by
itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two
can be made to stand together. 36

The transcendental constituent power to propose and approve amendments to the Constitution as
well as set up the machinery and prescribe the procedure for the ratification of his proposals has
been withheld from the President (Prime Minister) as sole repository of the Executive Power,
presumably in view of the immense powers already vested in him by the Constitution but just as
importantly, because by the very nature of the constituent power, such amendments proposals have
to be prepared, deliberated and matured by a deliberative assembly of representatives such as the
interim National Assembly and hence may not be antithetically entrusted to one man.

Former Chief Justice Roberto Concepcion had observed before the elevation of the l971
Constitutional Convention that the records of past plebiscites show that the constitutional agency
vested with the exercise of the constituent power (Congress or the Constitutional Convention) really
determined the amendments to the Constitution since the proposals were invariably ratified by the
people 37 thus: "although the people have the reserved power to ratify or reject the action taken by
the Convention, such power is not, in view of the circumstances attending its exercise, as effective
as one might otherwise think: that, despite the requisite ratification by the people, the actual contents
of our fundamental law will really be determined by the Convention; that, accordingly the people
should exercise the greatest possible degree of circumspection in the election of delegates thereto
... "38

12. Martial law concededly does not abrogate the Constitution nor obliterate its constitutional
boundaries and allocation of powers among the Executive, Legislative and Judicial Departments. 39

It has thus been aptly observed that "Martial law is an emergency regime, authorized by and subject
to the Constitution. Its basic premise is to preserve and to maintain the Republic against the dangers
that threaten it. Such premise imposes constraints and limitations. For the martial law regime fulfills
the constitutional purpose only if, by reason of martial law measures, the Republic is preserved. If by
reason of such measures the Republic is so transformed that it is changed in its nature and
becomes a State other than republican, then martial law is a failure; worse, martial law would have
become the enemy of the Republic rather than its defender and preserver."40

II. On the question of the Court's jurisdiction to pass upon the constitutionality of the questioned
presidential decrees: let it be underscored that the Court has long set at rest the question.

The trail was blazed for the Court since the benchmark case of Angara vs. Electoral Commission
when Justice Jose P. Laurel echoed U.S. Chief Justice Marshall's "climactic phrase" that "we must
never forget that it is a Constitution we are expounding" and declared the Court's "solemn and
sacred" constitutional obligation of judicial review and laid down the doctrine that the Philippine
Constitution as "a definition of the powers of government" placed upon the judiciary the great burden
of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments . . . but only asserts the solemn and sacred obliteration entrusted to it by the
Constitution to determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which the instrument secures and guarantees to
them".

At the same time, the Court likewise adhered to the constitutional tenet that political questions, i.e.
questions which are intended by the Constitutional and relevant laws to be conclusively determined
by the "political", i.e. branches of government (namely, the Executive and the Legislative) are outside
the Court's jurisdiction. 41

Thus, in Gonzales,42 (by a unanimous Court) and in Tolentino43 (by the required constitutional
majority), the Court has since consistently ruled that when proposing and approving amendments to
the Constitution, the members of Congress. acting as a constituent assembly or the members of the
Constitutional Convention elected directly for the purpose by not have the final say on whether or not
their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the
same at naught, contrary to the basic tenet that outs is it government of lawsom not of men, and to
the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution
expressly confers upon the Supreme Court, the power to declare a treaty unconstitutional, despite
the eminently political character of treaty-making power".44

As amplified by former Chief Justice Concepcion in Javellana vs Executive Secretary 45 (by a

majority vote), "when the grant of power is qualified, conditional or subject to limitations. the issue on
whether or not the prescribed qualifications or conditions have been met, or the limitations by
expected, is justiciable or non-political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom Otherwise, said qualifications, conditions and limitations-particularly
those prescribed or imposed by the Constitution would be set at naught".

The fact that the proposed amendments are to be submitted to the people for ratification by no
means makes the question political and non- justiciable since as stressed even in Javellana the
issue of validity of the President's proclamation of ratification of the Constitution presented a
justiciable and non-political question

Stated otherwise, the question of whether the Legislative acting as a constituent assembly or the
Constitutional Convention called fol- the purpose, in proposing amendments to the people for
ratification followed the constitutional procedure and on the amending process is perforce a
justiciable question and does not raise a political question of police or wisdom of the proposed
amendments, which if Submitted, are reserved for the people's decision.

The substantive question presented in the case at bar of whether the President may legally exercise
the constituent power vested in the interim National Assembly (which has not been granted to his
office) and propose constitutional amendments is preeminently a justiciable issue.

Justice Laurel in Angara had duly enjoined that "in times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In
cases of conflict, the judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and among the integral
or constituent units thereof".

To follow the easy way out by disclaiming jurisdiction over the issue as a political question would be
judicial abdication.

III. On the question of whether there is a sufficient and proper submittal of the proposed
amendments to the people: Prescinding from the writer's view of the nullity of the questioned decree
of lack of authority on the President's part to excercise the constituent power, I hold that the doctrine
of fair and proper submission first enunciated by a simple majority of by Justices in Gonzales and
subsequently officially adopted by the required constitutional two-thirds majority of the Court in is
controlling in the case at bar.

1. There cannot be said to be fair and proper submission of the proposed amendments. As ruled by
this Court in Tolentino where "the proposed amendment in question is expressly saddled with
reservations which naturally impair, in great measures, its very essence as a proposed constitutional
amendment" and where "the way the proposal is worded, read together with the reservations tacked
to it by the Convention thru Section 3 of the questioned resolution, it is too much of a speculation to
assume what exactly the amendment would really amount lo in the end. All in all, as already pointed
out in our discussion of movants' first ground, if this kind of amendment is allowed, the Philippines
will appear before the world to be in the absurd position of being the only country with a constitution
containing a provision so ephemeral no one knows until when it will bet actually in force", there can
be no proper submission.
In Tolentino a solitary amendment reducing the voting age to 18 years was struck down by this Court
which ruled that "in order that a plebiscite for the ratification of an amendment to the Constitution
may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent
appraisal of the nature of the amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole," and that there was no proper
Submission wherein the people are in the dark as to frame of reference they can base their
judgment on

2. The now Chief Justice and Mr. Justice Makasiar with two other members 46 graphically pointed
out in their joint separate opinion that the solitary question "would seem to be uncomplicated and
innocuous. But it is one of life's verities that things which appear to be simple may turn out not to be
so simple after all".47

They further expressed "essential agreement" with Mr. Justice Conrado V. Sanchez' separate
opinion in Gonzales "on the minimum requirements that must be met in order that there can be a
proper submission to the people of a proposed constitutional amendment" which reads thus:

... we take the view that the words 'submitted to the people for their ratification', if construed in the
light of the nature of the Constitution a fundamental charter that is legislation direct from the people,
an expression of their sovereign will - is that it can only be amended by the people expressing
themselves according to the procedure ordained by the Constitution. Therefore, amendments must
be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber
stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the
original provisions, compare them with the proposed amendments, and try to reach a conclusion as
the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious
influences. We believe the word submitted' can only mean that the government, within its maximum
capabilities, should strain every effort to inform every citizen of the provisions to be amended, and
the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be
understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then
there is no submission within the meaning of the word as intended by the framers of the Constitution.
What the Constitution in effect directs is that the government, in submitting an amendment for
ratification, should put every instrumentality or agency within its structural framework to enlighten the
people, educate them with respect to their act of ratification or rejection. For, as we have earlier
stated, one thing is submission and another is ratification. There must be fair submission, intelligent.
consent or rejection. If with all these safeguards the people still approve the amendment no matter
how prejudicial it is to them, then so be it. For the people decree their own fate.48

Justice Sanchez therein ended the passage with an apt citation that " ... " The great men who
builded the structure of our state in this respect had the mental vision of a good Constitution voiced
by Judge Cooley, who has said 'A good Constitution should be beyond the reach of temporary
excitement and. popular caprice or passion. It is needed for stability and steadiness; it must yield to
the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot
blood, but the sober second thought, which alone, if the government is to be safe, can be allowed
efficiency. xxx xxx xxx Changes in government are to be feared unless the benefit is certain. As
Montaign says: All great mutations shake and disorder state. Good does not necessarily succeed
evil ;another evil may succeed and a worse'." 49

Justice Sanchez thus stated the rule that has been adopted by the Court in Tolentino that there is no
proper submission "if the people are not sufficiently affirmed of the amendments to be voted upon, to
conscientiously deliberate thereon, to express their will in a genuine manner. ... .." 50
3. From the complex and complicated proposed amendments set forth in the challenged decree and
the plethora of confused and confusing clarifications reported in the daily newspapers, it is manifest
that there is no proper submission of the proposed amendments. Nine (9) proposed constitutional
amendments were officially proposed and made known as per Presidential Decree No. 1033 dated,
September 22, 1976 for submittal at the "referendum-plebiscite" called for this coming Saturday,
October 16, 1976 wherein the 15-year and under 18-year- olds are enjoined to vote notwithstanding
their lack of qualification under Article VI of the Constitution. Former Senator Arturo Tolentino, an
acknowledged parliamentarian of the highest order, was reported by the newspapers last October 3
to have observed that "there is no urgency in approving the proposed amendments to the
Constitution and suggested that the question regarding charter changes be modified instead of
asking the people to vote on hurriedly prepared amendments". He further pointed out that "apart
from lacking the parliamentary style in the body of the Constitution, they do not indicate what
particular provisions are being repealed or amended".52

As of this writing, October 11, 1976, the paper today reported his seven-page analysis questioning
among others the proposed granting of dual legislative powers to both the President and the
Batasang Pambansa and remarking that "This dual legislative authority can give rise to confusion
and serious constitutional questions".53

Aside from the inadequacy of the limited time given for the people's consideration of the proposed
amendments, there can be no proper submission because the proposed amendments are not in
proper form and violate the cardinal rule of amendments of written constitutions that the specific
provisions of the Constitution being repealed or amended as well as how the specific provisions as
amended would read, should be clearly stated in careful and measured terms. There can be no
proper submission because the vagueness and ambiguity of the proposals do not sufficiently inform
the people of the amendments for, conscientious deliberation and intelligent consent or rejection.

4. While the press and the Solicitor General at the hearing have stated that the principal thrust of the
proposals is to substitute the interim National Assembly with an interim Batasang Pambansa, a
serious study thereof in detail would lead to the conclusion that the whole context of the 1973
Constitution proper would be affected and grave amendments and modifications thereof -would
apparently be made, among others, as follows:

Under Amendment No. 1, the qualification age of members of the interim Batasang Pambansa is
reduced to 18 years;

Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld from the interim
Batasang Pambansa;

Under Amendment No 3, not withstanding the convening of the interim Batasang Pambansa within
30 days from the election and selection of the members (for which there is no fixed date) the
incumbent President apparently becomes a regular President and Prime Minister (not ad interim);

Under Amendment No. 4, the disqualifications imposed on members of the Cabinet in the
Constitution such as the prohibition against the holding of more than one office in the government
including government-owned or -controlled corporations would appear to be eliminated, if not
prescribed by the President;

Under Amendment No. 5, the President shall continue to exercise legislative powers until martial law
is lifted;
Under Amendment No. 6, there is a duality of legislative authority given the President and the interim
Batasang Pambansa as well as the regular National Assembly, as pointed out by Senator Tolentino,
with the President continuing to exercise legislative powers in case of "grave emergency or a threat
or imminence thereof" (without definition of terms) or when said Assemblies "fail or are unable to act
adequately on any matter for any reason that in his judgment requires immediate action", thus
radically affecting provisions of the Constitution governing the said departments;

Under Amendment No. 7, the barangays and Sanggunians would apparently be constitutionalized,
although their functions, power and composition may be altered by law. Referendums (which are not
authorized in the present 1973 Constitution) would also be constitutionalized, giving rise to the
possibility fraught with grave consequences, as acknowledged at the hearing, that amendments to
the Constitution may thereafter be effected by referendum, rather than by the rigid and strict
amending process provided presently in Article XVI of the Constitution;

Under Amendment No. 8, there is a general statement in general that the unspecified provisions of
the Constitution "not inconsistent with any of these amendments" shall continue in full force and
effect; and Under Amendment No. 9. the incumbent President is authorized to proclaim the
ratification of the amendments by the majority of votes cast. It has likewise been stressed by the
officials concerned that the proposed amendments come in a package and may not be voted upon
separately but on an "all or nothing" basis.

5. Whether the people can normally express their will in a genuine manner and with due
circumspection on the proposed amendments amidst the constraints of martial law is yet another
question. That a period of free debate and discussion has to be declared of itself shows the
limitations on free debate and discussion. The facilities for free debate and discussion over the mass
media, print and otherwise are wanting. The President himself is reported to have observed the
timidity of the media under martial law and to have directed the press to air the views of the
opposition.54

Indeed, the voice of the studentry as reflected in the editorial of the Philippine Collegian issue of
September 23, 1976 comes as a welcome and refreshing model of conscientious deliberation, as
our youth analyzes the issues "which will affect generations yet to come" and urge the people to mull
over the pros and cons very carefully", as follows:

THE REFERENDUM ISSUES

On October 16, the people may be asked to decide on two important national issues - the creation of
a new legislative body and the lifting of martial law.

On the first issue, it is almost sure that the interim National Assembly will not be convened, primarily
because of its membership. Majority of the members of the defunct Congress, who are mandated by
the Constitution to become members of the interim National Assembly, have gained so widespread a
notoriety that the mere mention of Congress conjures the image of a den of thieves who are out to
fool the people most of the time. Among the three branches of government, it was the most
discredited. In fact, upon the declaration of martial law, some people were heard to mutter that a
'regime that has finally put an end to such congressional shenanigans could not be all that bad'.

A substitute legislative body is contemplated to help the President in promulgating laws, and
perhaps minimize the issuance of ill-drafted decrees which necessitate constant amendments. But
care should be taken that this new legislative body would not become a mere rubber stamp akin to
those of other totalitarian countries. It should be given real powers, otherwise we will just have
another nebulous creation having the form but lacking the substance. Already the President has
expressed the desire that among the powers he would like to have with regard to the proposed
legislative body is that of abolishing it in case 'there is a need to do so'. As to what would occasion
such a need, only the President himself can determine. This would afford the Chief Executive almost
total power over the legislature, for he could always offer the members thereof a carrot and a stick.

On the matter of lifting martial law the people have expressed ambivalent attitudes. Some of them,
remembering the turmoil that prevailed before the declaration of martial law, have expressed the fear
that its lifting might precipitate the revival of the abuses of the past, and provide an occasion for evil
elements to resurface with their usual tricks. Others say that it is about time martial law was lifted
since the peace and order situation has already stabilized and the economy seems to have been
parked up.

The regime of martial law has been with us for four years now. No doubt, martial law has initially
secured some reforms for the country The people were quite willing to participate in the new
experiment, thrilled by the novelty of it all. After the euphoria, however, the people seem to have
gone back to the old ways, with the exception that some of our freedoms were taken away, and an
authoritarian regime established.

We must bear in mind that martial law was envisioned only to cope with an existing national crisis, It
was not meant to be availed of for a long period of time, otherwise it would undermine our
adherence to a democratic form of government. In the words of the Constitution. martial law shall
only be declared in times of 'rebellion, insurrection,. invasion, or imminent danger thereof, when the
public safety requires it'. Since we no longer suffer from internal disturbances of a gargantuan scale,
it is about time we seriously rethink the 'necessity' of prolonging the martial law regime. If we justify
the continuance of martial by economic or other reasons other than the foregoing constitutional
grounds, then our faith in the Constitution might be questioned. Even without martial law,. the
incumbent Chief Executive still holds vast powers under the constitution. After all, the gains of the
New Society can be secured without sacrificing the freedom of our people. If the converse is true,
then we might have to conclude that the Filipinos deserve a dictatorial form of government. The
referendum results will show whether the people themselves have adopted this sad conclusion.

The response of the people to the foregoing issues will affect generations yet to come, so they
should mull over the pros and cons very carefully."

6. This opinion by written in the same spirit as the President's exhortations on the first anniversary of
proclamation of the 1973 Constitution that we "let the Constitution remain firm and stable" so that it
may "guide the people", and that we "remain steadfast on the rule of law and the Constitution" as he
recalled his rejection of the "exercise (of) power that can be Identified merely with a revolutionary
government" that makes its own law, thus:

. . . Whoever he may be and whatever position he may happen to have, whether in government or
outside government, it is absolutely necessary now that we look solemnly and perceptively into the
Constitution and try to discover for ourselves what our role is in the successful implementation of
that Constitution. With this thought, therefore, we can agree on one thing and that is: Let all of us
age, let all of us then pass away as a pace in the development of our country. but let the Constitution
remain firm and stable and let institutions grow in strength from day to day, from achievement to
achievement, and so long as that Constitution stands, whoever may the man in power be, whatever
may his purpose be, that Constitution will guide the people and no man, however, powerful he may
be, will dare to destroy and wreck the foundation of such a Constitution.
These are the reasons why I personally, having proclaimed martial law, having been often induced
to exercise power that can be Identified merely with a revolutionary government, have remained
steadfast or the rule of law and the Constitution. 54*

IV. A final word on the Court's resolution of October 5, 1976 which in reply to the Comelec query
allowed by a vote of 7 to 3, judges of all courts, after office hours, "to accept invitations to act as
resource speakers under Section 5 of Presidential Decree No. 991, as amended, as well as to take
sides in discussions and debates on the referendum-plebiscite questions under Section 7 of the
same Decree."55

The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma had dissented from the
majority resolution, with all due respect, on the ground that the non-participation of judges in such
public discussions and debates on the referendum-plebiscite questions would preserve the
traditional non-involvement of the judiciary in public discussions of controversial issues. This is
essential for the maintenance and enhancement of the people's faith and confidence in the judiciary.
The questions of the validity of the scheduled referendum- plebiscite and of whether there is proper
submission of the proposed amendments were precisely subjudice by virtue of the cases at bar.

The lifting of the traditional inhibition of judges from public discussion and debate might blemish the
image and independence of the judiciary. Aside from the fact that the fixing of a time limit for the
acceptance of their courtesy resignations to avoid an indefinite state of insecurity of their tenure in
office still spends litigants and their relatives and friends as well as a good sector of the public would
be hesitant to air views contrary to that of the.

Judge. Justices Makasiar and Munoz Palma who share these views have agreed that we make them
of record here, since we understand that the permission given in the resolution is nevertheless
addressed to the personal decision and conscience of each judge, and these views may he of some
guidance to them.

BARREDO, J.,: concurring:

While I am in full agreement with the majority of my brethren that the herein petitions should be
dismissed, as in fact I vote for their dismissal, I deem it imperative that I should state separately the
considerations that have impelled me to do so.

Perhaps, it is best that I should start by trying to disabuse the minds of those who have doubts as to
whether or not I should have taken part in the consideration and resolution of these cases. Indeed, it
would not be befitting my position in this Highest Tribunal of the land for me to leave unmentioned
the circumstances which have given cause, I presume, for others to feel apprehensive that my
participation in these proceedings might detract from that degree of faith in the impartiality that the
Court's judgment herein should ordinarily command. In a way, it can be said, of course, that I am the
one most responsible for such a rather problematical situation, and it is precisely for this reason that
I have decided to begin this opinion with a discussion of why I have not inhibited myself, trusting
most confidently that what I have to say will be taken in the same spirit of good faith, sincerity and
purity of purpose in which I am resolved to offer the same.

Plain honesty dictates that I should make of record here the pertinent contents of the official report of
the Executive Committee of the Katipunan ng mga Sanggunian submitted to the Katipunan itself
about the proceedings held on August 14, 1976. It is stated in that public document that:

THE ISSUE WITH REGARDS To THE CONVENING OF A LEGISLATIVE body came out when the
President express his desire to share his powers with other people.
Aware of this, a five-man Committee members of the Philippine Constitution Association
(PHILCONSA) headed by Supreme Court Justice Antonio Barredo proposed on July 28, the
establishment of 'Sangguniang Pambansa' or 'Batasang Pambansa' which would help the President
in the performance of his legislative functions. The proposed new body will take the place of the
interim National Assembly which is considered not practical to convene at this time considering the
constitution of its membership.

Upon learning the proposal of Justice Barredo, the country's 42,000 barangay assemblies on August
1 suggested that the people be consulted on a proposal to create a new legislative body to replace
the interim assembly provided for by the Constitution. The suggestion of the barangay units was
made through their national association, Pambansang Katipunan ng mga Barangay headed by Mrs.
Nora Z. Patines. She said that the people have shown in at least six instances including in the two
past referenda that they are against the convening of the interim National Assembly. She also said
that since the people had ruled out the calling of such assembly and that they have once proposed
that the President create instead the Sangguniang Pambansa or a legislative advisory body, then
the proposal to create a new legislative must necessarily be referred to the people.

The federation of Kabataang Barangay, also numbering 42,000 units like their elder counterparts in
the Katipunan ng mga Barangay also asserted their own right to be heard on whatever plans are
afoot to convene a new legislative body.

On August 6, a meeting of the national directorate of PKB was held to discuss matters pertaining to
the stand of the PKB with regards to the convening of a new legislative body. The stand of the PKB
is to create a legislative advisory council in place of the old assembly. Two days after, August 8, the
Kabataang Barangay held a symposium and made a stand which is the creation of a body with full
legislative powers.

A nationwide clamor for the holding of meeting in their respective localities to discuss more
intellegently the proposal to create a new legislative body was made by various urban and rural
Sangguniang Bayans.

Numerous requests made by some members coming from 75 provincial and 61 city SB assemblies,
were forwarded to the Department of Local Government and Community Development (DLGCD).

