Republic of the Philippines Dolores, Taytay, Rizal.
The designation made by the OIC Governor was
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
"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 appointments bear various dates from January 9, 1987 to
that it took effect at no other time. January 31, 1987.

I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in Sarmiento, J., dissenting:
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 1 Manila Bulletin, Feb. 3, 1987, p. 1, cols. 6-7 Philippine
passing-we did not resolve the case on account of a categorical holding Daily Inquirer, Feb. 3,1987, p. 1, cot 1; Malaya, Feb. 3,
that the 1987 Constitution came to life on February 2, 1987. In any event, 1987, p. 1, col. 1.
if we did, I now call for its re-examination.
2 Nos. 3720102 March 3, 1975, 63 SCRA 4 (1975).
I am therefore of the opinion, consistent with the views expressed above,
that the challenged dismissals done on February 8, 1987 were valid, the 3 Nos. L-36142, March 31, 1973, 50 SCRA 30 (1973).
1987 Constitution not being then as yet in force.
4 Proclamation No. 58 (1987).
Footnotes
5 G.R. No. 72301.
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
 Republic of the Philippines Sheraton as its hotel operator, which bid for the same number of shares
SUPREME COURT at P44.00 per share, or P2.42 more than the bid of petitioner.
Manila
Pertinent provisions of the bidding rules prepared by respondent GSIS
EN BANC state —

I. EXECUTION OF THE NECESSARY

CONTRACTS WITH GSIS/MHC —
G.R. No. 122156 February 3, 1997
1. The Highest Bidder must comply with the conditions set
MANILA PRINCE HOTEL petitioner, forth below by October 23, 1995 (reset to November 3,
vs. 1995) or the Highest Bidder will lose the right to purchase
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL the Block of Shares and GSIS will instead offer the Block
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF of Shares to the other Qualified Bidders:
THE GOVERNMENT CORPORATE COUNSEL, respondents.
a. The Highest Bidder must negotiate and
execute with the GSIS/MHC the
Management Contract, International
BELLOSILLO, J.: Marketing/Reservation System Contract or
other type of contract specified by the
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the Highest Bidder in its strategic plan for the
grant of rights, privileges, and concessions covering the national Manila Hotel. . . .
economy and patrimony, the State shall give preference to qualified
Filipinos,1 is in oked by petitioner in its bid to acquire 51% of the shares of b. The Highest Bidder must execute the
the Manila Hotel Corporation (MHC) which owns the historic Manila Stock Purchase and Sale Agreement with
Hotel. Opposing, respondents maintain that the provision is not self- GSIS . . . .
executing but requires an implementing legislation for its enforcement.
Corollarily, they ask whether the 51% shares form part of the national K. DECLARATION OF THE WINNING
economy and patrimony covered by the protective mantle of the BIDDER/STRATEGIC PARTNER —
Constitution.
The Highest Bidder will be declared the Winning
The controversy arose when respondent Government Service Insurance Bidder/Strategic Partner after the following conditions are
System (GSIS), pursuant to the privatization program of the Philippine met:
Government under Proclamation No. 50 dated 8 December 1986,
decided to sell through public bidding 30% to 51% of the issued and a. Execution of the necessary contracts
outstanding shares of respondent MHC. The winning bidder, or the with GSIS/MHC not later than October 23,
eventual "strategic partner," is to provide management expertise and/or 1995 (reset to November 3, 1995); and
an international marketing/reservation system, and financial support to
strengthen the profitability and performance of the Manila Hotel.2 In a b. Requisite approvals from the
close bidding held on 18 September 1995 only two (2) bidders
GSIS/MHC and COP (Committee on
participated: petitioner Manila Prince Hotel Corporation, a Filipino
Privatization)/OGCC (Office of the
corporation, which offered to buy 51% of the MHC or 15,300,000 shares Government Corporate Counsel) are
at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-
obtained.3
Pending the declaration of Renong Berhad as the winning
bidder/strategic partner and the execution of the necessary contracts,
petitioner in a letter to respondent GSIS dated 28 September 1995
matched the bid price of P44.00 per share tendered by Renong
Berhad.4 In a subsequent letter dated 10 October 1995 petitioner sent a
manager's check issued by Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the Malaysian
Group, Messrs. Renong Berhad . . .5 which respondent GSIS refused to
accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of
the MHC may be hastened by respondent GSIS and consummated with
Renong Berhad, petitioner came to this Court on prohibition
and mandamus. On 18 October 1995 the Court issued a temporary
restraining order enjoining respondents from perfecting and
consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En