On August 7, Local Government Secretary, Jose A. Rono granted the request by convening the 91
member National Executive Committee of the Pambansang Katipunan ng mga Sanggunian on
August 14 which was held at Session Hall, Quezon City. Invited also to participate were 13 Regional
Federation Presidents each coming from the PKB and the PKKB

Actually, the extent of my active participation in the events and deliberations that have culminated in
the holding of the proposed referendum- plebiscite on October 16, 1976, which petitioners are here
seeking to enjoin, has been more substantial and meaningful than the above report imparts. Most
importantly, aside from being probably the first person to publicly articulate the need for the creation
of an interim legislative body to take the place of. the interim National Assembly provided for in the
Transitory Provisions of the Constitution, as suggested in the above report, I might say that I was the
one most vehement and persistent in publicly advocating and urging the authorities concerned to
directly submit to the people in a plebiscite whatever amendments of the Constitution might be
considered necessary for the establishment of such substitute interim legislature. In the
aforementioned session of the Executive Committee of the Katipunan, I discourse on the
indispensability of a new interim legislative body as the initial step towards the early lifting of martial
law and on the fundamental considerations why in our present situation a constitutional convention
would be superfluous in amending the Constitution.
Moreover, it is a matter of public knowledge that in a speech I delivered at the Coral Ballroom of the
Hilton Hotel in the evening of August 17, 1976, I denounced in no uncertain terms the plan to call a
constitutional convention. I reiterated the same views on September 7, 1976 at the initial conference
called by the Comelec in the course of the information and educational campaign it was enjoined to
conduct on the subject. And looking back at the subsequent developments up to September 22,
1976, when the Batasang Bayan approved and the President signed the now impugned Presidential
Decree No. 1033, it is but human for me to want to believe that to a certain extent my strong
criticisms and resolute stand against any other alternative procedure of amending the Constitution
for the purpose intended had borne fruit.

I must hasten to add at this point, however, that in a larger sense, the initiative for all I have done,
was not altogether mine alone. The truth of the matter is that throughout the four years of this martial
law government, it has always been my faith, as a result of casual and occasional exchanges of
thought with President Marcos, that when the appropriate time does come, the President would
somehow make it known that in his judgment, the situation has already so improved as to permit the
implementation, if gradual, of the constitutionally envisioned evolution of our government from its
present state to a parliamentary one. Naturally, this would inevitably involve the establishment of a
legislative body to replace the abortive interim National Assembly. I have kept tract of all the public
and private pronouncements of the President, and it was the result of my reading thereof that
furnished the immediate basis for my virtually precipitating, in one way or another, the materialization
of the forthcoming referendum-plebiscite. In other words, in the final analysis, it was the President's
own attitude on the matter that made it opportune for me to articulate my own feelings and Ideas as
to how the nation can move meaningfully towards normalization and to publicly raise the issues that
have been ventilated by the parties in the instant cases.

I would not be human, if I did not consider myself privileged in having been afforded by Divine
Providence the opportunity to contribute a modest share in the formulation of the steps that should
lead ultimately to the lifting of martial law in our country. Indeed, I am certain every true Filipino is
anxiously looking forward to that eventuality. And if for having voiced the sentiments of our people,
where others would have preferred to be comfortably silent, and if for having made public what every
Filipino must have been feeling in his heart all these years, I should be singled out as entertaining
such preconceived opinions regarding the issues before the Court in the cases at bar as to preclude
me from taking part in their disposition, I can only say that I do not believe there is any other Filipino
in and out of the Court today who is not equally situated as I am .

The matters that concern the Court in the instant petitions do not involve merely the individual
interests of any single person or group of persons. Besides, the stakes in these cases affect
everyone commonly, not individually. The current of history that has passed through the whole
country in the wake of martial law has swept all of us, sparing none, and the problem of national
survival and of restoring democratic institutions and Ideals is seeking solution in the minds of all of
us. That I have preferred to discuss publicly my own thoughts on the matter cannot mean that my
colleagues in the Court have been indifferent and apathetic about it, for they too are Filipinos.
Articulated or not, all of us must have our own preconceived Ideas and notions in respect to the
situation that confronts the country. To be sure, our votes and opinions in the- major political cases
in the recent past should more or less indicate our respective basic positions relevant to the issues
now before Us. Certainly, contending counsels cannot be entirely in the dark in this regard. I feel that
it must have been precisely because of such awareness that despite my known public participation
in the discussion of the questions herein involved, none of the parties have sought my inhibition or
disqualification.

Actually, although it may be difficult for others to believe it, I have never allowed my preconceptions
and personal inclinations to affect the objectivity needed in the resolution of any judicial question
before the Court. I feel I have always been able to appreciate, fully consider and duly weigh
arguments and points raised by all counsels, even when they conflict with my previous views. I am
never beyond being convinced by good and substantial ratiocination. Nothing has delighted me more
than to discover that somebody else has thought of more weighty arguments refuting my own,
regardless of what or whose interests are at stake. I would not have accepted my position in the
Court had I felt I would not be able to be above my personal prejudices. To my mind, it is not that a
judge has preconceptions that counts, it is his capacity and readiness to absorb contrary views that
are indispensable for justice to prevail. That suspicions of prejudgment may likely arise is
unavoidable; but I have always maintained that whatever improper factors might influence a judge
will unavoidably always appear on the face of the decision. In any event, is there better guarantee of
justice when the preconceptions of a judge are concealed?

Withal, in point of law, I belong to the school of thought that regards members of the Supreme Court
as not covered by the general rules relative to disqualification and inhibition of judges in cases
before them. If I have in practice actually refrained from participating in some cases, it has not been
because of any legal ground founded on said rules, but for purely personal reasons, specially
because, anyway, my vote would not have altered the results therein.

It is my considered opinion that unlike in the cases of judges in the lower courts, the Constitution
does not envisage compulsory disqualification or inhibition in any case by any member of the
Supreme Court. The Charter establishes a Supreme Court "composed of a Chief Justice and
fourteen Associate Justices", with the particular qualifications therein set forth and to be appointed in
the manner therein provided. Nowhere in the Constitution is there any indication that the legislature
may designate by law instances wherein any of the justices should not or may not take part in the
resolution of any case, much less who should take his place. Members of the Supreme Court are
definite constitutional officers; it is not within the power of the lawmaking body to replace them even
temporarily for any reason. To put it the other way, nobody who has not been duly appointed as a
member of the Supreme Court can sit in it at any time or for any reason. The Judicial power is
vested in the Supreme Court composed as the Constitution ordains - that power cannot be exercised
by a Supreme Court constituted otherwise. And so, when as in the instant where, if any of the
member of Court is to abstain from taking part, there would be no quorum - and no court to render
the decision - it is the includible duty of all the incumbent justices to participate in the proceedings
and to cast their votes, considering that for the reasons stated above, the provisions of Section 9 of
the Judiciary Act do not appear to conform with the concept of the office of Justice of the Supreme
Court contemplated in the Constitution.

The very nature of the office of Justice of the Supreme Court as the tribunal of last resort and
bulwark of the rights and liberties of all the people demands that only one of dependable and
trustworthy probity should occupy the same. Absolute integrity, mental and otherwise, must be by
everyone who is appointed thereto. The moral character of every member of the Court must be
assumed to be such that in no case whatsoever. regardless of the issues and the parties involved,
may it be feared that anyone's life, liberty or property, much less the national interests, would ever
be in jeopardy of being unjustly and improperly subjected to any kind of judicial sanction. In sum,
every Justice of the Supreme Court is expected to be capable of rising above himself in every case
and of having full control of his emotions and prejudices, such that with the legal training and
experience he must of necessity be adequately equipped with, it would be indubitable that his
judgment cannot be but objectively impartial, Indeed, even the appointing power, to whom the
Justices owe their positions, should never hope to be unduly favored by any action of the Supreme
Court. All appointments to the Court are based on these considerations, hence the ordinary rules on
inhibition and disqualification do not have to be applied to its members.

With the preliminary matter of my individual circumstances out of the way, I shall now address
myself to the grave issues submitted for Our resolution.
 -I-

In regard to the first issue as to whether the questions posed in the petitions herein are political or
justiciable, suffice it for me to reiterate the fundamental position I took in the Martial Law
cases,1 thus

As We enter the extremely delicate task of resolving the grave issues thus thrust upon Us. We are
immediately encountered by absolute verities to guide Us all the way. The first and most important of
them is that the Constitution (Unless expressly stated otherwise, all references to the Constitution in
this discussion are to both the 1935 and 1973 charters, since, after all, the pertinent provisions are
practically Identical in both is the supreme law of the land. This means among other things that all
the powers of the government and of all its officials from the President down to the lowest emanate
from it. None of them may exercise any power unless it can be traced thereto either textually or by
natural and logical implication. "The second is that it is settled that the Judiciary provisions of the
Constitution point to the Supreme Court as the ultimate arbiter of all conflicts as to what the
Constitution or any part thereof means. While the other Departments may adopt their own
construction thereof, when such construction is challenged by the proper party in an appropriate
case wherein a decision would be impossible without determining the correct construction, the
Supreme Court's word on the matter controls.

xxx xxx xxx

xxx xxx xxx

The fifth is that in the same manner that the Executive power conferred upon the Executive by the
Constitution is complete, total and unlimited, so also, the judicial power vested in the Supreme Court
and the inferior courts, is the very whole of that power, without any limitation or qualification.

xxx xxx xxx

xxx xxx xxx

From these incontrovertible postulates, it results, first of all, that the main question before Us is not in
reality one of jurisdiction, for there can be no conceivable controversy, especially one involving a
conflict as to the correct construction of the Constitution, that is not contemplated to be within the
judicial authority of the courts to hear and decide. The judicial power of the courts being unlimited
and unqualified, it extends over all situations that call for the as certainment and protection of the
rights of any party allegedly violated, even when the alleged violator is the highest official of the land
or the government itself. It is, therefore, evidence that the Court's jurisdiction to take cognizance of
and to decide the instant petitions on their merits is beyond challenge.

In this connection, however, it must be borne in mind that in the form of government envisaged by
the framers of the Constitution and adopted by our people, the Court's indisputable and plenary
authority to decide does not necessarily impose upon it the duty to interpose its fiat as the only
means of settling the conflicting claims of the parties before it. It is ingrained in the distribution of
powers in the fundamental law that hand in hand with the vesting of the judicial power upon the
Court, the Constitution has coevally conferred upon it the discretion to determine, in consideration of
the constitutional prerogatives granted to the other Departments, when to refrain from imposing
judicial solutions and instead defer to the judgment of the latter. It is in the very nature of republican
governments that certain matters are left in the residual power of the people themselves to resolve,
either directly at the polls or thru their elected representatives in the political Departments of the
government. And these reserved matters are easily distinguishable by their very nature, when one
studiously considers the basic functions and responsibilities entrusted by the charter to each of the
great Departments of the government. To cite an obvious example, the protection, defense and
preservation of the state against internal or external aggression threatening its very existence is far
from being within the ambit of judicial responsibility. The distinct role then of the Supreme Court of
being the final arbiter in the determination of constitutional controversies does not have to be
asserted in such contemplated situations, thereby to give way to the ultimate prerogative of the
people articulated thru suffrage or thru the acts of their political representatives they have elected for
the purpose.

Indeed, these fundamental considerations are the ones that lie at the base of what is known in
American constitutional law as the political question doctrine, which in that jurisdiction is
unquestionably deemed to be part and parcel of the rule of law, exactly like its apparently more
attractive or popular opposite, judicial activism, which is the fullest exertion of judicial power, upon
the theory that unless the courts intervene injustice might prevail. It has been invoked and applied by
this Court in varied forms and mode of projection in several momentous instances in the past,
(Barcelona vs. Baker, 5 Phil. 87; Severino vs. Governor-General, 16 Phil. 366; Abueva vs. Wood, 45
Phil. 612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag vs. Lopez
Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil. 654; Montenegro vs. Castaneda, 91 Phil. 882, Santos
vs. Yatco, 55 O.G. 8641 [Minute Resolution of Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.)
and it is the main support of the stand of the Solicitor General on the issue of jurisdiction in the cases
at bar. It is also referred to as the doctrine of judicial self-restraint or abstention. But as the
nomenclatures themselves imply, activism and self- restraint are both subjective attitudes, not
inherent imperatives. The choice of alternatives in any particular eventuality is naturally dictated by
what in the Court's considered opinion is what the Constitution envisions should be by in order to
accomplish the objectives of government and of nationhood. And perhaps it may be added here to
avoid confusion of concepts, that We are not losing sight of the traditional approach based on the
doctrine of separation of powers. In truth, We perceive that even under such mode of rationalization,
the existence of power is secondary, respect for the acts of a co-ordinate, co-equal and independent
Department being the general rule, particularly when the issue is not encroachment of delimited
areas of functions but alleged abuse of a Department's own basic prerogatives. (59 SCRA, pp. 379-
383.)

Applying the foregoing considerations to the cases at bar, I hold that the Court has jurisdiction to
pass on the merits of the various claims of petitioners. At the same time, however, I maintain that the
basic nature of the issues herein raised requires that the Court should exercise its constitutionally
endowed prerogative to refrain from exerting its judicial authority in the premises.

Stripped of incidental aspects, the constitutional problem that confronts Us stems from the absence
of any clear and definite express provision in the Charter applicable to the factual milieu herein
involved. The primary issue is, to whom, under the circumstances, does the authority to propose
amendments to the Constitution property belong? To say, in the light of Section 15 of Article XVII of
the Charter, that that faculty lies in the interim National Assembly is to beg the main question.
Indeed, there could be no occasion for doubt or debate, if it could ' only be assumed that the interim
National Assembly envisaged in Sections 1 and 2 of the same Article XVII may be convoked. But
precisely, the fundamental issue We are called upon to decide is whether or not it is still
constitutionally possible to convene that body. And relative to that question, the inquiry centers on
whether or not the political developments since the ratification of the Constitution indicate that the
people have in effect enjoined the convening of the interim National Assembly altogether. On this
score, it is my assessment that the results of the referenda of January 10-15, 1973, July 27-28, 1973
and February 27, 1975 clearly show that the great majority of our people, for reasons plainly obvious
to anyone who would consider the composition of that Assembly, what with its more than 400
members automatically voted into it by the Constitutional Convention together with its own members,
are against its being convoked at all.
Whether or not such a manifest determination of the sentiments of the people should be given effect
without a formal amendment of the Constitution is something that constitutional scholars may
endlessly debate on. What cannot be disputed, however, is that the government and the nation have
acquiesced to, it and have actually operated on the basis thereof. Proclamation 1103 which, on the
predicate that the overwhelming majority of the people desire that the interim Assembly be not
convened, has ordained the suspension of its convocation, has not been assailed either judicially or
otherwise since the date of its promulgation on January 17, 1973.

In these premises, it is consequently the task of the Court to determine what, under these
circumstances, is the constitutional relevance of the interim National Assembly to any proposal to
amend the Constitution at this time. It is my considered opinion that in resolving that question, the
Court must have to grapple with the problem of what to do with the will of the people, which although
manifested in a manner not explicitly provided for in the Constitution, was nevertheless official, and
reliable, and what is more important clear and unmistakable, despite the known existence of well-
meaning, if insufficiently substantial dissent. Such being the situation, I hold that it is not proper for
the Court to interpose its judicial authority against the evident decision of the people and should
leave it to the political department of the government to devise the ways and means of resolving the
resulting problem of how to amend the Constitution, so long as in choosing the same, the ultimate
constituent power is left to be exercised by the people themselves in a well- ordered plebiscite as
required by the fundamental law.

-2-

Assuming We have to inquire into the merits of the issue relative to the constitutional authority
behind the projected amendment of the Charter in the manner provided in Presidential Decree 1033,
I hold that in the peculiar situation in which the government is today, it is not incompatible with the
Constitution for the President to propose the subject amendments for ratification by the people in a
formal plebiscite under the supervision of the Commission on Elections. On the contrary, in the
absence of any express prohibition in the letter of the Charter, the Presidential Decree in question is
entirely consistent with the spirit and the principles underlying the Constitution. The correctness of
this conclusion should become even more patent, when one considers the political developments
that the people have brought about since the ratification of the Constitution on January 17,1973.

I consider it apropos at this juncture to repeat my own words in a speech I delivered on the occasion
of the celebration of Law Day on September 18, 1975 before the members of the Philippine
Constitution Association and their guests:

To fully comprehend the constitutional situation in the Philippines today, one has to bear in mind
that, as I have mentioned earlier, the martial law proclaimed under the 1935 Constitution overtook
the drafting of the new charter by the Constitutional Convention of 1971. It was inevitable, therefore,
that the delegates had to take into account not only the developments under it but, most of all, its
declared objectives and what the President, as its administrator, was doing to achieve them. In this
connection, it is worthy of mention that an attempt to adjourn the convention was roundly voted down
to signify the determination of the delegates to finish earliest their work, thereby to accomplish the
mission entrusted to them by the people to introduce meaningful reforms in our government and
society. Indeed, the constituent labors gained rapid tempo, but in the process, the delegates were to
realize that the reforms they were formulating could be best implemented if the martial law powers of
the President were to be allowed to subsist even after the ratification of the Constitution they were
approving. This denouement was unusual. Ordinarily, a constitution born out of a crisis is supposed
to provide all the needed cures and can, therefore, be immediately in full force and effect after
ratification. Not so, with our 1973 Constitution, Yes, according to the Supreme Court, 'there is no
more judicial obstacle to the new Constitution being considered in force and effect', but in truth, it is
not yet so in full. Let me explain.

To begin with, in analyzing the new Constitution, we must be careful to distinguish between the body
or main part thereof and its transitory provisions. It is imperative to do so because the transitory
provisions of our Constitution are extraordinary in the sense that obviously they have been designed
to provide not only for the transition of our government from the presidential form under the past
charter to a parliamentary one as envisaged in the new fundamental law, but also to institutionalize,
according to the President, the reforms introduced thru the exercise of his martial law powers. Stated
differently, the transitory provisions, as it has turned out, has in effect established a transition
government, not, I am sure, perceived by many. It is a government that is neither presidential nor
parliamentary. It is headed, of course, by President Marcos who not on retains all his powers under
the 1935 Constitution but enjoys as well those of the President and the Prime Minister under the new
Constitution. Most importantly, he can and does legislate alone. But to be more accurate, I should
say that he legislates alone in spite of the existence of the interim National Assembly unequivocally
ordained by the Constitution, for the simple reason that he has suspended the convening of said
assembly by issuing Proclamation No. 1103 purportedly 'in deference to the sovereign will of the
Filipino people' expressed in the January 10-15, 1973 referendum.

Thus, we have here the unique case of a qualified ratification. The whole Constitution was submitted
for approval or disapproval of the people, and after the votes were counted and the affirmative
majority known, we were told that the resulting ratification was subject to the condition that the
interim National Assembly evidently established in the Constitution as the distinctive and
indispensable element of a parliamentary form of government should nevertheless be not convened
and that no elections should be held for about seven years, with the consequence that we have now
a parliamentary government without a parliament and a republic without any regular election of its
officials. And as you can see, this phenomenon came into being not by virtue of the Constitution but
of the direct mandate of the sovereign people expressed in a referendum. In other words, in an
unprecedented extra-constitutional way, we have established, wittingly or unwittingly, a direct
democracy through the Citizens Assemblies created by Presidential Decree No. 86, which later on
have been transformed into barangays, a system of government proclaimed by the President as 'a
real achievement in participatory democracy.' What I am trying to say, my friends, is that as I
perceive it, what is now known as constitutional authoritarianism means, in the final analysis, that the
fundamental source of authority of our existing government may not be necessarily found within the
four corners of the Constitution but rather in the results of periodic referendums conducted by the
Commission on Elections in a manner well known to all of us This, as I see it, is perhaps what the
President means by saying that under the new Constitution he has extra-ordinary powers
independently of martial law - powers sanctioned directly by the people which may not even be read
in the language of the Constitution. in brief, when we talk of the rule of law nowadays, our frame of
reference should not necessarily be the Constitution but the outcome of referendums called from
time to time by the President. The sooner we imbibe this vital concept the more intelligent will our
perspective be in giving our support and loyalty to the existing government. What is more, the
clearer will it be that except for the fact that all the powers of government are being exercised by the
President, we - do not in reality have a dictatorship but an experimental type of direct democracy."

In the foregoing disquisition, I purposely made no mention of the referendum of February 27, 1975. It
is important to note, relative to the main issue now before Us, that it was originally planned to ask
the people in that referendum whether or not they would like the interim National Assembly to
convene, but the Comelec to whom the task of preparing the questions was assigned was prevailed
upon not to include any -such question anymore, precisely because it was the prevalent view even
among the delegates to the Convention as well as the members of the old Congress concerned that
that matter had already been finally resolved in the previous referenda of January and July 1973 in
the sense that. the Assembly should not be convened comparable to res adjudicata.
It is my position that as a result of the political developments since January 17, 1973 the transitory
provisions envisioning the convening of the interim National Assembly have been rendered legally
inoperative. There is no doubt in my mind that for the President to convoke the interim National
Assembly as such would be to disregard the will of the people - something no head of a democratic
republican state like ours should do. And I find it simply logical that the reasons that motivated the
people to enjoin the convening of the Assembly - the unusually large and unmanageable number of
its members and the controversial morality of its automatic composition consisting of all the
incumbent elective national executive and legislative officials under the Old Constitution who would
agree to join it and the delegates themselves to the Convention who had voted in favor of the
Transitory Provisions - apply not only to the Assembly as an ordinary legislature but perhaps more to
its being a constituent body. And to be more realistic, it is but natural to conclude that since the
people are against politicians in the old order having anything to do with the formulation of national
policies, there must be more reasons for them to frown on said politicians taking part in amendment
of the fundamental law, specially because the particular amendment herein involved calls for the
abolition of the interim National Assembly to which they belong and its substitution by the Batasang
Pambansa.

It is argued that in law, the qualified or conditional ratification of a constitution is not contemplated. I
disagree. It is inconsistent with the plenary power of the people to give or withhold their assent to a
proposed Constitution to maintain that they can do so only wholly. I cannot imagine any sound
principle that can be invoked to support the theory that the proposing authority can limit the power of
ratification of the people. As long as there are reliable means by which only partial approval can be
manifested, no cogent reason exists why the sovereign people may not do so. True it is that no
proposed Constitution can be perfect and it may therefore be taken with the good and the bad in it,
but when there are feasible ways by which it can be determined which portions of it, the people
disapprove. it would be stretching technicality beyond its purported office to render the final authority
- the people impotent to act according to what they deem best suitable to their interests.

In any event, I feel it would be of no consequence to debate at length regarding the legal feasibility
of qualified ratification. Proclamation 1103 categorically declares that:

WHEREAS, fourteen million nine hundred seventy six thousand five hundred sixty-one (14,976.561)
members of all the Barangays voted for the adoption of the proposed Constitution, as against seven
hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; but a
majority of those who approved the new Constitution conditioned their votes on the demand that the
interim National Assembly provided in its Transitory Provisions should not be convened.

and in consequence, the President has acted accordingly by not convening the Assembly. The
above factual premises of Proclamation 1103 is not disputed by petitioners. Actually, it is binding on
the Court, the same being a political act of a coordinate department of the government not properly
assailed as arbitrary or whimsical. At this point, it must be emphasized in relation to the contention
that a referendum is only consultative, that Proclamation 1103, taken together with Proclamation
1102 which proclaimed the ratification of the Constitution, must be accorded the same legal
significance as the latter proclamation, as indeed it is part and parcel if the Act of ratification of the
Constitution, hence not only persuasive but mandatory. In the face of the incontrovertible fact that
the sovereign people have voted against the convening of the interim National Assembly, and faced
with the problem of amending the Constitution in order precisely to implement the people's rejection
of that Assembly, the problem of constitutional dimension that confronts Us, is how can any such
amendment be proposed for ratification by the people?

To start with, it may not be supposed that just because the office or body designed by the
constitutional convention to perform the constituent function of formulating proposed amendments
has been rendered inoperative by the people themselves, the people have thereby foreclosed the
possibility of amending the Constitution no matter how desirable or necessary this might be. In this
connection, I submit that by the very nature of the office of the Presidency in the prevailing scheme
of government we have - it being the only political department of the government in existence - it is
consistent with basic principles of constitutionalism to acknowledge the President's authority to
perform the constituent function, there being no other entity or body lodged with the prerogative to
exercise such function.

There is another consideration that leads to the same conclusion. It is conceded by petitioners that
with the non-convening of the interim Assembly, the legislative authority has perforce fallen into the
hands of the President, if only to avoid a complete paralysis of law-making and resulting anarchy
and chaos. It is likewise conceded that the provisions of Section 3 (2) of Article XVII invest the
President with legislative power for the duration of the transition period. From these premises, it is
safe to conclude that in effect the President has been substituted by the people themselves in place
of the interim Assembly. Such being the case, the President should be deemed as having been
granted also the cognate prerogative of proposing amendments to the Constitution. In other words,
the force of necessity and the cognate nature of the act justify that the department exercising the
legislative faculty be the one to likewise perform the constituent function that was attached to the
body rendered impotent by the people's mandate. Incidentally, I reject most vehemently the
proposition that the President may propose amendments to the Constitution in the exercise of his
martial law powers. Under any standards, such a suggestion cannot be reconciled with the Ideal that
a Constitution is the free act of the people.

It was suggested during the oral, argument that instead of extending his legislative powers by
proposing the amendment to create a new legislative body, the President should issue a decree
providing for the necessary apportionment of the seats in the Regular National Assembly and call for
an election of the members thereof and thus effect the immediate normalization of the parliamentary
government envisaged in the Constitution. While indeed procedurally feasible, the suggestion
overlooks the imperative need recognized by the constitutional convention as may be inferred from
the obvious purpose of the transitory provisions, for a period of preparation and acquaintance by all
concerned with the unfamiliar distinctive features and practices of the parliamentary system.
Accustomed as we are to the presidential system, the Convention has seen to it that there should be
an interim parliament under the present leadership, which will take the corresponding measures to
effectuate the efficient and smooth transition from the present system to the new one. I do not
believe this pattern set by the convention should be abandoned.

The alternative of calling a constitutional convention has also been mentioned. But, in the first place,
when it is considered that whereas, under Section 1 (1) and (2) of Article XVI, the regular National
Assembly may call a Constitutional Convention or submit such a call for approval of the people,
Section 15 of Article XVII, in reference to interim National Assembly, does not grant said body the
prerogative of calling a convention, one can readily appreciate that the spirit of the Constitution does
not countenance or favor the calling of a convention during the transition, if only because such a
procedure would be time consuming, cumbersome and expensive. And when it is further noted that
the requirement as to the number of votes needed for a proposal is only a majority, whereas it is
three-fourths in respect to regular Assembly, and, relating this point to the provision of Section 2 of
Article XVI to the effect that all ratification plebiscites must be held "not later than three months after
the approval" of the proposed amendment by the proposing authority, the adoption of the most
simple manner of amending the charter, as that provided for in the assailed Presidential Decree
1033 suggests itself as the one most in accord with the intent of the fundamental law.

There is nothing strange in adopting steps not directly based on the letter of the Constitution for the
purpose of amending or changing the same. To cite but one important precedent, as explained by
Mr. Justice Makasiar in his concurring opinion in Javellana 2, the present Constitution of the United
States was neither proposed nor ratified in the manner ordained by the original charter of that
country, the Articles of Confederation and Perpetual Union.

In brief. if the convening and operation of the interim National Assembly has been effectuated
through a referendum-plebiscite in January, 1973, and ratified expressly and impliedly in two
subsequent referenda, those of July, 1973 and February, 1975, why may not a duly held plebiscite
suffice for the purpose of creating a substitute for that Assembly? It should be borne in mind that
after all, as indicated in the whereas of the impugned Presidential Decree, actually, the proposed
amendments were initiated by the barangays and sanggunian members. In other words, in
submitting the amendments for ratification, the President is merely acting as the conduit thru whom a
substantial portion of the people, represented in the Katipunan ng Mga Sanggunian, Barangay at
Kabataang Barangay, seek the approval of the people as a whole of the amendments in question. If
all these mean that the sovereign people have arrogated unto themselves the functions relative to
the amendment to the Constitution, I would regard myself as totally devoid of legal standing to
question it, having in mind that the most fundamental tenet on which our whole political structure
rests is that "sovereignty resides in the people and all government authority emanates from them."

In the light of the foregoing considerations, I hold that Presidential Decree No. 1033 does not infringe
the Constitution, if only because the specific provision it is supposed to infringe does not exist in
legal contemplation since it was coevally made inoperative when the people ratified the Constitution
on January 17, 1973. I am fully convinced that there is nothing in the procedure of amendment
contained in said decree that is inconsistent with the fundamental principles of constitutionalism. On
the contrary, I find that the Decree, in issue conforms admirably with the underlying tenet of our
government - the sovereignty and plenary power of the people.

On the issue of whether or not October 16, 1976 is too proximate to enable the people to sufficiently
comprehend the issues and intelligently vote in the referendum and plebiscite set by Presidential
Decree 1033, all I can say is that while perhaps my other colleagues are right in holding that the
period given to the people is adequate, I would leave it to the President to consider whether or not it
would be wiser to extend the same. Just to avoid adverse comments later I wish the President
orders a postponement. But whether such postponement is ordered or not, date of the referendum-
plebiscite anywhere from October 16, 1976 to any other later date, would be of no vital import.

In conclusion, I vote to dismiss all the three petitions before Us.

MAKASIAR, J., concurring and dissenting:

Since the validity or effectivity of the proposed amendments is to be decided ultimately by the people
in their sovereign capacity, the question is political as the term is defined in Tanada, et al. vs.
Cuenco, et al. (103 Phil. 1051), which is a bar to any judicial inquiry, for the reasons stated in Our
opinion in Javellana, et al. vs. Executive Secretary, et al. (L-36142); Tan, et al. vs. Executive
Secretary, et al. (L,36164); Roxas, et al. vs Executive Secretary, et al. (L-36165); Monteclaro, etc., et
al. vs' Executive Secretary, et al. (@36236); and Ditag et al. vs. Executive Secretary, et al. (L-W283,
March 31, 1973, 50 SCRA 30, 204-283). The procedure for amendment is not important Ratification
by the people is all that is indispensable to validate an amendment. Once ratified, the method of
making the proposal and the period for submission become relevant.

The contrary view negates the very essence of a republican democracy - that the people are
sovereign - and renders meaningless the emphatic declaration in the very first provision of Article II
of the 1973 Constitution that the Philippines is a republican state, sovereignty resides in the people
and all government authority emanates from them. It is axiomatic that sovereignty is illimitable The
representatives cannot dictate to the sovereign people. They may guide them; but they cannot
supplant their judgment, Such an opposite view likewise distrusts the wisdom of the people as much
as it despises their intelligence. It evinces a presumptuous pretension to intellectual superiority.
There are thousands upon thousands among the citizenry, who are not in the public service, who are
more learned and better skilled than many of their elected representatives.

Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004, Jan. 31, 1975, 62 SCRA
275, 298-302) that the President as enforcer or administrator of martial rule during the period of
martial law can legislate; and that he has the discretion as to when the convene the interim National
Assembly depending on prevailing conditions of peace and order. In view of the fact that the interim
National Assembly has not been convoked in obedience to the desire of the people clearly
expressed in the 1973 referenda, the President therefore remains the lone law-making authority
while martial law subsists. Consequently, he can also exercise the power of the interim National
Assembly to propose amendments to the New Constitution (Sec. 15,,Art. XVII If, as conceded by
petitioner Vicente Guzman (L-44684), former delegate to the 1971 Constitutional Convention which
drafted the 1973 Constitution. the President, during the period of martial law, can call a constitutional
convention for the purpose, admittedly a constituent power, it stands to reason that the President
can likewise legally propose amendments to the fundamental law.

ANTONIO, J., concurring:

At the threshold, it is necessary to clarify what is a "political question". It must be noted that this
device has been utilized by the judiciary "to avoid determining questions it is ill equipped to
determine or that could be settled in any event only with the effective support of the political
branches."1 According to Weston, judges, whether "personal representatives of a truly sovereign
king, or taking their seats as the creatures of a largely popular sovereignty speaking through a
written constitution, derive their power by a delegation, which clearly or obscurely as the case may
be, deliminates and delimits their delegated jurisdiction.* * * Judicial questions * * * are those which
the sovereign has set to be decided in the courts. Political questions, similarly, are those which the
sovereign has entrusted to the so-called political departments of government or has reserved to be
settled by its own extra-government or has reserved to be settled by its own extra-governmental
action."2 Reflecting a similar concept, this Court has defined a "political question" as a "matter which
is to be exercised by the people in their primary political capacity or that has been specifically
delegated to some other department or particular officer of the government, with discretionary power
to act."3 In other words, it refers to those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government.4

In determining whether an issue falls within the political question category, the absence of
satisfactory creterion for a judicial determination or the appropriateness of attributing finality to the
action of the political departments of government is a dominant consideration. This was explained by
Justice Brennan in Baker v. Carr,5 thus :

Prominent on the surface of any case held to involve political question is found a textually
demonstrable constitutional lack of judicially discoverrable and manageable standards for resolving
it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of embarrassment
from from multifarious pronouncements by various departments on one question. . . .
To decide whether a matter has in a measure been committed by the Constitution to another branch
of government or retained be the people to be decided by them in their sovereign capacity, or
whether that branch exceeds whatever authority has been committed, is indeed a delicate exercise
in constitutional interpretation.

In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy of the ratification by
state legislatures of a constitutional amendment is a political question. On the question of whether
the State Legislature could constitutionally relative an amendment, after the same had been
previously rejected by it, it was held that the ultimate authority over the question was in Congress in
the exercise of its control over the promulgation of the adoption of the amendment. And in
connection with the second question of whether the amendment has lost its, vitality through the
lapse of time, the Court held that the question was likewise political, involving "as it does ... an
appraisal of a great variety of relevant conditions, political, social and economic, which can hardly be
said to be within the appropriate range of evidence receivable in a court of justice and as to which it
would be an extravagant extension of juridical authority to assert judicial notice as the basis of
deciding a controversy with respect to the validity of an amendment actually ratified. On the other
hand, these conditions are appropriate for the consideration of the political departments of the
Government. The questions they involve are essentially political and not justiciable." '

In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed that:

The Constitution grants Congress exclusive power to control submission off constitutional
amendments. Final determination by Congress their ratification by three-fourths of the States has
taken place 'is conclusive upon the courts.' In the exercise of that power, Congress, of course, is
governed by the Constitution. However, A whether submission, intervening procedure for
Congressional determination of ratification conforms to the commands of the Constitution, call for
decisions by apolitical department of questions of a t@ which this Court has frequently designated
'political.' And decision of a 'political question' by the political department' to which the Constitution
has committed it 'conclusively binds the judges, as well as all other officers, citizens and subjects of
... government. Proclamation under authority of Congress that an amendment has been ratified will
carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution
commands. Upon this assurance a proclaimed amendment must be accepted as a part of the
Constitution, learning to the judiciary its traditional authority of interpretation. To the extent that the
Court's opinion in the present case even by implieding assumes a power to make judicial
interpretation of the exclusive constitutional authority of Congress over submission and by ratification
of amendments, we are unable to agree.

Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in Mabanag v. Lopez
Vitol, 7 speaking through Mr. Justice Pedro Tuason, ruled that the process of constitutional
amendment, involving proposal and ratification, is a political question. In the Mabang case, the
petitioners sought to prevent the enforcement of a resolution of Congress proposing the "Parity
Amendment" to the Philippine Constitution on the ground that it had not been approved by the three-
fourths vote of all the members of each house as required be Article XV of the 1935 Constitution. It
was claimed that three (3) Senators and eight (8) members of the House of Representatives had
been suspended and that their membership was not considered in the determination of the three-
fourths %- ore In dismissing the petition on the ground that the question of the validity of the
proposal was political, the Court stated:

"If ratification of an amendment is a political question, a proposal which leads to ratification has to be
a political question. The question to steps complement each other in a scheme intended to achieve a
single objective. It is to be noted that amendatory process as provided in Section I of Article XV of
the Philippine Constitution 'consists of (only) two distinct parts: proposal and ratification.' There is no
logic in attaching political character to one and withholding that character from the other. Proposal to
amend the Constitution is a highly political function performed by the Congress in its sovereign
legislative capacity and committed to its charge by the Constitution itself. ..." (At pages 4-5, Italics
supplied.)

It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether or not a Resolution of
Congress, acting as a constituent assembly - violates the Constitution is essentially justiciable, not
political, and hence, subject to judicial review." What was involved in Gonzales, however, was not a
proposed What was involved in Gonzales, however, was not a proposed amendment to the
Constitution but an act of Congress,9 submitting proposed amendments to the Constitution.
Similarly, in Tolentino v. Commission an Elections, 10 what was involved was not the validity of the
proposal to lower the voting age but rather that of the resolution of the Constitutional Convention
submitting the proposal for ratification. The question was whether piecemeal amendments to the
Constitution could submitted to the people for approval or rejection.

II

Here, the point has been stressed that the President is acting as agent for and in behalf of the
people in proposing the amendment. there can be no question that in the referendums of January,
1973 and in the subsequent referendums the people had clearly and categorically rejected the
calling of the interim National Assembly. As stated in the main opinion, the Lupang Tagapagpaganap
of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, representing
42,000 barangays, the Kabataang Barangay organizations and the various sectoral groups had
proposed the replacement of the interim National Assembly. These barangays and the Sanggunian
assemblies are effective instrumentalities through which the desires of the people are articulated and
expressed. The Batasang Bayan (Legislative Council), composed of nineteen (19) cabinet members
and nine (9) officials with cabinet rank, and ninety-one (91) members of the Lupang
Tagapagpaganap (Executive Committee) of the Katipunan ng mga Sangguniang Bayani voted in
their special session to submit directly to the people in a plebiscite on October 16, 1976 the afore-
mentioned constitutional amendments. Through the Pambansang Katipunan by Barangay and the
Pampurok ng Katipunan Sangguniang Bayan, the people have expressed their desire not only to
abolish the interim National Assembly, but to replace it with a more representative body acceptable
to them in order to effect the desirable constitutional changes necessary to hasten the political
evolution of the government towards the parliamentary system, while at the same time ensuring that
the gains of the New Society, which are vital to the welfare of the people, shall be safeguarded. The
proposed constitutional amendments, therefore, represent a consensus of the people.

It would be futile to insist that the intemi National Assembly should have been convened to propose
those amendments pursuant to Section 15 of Article XVII of the Constitution. This Court, in the case
of Aquino v. Commission or Elections,11 took judicial notice of the fact that in the referendum of
January, 1973, a majority of those who approved the new Constitution conditioned their votes on the
demand that the interim National Assembly provided in the Transitory Provisions should not be and
the President "in deference to the sovereign will of the Filipino people" declared that the convening
of said body shall be suspended.12 As this Court observed in the Aquino case:

His decision to defer the initial convocation of the byiitttit National Assembly was supported by the
sovereign people at the by referendum in January, 1973 when the people voted to postpone the
convening of the interim National Assembly until after at least seven (7) years from the approval of
the new Constitution. And the reason why the same question was eliminated from the questions to
be submitted at the referendum on February 27, 1975, is that even some members of the Congress
and delegates of the Constitutional Convention, who are already byjso ofitto members of the intetini
National Assembly are against such inclusion; because the issue was already bycciled in the
January, 1973 referendum by the sovereign people indicating thereby their disenchantment with any
Assembly as the former Congress failed to institutionalize the reforms they demanded and wasted
public funds through endless debates without relieving the suffering of the general mass of citizenry
(p. 302.) The action of the President in suspending the convening of the interim National Assembly
has met the overwhelming approval of the people in subsequent referenda.

Since it was the action by the people that gave binding force and effect to the new Constitution, then
it must be accepted as a necessary consequence that their objection against the immediate
convening of the interim National Assembly must be respected as a positive mandate of the
sovereign.

In the Philippines, which is a unitary state, sovereignty "resides in the people and all government
authority emanates from them."13 The term "People" as sovereign is comprehensive in its context.
The people, as sovereign creator of all political reality, is not merely the enfranchised citizens but the
political unity of the people. 14 It connotes, therefore, a people which exists not only in the urgent
present but in the continuum of history. The assumption that the opinion of The People as voters can
be treated as the expression of the interests of the People as a historic community was, to the
distinguished American journalist and public philosopher, Walter Lipunan, unwarranted.

Because of the discrepancy between The People as Voters and the People as the corporate nation,
the voters have no title to consider themselves the proprietors of the commonwealth and to claim
that their interests are Identical to the public interest. A prevailing plurality of the voters are not The
People. The claim that they are is a bogus title invoked to justify the usurpation of the executive
power by representative assemblies and the intimidation of public men by demagogue politicians. In
fact demagoguery can be described as the sleight of hand by which a faction of The People as
voters are invested with the authority of The People. That is why so many crimes are committed in
the People's name 15

In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to propose
amendments or to amend the Constitution is part of the inherent power of the people as the
repository of sovereignty in a republican state. While Congress may propose amendments to the
Constitution, it acts pursuant to authority granted to it by the people through the Constitution. Both
the power to propose and the authority to approve, therefore, inhere in the people as the bearer of
the Constitution making power.

Absent an interim National Assembly upon whom the people, through the Constitution, have
delegated the authority to exercise constituent powers, it follows from necessity that either the
people should exercise that power themselves or through any other instrumentality they may
choose. For Law, like Nature, abhors a vacuum (natural vacuum abhorret).

The question then is whether the President has authority to act for the people in submitting such
proposals for ratification at the plebiscite of October 16. The political character of the question is,
therefore, particularly manifest, considering that ultimately it is the people who will decide whether
the President has such authority. It certainly involves a matter which is to be exercised by the people
in their sovereign capacity, hence, it is essentially political, not judicial.

While it is true that the constituent power is not to be confuse with legislative power in general
because the prerogative to propose amendments is not embraced within the context of ordinary
lawmaking, it must be noted that the proposals to be submitted for ratification in the forthcoming
referendum are, in the final analysis, actually not of the President but directly of the people
themselves, speaking through their authorized instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in this case:

... The President merely formalized the said proposals in Presidential Decree No. 1033. It being
conceded in all quarters that sovereignty resides in the people and it having been demonstrated that
their constituent power to amend the Constitution has not been delegated by them to any
instrumentality of the Government during the present stage of the transition period of our political
development, the conclusion is ineluctable that their exertion of that residuary power cannot be
vulnerable to any constitutional challenge as beingultravires. Accordingly, without venturing to rule
on whether or not the President is vested with constituent power - as it does not appear necessary to
do so in the premises - the proposals here challenged, being acts of the sovereign people no less,
cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant authority to call a
plebiscite and to appropriate funds therefor is even less vulnerable not only because the President,
in exercising said authority, has acted as a mere ofiffet byf of the people who made the proposals,
but likewise because the said authority is legislative in nature rather than constituent.