Banc after it was referred to it by the First Division. The case was then
set for oral arguments with former Chief Justice Enrique M. Fernando and
Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with
the Filipino nation and has practically become a historical monument
which reflects the vibrancy of Philippine heritage and culture. It is a proud
legacy of an earlier generation of Filipinos who believed in the nobility
and sacredness of independence and its power and capacity to release
the full potential of the Filipino people. To all intents and purposes, it has
become a part of the national patrimony.6 Petitioner also argues that
since 51% of the shares of the MHC carries with it the ownership of the
business of the hotel which is owned by respondent GSIS, a government-
owned and controlled corporation, the hotel business of respondent GSIS
being a part of the tourism industry is unquestionably a part of the
national economy. Thus, any transaction involving 51% of the shares of
stock of the MHC is clearly covered by the term national economy, to
which Sec. 10, second par., Art. XII, 1987 Constitution, applies.7
It is also the thesis of petitioner that since Manila Hotel is part of the
national patrimony and its business also unquestionably part of the
national economy petitioner should be preferred after it has matched the
bid offer of the Malaysian firm. For the bidding rules mandate that if for
any reason, the Highest Bidder cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share.8
Respondents except. They maintain that: First, Sec. 10, second par., Art.
XII, of the 1987 Constitution is merely a statement of principle and policy
since it is not a self-executing provision and requires implementing
legislation(s) . . . Thus, for the said provision to Operate, there must be
existing laws "to lay down conditions under which business may be
done."9
Second, granting that this provision is self-executing, Manila Hotel does
not fall under the term national patrimony which only refers to lands of the
public domain, waters, minerals, coal, petroleum and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna and all marine wealth in its territorial sea, and exclusive marine
zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987
Constitution. According to respondents, while petitioner speaks of the
guests who have slept in the hotel and the events that have transpired
therein which make the hotel historic, these alone do not make the hotel
fall under the patrimony of the nation. What is more, the mandate of the
Constitution is addressed to the State, not to respondent GSIS which
possesses a personality of its own separate and distinct from the
Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony,
the constitutional provision invoked is still inapplicable since what is being
sold is only 51% of the outstanding shares of the corporation, not the
hotel building nor the land upon which the building stands. Certainly, 51%
of the equity of the MHC cannot be considered part of the national
patrimony. Moreover, if the disposition of the shares of the MHC is really
contrary to the Constitution, petitioner should have questioned it right
from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding
rules which provides that if for any reason, the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share, is
misplaced. Respondents postulate that the privilege of submitting a
matching bid has not yet arisen since it only takes place if for any reason,
the Highest Bidder cannot be awarded the Block of Shares. Thus the
submission by petitioner of a matching bid is premature since Renong
Berhad could still very well be awarded the block of shares and the
condition giving rise to the exercise of the privilege to submit a matching
bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion
should fail since respondent GSIS did not exercise its discretion in a
capricious, whimsical manner, and if ever it did abuse its discretion it was
not so patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law. Similarly, the petition
for mandamus should fail as petitioner has no clear legal right to what it
demands and respondents do not have an imperative duty to perform the
act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious,
absolute and unalterable except by the authority from which it emanates.
It has been defined as the fundamental and paramount law of the
nation. 10 It prescribes the permanent framework of a system of
government, assigns to the different departments their respective powers
and duties, and establishes certain fixed principles on which government
is founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance with
which all private rights must be determined and all public authority
administered. 11 Under the doctrine of constitutional supremacy, if a law or
contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into
by private persons for private purposes is null and void and without any
force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in every
statute and contract.
Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and
carry out the purposes of the framers who merely establish an outline of
government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of
citizens. 12 A provision which lays down a general principle, such as those
found in Art. II of the 1987 Constitution, is usually not self-executing. But
a provision which is complete in itself and becomes operative without the
aid of supplementary or enabling legislation, or that which supplies
sufficient rule by means of which the right it grants may be enjoyed or
protected, is self-executing. Thus a constitutional provision is self-
executing if the nature and extent of the right conferred and the liability
imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is
no language indicating that the subject is referred to the legislature for
action. 13
As against constitutions of the past, modern constitutions have been
generally drafted upon a different principle and have often become in
effect extensive codes of laws intended to operate directly upon the
people in a manner similar to that of statutory enactments, and the
function of constitutional conventions has evolved into one more like that
of a legislative body. Hence, unless it is expressly provided that a
legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-
executing If the constitutional provisions are treated as requiring
legislation instead of self-executing, the legislature would have the power
to ignore and practically nullify the mandate of the fundamental law.14 This
can be cataclysmic. That is why the prevailing view is, as it has always
been, that —
. . . in case of doubt, the Constitution should be
considered self-executing rather than non-self-executing .
. . . Unless the contrary is clearly intended, the provisions
of the Constitution should be considered self-executing,
as a contrary rule would give the legislature discretion to
determine when, or whether, they shall be effective.
These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely
meaningless by simply refusing to pass the needed
implementing statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987
Constitution is clearly not self-executing, as they quote from discussions
on the floor of the 1986 Constitutional Commission —
MR. RODRIGO. Madam President, I am
asking this question as the Chairman of
the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED
FILIPINOS," can it be understood as a
preference to qualified Filipinos vis-a-
vis Filipinos who are not qualified. So, why
do we not make it clear? To qualified
Filipinos as against aliens?
 THE PRESIDENT. What is the question of
Commissioner Rodrigo? Is it to remove
the word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely
"TO QUALIFIED FILIPINOS" as against
whom? As against aliens or over aliens?
MR. NOLLEDO. Madam President, I think
that is understood. We use the word
"QUALIFIED" because the existing laws or
prospective laws will always lay down
conditions under which business may be
done. For example, qualifications on the
setting up of other financial structures, et
cetera (emphasis supplied by
respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a
way as not to make it appear that it is non-self-executing but simply for
purposes of style. But, certainly, the legislature is not precluded from
enacting other further laws to enforce the constitutional provision so long
as the contemplated statute squares with the Constitution. Minor details
may be left to the legislature without impairing the self-executing nature
of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the
constitution, further the operation of such a provision, prescribe a practice
to be used for its enforcement, provide a convenient remedy for the
protection of the rights secured or the determination thereof, or place
reasonable safeguards around the exercise of the right. The mere fact
that legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such
a provision ineffective in the absence of such legislation. The omission
from a constitution of any express provision for a remedy for enforcing a
right or liability is not necessarily an indication that it was not intended to
be self-executing. The rule is that a self-executing provision of the
constitution does not necessarily exhaust legislative power on the
subject, but any legislation must be in harmony with the constitution,
further the exercise of constitutional right and make it more
available. 17 Subsequent legislation however does not necessarily mean
that the subject constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10,
second par., of Art. XII is implied from the tenor of the first and third
paragraphs of the same section which undoubtedly are not self-
executing. 18 The argument is flawed. If the first and third paragraphs are
not self-executing because Congress is still to enact measures to
encourage the formation and operation of enterprises fully owned by
Filipinos, as in the first paragraph, and the State still needs legislation to
regulate and exercise authority over foreign investments within its
national jurisdiction, as in the third paragraph, then a fortiori, by the same
logic, the second paragraph can only be self-executing as it does not by
its language require any legislation in order to give preference to qualified
Filipinos in the grant of rights, privileges and concessions covering the
national economy and patrimony. A constitutional provision may be self-
executing in one part and non-self-executing in another. 19
Even the cases cited by respondents holding that certain constitutional
provisions are merely statements of principles and policies, which are