This is but a recognition that the People of the Philippines have the inherent, sole and exclusive right
of regulating their own government, and of altering or abolishing their Constitution whenever it may
be necessary to their safety or happiness. There appears to be no justification, under the existing,
circumstances, for a Court to create by implication a limitation on - the sovereign power of the
people. As has been clearly explained in a previous case:

There is nothing in the nature of the submission which should cause the free exercise of it to be
obstructed, or that could render it dangerous to the stability of the government; because the
measure derives all its vital force from the action of the people at the ballot box, and there can never
be danger in submitting in an established form to a free people, the proposition whether they will
change their fundamental law The means provided for the exercise of their Sovereign right of
changing their constitution should receive such a construction as not to trammel the exercise of the
right. Difficulties and embarrassments in its exercise are in derogation of the right of free
government, which is inherent in the people; and the best security against tumult and revolution is
the free and unobstructed privilege to the people of the State to change their constitution in the
mode prescribed by the instrument.

III

The paramount consideration that impelled Us to arrive at the foregoing opinion is the necessity of
ensuring popular control over the constituent power. "If the people are to control the constituent
power - the power to make and change the fundamental law of the State," observed Wheeler," "the
process of Constitutional change must not be based too heavily upon existing agencies of
government." Indeed, the basic premise of republicanism is that the ordinary citizen, the common
man. can be trusted to determine his political destiny. Therefore, it is time that the people should be
accorded the fullest opportunity to decide the laws that shall provide for their governance. For in the
ultimate analysis, the success of the national endeavor shall depend on the vision, discipline and I
by ininess of the moqqqtai will of every Filipino.

IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the petitions.

Aquino, J., concur.

MUNOZ PALMA, J., dissenting:

I concur fully with the remarkably frank (so characteristic of him) dissenting opinion of my
distinguished colleague, Justice Claudio Teehankee. If I am writing this brief statement it is only to
unburden myself of some thoughts which trouble my mind and leave my conscience with no rest nor
peace.

Generally, one who dissents from a majority view of the Court takes a lonely and at times precarious
road, the burden byeing lightened only by the thought that in this grave task of administering justice,
when matters of conscience are at issue, one must be prepared to espouse and embrace a rightful
cause however unpopular it may be.

1. That sovereignty resides in the people and all government authority emanates from them is a
fundamental, basic principle of government which cannot be disputed, but when the people have
opted to govern themselves under the mantle of a written Constitution, each and every citizen, from
the highest to the lowliest, has the sacred duty to respect and obey the Character they have so
ordained.

By the Constitution which they establish, they not only tie up he hands of their official agencies, but
their own hands as well; and neither the officers of the state, nor the whole people as an aggregate
body, are at liberty to take action in opposition to this fundamental law. (Cooley's Constitutional
Limitations, 7th Ed. p. 56, Italics Our).

The afore-quoted passage from the eminent jurist and author Judge Cooley although based on
declarations of law of more than a century ago, lays down a principle which to my mind is one of the
enduring cornerstones of the Rule of Law. it is a principle with which I have been familiar as a
student of law under the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice Jose P.
Laurel, and which I pray will prevail at all times to ensure the existence of a free, stable, and civilized
society.

The Filipino people,. wanting to ensure to themselves a democratic republican form of government,
have promulgated a Constitution whereby the power to govern themselves has been entrusted to
and distributed among three branches of government; they have also mandated in clear and
unmistakable terms the method by which provisions in their fundamental Charter may be amended
or revised. Having done so, the people are bound by these constitutional limitations. For while there
is no surrender or abdication of the people's ultimate authority to amend, revise, or adopt a new
Constitution, sound reason demands that they keep themselves within the procedural bounds of the
existing fundamental law. The right of the people to amend or change their Constitution if and when
the need arises is not to be denied, but we assert that absent a revolutionary state or condition in the
country the change must be accomplished through the ordinary, regular and legitimate processes
provided for in the Constitution.'

I cannot subscribe therefore to the view taken by the Solicitor General that the people, being
sovereign, have the authority to amend the Constitution even in a manner different from and contrary
to that expressly provided for in that instrument, and that the amendatory process is intended more
as a limitation of a power rather than a grant of power to a particular agency and it should not be
construed as limiting the ultimate sovereign will of the people to decide on amendments to the
Constitution .2 Such a view will seriously undermine the very existence of a constitutional
government and will permit anarchy and/or mob rule to set afoot and prevail. Was it the Greek
philosopher Plato who warned that the rule of the mob is a prelude to the rule of the tyrant?

I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine Constitution, Notes and
Cases" as relevant to my point:
. . . the amendatory provisions are called a 'constitution of sovereighty' because they define the
constitutional meaning of 'sovereignty of the people.' Popular sovereignty, as embodied in the
Philippine Constitution, is not extreme popular sovereignty. As one American writer put it:

A constitution like the American one serves as a basic check upon the popular will at any given time.
It is the distinctive function of such written document to classify certain things as legal fundamentals;
these fundamentals may not be changed except by the slow and cumbersome process of
amendment. The people themselves have decided, in constitutional convention assembled, to limit
themselves ana future generations in the exercise of the sovereign power which they would
otherwise possess. And it is precisely such limitation that enables those subject to governmental
authority to appeal from the people drunk to the people sober in time of excitement and hysteria. The
Constitution, in the neat phrase of the Iowa court, is the protector of the people against injury by the
.people. *

Truly, what need is there for providing in the Constitution a process by which the fundamental law
may be amended if, after all, the people by themselves can set the same at naught even in times of
peace when civil authority reigns supreme? To go along with the respondents' theory in this regard is
to render written Constitutions useless or mere "ropes of sand allowing for a government of men
instead of one of laws. For it cannot be discounted that a situation may arise where the people are
heralded to action at a point of a gun or by the fiery eloquence of a demagogue, and where passion
overpowers reason, and mass action overthrows legal processes. History has recorded such
instances, and I can think of no better example than that of Jesus Christ of Judea who was followed
and loved by the people while curing the sick, making the lame walk and the blind see, but shortly
was condemned by the same people turned into fanatic rabble crying out "Crucify Him, Crucify Him"
upon being incited into action by chief priests and elders of Jerusalem. Yes, to quote once more
from Judge Cooley:

A good Constitution should be beyond the reason of temporary excitement and popular caprice or
passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the
whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought,
which alone, if the government is to be sale can be allowed efficiency. .... Changes in government
are to be feared unless the benefit is certain." (quoted in Ellingham v. Dye, 99 N.E. 1, 15,)3

Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v. Hall, 159 N.W., 281;
Opinion of Marshall, J. in State ex. rel. Poster v. Marcus, 152 N.W., 419;

From Kochier v. Hill, Vol. 15, N.W., 609, we quote:

xxx xxx xxx

It has been said that changes in the constitution may be introduced in disregard of its provisions; that
if the majority of the people desire a change the majority must be respected, no matter how the
change may be effected; and that the change, if revolution, is peaceful resolution. ...

We fear that the advocates of this new doctrine, in a zeal to accomplish an end which the majority of
the people desire, have looked at but one phase of the question, and have not fully considered the
terrible consequences which would almost certainly follow a recognition of the doctrine for which
they contend. It may be that the incorporation of this amendment in the constitution, even if the
constitution has to be broken to accomplish it, would not of itself produce any serious results. But if it
should be done by sanctioning the doctrine contended for, a precedent would be set which would
plague the state for all future time. A Banquo's ghost would arise at our incantation which would not
down at our bidding.
 xxx xxx xxx

We ought to ponder long before we adopt a doctrine so fraught with danger to republican institutions.
...

xxx xxx xxx

Appellants' counsel cite and rely upon section 2, art. 1, of the constitution of the staff This section is
a portion of the bill of rights, and is as follows: 'All political power is inherent in the people.
Government is instituted for the protection, security, and benefit of of the people; and they have the
right at all times to alter or reform the same, whenever the public good may require.' Abstractly
considered, there can bye no doubt of the correctness of the propositions embraced in this suction.
These principles are older than constitutions and older than governments. The people did not derive
the rights referred to by on the constitution. and, in their nature, thee are such that the people cannot
surrender them ... .

2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite on
October 16, 1976 for the purpose, among other things, of amending certain provisions of the 1973
Constitution are null and void as they contravene the express provisions on the amending process of
the 1973 Constitution laid down in Article XVI, Section 1 (1) and Article XVII, Section 15, more
particularly the latter which applies during the present transition period. The Opinion of Justice
Teehankee discusses in detail this particular matter.

I would just wish to stress the point that although at present there is no by tterint National Assembly
which may propose amendments to the Constitution, the existence of a so-called "vacuum" or
"hiatus" does not justify a transgression of the constitutional provisions on the manner of amending
the fundamental law. We cannot cure one infirmity - the existence of a "vacuum" caused by the non-
convening of the interim National Assembly - with another infirmity, that is, doing violence to the
Charter.

All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil
may succeed and a worse. (Am. Law Rev. 1889, p. 311., quoted in Ellingham v. Dye, supra, p. 15)

Respondents contend that the calling of the referendum-plebiscite for the purpose indicated is a step
necessary to restore the state of normalcy in the country. To my mind, the only possible measure
that will lead our country and people to a condition of normalcy is the lifting or ending of the state of
martial law. If I am constrained to make this statement it is because so much stress was given during
the hearings of these cases on this particular point, leaving one with the impression that for
petitioners to contest the holding of the October 16 referendum-plebiscite is for them to assume a
position of blocking or installing the lifting of martial law, which I believe is unfair to the petitioners.
Frankly, I cannot see the connection between the two. My esteemed colleagues should pardon me
therefore if I had ventured to state that the simple solution to the simple solution to the present
dilemma is the lifting of martial law and the implementation of the constitutional provisions which will
usher in the parliamentary form of government ordained in the Constitution, which, as proclaimed in
Proclamation 1102, the people themselves have ratified.

If the people have indeed ratified the 1973 Constitution, then they are bound by their act and cannot
escape from the pretended unfavorable consequences thereof, the only y being to set in motion the
constitutional machinery by which the supposed desired amendments may properly be adopted and
submitted to the electorate for ratification. Constitutional processes are to be observed strictly, if we
have to maintain and preserve the system of government decreed under the fundamental Charter.
As said by Justice Enrique Fernando in Mutuc vs. Commission on Elections
... The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of
any public act whether proceeding from the highest official or the lowest funcitonary, is a postulate of
our system of government. That is to manifest fealty to the rule of law, with priority accorded to that
which occupies the topmost rung in the legal hierarchy. ... (36 SCRA, 228, 234, italics Ours)

A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox of the
Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty are not
meant to give rein to passion or thoughtless impulse but to allow the exercise of power by the people
for the general good by tistlercoitaitt restraints of law.3 . The true question before Us is is one of
power. Does the incumbent President of the Philippines possess constituent powers? Again, the
negative answer is explained in detail in the dissenting opinion of Justice Teehankee.

Respondents would justify the incumbent President's exercise of constituent powers on theory that
he is vested with legislative powers as held by this Court in Benigno S. Aquino, Jr., et al. vs.
Commission on Elections, et al., L-40004, January 31, 1975. 1 wish to stress that although in my
separate opinion in said case I agreed that Section 3 (2) of the Transitory provisions grants to the
incumbent President legislative powers, I qualified my statement as follows:

.... As to, whether, or not, this unlimited legislative qqqjwwel of the President continues by exist even
after the ratification of the Constitution is a matter which I am not ready to concede at the moment,
and which at any rate I believe is not essential in resolving this Petition for reasons to be given later.
Nonetheless, I hold the view that the President is empowered to issue proclamations, orders,
decrees, etc. to carry out and implement the objectives of the proclamation of martial law be it under
the 1935 or 1973 Constitution, and for the orderly and efficient functioning of the government, its
instrumentalities, and agencies. This grant of legislative power is necessary to fill up a vacuum
during the transition period when the interim National Assembly is not yet convened and functioning,
for otherwise, there will be a disruption of official functions resulting in a collapse of the government
and of the existing social order. (62 SCRA, pp. 275,347)

I believe it is not disputed that legislative power is essentially different from constituent power; one
does not encompass the other unless so specified in the Charter, and the 1973 Constitution contains
provisions in this regard. This is well-explained in Justice Teehankee's Opinion. The state of
necessity brought about by the current political situation, invoked by the respondents, provides no
source of power to propose amendments to the existing Constitution. Must we "bend the Constitution
to suit the law of the hour or cure its defects "by inflicting upon it a wound which nothing can heal
commit one assault after the other "until all respect for the fundamental law is lost and the powers of
government are just what those in authority please to call them?'"5 Or can we now ignore what this
Court, speaking through Justice Barredo, said in Tolentino vs. Comelec:

... let those who would put aside, invoking grounds at best controversial, any mandate of the
fundamental law purportedly by order to attain some laudable objective bear in mind that someday
somehow others with purportedly more laudable objectives may take advantages of the precedent in
continue the destruction of the Constitution, making those who laid down the precedent of justifying
deviations from the requirements of the Constitution the victims of their own folly. 6

Respondents emphatically assert that the final word is the people's word and that ultimately it is in
the hands of the people where the final decision rests. (Comment, pp. 18, 19, 22) Granting in gratia
argument that it is so, let it be an expression of the will of the people a normal political situation and
not under the aegis of martial rule for as I have stated in Aquino vs. Comelec, et al., supra, a
referendum (and now a plebiscite) held under a regime of martial law can be of no far reaching
significance because it is being accomplished under an atmosphere or climate of fear as it entails a
wide area of curtailment and infringement of individual rights, such as, human liberty, property rights,
rights of free expression and assembly, protection against unreasonable searches and seizures,
liberty of abode and of travel, and so on.

4. The other issues such as the sufficiency and proper submission of the proposed amendments for
ratification by the people are expounded in Justice Teehankee's Opinion. I wish to stress indeed that
it is incorrect to state that the thrust of the proposed amendments is the abolition of the interim
National Assembly and its substitution with an "interim Batasang Pambansa their in by in Proposed
amendment No. 6 will permit or allow the concentration of power in one man - the Executive - Prime
Minister or President or whatever you may call him - for it gives him expressly (which the 1973
Constitution or the 1935 Constitution does not) legislative powers even during the existence of the
appropriate legislative body, dependent solely on the executive's judgment on the existence of a
grave emergency or a threat or imminence thereof **

I must be forgiven if, not concerned with the present, I am haunted however by what can happen in
the future, when we shall all be gone. Verily, this is a matter of grave concern which necessitates
full, mature, sober deliberation of the people but which they can do only in a climate of freedom
without the restraints of martial law. I close, remembering what Claro M. Recto, President of the
Constitutional Convention which drafted the 1935 Philippine Constitution, once said: .

... Nor is it enough that our people possess a written constitution in order that their government may
be called constitutional. To be deserving of this name, and to drive away all lanirer of anarchy as
well as of dictatorship whether by one man or a few, it is necessary that both the government
authorities and the people faithfully observe and obey the constitution, and that the citizens be duly
conversant not only with their rights but also with their duties...7

Jose P. Laurel who served his people as Justice of the Supreme Court of this country gave this
reminder; the grave and perilous task of halting transgressions and vindicating cherished rights is
reposed mainly oil the Judiciary and therefore let the Courts be the vestal keepers of the purity and
sanctity of our Constitution.' On the basis of the foregoing, I vote to declare Presidential Decrees
Nos. 991 and 1033 unconstitutional and enjoin the implementation thereof.

CONCEPCION JR., J., concurring:

I vote for the dismissal of the petitions.

1. The issue is not political and therefore justiciable.

The term "political question", as this Court has previously defined, refers to those questions which,
under the constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the Legislature or executive branch of the
Government. It is concerned with the issues dependent upon the wisdom, not legality, of a particular
measure.1

Here, the question raised is whether the President has authority to propose to the people
amendments to the Constitution which the petitioners claim is vested solely upon the National
Assembly, the constitutional convention called for the purpose, and the by the National Assembly.
This is not a political question since it involves the determination of conflicting claims of authority
under the constitution.

In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or not a Resolution of
Congress, acting as a constituent assembly, violates the Constitution, ruled that the question is
essentially justiciable, not political, and hence, subject to judicial review.
In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to its position regarding its
jurisdiction vis-a-vis the constitutionality of the acts of Congress, acting as a constituent assembly,
as well as those of a constitutional convention called for the purpose of proposing amendments to
the constitution. Insofar as observance of constitutional provisions on the procedure for amending
the constitution is concerned, the issue is cognizable by this Court under its powers of judicial
review.

2. As to the merits, a brief backdrop of the decision to hold the referendum-plebiscite will help
resolve the issue. It is to be noted that under the 1973 Constitution, an interim National Assembly
was organized to bring about an orderly transition from the presidential to the parliamentary system
of government.' The people, however, probably distrustful of the members who are old time
politicians and constitutional delegates who had voted themselves by to membership in the interim
National Assembly, voted against the convening of the said interim assembly for at least seven
years thus creating a political stalemate and a consequent delay' in the transformation of the
government into the parliamentary system. To resolve the impasse, the President, at the instance of
the barangays and sanggunian assemblies through their duly authorized instrumentalities who
recommended a study of the feasibility of abolishing and replacing the by interim National Assembly
with another interim body truly representative of the people in a reformed society, issued Presidential
Decree No. 991, on September 2, 1976, calling for a national referendum on October -16, 1976 to
ascertain the wishes of the people as to the ways and means that may be available to attain the
objective; providing for a period of educational and information campaign on the issues; and
establishing the mechanics and manner for holding thereof. But the people, through their barangays,
addressed resolutions to the Batasang Bayan, expressing their desire to have the constitution
amended, thus prompting the President to issue Presidential Decree No. 1033, stating the questions
to @ submitted to the people in the referendum-plebiscite on October 16,1976.

As will be seen, the authority to amend the Constitution was removed from the interim National
Assembly and transferred to the seat of sovereignty itself. Since the Constitution emanates from the
people who are the repository of all political powers, their authority to amend the Constitution
through the means they have adopted, aside from those mentioned in the Constitution, cannot be
gainsaid. Not much reflection is also needed to show that the President did not exercise his martial
law legislative powers when he proposed the amendments to the Constitution. He was merely acting
as an instrument to carry out the will of the people. Neither could he convene the interim National
Assembly, as suggested by the petitioners, without doing violence to the people's will expressed
overwhelmingly when they decided against convening the interim assembly for at least seven years.

3. The period granted to the people to consider the proposed amendments is reasonably long and
enough to afford intelligent discussion of the issues to be voted upon. PD 991 has required the
barangays to hold assemblies or meetings to discuss and debate on the referendum questions,
which in fact they have been doing. Considering that the proposed amendments came from the
representatives of the people themselves, the people must have already formed a decision by this
time on what stand to take on the proposed amendments come the day for the plebiscite. Besides,
the Constitution itself requires the holding of a plebiscite for the ratification of an amendment not
later than three (3) months after the approval of such amendment or revision but without setting a
definite period within which such plebiscite shall not be held. From this I can only conclude that the
framers of the Constitution desired that only a short period shall elapse from the approval of such
amendment or resolution to its ratification by the people.

Footnotes

1 Sec. 3, PD 991, September 2, 1976.

2 SEC. 4 Who shall participate.-Every Filipino citizen, literate or not, fifteen years of age or over who
has resided in the barangay for at least six months shall participate in the consultation in his
barangay. Provided, however, That any person who may not be able to participate in the
consultations of his barangay may do so in any barangay member shall participate in more than one
barangay consultation.

3 SEC. 15. The National Assembly upon special call by the interim Prime Minister, may, by a
majority vote of all its Members, propose amendments to this Constitution. Such amendments shall
take effect when ratified in accordance with Article Sixteen thereof."

4 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960).

5 Section 18.

6 Section 5.

7 Tan v. Macapagal, L-34161, Feb. 29, 1972, 43 SCRA 677, Fernando, J., ponente. See also
Standing to Secure Judicial Review, Jaffe, 74 Harvard Law Review 1265 (May 1961).

8 Concurring and dissenting opinion of Justice Fernando in the Plebiscite Cases (Planas v.
Comelec, 49 SCRA 105). See Martial Law and the New Society in the Philippines, Supreme Court,
1976, at 152.

9 Orfield Amending the Federal Constitution, 111.

10 Separate Opinion of Justice Concepcion in the Ratification Casts v. the Executive Secretary 50
SCRA 30), Martial Law and the New Society in the Philippines, 1976, Supreme Court, 210-224,
quoting Tanada v. Cuenco, 103 Phil. 1051.

11 See Martial Law and the New Society in the Philippines, Supreme Court, 1976, at 121.

12 Idem, at 210.

13 The view of the Chief Justice was shared by Justices Makalintal (later Chief Justice), Zaldivar,
Castro (present Chief Justice), Fernando, and Teehankee. Justice Barredo qualified his vote, stating
that "inasmuch as it is claimed that there has been approval by the people, the Court may inquire
into the question of whether or not there has actually been such an approval, and, in the affirmative,
the Court should keep its hands-off out of respect to the people's will, but, in the negative, the Court
may determine from both factual and legal angles whether or not Article XV of the 1935 Constitution
has been complied with." Justices Makasiar, Antonio and Esguerra hold that the issue is political and
"beyond the ambit of judicial inquiry."

14 62 SCRA 275, Referendum Case, Martial Law and the New Society in the Philippines, Supreme
Court, 1976, at 1071.

15 Idem, at 10791081.

16 In the United States, all amendments to the Federal constitution, except the Twenty-first
Amendment, had been proposed by the U.S. Congress, Modern Constitutional Law, Antieau Vol.
2,1969 ed., at 482.
17 The Amending of the Federal Constitution by Orfield 1942, 48-53; 103-105.

18 Black's Constitutional Law, Hornkbook series, at 42.

19 Hollingsworth v. Virginia, 3 Dall 378.

20 There are 3 types of crisis in the life of a democratic nation. First is particularly a war to repel
invasions, when a state must convert its peacetime political and social order into a wartime fighting
machine and overmatch the skill and efficiency of the enemy. Second, is rebellion, when the
authority of a constitutional government is resisted openly by a large numbers of its citizens who are
engaged in violent insurrection against the enforcement of its laws or are bent on capturing it illegally
or even destroying it altogether. Third is economic depression-a crisis greater than war. Rossiter,
Constitutional Dictatorship, at 6.

21 Constitutional Dictatorship by Clinton Rossiter, 288-290.

22 Corwin, The President Office and Powers, at 371.

23 See Separate Opinion of the Chief Justice (the Justice Castro in the Referendum Case (Aquino v.
Comelec), at p. 1084, Martial Law and the New Society in the Philippines, Supreme Court, 1976.

26 Orfield, Amending the Federal Constitution, at 55.

27 Daily Express, Sept. 27,1976; Times Journal, Sept. 17, 1976.

28 Sunday Express, September 23, 1976.

29 Daily Express, September 23, 1976.

30 Section 1, Article II, 1973 Constitution.

31 See Orfield, Amending the Federal Constitution, 140-143. The first meaning includes all persons.
living within the state during the whole time of the existence of the state; the second, the sum of all
individuals as an organized group living within the state at the same time: and the third, the
organized group of individuals living the state with the exception of the government.

32 Friedrich, The Philosophy of Law in Historical Perspective, 1963, at 221.

33 Orfield Amending the Federal Constitution, at 105.

34 Abrams v. United States, 250 U.S. 616, 630.

35 Op Cit., at 221.

39 Separate opinion of Justice Palma in the Referendum Case (Aquino v. COMELEC), at 1135,
Martial Law and the New Society in the Philippines, 1976, Supreme Court.

40 Separate opinion of Justices Makalintal and Castro in the Ratification Case (Javellana v. The
Executive Secretary, 50 SCRA 30), at 292-293, Martial Law and the New Society in the Philippines
41 Sec. 1, Article VI, 1973 Constitution.

42 Daily Express, September 29, 1976.

43 See Times Journal, September 30, 1976.

44 Times journal, October 2, 1976.

45 See Martial Law and the New Society, 1976, Supreme Court, at 1082-83.

46 307 U.S. 433, see Cases in Constitutional Law, 3rd ed., Cushman and Cushman, 12-13.

47 Dillon v. Gloss, 256 U.S. 368.

48 Willoughby on the Constitution of the Untied States, Vol. 1,595-96.

L-35925, January 22, 1973, 49 SCRA 105. The other cases disposed of by the Court are not
referred to.

2 L-36142, March 31, 1973, 50 SCRA 30. Again, no reference is made to the other petitions raising
the same question as to te validity of Proclamation No. 1102 announcing the ratification of the
Constitution proposed by the Constitutional Convention.

3 L-35546, September 17, 1974, 59 SCRA 183. It must be noted that there were other petitions
decided likewise seeking the nullification of Proclamation No. 1081 declaring martial law.

4 L-4004, January 31, 1975, 62 SCRA 275. This decision affirmed the power of the incumbent
President to issue decrees having the force and effect of law. There was in the main opinion in this
case, penned by Justice Makasiar, an explicit recognition that the incumbent President possesses
legislative competence so that during the period of Martial Law he could assure "the security and
preservation of the Republic, ... the defense of the political and social liberties of the people and...
the institution of reforms to prevent the resurgence of rebellion or insurrection or secession or the
threat thereof as well as to meet the impact of a worldwide recession, inflation or economic crisis
which presently threatens all nations including highly developed countries ..." (At 298) Justices
Antonio, Esguerra, Fernandez, Munoz Palma and Aquino concurred, although in a separate opinion,
Justice Munoz Palma qualified it by saying that the grant of legislative power "is necessarily to fill up
a vacuum during the transition period when the interim National Assembly is not yet convened and
functioning, for otherwise, there will be a disruption of official functions resulting in a collapse of the
government and of the existing social order." (At 347) There was likewise a concurring opinion by
the then Justice, now Chief Justice Justice Makalintal and Justices Barredo, Antonio, Esguerra and
Fernandez concurred with this opinion. In a concurring and dissenting opinion, Justice Teehankee
would confine "his legislative and appropriation powers under martial law ... to the law of necessity of
preservation of the state which gave rise to its proclamation (including appropriations for operations
of the government and its agencies and instrumentalities)." (At 316-317) The writer of this opinion
had his own concurrence and predicated his vote without an expression of his views as to the grant
of legislative power to the President. "

5 L-37364, May 9,1975, 63 SCRA 546. The Court ruled in this case that military commissions may
try civilians for certain specified offenses according to applicable presidential decrees.

6 SCRA 183, 281-309.

7 Ibid, 301.

8 Ex parte Milligan is reported in 4 Wall. 2 (1966). It was likewise noted that Story, the first eminent
commentator in American constitutional law made no reference to martial law. Cooley's work, now in
its 8th edition, is entitled Constitutional Limitations while that of Watson bears the title of Constitution
of the United States. At 302

9 Ibid. Sterling is found in 287 US 378 (1932) and Duncan in 327 US 304 (1946). Among the
casebooks on constitutional law referred to are those by Dodd (1949), Dowling (1950), Sholley
(1951), Frank (1932), Freund and Associates (1954), Barrett and Associates (1963), Kauper (1966),
Lockhart and Associates (1970).

10 Ibid. It may be observed parenthetically that when I collaborated with Senator Lorenzo M. Tanada
in the Constitution of the Philippines Annotated published almost thirty Nears ago in 1947 (at 588-
589) with two later editions that came out in 1949 (at 694-695) and 1993 (at 1013-1014), it was
Willoughby's view that was cited.

11 Ibid. 302-303. This was the formulation of Burdick in his The Law of the American Constitution,
261 (1922).

12 Ibid. 303.

13 Ibid. The citation is from Willoughby on the Constitution of the United States, 2nd ed. 1591
(1929).

14 Ibid. The excerpt is from Williams on Constitutional Law, 449 (1936). It is to be made clear that in
our Constitution, it is only the privilege of the writ, not the writ itself that is suspended.

15 Ibid. :30:3-304. The quotation is from volume 2 of the treatise of Schwartz on the American
Constitution, entitled The Powers of Government 244 (1963) that the citation came from.

16 Ibid. The reference is to Dicey on the Law of the Constitution, 287-288 (1962).

17 327 US 304, 322.

18 Cf. Aquino v. Commission on Elections, 62 SCRA 275.

19 Ibid, 305. The citation from Rossiter is from the first chapter of his work on Constitutional
Dictatorship. 9 (1948).

20 Ibid. 306.

21 SCRA 275, 298. Justice Makasiar cited pages 7 and 303 of Rossiter's Constitutional Dictatorship.

22 The extensive citation in the opinion of Justice martin is found in Chapter XIX of Rossiter's opus
entitled Constitutional Dictatorship: The Forms, the Dangers, the Criteria, the Future. that is the last
chapter of his work, after a rather exhaustive discussion of what are referred to by him as
Constitutional Dictatorship in Germany (Chapters III to V), Crisis Government in the French Republic
(Chapters VI to IX), Crisis Government in the United States (chapters XIV to XVII).

23 Ibid. 294.
24 Imelda Romualdez Marcos, The Filipino Between Two Worlds, Philippines Daily Express lo,
October 9,1976.

25 Ibid.

26 Corwin, The President Office and Powers, 4th rev. ed., 139-140 (1957).

27 According to Art XVII, Sec. 15 of the present Constitution: The interim National upon special call
by the interim Prime Minister, a majority vote of all its Members, propose to amendments to this
Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen
hereof."

28 He was assisted by Assistant Solicitor General Hugo E. Gutierrez Jr. and Trial Attorney Nannette
R. de Castro.

29 Malcolm and Laurel, Philippine Constitutional Law, 3rd ed., 20-21 (1936).

30 Malcolm and Laurel, Cases on Constitutional Law (1936).

31 Ibid. Ellingham v. Dye is reported in 99 NE 1 (1912).

32 Philippine Political Law, llth ed. 63 (1962). It is precisely Ellingham v. Dye that was cited.

33 Justice Makasiar referred to Article XVII, Sec. 3, par. 2 of the present Constitution. The present
Chief Justice would include paragraph 1 to the above. Vide in. 4.

34 L-34150, October 16,1951, 41 SCRA 702.

35 According to Article 11, Section 1 of the present Constitution: The Philippines is a republican
state. Sovereignty resides in the people and all government authority emanates from them."

36 Cf. Crammer v. Thorson 68 NE 202 (1896): Edwards v. Lesueur 83 SW 1130 (1896); People v.
Mills, 70 P. 322 (1902); Treadgill v. Cross, 109 P 558 (1910); Scott v. James, 76 SE 283 (1912);
Weinland v. Fulton 121 NE 816 (1918); Gray v. Mass, 156 So. 262 (1934); Gray v. Winthrop, 156
So. 270 (1934); State v. Burns, 172 SW 259 (1943), Hillman v. Stockett 39 A2 803 (1944).

37 L-19313, January 19,1962,4 SCRA 1.

38 Ibid, 17-18.

39 L-21897, October 22, 1964, 9 SCRA 230.

40 Ibid, 244.

41 50 SCRA 30, 310-333 (1973).

42 59 SCRA 275, 306-315 (1974).

43 Laski, Grammar of Politics, 4th ed., 34 (1937).

44 Corwin, The Higher Law Background of American Constitutional Law, Selected Essays on
Constitutional Law 3 (1938).

45 Lerner, Ideas are Weapons, 470 (1939).

46 Bryn-Jones, Toward a Democratic New Order 23 (1945).

47 McIver, The Web of Government 84 (1947).

48 L-28916, November 9, 1967, 21 SCRA 774.

49 L-23415, October 16, 1971, 41 SCRA 702.

50 L-35925, January 22, 1973, 49 SCRA 105.

51 L-36142, March 31, 1973, 50 SCRA 30. If I read correctly the concurring opinion of the then Chief
Justice Makalintal and the now Chief Justice Castro, then an Associate Justice, where the question
raised concerns the adoption and enforcement of a new Constitution, then it may be looked upon as
political.

52 78 Phil. 1 (1947). To be more precise, there were only five Justices, headed by Justice Tuason,
with the then Chief Justice Moran and the then Justices Paras, later himself a Chief Justice, Hilado,
Pablo and Hontiveros, who were of that persuasion. The other two votes necessary for a majority for
dismissing the prohibition petition were supplied by Justice, also later a Chief Justice, Bengzon and
Justice Padilla.

53 307 U.S. 433. In the concurring opinion of Justice Black, with Justices Roberts, Frankfurther and
Douglas in agreement, he made the categorial statement that such process "is 'political' in its
entirety, from submission until an amendment becomes part of the Constitution, and is not subject to
judicial guidance, control or interference at any point." At 459.

54 Cf. Hatcher v. Meredith, 173 SW 2d 665 (1943); In re Application of Borg, 35 A2d 220 (1944);
Renck v. Superior Court of Maricopa County, 187 P2d 656 (1947); In re Opinion of Justices, 47
SO2d 643 (1950); Funk v. Fielder, 243 SW2d 474 (1951); Baum v. Newbry 267 P2d 220 (1954); Boe
v. Foss, 77 NW2d 1 (1956); Goldner v, Adams, 167 SO2d 575 (1964); Hamilton v. City of
Shreveport, 174 SO2d 529 (1965).

55 Laurel, S., ed., VII Proceedings of the Philippine Constitutional Convention (1934-1935),
Appendix L, 800.

56 SCRA 275, 306-315.

1 Article XV, section 1.

2 Article XVI, section 1, paragraphs (1) and (2).

3 Article XVII. section 3 (1).

4 Article XVII, section 15.

5 P.D. No. 991 dated Sept. 2, 1976, as amended by P.D. No. 1031 dated Sept. 22, 1976 and P.D.
No. 1033 dated Sept. 22, 1976 "Stating the questions to be submitted to te people i the referendum-
plebiscite on October 16, 1976".

6 Art. XV, sec. 1, 1935 Constitution (see Art. XVI, secs. 1 and 2, 1973 Constitution).

7 Resolution on motion for reconsideration in Tolentino vs. Comelec dated Nov. 4, 1971, at page 3.

8 Idem, at page 4.

9 Idem, at page 4

10 Idem, at page 4.

11 Marshall, C.J. in Marburg vs. Madison, 1 Cranch 137(1803).

12 Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 81

13 Idem, pp. 87-88.

14 Javellana vs' Exec. Secretary, 50 SCRA 30 (1973).

15 Majority opinion at p.20.

16 21 SCRA 774(1967)

17 Citing Sec.1,Art.VI,1935 Constitution

18 See sec.1,Art. VIII,1973 Constitution

19 Aquino vs. Comelec, 62 SCRA 275 (Jan. 31, 1975);see also Gonzales vs. Comelec, L-40117,
Feb. 22, 1975

20 Cooley, Constitutional Limitations, 8th Ed., Vol. 1, p. 224

21 63 Phil. 134(1936).

23 Sunday Express (and Times Journal) issues of August 29, 1976 reported that "(A)s proposed by
the sanggunian and barangay national executive committees, the following questions will be
submitted in the discussions and referendums:

1 Do you want martial law to be lifted?

2 Do you want to call the interim National Assembly?

3 If not, do you want to call a body with legislative powers?

4 Do you want such body to have full legislative powers?

5 If not, do you want such body to have limited legislative powers as may be determined by the
President in a presidential decree?

6 If you want to call a body with certain legislative powers, do you want to grant such body authority
to propose amendments to the Constitution to make it conform with the aims to the New Society?

7 If you want to call the body referred to questions 4, 5, and 6, do you want the members of such
body elected by the people through the barangays in accordance with an election code to be
promulgated in a decree by the President?

"The barangay and sanggunian executive committees informed the President that it was 'the thing of
the barangays to undertake the referendum on an informal manner and that they opted to devise
their own ballots, tally sheets, and all other necessary from.'

"As proposed, and approved by the President, the referendum will be done by secret ballot, except
in small barangays where the residents can be gathered in one assembly to decide on the issues by
roll call vote if desired by residents.

"The canvassing will be done by the barangay referendum committee."

24 "The other issue to be taken up in the public discussions is the question on whether the interim
national assembly should be convened or not.

"This question was asked in two previous referenda-in 1973 and 1975 - and was rejected each time
by the people

"The barangays, however, of feel it is time to again ask the people's opinion of this matter." (Phil.
Express issue of Aug. 30,1976).

25 Art. IX, see. 1, 1973 Constitution.

26 Cooleys Constitutional Limitations, 8th Ed. Vol. 2, p. 1349, citing Chief Justice Davis in Gibson
vs. Mason, 5 Nev. 293, 291 thus; "The maxim which lies at the foundation of our government is that
all political power originates with the people. But since the organization of government it cannot be
claimed that either the legislative, executive, or judicial powers, either wholly or in part, can be
exercised by them. By the institution of government the people surrender the exercise of all these
sovereign functions of government to agents chosen by themselves, who at least theoretically
represent the supreme will of their constituents. Thus all power possessed by the people themselves
is given and centered in their chosen representatives

27 See fns. 8-10: note in parenthesis supplied.

28 Tolentino vs. Comelec, 41 SCRA 702, 725; emphasis supplied.

29 36 SCRA 228 234 (1970).

30 Resolution denying motion for reconsideration dated Nov. 4, 1971, at page 13.

31 Idem, at page 16 fn. 6.

32 Majority opinion, at page 19.

33 Idem, at page 20.

33* Rodriguez vs. Gella 92 Phil. 603 (1953); see also Araneta vs. Dinglasan, 84 Phil. 368 (1949).

34 Gonzales vs. Comelec, L-40117, Resolution of Feb. 22,1975.

35 In re Egan 8 Fed. Cas. 367, holding that "Martial law is neither more nor less than the will of the
general in command of the army- It overreaches and supersedes, all civil law by the exercise of
military power.." as cited in the Secretary of Justice's outline of a study on the exercise of Legislative
Power by the President under Martial Law, dated Dec. 27, 1972, as reported in Lawyers' Journal,
March 31, 1973 issue, p. 90.

36 Cooley's Constitutional Limitations. 8th Ed., Vol. 1, pp.128-129.

37 With the exception of the proposed amendments increasing the membership of the House of
Representatives from 120 to 180 and authorizing members of Congress to become Con-Con
delegates, which were widely publicized as a result of the court proceedings and decision in
Gonzales vs. Comelec, 21 SCRA 774.

38 "Perspectives and Dimensions of Constitutional Reforms" delivered as keynote speech at the

National Conference on Constitutional Amendments, July 27,1970.

39 Articles VIII, IX and X, 1973 Constitution.

40 U.P. Professor Perfecto V. Fernandez: Civil Liberties under Martial Law.

41 Louis H. Pollale The Constitution and the Supreme Court, Vol. 1, page 191.

42 Supra, fn. 16.

43 Supra, fn. 28.

44 Sec. Art. VIII, sec. 2 1935 Constitution; Art. X, sec. 5, 1973 Constitution

45 SCRA 30 (1973) and cases cited.

46 Now retired Justices J.B.L. Reyes and Calixto 0. Zaldivar.

47 SCRA at p. 733.

48 21 SCRA at pages 816-817, emphasis copied.

49 From Am. Law Review, 1889, p. 311, citing Ellingham vs. Dye 99 N.E. pp. 4,15; emphasis
copied.

50 21 SCRA at p. 817.

51 Phil. Daily Express issue of Oct. 11, 1976 reporting the Comelec's stand that "Young voters, from
age 15 to below 18 can vote not only on the question of martial law but also on the question
regarding the proposed constitutional amendments".
52 Phil. Daily Express issue of Oct. 3, 1976.

53 Times journal and Phil. Daily Express issues of Oct. 11, 1976.

54 In the Bulletin Today issue of October 2, 1976, the President is quoted as himself abstaining from
the debates: "I am trying to steer clear of the debates because it involves martial law, and it involves,
of course, me personally. So the less I say about it, the better, I guess, from my point of view".

54* Pres. Marcos' address on observance of the first anniversary of the 1973 Constitution on Jan.
17, 1974; Phil. Labor Relations Journal, Vol. VII, Jan. 1974, p. 6.

55 The resolution gave the same permission to court personnel by a 9 to 1 vote with Justice
Makasiar and the writer presenting no objection in the case of personnel as classified civil service
employees, while Justice Munoz Palma maintained the same negative vote.

1 Aquino, J. vs Ponce Enrile and other cases, 59 SCRA 183.

2 50 SCRA 30, 209 et seq.

1 Carl Brent Swisher. The Supreme Court in the Modern Role, 1958 ed., p. 173.

2 Melville Fuller Weston, Political questions, 38 Harv. L. Rev., 296, Italics supplied.

3 Tanada v. Cuenco, 103 Phil. 1051, 1057, citing in re McConoughy, 119 NW 408. Italics supplied.

4 16 C.J.s. 413.

5 369 U.S. 186, 217.

6 307 U.S. 433.

7 78 Phil, 1 (1947).

8 21 SCRA 774.

9 Republic Act No. 413.

10 41 SCRA 702,

11 L-40004, January 3l, 1975. 62 SCRA 275.

12 Proclamation No. 1103, January 17,1973.

13 Section 1, Article II, Constitution.

14 Leibholz: Politics and Law, p. 24.

15 Todays Revolution: Democracy, Marcos, pp. 87-88.

16 Mabanag v. Lopez Vito, supra, at page 5, citing Green v. Weller, 32 Miss., 650; note, 10 L.r.a.,
n.s., 150.

17 John P. wheeler, Jr., Changing the fundamental Law SALIENT ISSUES OF CONSTITUTIONAL
REVISION; 1961 ed.

18 Sinco. Philippine Political Law, 10th Ed. p. 48

19 T.S.N. of hearing, October 8,1976, pp. 8,11,12,15.

* p. 716, 1974 Ed., citing B. Schwartz, I The Powers of Government (1963) 10.

xxx xxx xxx

It is well that the powers of the people and their relations to organized society should be understood.
No heresy has ever been taught in this country so fraught with evil as the doctrine that the people
have a constitutional right to disregard the constitution, and that they can set themselves above the
instrumentalities appointed by the constitution for the administration of law. It tends directly to the
encouragement of revolution and anarchy. It is incumbent upon all who influence and mold public
opinion to repudiate and discountenance so dangerous a doctrine before it bears fruits destructive of
republican institutions. It will be well if the people come to understand the difference between natural
and constitutional freedom. before license becomes destructive of liberty ." (pp. 611-616)

4 Green castle Township v. Black, 5 Ind.,557, 56,5.

5 Oakley vs. Aspinwall, 3 N.Y., 547,568.

6 Resolution on Motion for Reconsideration, L-34150, November 4, 1971, per Barredo, J., pp 19-20,
Supreme Court Decisions, November 1971

6 Whenever in the judgment of the President (Prime Minister there exists a brave emergency or a
threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any reason that in his judgment
requires immediate action, he may in order to meet the exigency, issue the necessary decrees,
orders or letters of instructions, which shall form part of the law of the land. (Taken from the
Barangay Ballot Form distributed by COMELEC for Referendum-Plebiscite, October 16, 1976)

7 Speech upon conferment of the Doctor of Laws, Honoris Causa, by the Manila University, the
Lawyers' Journal, June 15, 1936, italics Ours.

8 The Lawyers' Journal, March 15, 1936,

1 Tagada & by Macapagal v. Cuenco, et al.. 103 Phil. 1051

2 L-28196. Nov. 9,1967; 21 SCRA 774.

3 L-34150, Oct. 16, 1971, 41 SCRA 702.

4 Article XVII, Section 1, Constitution.

5 Aquino vs.. Comelec, L-40004, Jan. 31, 1975, 62 SCRA 275, 302.

9 Idem, at page 4.

10 Idem, at page 4.

11 Marshall, C.J. in Marburg vs. Madison, I Cranch 137 (1803).

12 Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 81.

The Lawphil Project - Arellano Law Foundation

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G.R. No. L-56350

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-56350 April 2, 1981

SAMUEL C. OCCENA, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL
TREASURER, THE DIRECTOR OF PRINTING, respondents.