basically not self-executing and only placed in the Constitution as moral
incentives to legislation, not as judicially enforceable rights — are simply
not in point. Basco v. Philippine Amusements and Gaming
Corporation 20 speaks of constitutional provisions on personal
dignity, 21 the sanctity of family life, 22 the vital role of the youth in nation-
building 23 the promotion of social justice, 24 and the values of
education. 25 Tolentino v. Secretary of Finance 26 refers to the
constitutional provisions on social justice and human rights 27 and on
education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the
promotion of general welfare, 30 the sanctity of family life, 31 the vital role of
the youth in nation-building 32 and the promotion of total human liberation
and development. 33A reading of these provisions indeed clearly shows
that they are not judicially enforceable constitutional rights but merely
guidelines for legislation. The very terms of the provisions manifest that
they are only principles upon which the legislations must be based. Res
ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987
Constitution is a mandatory, positive command which is complete in itself
and which needs no further guidelines or implementing laws or rules for
its enforcement. From its very words the provision does not require any
legislation to put it in operation. It is per se judicially enforceable When
our Constitution mandates that [i]n the grant of rights, privileges, and
concessions covering national economy and patrimony, the State shall
give preference to qualified Filipinos, it means just that — qualified
Filipinos shall be preferred. And when our Constitution declares that a
right exists in certain specified circumstances an action may be
maintained to enforce such right notwithstanding the absence of any
legislation on the subject; consequently, if there is no statute especially
enacted to enforce such constitutional right, such right enforces itself by
its own inherent potency and puissance, and from which all legislations
must take their bearings. Where there is a right there is a remedy. Ubi jus
ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission 34 explains —
The patrimony of the Nation that should be conserved and
developed refers not only to out rich natural resources but
also to the cultural heritage of out race. It also refers to
our intelligence in arts, sciences and letters. Therefore,
we should develop not only our lands, forests, mines and
other natural resources but also the mental ability or
faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains
to heritage. 35 When the Constitution speaks of national patrimony, it
refers not only to the natural resources of the Philippines, as the
Constitution could have very well used the term natural resources, but
also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark — a living testimonial of Philippine
heritage. While it was restrictively an American hotel when it first opened
in 1912, it immediately evolved to be truly Filipino, Formerly a concourse
for the elite, it has since then become the venue of various significant
events which have shaped Philippine history. It was called the Cultural
Center of the 1930's. It was the site of the festivities during the
inauguration of the Philippine Commonwealth. Dubbed as the Official
Guest House of the Philippine Government. it plays host to dignitaries
and official visitors who are accorded the traditional Philippine
hospitality. 36
The history of the hotel has been chronicled in the book The Manila
Hotel: The Heart and Memory of a City. 37During World War II the hotel
was converted by the Japanese Military Administration into a military
headquarters. When the American forces returned to recapture Manila
the hotel was selected by the Japanese together with Intramuros as the
two (2) places fro their final stand. Thereafter, in the 1950's and 1960's,
the hotel became the center of political activities, playing host to almost
every political convention. In 1970 the hotel reopened after a renovation
and reaped numerous international recognitions, an acknowledgment of
the Filipino talent and ingenuity. In 1986 the hotel was the site of a
failed coup d' etat where an aspirant for vice-president was "proclaimed"
President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to
the triumphs and failures, loves and frustrations of the Filipinos; its
existence is impressed with public interest; its own historicity associated
with our struggle for sovereignty, independence and nationhood. Verily,
Manila Hotel has become part of our national economy and patrimony.
For sure, 51% of the equity of the MHC comes within the purview of the
constitutional shelter for it comprises the majority and controlling stock,
so that anyone who acquires or owns the 51% will have actual control
and management of the hotel. In this instance, 51% of the MHC cannot
be disassociated from the hotel and the land on which the hotel edifice
stands. Consequently, we cannot sustain respondents' claim that
the Filipino First Policy provision is not applicable since what is being sold
is only 51% of the outstanding shares of the corporation, not the Hotel
building nor the land upon which the building stands. 38
The argument is pure sophistry. The term qualified Filipinos as used in
Our Constitution also includes corporations at least 60% of which is
owned by Filipinos. This is very clear from the proceedings of the 1986
Constitutional Commission
THE PRESIDENT. Commissioner Davide
is recognized.
MR. DAVIDE. I would like to introduce an
amendment to the Nolledo amendment.
And the amendment would consist in
substituting the words "QUALIFIED
FILIPINOS" with the following: "CITIZENS
OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS
WHOSE CAPITAL OR CONTROLLING
STOCK IS WHOLLY OWNED BY SUCH
CITIZENS.
xxx xxx xxx
MR. MONSOD. Madam President,
apparently the proponent is agreeable, but
we have to raise a question. Suppose it is
a corporation that is 80-percent Filipino,
do we not give it preference?
MR. DAVIDE. The Nolledo amendment
would refer to an individual Filipino. What
about a corporation wholly owned by
Filipino citizens?
MR. MONSOD. At least 60 percent,
Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we
would be limiting it if we say that the
preference should only be 100-percent
Filipino.
MR: DAVIDE. I want to get that meaning
clear because "QUALIFIED FILIPINOS"
may refer only to individuals and not to
juridical personalities or entities.
MR. MONSOD. We agree, Madam
President. 39
xxx xxx xxx
MR. RODRIGO. Before we vote, may I
request that the amendment be read
again.
MR. NOLLEDO. The amendment will
read: "IN THE GRANT OF RIGHTS,
PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY
AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED
FILIPINOS." And the word "Filipinos" here,
as intended by the proponents, will include
not only individual Filipinos but also
Filipino-controlled entities or entities fully-
controlled by Filipinos. 40
The phrase preference to qualified Filipinos was explained thus
—
MR. FOZ. Madam President, I would like
to request Commissioner Nolledo to
please restate his amendment so that I
can ask a question.
MR. NOLLEDO. "IN THE GRANT OF
RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE
NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED
FILIPINOS."
MR FOZ. In connection with that
amendment, if a foreign enterprise is
qualified and a Filipino enterprise is also
qualified, will the Filipino enterprise still be
given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified
in some aspects than the Filipino
enterprise, will the Filipino still be
preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision Commissioner
Nolledo continues —
 MR. NOLLEDO. Yes, Madam President. Instead of
"MUST," it will be "SHALL — THE STATE SHALL GlVE
PREFERENCE TO QUALIFIED FILIPINOS. This
embodies the so-called "Filipino First" policy. That means
that Filipinos should be given preference in the grant of
concessions, privileges and rights covering the national
patrimony. 42
The exchange of views in the sessions of the Constitutional Commission
regarding the subject provision was still further clarified by Commissioner
Nolledo 43 —
Paragraph 2 of Section 10 explicitly mandates the "Pro-
Filipino" bias in all economic concerns. It is better known
as the FILIPINO FIRST Policy . . . This provision was
never found in previous Constitutions . . . .
The term "qualified Filipinos" simply means that
preference shall be given to those citizens who can make
a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT
mandate the pampering and preferential treatment to
Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would
be counter productive and inimical to the common good.
In the granting of economic rights, privileges, and
concessions, when a choice has to be made between a
"qualified foreigner" end a "qualified Filipino," the latter
shall be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so
considered by respondent GSIS and selected as one of
the qualified bidders. It was pre-qualified by respondent GSIS in
accordance with its own guidelines so that the sole inference here is that
petitioner has been found to be possessed of proven management
expertise in the hotel industry, or it has significant equity ownership in
another hotel company, or it has an overall management and marketing
proficiency to successfully operate the Manila Hotel. 44
The penchant to try to whittle away the mandate of the Constitution by
arguing that the subject provision is not self-executory and requires
implementing legislation is quite disturbing. The attempt to violate a clear
constitutional provision — by the government itself — is only too
distressing. To adopt such a line of reasoning is to renounce the duty to
ensure faithfulness to the Constitution. For, even some of the provisions
of the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We
cannot simply afford the government a defense that arises out of the
failure to enact further enabling, implementing or guiding legislation. In
fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional
government is apt —
The executive department has a constitutional duty to
implement laws, including the Constitution, even before
Congress acts — provided that there are discoverable
legal standards for executive action. When the executive
acts, it must be guided by its own understanding of the
constitutional command and of applicable laws. The
responsibility for reading and understanding the
Constitution and the laws is not the sole prerogative of
Congress. If it were, the executive would have to ask
Congress, or perhaps the Court, for an interpretation
every time the executive is confronted by a constitutional
command. That is not how constitutional government
operates. 45
Respondents further argue that the constitutional provision is addressed
to the State, not to respondent GSIS which by itself possesses a
separate and distinct personality. This argument again is at best
specious. It is undisputed that the sale of 51% of the MHC could only be
carried out with the prior approval of the State acting through respondent
Committee on Privatization. As correctly pointed out by Fr. Joaquin G.