G.R. No. L-56404 April 2, 1981

RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY ALLAN T.

DRILON, NELSON B. MALANA and GIL M. TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents.

FERNANDO, C.J.:

The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa
Resolutions 1 proposing constitutional amendments, goes further than merely assailing their alleged
constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members of the
Philippine Bar and former delegates to the 1971 Constitutional Convention that framed the present
Constitution, are suing as taxpayers. The rather unorthodox aspect of these petitions is the assertion
that the 1973 Constitution is not the fundamental law, the Javellana 2 ruling to the contrary
notwithstanding. To put it at its mildest, such an approach has the arresting charm of novelty – but
nothing else. It is in fact self defeating, for if such were indeed the case, petitioners have come to the
wrong forum. We sit as a Court duty-bound to uphold and apply that Constitution. To contend
otherwise as was done here would be, quite clearly, an exercise in futility. Nor are the arguments of
petitioners cast in the traditional form of constitutional litigation any more persuasive. For reasons to
be set forth, we dismiss the petitions.

The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March 10
and 13 respectively, respondents were required to answer each within ten days from notice. 5 There
was a comment on the part of the respondents. Thereafter, both cases were set for hearing and
were duly argued on March 26 by petitioners and Solicitor General Estelito P. Mendoza for
respondents. With the submission of pertinent data in amplification of the oral argument, the cases
were deemed submitted for decision.

It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed.

1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In the
dispositive portion of Javellana v. The Executive Secretary, 6 dismissing petitions for prohibition and
mandamus to declare invalid its ratification, this Court stated that it did so by a vote of six 7 to
four. 8 It then concluded: "This being the vote of the majority, there is no further judicial obstacle to
the new Constitution being considered in force and effect." 9 Such a statement served a useful
purpose. It could even be said that there was a need for it. It served to clear the atmosphere. It made
manifest that, as of January 17, 1973, the present Constitution came into force and effect. With such
a pronouncement by the Supreme Court and with the recognition of the cardinal postulate that what
the Supreme Court says is not only entitled to respect but must also be obeyed, a factor for
instability was removed. Thereafter, as a matter of law, all doubts were resolved. The 1973
Constitution is the fundamental law. It is as simple as that. What cannot be too strongly stressed is
that the function of judicial review has both a positive and a negative aspect. As was so convincingly
demonstrated by Professors Black 10 and Murphy, 11 the Supreme Court can check as well as
legitimate. In declaring what the law is, it may not only nullify the acts of coordinate branches but
may also sustain their validity. In the latter case, there is an affirmation that what was done cannot
be stigmatized as constitutionally deficient. The mere dismissal of a suit of this character suffices.
That is the meaning of the concluding statement in Javellana. Since then, this Court has invariably
applied the present Constitution. The latest case in point is People v. Sola, 12 promulgated barely
two weeks ago. During the first year alone of the effectivity of the present Constitution, at least ten
cases may be cited. 13

2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose
amendments and how it may be exercised. More specifically as to the latter, the extent of the
changes that may be introduced, the number of votes necessary for the validity of a proposal, and
the standard required for a proper submission. As was stated earlier, petitioners were unable to
demonstrate that the challenged resolutions are tainted by unconstitutionality.

(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable
provision in the 1976 Amendments is quite explicit. Insofar as pertinent it reads thus:
"The Interim Batasang Pambansa shall have the same powers and its Members shall have the same
functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly
and the regular National Assembly and the Members thereof." 14 One of such powers is precisely
that of proposing amendments. The 1973 Constitution in its Transitory Provisions vested
the Interim National Assembly with the power to propose amendments upon special call by the
Prime Minister by a vote of the majority of its members to be ratified in accordance with the Article
on Amendments. 15 When, therefore, the Interim Batasang Pambansa, upon the call of the
President and Prime Minister Ferdinand E. Marcos, met as a constituent body it acted by virtue Of
such impotence Its authority to do so is clearly beyond doubt. It could and did propose the
amendments embodied in the resolutions now being assailed. It may be observed parenthetically
that as far as petitioner Occena is Concerned, the question of the authority of the Interim Batasang
Pambansa to propose amendments is not new. In Occena v. Commission on Elections, 16 filed by
the same petitioner, decided on January 28, 1980, such a question was involved although not
directly passed upon. To quote from the opinion of the Court penned by Justice Antonio in that case:
"Considering that the proposed amendment of Section 7 of Article X of the Constitution extending
the retirement of members of the Supreme Court and judges of inferior courts from sixty-five (65) to
seventy (70) years is but a restoration of the age of retirement provided in the 1935 Constitution and
has been intensively and extensively discussed at the Interim Batasang Pambansa, as well as
through the mass media, it cannot, therefore, be said that our people are unaware of the advantages
and disadvantages of the proposed amendment." 17

(2) Petitioners would urge upon us the proposition that the amendments proposed are so extensive
in character that they go far beyond the limits of the authority conferred on the Interim Batasang
Pambansa as Successor of the Interim National Assembly. For them, what was done was to revise
and not to amend. It suffices to quote from the opinion of Justice Makasiar, speaking for the Court,
in Del Rosario v. Commission on Elections 18 to dispose of this contention. Thus: "3. And whether
the Constitutional Convention will only propose amendments to the Constitution or entirely overhaul
the present Constitution and propose an entirely new Constitution based on an Ideology foreign to
the democratic system, is of no moment; because the same will be submitted to the people for
ratification. Once ratified by the sovereign people, there can be no debate about the validity of the
new Constitution. 4. The fact that the present Constitution may be revised and replaced with a new
one ... is no argument against the validity of the law because 'amendment' includes the 'revision' or
total overhaul of the entire Constitution. At any rate, whether the Constitution is merely amended in
part or revised or totally changed would become immaterial the moment the same is ratified by the
sovereign people." 19 There is here the adoption of the principle so well-known in American
decisions as well as legal texts that a constituent body can propose anything but conclude
nothing. 20 We are not disposed to deviate from such a principle not only sound in theory but also
advantageous in practice.

(3) That leaves only the questions of the vote necessary to propose amendments as well as the
standard for proper submission. Again, petitioners have not made out a case that calls for a
judgment in their favor. The language of the Constitution supplies the answer to the above
questions. The Interim Batasang Pambansa, sitting as a constituent body, can propose
amendments. In that capacity, only a majority vote is needed. It would be an indefensible proposition
to assert that the three-fourth votes required when it sits as a legislative body applies as well when it
has been convened as the agency through which amendments could be proposed. That is not a
requirement as far as a constitutional convention is concerned. It is not a requirement either when,
as in this case, the Interim Batasang Pambansa exercises its constituent power to propose
amendments. Moreover, even on the assumption that the requirement of three- fourth votes applies,
such extraordinary majority was obtained. It is not disputed that Resolution No. 1 proposing an
amendment allowing a natural-born citizen of the Philippines naturalized in a foreign country to own
a limited area of land for residential purposes was approved by the vote of 122 to 5; Resolution No.
2 dealing with the Presidency, the Prime Minister and the Cabinet, and the National Assembly by a
vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the amendment to the Article on the
Commission on Elections by a vote of 148 to 2 with 1 abstention. Where then is the alleged infirmity?
As to the requisite standard for a proper submission, the question may be viewed not only from the
standpoint of the period that must elapse before the holding of the plebiscite but also from the
standpoint of such amendments having been called to the attention of the people so that it could not
plausibly be maintained that they were properly informed as to the proposed changes. As to the
period, the Constitution indicates the way the matter should be resolved. There is no ambiguity to
the applicable provision: "Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months
after the approval of such amendment or revision." 21 The three resolutions were approved by
the Interim Batasang Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In
the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is thus within the
90-day period provided by the Constitution. Thus any argument to the contrary is unavailing. As for
the people being adequately informed, it cannot be denied that this time, as in the cited 1980
Occena opinion of Justice Antonio, where the amendment restored to seventy the retirement age of
members of the judiciary, the proposed amendments have "been intensively and extensively
discussed at the Interim Batasang Pambansa, as well as through the mass media, [ so that ] it
cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the
proposed amendment [ s ]." 22

WHEREFORE, the petitions are dismissed for lack of merit. No costs.

Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera,
JJ., concur.

Abad Santos, J., is on leave.

Separate Opinions

TEEHANKEE, J., dissenting:

I vote to give due course to the petitions at bar and to grant the application for a temporary
restraining order enjoining the plebiscite scheduled for April 7, 1981.

1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the invalidity of the October
1976 amendments proposals to the 1973 Constitution for not having been proposed nor adopted in
accordance with the mandatory provisions thereof, as restated by me in Hidalgo vs.
Marcos 2 and De la Llana vs. Comelec 3 , questioning the validity of the December 17, 1977
referendum – exercise as to the continuance in office as incumbent President and to be Prime
Minister after the organization of the Interim Batasang Pambansa as provided for in Amendment No.
3 of the 1976 Amendments, I am constrained to dissent from the majority decision of dismissal of the
petitions.

I had held in Sanidad that the transcendental constituent power to propose and approve
amendments to the Constitution as well as to set up the machinery and prescribe the procedure for
the ratification of the amendments proposals has been withheld by the Constitution from the
President (Prime Minister) as sole repository of executive power and that so long as the regular
National Assembly provided for in Article VIII of the Constitution had not come to existence and the
proposals for constitutional amendments were now deemed necessary to be discussed and adopted
for submittal to the people, strict adherence with the mandatory requirements of the amending
process as provided in the Constitution must be complied with. This means, under the prevailing
doctrine of Tolentino vs. Comelec 4 that the proposed amendments to be valid must come from the
constitutional agency vested with the constituent power to do so, i.e. in the Interim National
Assembly provided in the Transitory Article XVII which would then have to be convened and not from
the executive power as vested in the President (Prime Minister) from whom such constituent power
has been withheld.
2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of Tolentino, the
October 1976 constitutional amendments which created the Interim Batasang Pambansa in lieu of
the Interim National Assembly were invalid since as ruled by the Court therein, constitutional
provisions on amendments "dealing with the procedure or manner of amending the fundamental law
are binding upon the Convention and the other departments of the government (and) are no less
binding upon the people" and "the very Idea of deparcing from the fundamental law is anachronistic
in the realm of constitutionalism and repugnant to the essence of the rule of law." The proposed
amendments at bar having been adopted by the Interim Batasang Pambansa as the fruit of the
invalid October, 1976 amendments must necessarily suffer from the same Congenital infirmity.

3. Prescinding from the foregoing and assuming the validity of the proposed amendments, I reiterate
my stand in Sanidad that the doctrine of fair and proper submission firs enunciated by a simple
majority of six Justices (of an eleven member Court prior to the 1973 Constitution which increased
the official composition of the Court to fifteen) in Gonzales vs. Comelec 5 and subsequently officially
adopted by the required constitutional two-thirds majority vote of the Court (of eight votes, then)
in Tolentino is fully applicable in the case at bar. The three resolutions proposing complex,
complicated and radical amendments of our very structure of government were considered and
approved by the Interim Batasang Pambansa sitting as a constituent assembly on February 27,
1981. It set the date of the plebiscite for thirty-nine days later on April 7, 1981 which is totally
inadequate and far short of the ninety-day period fixed by the Constitution for submittal to the people
to "sufficiently inform them of the amendments to be voted upon, to conscientiously deliberate
thereon and to express their will in a genuine manner." 6

4. "The minimum requirements that must be met in order that there can be a proper submission to
the people of a proposed constitutional amendment" as stated by retired Justice Conrado V.
Sanchez in his separate opinion in Gonzales bears repeating as follows: "... we take the view that
the words 'submitted to the people for their ratification,' if construed in the light of the nature of the
Constitution – a fundamental charter that is legislation direct from the people, an expression of their
sovereign will – is that it can only be amended by the people expressing themselves according to the
procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the
people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to
vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly insidious influences. We
believe the word 'submitted' can only mean that the government, within its maximum capabilities,
should strain every short to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. ... What the Constitution in effect directs
is that the government, in submitting an amendment for ratification, should put every instrumentality
or agency within its structural framework to enlighten the people, educate them with respect to their
act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent consent or rejection. If with all these
safeguards the people still approve the amendments no matter how prejudicial it is to them, then so
be it. For the people decree their own fate."

Justice Sanchez therein ended the passage with an apt citation that "... The great men who builded
the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge
Cooley, who has said 'A good Constitution should be beyond the reach of temporary excitement and
popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the
people; not to the whim of the people, or the thought evolved in excitement, or hot blood, but the
sober second thought, which alone if the government is to be safe, can be allowed efficacy ...
Changes in government are to be feard unless benefit is certain.' As Montaign says: 'All great
mutation shake and disorder a state. Good does not necessarily succeed evil; another evil may
succeed and a worse."'
Separate Opinions

TEEHANKEE, J., dissenting:

I vote to give due course to the petitions at bar and to grant the application for a temporary
restraining order enjoining the plebiscite scheduled for April 7, 1981.

1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the invalidity of the October
1976 amendments proposals to the 1973 Constitution for not having been proposed nor adopted in
accordance with the mandatory provisions thereof, as restated by me in Hidalgo vs.
Marcos 2 and De la Llana vs. Comelec 3 , questioning the validity of the December 17, 1977
referendum – exercise as to the continuance in office as incumbent President and to be Prime
Minister after the organization of the Interim Batasang Pambansa as provided for in Amendment No.
3 of the 1976 Amendments, I am constrained to dissent from the majority decision of dismissal of the
petitions.

I had held in Sanidad that the transcendental constituent power to propose and approve
amendments to the Constitution as well as to set up the machinery and prescribe the procedure for
the ratification of the amendments proposals has been withheld by the Constitution from the
President (Prime Minister) as sole repository of executive power and that so long as the regular
National Assembly provided for in Article VIII of the Constitution had not come to existence and the
proposals for constitutional amendments were now deemed necessary to be discussed and adopted
for submittal to the people, strict adherence with the mandatory requirements of the amending
process as provided in the Constitution must be complied with. This means, under the prevailing
doctrine of Tolentino vs. Comelec 4 that the proposed amendments to be valid must come from the
constitutional agency vested with the constituent power to do so, i.e. in the Interim National
Assembly provided in the Transitory Article XVII which would then have to be convened and not from
the executive power as vested in the President (Prime Minister) from whom such constituent power
has been withheld.

2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of Tolentino, the
October 1976 constitutional amendments which created the Interim Batasang Pambansa in lieu of
the Interim National Assembly were invalid since as ruled by the Court therein, constitutional
provisions on amendments "dealing with the procedure or manner of amending the fundamental law
are binding upon the Convention and the other departments of the government (and) are no less
binding upon the people" and "the very Idea of deparcing from the fundamental law is anachronistic
in the realm of constitutionalism and repugnant to the essence of the rule of law." The proposed
amendments at bar having been adopted by the Interim Batasang Pambansa as the fruit of the
invalid October, 1976 amendments must necessarily suffer from the same Congenital infirmity.

3. Prescinding from the foregoing and assuming the validity of the proposed amendments, I reiterate
my stand in Sanidad that the doctrine of fair and proper submission firs enunciated by a simple
majority of six Justices (of an eleven member Court prior to the 1973 Constitution which increased
the official composition of the Court to fifteen) in Gonzales vs. Comelec 5 and subsequently officially
adopted by the required constitutional two-thirds majority vote of the Court (of eight votes, then)
in Tolentino is fully applicable in the case at bar. The three resolutions proposing complex,
complicated and radical amendments of our very structure of government were considered and
approved by the Interim Batasang Pambansa sitting as a constituent assembly on February 27,
1981. It set the date of the plebiscite for thirty-nine days later on April 7, 1981 which is totally
inadequate and far short of the ninety-day period fixed by the Constitution for submittal to the people
to "sufficiently inform them of the amendments to be voted upon, to conscientiously deliberate
thereon and to express their will in a genuine manner." 6
4. "The minimum requirements that must be met in order that there can be a proper submission to
the people of a proposed constitutional amendment" as stated by retired Justice Conrado V.
Sanchez in his separate opinion in Gonzales bears repeating as follows: "... we take the view that
the words 'submitted to the people for their ratification,' if construed in the light of the nature of the
Constitution – a fundamental charter that is legislation direct from the people, an expression of their
sovereign will – is that it can only be amended by the people expressing themselves according to the
procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the
people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to
vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly insidious influences. We
believe the word 'submitted' can only mean that the government, within its maximum capabilities,
should strain every short to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. ... What the Constitution in effect directs
is that the government, in submitting an amendment for ratification, should put every instrumentality
or agency within its structural framework to enlighten the people, educate them with respect to their
act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent consent or rejection. If with all these
safeguards the people still approve the amendments no matter how prejudicial it is to them, then so
be it. For the people decree their own fate."

Justice Sanchez therein ended the passage with an apt citation that "... The great men who builded
the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge
Cooley, who has said 'A good Constitution should be beyond the reach of temporary excitement and
popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the
people; not to the whim of the people, or the thought evolved in excitement, or hot blood, but the
sober second thought, which alone if the government is to be safe, can be allowed efficacy ...
Changes in government are to be feard unless benefit is certain.' As Montaign says: 'All great
mutation shake and disorder a state. Good does not necessarily succeed evil; another evil may
succeed and a worse."'

Footnotes

1 Resolution Nos. 28, 104 and 106(1981).

2 Javellana v. The Executive Secretary, L-36142, March 31, 1973, 50 SCRA 30.

3 L-56350, Samuel C. Occena v. The Commission on Elections, The Commission on Audit, The
National Treasurer and the Director of Printing.

4 L-56404, Ramon A. Gonzales v. The National Treasurer and the Commission on Elections. The
other co-petitioners are Manuel B. Imbong, Jo Aurea Marcos- Imbong, Ray Allan T. Drilon, Nelson V.
Malana and Gil M. Tabios.

5 There was on March 24 an amended petition in Occena, adopting the theory of petitioner
Gonzales that the 1935 Constitution was once again in force and effect.

6 It should not be lost sight of that four other cases where decided in the joint resolution of dismissal
dated March 31, 1973, Tan v. The Executive Secretary, L-36164; Roxas v. Melchor, L-36165;
Monteclaro v. The Executive Secretary, L-36236; Dilag v. The Honorable Executive Secretary, L-
36283, all reported in 50 SCRA 30.
7 The six votes came from Justices Makalintal Castro, Barredo, Makasiar, Antonio and Esguerra.

8 The four votes were cast by then Chief Justice Concepcion, the late Justice Zaldivar, and Justice
Teehankee as well as the writer of this opinion.

9 50 SCRA at 141. Concepcion, C.J., dissented from this concluding statement.

10 Black, The People and the Court 56-58 (1962).

11 Murphy, Elements of Judicial Strategy 17-18 (1964).

12 G.R. No. 56158-64, March 17, 1981.

13 Cf. Garcia v. Domingo, L-30104, July 25, 1973, 52 SCRA 143;

Buendia v. City of Baguio, L-34011, July 25, 1973, 52 SCRA 155; Flores v. Flores, L-28930, August
17, 1973, 52 SCRA 293; Alfanta v. Nao, L-32362, September 19, 1973, 53 SCRA 76; People v.
Molina, L-30191, October 7, 1973, 53 SCRA 495; People v. Zamora, L-34090, November 16, 1973,
54 SCRA 47; Republic v. Villasor, L-30671, November 28, 1973, 54 SCRA 83; Paulo v. Court of
Appeals, L-33845, December 18, 1973, 54 SCRA 253; People v. Bacong, L-36161,

December 19, 1973, 54 SCRA 288 and Asian Surety and Insurance Co. v. Herrera, L-25232,
December 20, 1973, 54 SCRA 312.

It may be mentioned that the first of such cases, Garcia, was promulgated on July 25, 1973 with the
writer of this opinion as opposite and the next case, Buendia, also on the same date, with Justice
Teehankee as ponente, both of whom were dissenters in Javellana, but who felt bound to abide by
the majority decision.

14 1976 Amendments, par. 2. The last sentence follows: "However, it shall not exercise the powers
provided in article VIII, Section 14, (1) of the Constitution." Article VIII, Section 14, par. (1) reads as
follows: "Except as otherwise provided in this Constitution. no treaty shall be valid and effective
unless concurred in by a majority of all the members of the National Assembly."

15 Article XVII, Section 15 of the Constitution reads as follows: "The interim National Assembly,
upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose
amendments to this Constitution. Such amendments shall take effect when ratified in accordance
with Article Sixteen hereof."

16 L-52265, 95 SCRA 755.

17 Ibid, 762.

18 L-32476, October 20, l970, 35 SCRA 367.

19 lbid, 369-370.

20 Cf. Ex parte Kerby, 205 P279 (1922).

21 Article XVI, Section 2 of the Constitution.

22 L-52265, 95 SCRA 755, 762. The writer of this opinion, along with retired Chief Justice
Concepcion and Justices Makalintal and Bengzon, is committed to the view expressed in the
ponencia of the retired Chief Justice that in the final analysis the question of proper

submission reduces itself not as to power, which is the concern of the judiciary, but as to wisdom,
which is entrusted to the constituent body proposing the amendments. Gonzales v. Commission on
Elections, L-28196, November 9, 1967, 21 SCRA 774, 801. The opposing view was set forth by
Justice Sanchez.

Teehankee, J.

1 73 SCRA 333 (1976).

2 80 SCRA 538 (1977).

3 80 SCRA 525 (1977).

4 L-34150, Oct. 16, 1971, 41 SCRA 702 and Resolution denying motion for reconsideration dated
Nov. 4, 1971.

5 21 SCRA 774.

6 21 SCRA, at page 817.

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PBA v. Comelec

Facts:

1. Eleven (11) petitions were filed for prohibition against the enforcement of BP 883 which calls for special
national elections on February 7, 1986 (Snap elections) for the offices of President and Vice President. It
was contended that BP 883 in conflict with the constitution in that it allows the President to continue
holding office after the calling of the special election.
2. Senator Pelaez submits that President Marcos’ letter of conditional “resignation” did not create the
actual vacancy required in Section 9, Article 7 of the Constitution which could be the basis of the holding
of a special election for President and Vice President earlier than the regular elections for such positions
in 1987. The letter states that the President is: “irrevocably vacat(ing) the position of President effective
only when the election is held and after the winner is proclaimed and qualified as President by taking his
oath office ten (10) days after his proclamation.”

3. The unified opposition, rather than insist on strict compliance with the cited constitutional provision
that the incumbent President actually resign, vacate his office and turn it over to the Speaker of the
Batasang Pambansa as acting President, their standard bearers have not filed any suit or petition in
intervention for the purpose nor repudiated the scheduled election. They have not insisted that President
Marcos vacate his office, so long as the election is clean, fair and honest.

ISSUE: W/N BP 883 is unconstitutional, and should the Supreme Court therefore stop and prohibit the
holding of the elections

The petitions were dismissed and the prayer for the issuance of an injunction restraining respondents
from holding the election on February 7, 1986, in as much as there are less than the required 10 votes to
declare BP 883 unconstitutional.

The events that have transpired since December 3,as the Court did not issue any restraining order, have
turned the issue into a political question (from the purely justiciable issue of the questioned
constitutionality of the act due to the lack of the actual vacancy of the President’s office) which can be
truly decided only by the people in their sovereign capacity at the scheduled election, since there is no
issue more political than the election. The Court cannot stand in the way of letting the people decide
through their ballot, either to give the incumbent president a new mandate or to elect a new president.

G.R. No. 76180

Republic of the Philippines
SUPREME COURT
Manila

G.R. No. 76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.

R E S O L U T IO N

PER CURIAM:
In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first
paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986
Constitution, which provides in full as follows:

Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7,
1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30,
1992.

The first regular elections for the President and Vice-President under this Constitution shall be held
on the second Monday of May, 1992.

Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare
and answer the question of the construction and definiteness as to who, among the present
incumbent President Corazon Aquino and Vice-President Salvador Laurel and the elected President
Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being referred to under the said
Section 7 (sic) of ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986
Constitution refers to, . ...

The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.

Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43
SCRA 677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory
relief. More importantly, the petition amounts in effect to a suit against the incumbent President of
the Republic, President Corazon C. Aquino, and it is equally elementary that incumbent Presidents
are immune from suit or from being brought to court during the period of their incumbency and
tenure.

The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness
of the aforequoted provision is manifestly gratuitous, it being a matter of public record and common
public knowledge that the Constitutional Commission refers therein to incumbent President Corazon
C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for the
extension of their term to noon of June 30, 1992 for purposes of synchronization of elections. Hence,
the second paragraph of the cited section provides for the holding on the second Monday of May,
1992 of the first regular elections for the President and Vice-President under said 1986 Constitution.
In previous cases, the legitimacy of the government of President Corazon C. Aquino was likewise
sought to be questioned with the claim that it was not established pursuant to the 1973 Constitution.
The said cases were dismissed outright by this court which held that:

Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy
of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the
people of the Philippines are the judge. And the people have made the judgment; they have
accepted the government of President Corazon C. Aquino which is in effective control of the entire
country so that it is not merely a de facto government but in fact and law a de jure government.
Moreover, the community of nations has recognized the legitimacy of tlie present government. All the
eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the
Republic under her government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers
League for a Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R. No. 73972
[People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No.
73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.])

For the above-quoted reason, which are fully applicable to the petition at bar, mutatis
mutandis, there can be no question that President Corazon C. Aquino and Vice-President Salvador
H. Laurel are the incumbent and legitimate President and Vice-President of the Republic of the
Philippines.or the above-quoted reasons, which are fully applicable to the petition at bar,

ACCORDINGLY, the petition is hereby dismissed.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.

MELENCIO-HERRERA, J., concurring:

GUTIERREZ, Jr., J., concurring:

FELICIANO, JJ., concurring.

The petitioner asks the Court to declare who are "the incumbent President and Vice President
elected in the February 7, 1986 elections" as stated in Article XVIII, Section 5 of the Draft
Constitution adopted by the Constitutional Commission of 1986.

We agree that the petition deserves outright dismissal as this Court has no original jurisdiction over
petitions for declaratory relief.

As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected
President and Vice President in the February 7, 1986 elections should be addressed not to this
Court but to other departments of government constitutionally burdened with the task of making that
declaration.

The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution uniformly
provide 'that boards of canvassers in each province and city shall certified who were elected
President and Vice President in their respective areas. The certified returns are transmitted to the
legislature which proclaims, through the designated Presiding Head, who were duty elected.

Copies of the certified returns from the provincial and city boards of canvassers have not been
furnished this Court nor is there any need to do so. In the absence of a legislature, we cannot
assume the function of stating, and neither do we have any factual or legal capacity to officially
declare, who were elected President and Vice President in the February 7, 1986 elections.

As to who are the incumbent President and Vice President referred to in the 1986 Draft Constitution,
we agree that there is no doubt the 1986 Constitutional Commission referred to President Corazon
C. Aquino and Vice President Salvador H. Laurel.

Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.

For the foregoing reasons, we vote to DISMISS the instant petition.

CRUZ, J., concurring:

I vote to dismiss this petition on the ground that the Constitution we are asked to interpret has not
yet been ratified and is therefore not yet effective. I see here no actual conflict of legal rights
susceptible of judicial determination at this time. (Aetna Life Insurance Co. vs. Haworth, 300 U.S.
227; PACU vs. Secretary of Education, 97 Phil. 806.)
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G.R. No. 76180

Republic of the Philippines
SUPREME COURT
Manila

G.R. No. 76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.

R E S O L U T IO N

PER CURIAM:

In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first
paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986
Constitution, which provides in full as follows:

Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7,
1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30,
1992.

The first regular elections for the President and Vice-President under this Constitution shall be held
on the second Monday of May, 1992.

Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare
and answer the question of the construction and definiteness as to who, among the present
incumbent President Corazon Aquino and Vice-President Salvador Laurel and the elected President
Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being referred to under the said
Section 7 (sic) of ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986
Constitution refers to, . ...

The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.

Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43
SCRA 677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory
relief. More importantly, the petition amounts in effect to a suit against the incumbent President of
the Republic, President Corazon C. Aquino, and it is equally elementary that incumbent Presidents
are immune from suit or from being brought to court during the period of their incumbency and
tenure.

The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness
of the aforequoted provision is manifestly gratuitous, it being a matter of public record and common
public knowledge that the Constitutional Commission refers therein to incumbent President Corazon
C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for the
extension of their term to noon of June 30, 1992 for purposes of synchronization of elections. Hence,
the second paragraph of the cited section provides for the holding on the second Monday of May,
1992 of the first regular elections for the President and Vice-President under said 1986 Constitution.
In previous cases, the legitimacy of the government of President Corazon C. Aquino was likewise
sought to be questioned with the claim that it was not established pursuant to the 1973 Constitution.
The said cases were dismissed outright by this court which held that:

Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy
of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the
people of the Philippines are the judge. And the people have made the judgment; they have
accepted the government of President Corazon C. Aquino which is in effective control of the entire
country so that it is not merely a de facto government but in fact and law a de jure government.
Moreover, the community of nations has recognized the legitimacy of tlie present government. All the
eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the
Republic under her government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers
League for a Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R. No. 73972
[People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No.
73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.])

For the above-quoted reason, which are fully applicable to the petition at bar, mutatis
mutandis, there can be no question that President Corazon C. Aquino and Vice-President Salvador
H. Laurel are the incumbent and legitimate President and Vice-President of the Republic of the
Philippines.or the above-quoted reasons, which are fully applicable to the petition at bar,

ACCORDINGLY, the petition is hereby dismissed.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.

MELENCIO-HERRERA, J., concurring:

GUTIERREZ, Jr., J., concurring:

FELICIANO, JJ., concurring.

The petitioner asks the Court to declare who are "the incumbent President and Vice President
elected in the February 7, 1986 elections" as stated in Article XVIII, Section 5 of the Draft
Constitution adopted by the Constitutional Commission of 1986.

We agree that the petition deserves outright dismissal as this Court has no original jurisdiction over
petitions for declaratory relief.

As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected
President and Vice President in the February 7, 1986 elections should be addressed not to this
Court but to other departments of government constitutionally burdened with the task of making that
declaration.

The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution uniformly
provide 'that boards of canvassers in each province and city shall certified who were elected
President and Vice President in their respective areas. The certified returns are transmitted to the
legislature which proclaims, through the designated Presiding Head, who were duty elected.

Copies of the certified returns from the provincial and city boards of canvassers have not been
furnished this Court nor is there any need to do so. In the absence of a legislature, we cannot
assume the function of stating, and neither do we have any factual or legal capacity to officially
declare, who were elected President and Vice President in the February 7, 1986 elections.

As to who are the incumbent President and Vice President referred to in the 1986 Draft Constitution,
we agree that there is no doubt the 1986 Constitutional Commission referred to President Corazon
C. Aquino and Vice President Salvador H. Laurel.

Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.

For the foregoing reasons, we vote to DISMISS the instant petition.

CRUZ, J., concurring:

I vote to dismiss this petition on the ground that the Constitution we are asked to interpret has not
yet been ratified and is therefore not yet effective. I see here no actual conflict of legal rights
susceptible of judicial determination at this time. (Aetna Life Insurance Co. vs. Haworth, 300 U.S.
227; PACU vs. Secretary of Education, 97 Phil. 806.)

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G.R. No. 78059

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 78059 August 31, 1987

ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO,
ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal,
HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal,
FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V.
MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

MELENCIO-HERRERA, J.:

An original action for Prohibition instituted by petitioners seeking to enjoin respondents from
replacing them from their respective positions as Barangay Captain and Barangay Councilmen of
Barangay Dolores, Municipality of Taytay, Province of Rizal.

As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their
Reply to respondents' Comment.

In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected
Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino,
Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores,
Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of
1982.

On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December

1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987
designating respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay,
Rizal. The designation made by the OIC Governor was "by authority of the Minister of Local
Government."

Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December
1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina,
Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of the same
Barangay and Municipality.

That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor,
the pertinent portions of which read:

xxx xxx xxx

That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986;

That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I
among others, have signed as I did sign the unnumbered memorandum ordering the replacement of
all the barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal;

That the above cited memorandum dated December 1, 1986 was signed by me personally on
February 8,1987;

That said memorandum was further deciminated (sic) to all concerned the following day, February 9.
1987.
FURTHER AFFIANT SAYETH NONE.

Pasig, Metro Manila, March 23, 1987.

Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null
and void and that respondents be prohibited from taking over their positions of Barangay Captain
and Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the
Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall
commence on June 7, 1982 and shall continue until their successors shall have elected and shall
have qualified," or up to June 7, 1988. It is also their position that with the ratification of the 1987
Constitution, respondent OIC Governor no longer has the authority to replace them and to designate
their successors.

On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution,
promulgated on March 25, 1986, which provided:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall
continue in office until otherwise provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors, if such appointment is made within
a period of one year from February 25,1986.

By reason of the foregoing provision, respondents contend that the terms of office of elective and
appointive officials were abolished and that petitioners continued in office by virtue of the
aforequoted provision and not because their term of six years had not yet expired; and that the
provision in the Barangay Election Act fixing the term of office of Barangay officials to six (6) years
must be deemed to have been repealed for being inconsistent with the aforequoted provision of the
Provisional Constitution.

Examining the said provision, there should be no question that petitioners, as elective officials under
the 1973 Constitution, may continue in office but should vacate their positions upon the occurrence
of any of the events mentioned. 1

Since the promulgation of the Provisional Constitution, there has been no proclamation or executive
order terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or
not the designation of respondents to replace petitioners was validly made during the one-year
period which ended on February 25, 1987.

Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should
be considered as the effective date of replacement and not December 1,1986 to which it was ante
dated, in keeping with the dictates of justice.

But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision
in the Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII
of the 1987 Constitution reading.

SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.

The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the
Provisional Constitution must be deemed to have been superseded. Having become inoperative,
respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate
respondents to the elective positions occupied by petitioners.

Petitioners must now be held to have acquired security of tenure specially considering that the
Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote the
autonomy of the barangays to ensure their fullest development as self-reliant
communities.2 Similarly, the 1987 Constitution ensures the autonomy of local governments and of
political subdivisions of which the barangays form a part, 3 and limits the President's power to
"general supervision" over local governments. 4 Relevantly, Section 8, Article X of the same 1987
Constitution further provides in part:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years ...

Until the term of office of barangay officials has been determined by law, therefore, the term of office
of six (6) years provided for in the Barangay Election Act of 1982 5 should still govern.

Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years
for elective Barangay officials and the 1987 Constitution, and the same should, therefore, be
considered as still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other
executive issuances not inconsistent, with this Constitution shall remain operative until amended,
repealed or revoked.

WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987
designating respondents as the Barangay Captain and Barangay Councilmen, respectively, of
Barangay Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the
Writ of Prohibition is granted enjoining respondents perpetually from proceeding with the
ouster/take-over of petitioners' positions subject of this Petition. Without costs.

SO ORDERED.

Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ.,
concur.

Separate Opinions

TEEHANKEE, CJ., concurring:

The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect
on February 2, 1987, the date that the plebiscite for its ratification was held or whether it took effect
on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the
President of the Philippines, Corazon C. Aquino.

The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the
provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately
upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that
same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its
ratification shall have been ascertained and not at the time the people cast their votes to approve or
reject it." This view was actually proposed at the Constitutional Commission deliberations, but was
withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will
be effective on the very day of the plebiscite."

The record of the proceedings and debates of the Constitutional Commission fully supports the
Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional
Conunission in unanimously approving (by thirty-five votes in favor and none against) the
aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of
ratification is the act of voting by the people. So that is the date of the ratification" and that "the
canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during
the date of the plebiscite and the proclamation of the President is merely the official confirmatory
declaration of an act which was actually done by the Filipino people in adopting the Constitution
when they cast their votes on the date of the plebiscite."

The record of the deliberations and the voting is reproduced hereinbelow: 1

MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the
committee as indicated in Section 12, unless there are other commissioners who would like to
present amendments.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. May I propose the following amendments.

On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after
"constitutions," add the following: "AND THEIR AMENDMENTS."

MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose
an additional sentence, the committee would suggest that we take up first his amendment to the first
sentence as originally formulated. We are now ready to comment on that proposed amendment.

The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the
words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the
second amendment would be: After the word "constitutions," add the words" AND THEIR
AMENDMENTS,"

The committee accepts the first proposed amendment. However, we regret that we cannot accept
the second proposed amendment after the word "constitutions" because the committee feels that
when we talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS."

MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I
request that I be allowed to read the second amendment so the Commission would be able to
appreciate the change in the first.

MR. MAAMBONG. Yes, Madam President, we can now do that.

MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN
FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON
ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE."

MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that
the second proposed amendment in the form of a new sentence would not be exactly necessary and
the committee feels that it would be too much for us to impose a time frame on the President to
make the proclamation. As we would recall, Madam President, in the approved Article on the
Executive, there is a provision which says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it says that there will be a proclamation
by the President that the Constitution has been ratified, the President will naturally comply with the
law in accordance with the provisions in the Article on the Executive which we have cited. It would
be too much to impose on the President a time frame within which she will make that declaration. It
would be assumed that the President would immediately do that after the results shall have been
canvassed by the COMELEC.

Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is
proposing, Madam President.

MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an
immediate proclamation of the results by the President.

MR. MAAMBONG. With that understanding, Madam President.

MR. DAVIDE. I will not insist on the second sentence.

FR. BERNAS. Madam President.

THE PRESIDENT. Commissioner Bernas is recognized.

FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which
makes the effectivity of the new Constitution dependent upon the proclamation of the President. The
effectivity of the Constitution should commence on the date of the ratification, not on the date of the
proclamation of the President. What is confusing, I think, is what happened in 1976 when the
amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were
effective upon the proclamation of the President was that the draft presented to the people said that
the amendment will be effective upon the proclamation made by the President. I have a suspicion
that was put in there precisely to give the President some kind of leeway on whether to announce
the ratification or not. Therefore, we should not make this dependent on the action of the President
since this will be a manifestation of the act of the people to be done under the supervision of the
COMELEC and it should be the COMELEC who should make the announcement that, in fact, the
votes show that the Constitution was ratified and there should be no need to wait for any
proclamation on the part of the President.

MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?

FR. BERNAS. Willingly, Madam President.

MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the
Constitution is supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were
supposed to have been cast.

MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the
Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by
the Commission on Elections. If we delete the suggested amendment which says: "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear
terms, the date when the Constitution is supposed to be ratified or not ratified, as the case may be?

FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the
plebiscite would be held, for instance, on January 19, 1987, then the date for the effectivity of the
new Constitution would be January 19, 1987.

MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the
Commission on Elections which will be doing the canvass? That is immaterial Madam President

FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done
when one casts his ballot.

MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the
proponent, Commissioner Davide, if he is insisting on his amendment.

MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the
view of Commissioner Bernas, that the date of the ratification is reckoned from the date of the
casting of the ballots. That cannot be the date of reckoning because it is a plebiscite all over the
country. We do not split the moment of casting by each of the voters. Actually and technically
speaking, it would be all right if it would be upon the announcement of the results of the canvass
conducted by the COMELEC or the results of the plebiscite held all over the country. But it is
necessary that there be a body which will make the formal announcement of the results of the
plebiscite. So it is either the President or the COMELEC itself upon the completion of the canvass of
the results of the plebiscite, and I opted for the President.

xxx xxx xxx

MR. NOLLEDO. Madam President.

THE PRESIDENT. Commissioner Nolledo is recognized.

MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I
support the stand of Commissioner Bernas because it is really the date of the casting of the "yes"
votes that is the date of the ratification of the Constitution The announcement merely confirms the
ratification even if the results are released two or three days after. I think it is a fundamental principle
in political law, even in civil law, because an announcement is a mere confirmation The act of
ratification is the act of voting by the people. So that is the date of the ratification. If there should be
any need for presidential proclamation, that proclamation will merely confirm the act of ratification.

Thank you, Madam President.

THE PRESIDENT. Does Commissioner Regalado want to contribute?

MR. REGALADO. Madam President, I was precisely going to state the same support for
Commissioner Bernas, because the canvass thereafter is merely the mathematical confirmation of
what was done during the date of the plebiscite and the proclamation of the President is merely the
official confirmatory declaration of an act which was actually done by the Filipino people in adopting
the Constitution when they cast their votes on the date of the plebiscite.

MR. LERUM. Madam President, may I be recognized.

THE PRESIDENT. Commissioner Lerum is recognized.

MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity
of the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what
happens to the obligations and rights that accrue upon the approval of the Constitution? So I think
we must have a definite date. I am, therefore, in favor of the Davide amendment.

MR. MAAMBONG. Madam President.

THE PRESIDENT. Commissioner Maambong is recognized.

MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the
Commission on Elections to declare the results of the canvass?

FR. BERNAS. There would be because it is the Commission on Elections which makes the official
announcement of the results.

MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has
declared the results of the canvass, will there be a necessity for the President to make a
proclamation of the results of the canvass as submitted by the Commission on Elections?

FR. BERNAS. I would say there would be no necessity, Madam President.

MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the
Constitution has been ratified or not.

FR. BERNAS. I would say that the proclamation made by the President would be immaterial
because under the law, the administration of all election laws is under an independent Commission
on Elections. It is the Commission on Elections which announces the results.

MR. MAAMBONG. But nevertheless, the President may make the proclamation.

FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on
Elections says, it would have no effect. I would only add that when we say that the date of effectivity
is on the day of the casting of the votes, what we mean is that the Constitution takes effect on every
single minute and every single second of that day, because the Civil Code says a day has 24
hours.So that even if the votes are cast in the morning, the Constitution is really effective from the
previous midnight.
So that when we adopted the new rule on citizenship, the children of Filipino mothers or anybody
born on the date of effectivity of the 1973 Constitution, which is January 17, 1973, are natural-born
citizens, no matter what time of day or night.

MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the
results of the canvass by the COMELEC retroacts to the date of the plebiscite?

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. I thank the Commissioner.

MR. GUINGONA. Madam President.

THE PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely
the proposal of Commissioner Bernas which speaks of the date (of ratification that would have a
definite date, because there would be no definite date if we depend upon the canvassing by the
COMELEC.

Thank you,

THE PRESIDENT. Commissioner Concepcion is recognized.

MR. CONCEPCION. Thank you, Madam President.

Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the
President, would announce that a majority of the votes cast on a given date was in favor of the
Constitution. And that is the date when the Constitution takes effect, apart from the fact that the
provision on the drafting or amendment of the Constitution provides that a constitution becomes
effective upon ratification by a majority of the votes cast, although I would not say from the very
beginning of the date of election because as of that time it is impossible to determine whether there
is a majority. At the end of the day of election or plebiscite, the determination is made as of that time-
the majority of the votes cast in a plebiscite held on such and such a date. So that is the time when
the new Constitution will be considered ratified and, therefore, effective.

THE PRESIDENT. May we now hear Vice-President Padilla.

MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide
and I support the view of Commissioner Bernas and the others because the ratification of the
Constitution is on the date the people, by a majority vote, have cast their votes in favor of the
Constitution. Even in civil law, if there is a contract, say, between an agent and a third person and
that contract is confirmed or ratified by the principal, the validity does not begin on the date of
ratification but it retroacts from the date the contract was executed.

Therefore, the date of the Constitution as ratified should retroact to the date that the people have
cast their affirmative votes in favor of the Constitution.

MR. MAAMBONG. Madam President.