Bernas, S.J., this fact alone makes the sale of the assets of respondents
GSIS and MHC a "state action." In constitutional jurisprudence, the acts
of persons distinct from the government are considered "state action"
covered by the Constitution (1) when the activity it engages in is a "public
function;" (2) when the government is so significantly involved with the
private actor as to make the government responsible for his action; and,
(3) when the government has approved or authorized the action. It is
evident that the act of respondent GSIS in selling 51% of its share in
respondent MHC comes under the second and third categories of "state
action." Without doubt therefore the transaction. although entered into by
respondent GSIS, is in fact a transaction of the State and therefore
subject to the constitutional command. 46
When the Constitution addresses the State it refers not only to the people
but also to the government as elements of the State. After all,
government is composed of three (3) divisions of power — legislative,
executive and judicial. Accordingly, a constitutional mandate directed to
the State is correspondingly directed to the three(3) branches of
government. It is undeniable that in this case the subject constitutional
injunction is addressed among others to the Executive Department and
respondent GSIS, a government instrumentality deriving its authority from
the State.
It should be stressed that while the Malaysian firm offered the higher bid
it is not yet the winning bidder. The bidding rules expressly provide that
the highest bidder shall only be declared the winning bidder after it has
negotiated and executed the necessary contracts, and secured the
requisite approvals. Since the "Filipino First Policy provision of the
Constitution bestows preference on qualified Filipinos the mere tending of
the highest bid is not an assurance that the highest bidder will be
declared the winning bidder. Resultantly, respondents are not bound to
make the award yet, nor are they under obligation to enter into one with
the highest bidder. For in choosing the awardee respondents are
mandated to abide by the dictates of the 1987 Constitution the provisions
of which are presumed to be known to all the bidders and other interested
parties.
Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the bidding
rules issued by respondent GSIS, lest the bidding rules be nullified for
being violative of the Constitution. It is a basic principle in constitutional
law that all laws and contracts must conform with the fundamental law of
the land. Those which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer
this to other Qualified Bidders that have validly submitted bids provided
that these Qualified Bidders are willing to match the highest bid in terms
of price per
share. 47 Certainly, the constitutional mandate itself is reason enough not
to award the block of shares immediately to the foreign bidder
notwithstanding its submission of a higher, or even the highest, bid. In
fact, we cannot conceive of a stronger reason than the constitutional
injunction itself.
In the instant case, where a foreign firm submits the highest bid in a
public bidding concerning the grant of rights, privileges and concessions
covering the national economy and patrimony, thereby exceeding the bid
of a Filipino, there is no question that the Filipino will have to be allowed
to match the bid of the foreign entity. And if the Filipino matches the bid of
a foreign firm the award should go to the Filipino. It must be so if we are
to give life and meaning to the Filipino First Policy provision of the 1987
Constitution. For, while this may neither be expressly stated nor
contemplated in the bidding rules, the constitutional fiat is, omnipresent to
be simply disregarded. To ignore it would be to sanction a perilous
skirting of the basic law.
This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the
Philippines are understood to be always open to public scrutiny. These
are given factors which investors must consider when venturing into
business in a foreign jurisdiction. Any person therefore desiring to do
business in the Philippines or with any of its agencies or instrumentalities
is presumed to know his rights and obligations under the Constitution and
the laws of the forum.
The argument of respondents that petitioner is now estopped from
questioning the sale to Renong Berhad since petitioner was well aware
from the beginning that a foreigner could participate in the bidding is
meritless. Undoubtedly, Filipinos and foreigners alike were invited to the
bidding. But foreigners may be awarded the sale only if no Filipino
qualifies, or if the qualified Filipino fails to match the highest bid tendered
by the foreign entity. In the case before us, while petitioner was already
preferred at the inception of the bidding because of the constitutional
mandate, petitioner had not yet matched the bid offered by Renong
Berhad. Thus it did not have the right or personality then to compel
respondent GSIS to accept its earlier bid. Rightly, only after it had
matched the bid of the foreign firm and the apparent disregard by
respondent GSIS of petitioner's matching bid did the latter have a cause
of action.