THE PRESIDENT. Commissioner Maambong is recognized

MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his
amendment

MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be
effective on the very day of the plebiscite, I am withdrawing my amendment on the assumption that
any of the following bodies the Office of the President or the COMELEC will make the formal
announcement of the results.

MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the
committee.

MR. MAAMBONG. The committee will read again the formulation indicated in the original committee
report as Section 12.

This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and shall supersede all previous Constitutions.

We ask for a vote, Madam President.

VOTING

THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their
hands.)

As many as are against, please raise their hand. (No Member raised his hand.)

The results show 35 votes in favor and none against; Section 12 is approved. 2

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on
the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional
Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the 1987
Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987,
absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC
Governor could no longer exercise the power to replace petitioners in their positions as Barangay
Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC
Governor's designation on February 8, 1987 of their successors could no longer produce any legal
force and effect. While the Provisional Constitution provided for a one-year period expiring on March
25, 1987 within which the power of replacement could be exercised, this period was shortened by
the ratification and effectivity on February 2, 1987 of the Constitution. Had the intention of the
framers of the Constitution been otherwise, they would have so provided for in the Transitory Article,
as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII,
e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June
30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers
by the incumbent President until the convening of the first Congress, etc.

A final note of clarification, as to the statement in the dissent that "the appointments of some seven
Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the
President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of
Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the
Judicial and Bar Council created under the Constitution. It should be stated for the record that the
reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court
show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on
February 1, 1987 and they were all appointed on or before January 31, 1987.3 (Similarly, the
records of the Department of Justice likewise show that the appointment papers of the last batch of
provincial and city fiscals signed by the President in completion of the reorganization of the
prosecution service were made on January 31, 1987 and transmitted to the Department on February
1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the Judiciary
have been extended by the President, pending the constitution of the Judicial and Bar Council,
indicating that the Chief Executive has likewise considered February 2, 1987 as the effective date of
the Constitution, as now expressly declared by the Court.

CRUZ, J., concurring.

In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect
than the tones of thunder. She has written another persuasive opinion, and I am delighted to concur.
I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases,
where I submitted that the local OICs may no longer be summarily replaced, having acquired
security of tenure under the new Constitution. Our difference is that whereas I would make that right
commence on February 25, 1987, after the deadline set by the Freedom Constitution, Justice
Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better
view and agree with her ponencia completely.

SARMIENTO, J., Dissenting.

With due respect to the majority I register this dissent.

While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional
Constitution with respect to the tenure of government functionaries, as follows:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall
continue in office until otherwise provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors, if such appointment is made within
a period of one year from February 25, 1986.

was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not
that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new
Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same was
proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not
February 2, 1987, plebiscite day.

I rely, first and foremost, on the language of the 1987 Charter itself, thus:

Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes
cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.

It is my reading of this provision that the Constitution takes effect on the date its ratification shall
have been ascertained, and not at the time the people cast their votes to approve or reject it. For it
cannot be logically said that Constitution was ratified during such a plebiscite, when the will of the
people as of that time, had not, and could not have been, vet determined.

Other than that, pragmatic considerations compel me to take the view.

I have no doubt that between February 2, and February 11, 1987 the government performed acts
that would have been valid under the Provisional Constitution but would otherwise have been void
under the 1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals
Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2,
1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:

xxx xxx xxx

Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court
composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative
of the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a
retired Member of the Supreme Court, and a representative of the private sector.

xxx xxx xxx

Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar Council for every
vacancy, Such appointments need no confirmation.

xxx xxx xxx

such appointments could be open to serious questions.

Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the
amendments thereto from the date it is proclaimed ratified.

In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January
17, 1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the
Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice,
now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our
decision in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding
Section 16, Article XVII, of the 1973 Constitution, thus:

SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the
Constitution of nineteen-hundred and thirty- five and all amendments thereto.

On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the
ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The
Proclamation states, inter alia, that.

By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this
certificate as duly ratified by the Filipino people in the referendum- plebiscite held Oct. 16-17, 1976
and are therefore effective and in full force and effect as of this date.

It shall be noted that under Amendment No. 9 of the said 1976 amendments.

These amendments shall take effect after the incumbent President shall have proclaimed that they
have been ratified by a majority of the votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the
Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution"
(lengthening the terms of office of judges and justices). The Proclamation provides:

[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite
held, together with the election for local officials, on January 30, 1980, and that said amendment is
hereby declared to take effect immediately.

It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment
shall take effect on the date the incumbent President/Prime Minister shall proclaim its ratification.

On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of
April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and
Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the
said amendments duly approved, further declared them "[e]ffective and in full force and in effect as
of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I
and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which
parented these amendments, the same:

. . .shall become valid as part of the Constitution when approved by a majority of the votes cast in a
plebiscite to be held pursuant to Section 2, Article XVI of the Constitution.

On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for
Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the
Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two,
and One, and to Appropriate Funds Therefore," provides, as follows:

SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the
plebiscite using the certificates submitted to it, duly authenticated and certified by the Board of
Canvassers of each province or city.

We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January
27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions
Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments:

....are therefore effective and in full force and effect as of the date of this Proclamation.

It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9,
Batas Blg. 643), which states, that:

The proposed amendments shall take effect on the date the President of the Philippines shall
proclaim that they have been ratified by a majority of the votes cast in the plebiscite held for the
purpose, but not later than three months from the approval of the amendments.

albeit Resolutions Nos. 105, 111, and 113 provide, that:

These amendments shall be valid as a part of the Constitution when approved by a majority of the
votes cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant
to Section 2 of Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their ratification and not
at the time of the plebiscite is a view that is not peculiar to the Marcos era.

The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite
called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on
September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention
of a retroactive application.

Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11,
1987, at Malacanang Palace:

... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission
of 1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and
is therefore effective and in full force and effect. 4

the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other
time.

I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new
Charter was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the
remark was said in passing-we did not resolve the case on account of a categorical holding that the
1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-
examination.

I am therefore of the opinion, consistent with the views expressed above, that the challenged
dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in
force.

Separate Opinions

TEEHANKEE, CJ., concurring:

The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect
on February 2, 1987, the date that the plebiscite for its ratification was held or whether it took effect
on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the
President of the Philippines, Corazon C. Aquino.

The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the
provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately
upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that
same date.

The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its
ratification shall have been ascertained and not at the time the people cast their votes to approve or
reject it." This view was actually proposed at the Constitutional Commission deliberations, but was
withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will
be effective on the very day of the plebiscite."

The record of the proceedings and debates of the Constitutional Commission fully supports the
Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional
Conunission in unanimously approving (by thirty-five votes in favor and none against) the
aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of
ratification is the act of voting by the people. So that is the date of the ratification" and that "the
canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during
the date of the plebiscite and the proclamation of the President is merely the official confirmatory
declaration of an act which was actually done by the Filipino people in adopting the Constitution
when they cast their votes on the date of the plebiscite."

The record of the deliberations and the voting is reproduced hereinbelow: 1

MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the
committee as indicated in Section 12, unless there are other commissioners who would like to
present amendments.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. May I propose the following amendments.

On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after
"constitutions," add the following: "AND THEIR AMENDMENTS."

MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose
an additional sentence, the committee would suggest that we take up first his amendment to the first
sentence as originally formulated. We are now ready to comment on that proposed amendment.

The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the
words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the
second amendment would be: After the word "constitutions," add the words" AND THEIR
AMENDMENTS,"

The committee accepts the first proposed amendment. However, we regret that we cannot accept
the second proposed amendment after the word "constitutions" because the committee feels that
when we talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS."

MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I
request that I be allowed to read the second amendment so the Commission would be able to
appreciate the change in the first.

MR. MAAMBONG. Yes, Madam President, we can now do that.

MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN
FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON
ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE."

MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that
the second proposed amendment in the form of a new sentence would not be exactly necessary and
the committee feels that it would be too much for us to impose a time frame on the President to
make the proclamation. As we would recall, Madam President, in the approved Article on the
Executive, there is a provision which says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it says that there will be a proclamation
by the President that the Constitution has been ratified, the President will naturally comply with the
law in accordance with the provisions in the Article on the Executive which we have cited. It would
be too much to impose on the President a time frame within which she will make that declaration. It
would be assumed that the President would immediately do that after the results shall have been
canvassed by the COMELEC.

Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is
proposing, Madam President.

MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an
immediate proclamation of the results by the President.

MR. MAAMBONG. With that understanding, Madam President.

MR. DAVIDE. I will not insist on the second sentence.

FR. BERNAS. Madam President.

THE PRESIDENT. Commissioner Bernas is recognized.

FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which
makes the effectivity of the new Constitution dependent upon the proclamation of the President. The
effectivity of the Constitution should commence on the date of the ratification, not on the date of the
proclamation of the President. What is confusing, I think, is what happened in 1976 when the
amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were
effective upon the proclamation of the President was that the draft presented to the people said that
the amendment will be effective upon the proclamation made by the President. I have a suspicion
that was put in there precisely to give the President some kind of leeway on whether to announce
the ratification or not. Therefore, we should not make this dependent on the action of the President
since this will be a manifestation of the act of the people to be done under the supervision of the
COMELEC and it should be the COMELEC who should make the announcement that, in fact, the
votes show that the Constitution was ratified and there should be no need to wait for any
proclamation on the part of the President.

MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?

FR. BERNAS. Willingly, Madam President.

MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the
Constitution is supposed to be ratified.

FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were
supposed to have been cast.

MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the
Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by
the Commission on Elections. If we delete the suggested amendment which says: "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear
terms, the date when the Constitution is supposed to be ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the
plebiscite would be held, for instance, on January 19, 1987, then the date for the effectivity of the
new Constitution would be January 19, 1987.

MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the
Commission on Elections which will be doing the canvass? That is immaterial Madam President

FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done
when one casts his ballot.

MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the
proponent, Commissioner Davide, if he is insisting on his amendment.

MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the
view of Commissioner Bernas, that the date of the ratification is reckoned from the date of the
casting of the ballots. That cannot be the date of reckoning because it is a plebiscite all over the
country. We do not split the moment of casting by each of the voters. Actually and technically
speaking, it would be all right if it would be upon the announcement of the results of the canvass
conducted by the COMELEC or the results of the plebiscite held all over the country. But it is
necessary that there be a body which will make the formal announcement of the results of the
plebiscite. So it is either the President or the COMELEC itself upon the completion of the canvass of
the results of the plebiscite, and I opted for the President.

xxx xxx xxx

MR. NOLLEDO. Madam President.

THE PRESIDENT. Commissioner Nolledo is recognized.

MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I
support the stand of Commissioner Bernas because it is really the date of the casting of the "yes"
votes that is the date of the ratification of the Constitution The announcement merely confirms the
ratification even if the results are released two or three days after. I think it is a fundamental principle
in political law, even in civil law, because an announcement is a mere confirmation The act of
ratification is the act of voting by the people. So that is the date of the ratification. If there should be
any need for presidential proclamation, that proclamation will merely confirm the act of ratification.

Thank you, Madam President.

THE PRESIDENT. Does Commissioner Regalado want to contribute?

MR. REGALADO. Madam President, I was precisely going to state the same support for
Commissioner Bernas, because the canvass thereafter is merely the mathematical confirmation of
what was done during the date of the plebiscite and the proclamation of the President is merely the
official confirmatory declaration of an act which was actually done by the Filipino people in adopting
the Constitution when they cast their votes on the date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.

THE PRESIDENT. Commissioner Lerum is recognized.

MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity
of the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what
happens to the obligations and rights that accrue upon the approval of the Constitution? So I think
we must have a definite date. I am, therefore, in favor of the Davide amendment.

MR. MAAMBONG. Madam President.

THE PRESIDENT. Commissioner Maambong is recognized.

MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the
Commission on Elections to declare the results of the canvass?

FR. BERNAS. There would be because it is the Commission on Elections which makes the official
announcement of the results.

MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has
declared the results of the canvass, will there be a necessity for the President to make a
proclamation of the results of the canvass as submitted by the Commission on Elections?

FR. BERNAS. I would say there would be no necessity, Madam President.

MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the
Constitution has been ratified or not.

FR. BERNAS. I would say that the proclamation made by the President would be immaterial
because under the law, the administration of all election laws is under an independent Commission
on Elections. It is the Commission on Elections which announces the results.

MR. MAAMBONG. But nevertheless, the President may make the proclamation.

FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on
Elections says, it would have no effect. I would only add that when we say that the date of effectivity
is on the day of the casting of the votes, what we mean is that the Constitution takes effect on every
single minute and every single second of that day, because the Civil Code says a day has 24 hours.

So that even if the votes are cast in the morning, the Constitution is really effective from the previous
midnight. So that when we adopted the new rule on citizenship, the children of Filipino mothers or
anybody born on the date of effectivity of the 1973 Constitution, which is January 17, 1973, are
natural-born citizens, no matter what time of day or night.

MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the
results of the canvass by the COMELEC retroacts to the date of the plebiscite?

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. I thank the Commissioner.

MR. GUINGONA. Madam President.

THE PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely
the proposal of Commissioner Bernas which speaks of the date (of ratification that would have a
definite date, because there would be no definite date if we depend upon the canvassing by the
COMELEC.

Thank you,

THE PRESIDENT. Commissioner Concepcion is recognized.

MR. CONCEPCION. Thank you, Madam President.

Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the
President, would announce that a majority of the votes cast on a given date was in favor of the
Constitution. And that is the date when the Constitution takes effect, apart from the fact that the
provision on the drafting or amendment of the Constitution provides that a constitution becomes
effective upon ratification by a majority of the votes cast, although I would not say from the very
beginning of the date of election because as of that time it is impossible to determine whether there
is a majority. At the end of the day of election or plebiscite, the determination is made as of that time-
the majority of the votes cast in a plebiscite held on such and such a date. So that is the time when
the new Constitution will be considered ratified and, therefore, effective.

THE PRESIDENT. May we now hear Vice-President Padilla.

MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide
and I support the view of Commissioner Bernas and the others because the ratification of the
Constitution is on the date the people, by a majority vote, have cast their votes in favor of the
Constitution. Even in civil law, if there is a contract, say, between an agent and a third person and
that contract is confirmed or ratified by the principal, the validity does not begin on the date of
ratification but it retroacts from the date the contract was executed.

Therefore, the date of the Constitution as ratified should retroact to the date that the people have
cast their affirmative votes in favor of the Constitution.

MR. MAAMBONG. Madam President.

THE PRESIDENT. Commissioner Maambong is recognized

MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his
amendment

MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be
effective on the very day of the plebiscite, I am withdrawing my amendment on the assumption that
any of the following bodies the Office of the President or the COMELEC will make the formal
announcement of the results.

MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the
committee.
MR. MAAMBONG. The committee will read again the formulation indicated in the original committee
report as Section 12.

This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and shall supersede all previous Constitutions.

We ask for a vote, Madam President.

VOTING

THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their
hands.)

As many as are against, please raise their hand. (No Member raised his hand.)

The results show 35 votes in favor and none against; Section 12 is approved. 2

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on
the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional
Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the 1987
Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987,
absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC
Governor could no longer exercise the power to replace petitioners in their positions as Barangay
Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC
Governor's designation on February 8, 1987 of their successors could no longer produce any legal
force and effect. While the Provisional Constitution provided for a one-year period expiring on March
25, 1987 within which the power of replacement could be exercised, this period was shortened by
the ratification and effectivity on February 2, 1987 of the Constitution. Had the intention of the
framers of the Constitution been otherwise, they would have so provided for in the Transitory Article,
as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII,
e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June
30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers
by the incumbent President until the convening of the first Congress, etc.

A final note of clarification, as to the statement in the dissent that "the appointments of some seven
Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the
President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of
Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the
Judicial and Bar Council created under the Constitution. It should be stated for the record that the
reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court
show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on
February 1, 1987 and they were all appointed on or before January 31, 1987.3 (Similarly, the
records of the Department of Justice likewise show that the appointment papers of the last batch of
provincial and city fiscals signed by the President in completion of the reorganization of the
prosecution service were made on January 31, 1987 and transmitted to the Department on February
1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the Judiciary
have been extended by the President, pending the constitution of the Judicial and Bar Council,
indicating that the Chief Executive has likewise considered February 2, 1987 as the effective date of
the Constitution, as now expressly declared by the Court.

CRUZ, J., concurring.

In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect
than the tones of thunder. She has written another persuasive opinion, and I am delighted to concur.
I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases,
where I submitted that the local OICs may no longer be summarily replaced, having acquired
security of tenure under the new Constitution. Our difference is that whereas I would make that right
commence on February 25, 1987, after the deadline set by the Freedom Constitution, Justice
Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better
view and agree with her ponencia completely.

SARMIENTO, J., Dissenting.

With due respect to the majority I register this dissent.

While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional
Constitution with respect to the tenure of government functionaries, as follows:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall
continue in office until otherwise provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors, if such appointment is made within
a period of one year from February 25, 1986.

was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not
that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new
Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same was
proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not
February 2, 1987, plebiscite day.

I rely, first and foremost, on the language of the 1987 Charter itself, thus:

Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes
cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.

It is my reading of this provision that the Constitution takes effect on the date its ratification shall
have been ascertained, and not at the time the people cast their votes to approve or reject it. For it
cannot be logically said that Constitution was ratified during such a plebiscite, when the will of the
people as of that time, had not, and could not have been, vet determined.

Other than that, pragmatic considerations compel me to take the view.

I have no doubt that between February 2, and February 11, 1987 the government performed acts
that would have been valid under the Provisional Constitution but would otherwise have been void
under the 1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals
Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2,
1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:

xxx xxx xxx

Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court
composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative
of the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a
retired Member of the Supreme Court, and a representative of the private sector.
 xxx xxx xxx

2Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar Council for every
vacancy, Such appointments need no confirmation.

xxx xxx xxx

such appointments could be open to serious questions.

Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the
amendments thereto from the date it is proclaimed ratified.

In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January
17, 1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the
Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice,
now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our
decision in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding
Section 16, Article XVII, of the 1973 Constitution, thus:

SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the
Constitution of nineteen-hundred and thirty- five and all amendments thereto.

On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the
ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The
Proclamation states, inter alia, that.

By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this
certificate as duly ratified by the Filipino people in the referendum — plebiscite held Oct. 16-17, 1976
and are therefore effective and in full force and effect as of this date.

It shall be noted that under Amendment No. 9 of the said 1976 amendments.

These amendments shall take effect after the incumbent President shall have proclaimed that they
have been ratified by a majority of the votes cast in the referendum-plebiscite.

On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the
Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution"
(lengthening the terms of office of judges and justices). The Proclamation provides:

[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite
held, together with the election for local officials, on January 30, 1980, and that said amendment is
hereby declared to take effect immediately.

It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment
shall take effect on the date the incumbent President/Prime Minister shall proclaim its ratification.

On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of
April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and
Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the
said amendments duly approved, further declared them "[e]ffective and in full force and in effect as
of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I
and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which
parented these amendments, the same:

... shall become valid as part of the Constitution when approved by a majority of the votes cast in a
plebiscite to be held pursuant to Section 2, Article XVI of the Constitution.

On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for
Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the
Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two,
and One, and to Appropriate Funds Therefore," provides, as follows:

SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the
plebiscite using the certificates submitted to it, duly authenticated and certified by the Board of
Canvassers of each province or city.

We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January
27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions
Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments:

....are therefore effective and in full force and effect as of the date of this Proclamation.

It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9,
Batas Blg. 643), which states, that:

The proposed amendments shall take effect on the date the President of the Philippines shall
proclaim that they have been ratified by a majority of the votes cast in the plebiscite held for the
purpose, but not later than three months from the approval of the amendments.

albeit Resolutions Nos. 105, 111, and 113 provide, that:

These amendments shall be valid as a part of the Constitution when approved by a majority of the
votes cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant
to Section 2 of Article XVI of the Constitution, as amended.

That a Constitution or amendments thereto take effect upon proclamation of their ratification and not
at the time of the plebiscite is a view that is not peculiar to the Marcos era.

The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite
called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on
September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention
of a retroactive application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino)
proclaimed on February 11, 1987, at Malacanang Palace:

... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission
of 1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and
is therefore effective and in full force and effect. 4

the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other
time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new
Charter was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the
remark was said in passing-we did not resolve the case on account of a categorical holding that the
1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-
examination.

I am therefore of the opinion, consistent with the views expressed above, that the challenged
dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in
force.

Footnotes

1 Topacio, Jr. vs. Pimentel G.R. No. 73770, April 10, 1986.

2 Section 2, BP Blg. 222.

3 Article 11, Section 25 and Article X, Sections 1, 2, 14, among others.

4 Article X, Section 4.

5 Section 3, BP Blg. 222.

Teehankee, C.J., concurring:

1 Volume Five, Record of the Constitutional Commission Proceedings and Debates, pages 620-623;
emphasis supplied.

2 The entire draft Constitution was approved on October 12, 1986 forty forty-five votes in favor and
two against.

3 The seven Court of Appeals Justices referred to are Justices Alfredo L. Benipayo, Minerva G.
Reyes, Magdangal B. Elma, Cecilio PE, Jesus Elbinias, Nicolas Lapena Jr. and Justo P. Torres, Jr.,
and their appointments bear various dates from January 9, 1987 to January 31, 1987.

Sarmiento, J., dissenting:

1 Manila Bulletin, Feb. 3, 1987, p. 1, cols. 6-7 Philippine Daily Inquirer, Feb. 3,1987, p. 1, cot 1;
Malaya, Feb. 3, 1987, p. 1, col. 1.

2 Nos. 3720102 March 3, 1975, 63 SCRA 4 (1975).

3 Nos. L-36142, March 31, 1973, 50 SCRA 30 (1973).

4 Proclamation No. 58 (1987).

5 G.R. No. 72301.