Besides, there is no time frame for invoking the constitutional safeguard
unless perhaps the award has been finally made. To insist on selling the
Manila Hotel to foreigners when there is a Filipino group willing to match
the bid of the foreign group is to insist that government be treated as any
other ordinary market player, and bound by its mistakes or gross errors of
judgment, regardless of the consequences to the Filipino people. The
miscomprehension of the Constitution is regrettable. Thus we would
rather remedy the indiscretion while there is still an opportunity to do so
than let the government develop the habit of forgetting that the
Constitution lays down the basic conditions and parameters for its
actions.
Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of shares of MHC and to
execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with
the Constitution as well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the bidding rules
after the latter has matched the bid of the Malaysian firm clearly
constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is
embodied in the 1987 Constitution not merely to be used as a guideline
for future legislation but primarily to be enforced; so must it be enforced.
This Court as the ultimate guardian of the Constitution will never shun,
under any reasonable circumstance, the duty of upholding the majesty of
the Constitution which it is tasked to defend. It is worth emphasizing that
it is not the intention of this Court to impede and diminish, much less
undermine, the influx of foreign investments. Far from it, the Court
encourages and welcomes more business opportunities but avowedly
sanctions the preference for Filipinos whenever such preference is
ordained by the Constitution. The position of the Court on this matter
could have not been more appropriately articulated by Chief Justice
Narvasa —
As scrupulously as it has tried to observe that it is not its
function to substitute its judgment for that of the
legislature or the executive about the wisdom and
feasibility of legislation economic in nature, the Supreme
Court has not been spared criticism for decisions
perceived as obstacles to economic progress and
development . . . in connection with a temporary injunction
issued by the Court's First Division against the sale of the
Manila Hotel to a Malaysian Firm and its partner, certain
statements were published in a major daily to the effect
that injunction "again demonstrates that the Philippine
legal system can be a major obstacle to doing business
here.
Let it be stated for the record once again that while it is no
business of the Court to intervene in contracts of the kind
referred to or set itself up as the judge of whether they are
viable or attainable, it is its bounden duty to make sure
that they do not violate the Constitution or the laws, or are
not adopted or implemented with grave abuse of
discretion amounting to lack or excess of jurisdiction. It
will never shirk that duty, no matter how buffeted by winds
of unfair and ill-informed criticism. 48
Privatization of a business asset for purposes of enhancing its business
viability and preventing further losses, regardless of the character of the
asset, should not take precedence over non-material values. A
commercial, nay even a budgetary, objective should not be pursued at
the expense of national pride and dignity. For the Constitution enshrines
higher and nobler non-material values. Indeed, the Court will always
defer to the Constitution in the proper governance of a free society; after
all, there is nothing so sacrosanct in any economic policy as to draw itself
beyond judicial review when the Constitution is involved. 49
Nationalism is inherent, in the very concept of the Philippines being a
democratic and republican state, with sovereignty residing in the Filipino
people and from whom all government authority emanates. In
nationalism, the happiness and welfare of the people must be the goal.
The nation-state can have no higher purpose. Any interpretation of any
constitutional provision must adhere to such basic concept. Protection of
foreign investments, while laudible, is merely a policy. It cannot override
the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of
privatization. We are not talking about an ordinary piece of property in a
commercial district. We are talking about a historic relic that has hosted
many of the most important events in the short history of the Philippines
as a nation. We are talking about a hotel where heads of states would
prefer to be housed as a strong manifestation of their desire to cloak the
dignity of the highest state function to their official visits to the Philippines.
Thus the Manila Hotel has played and continues to play a significant role
as an authentic repository of twentieth century Philippine history and
culture. In this sense, it has become truly a reflection of the Filipino soul
— a place with a history of grandeur; a most historical setting that has
played a part in the shaping of a country. 51
This Court cannot extract rhyme nor reason from the determined efforts
of respondents to sell the historical landmark — this Grand Old Dame of
hotels in Asia — to a total stranger. For, indeed, the conveyance of this
epic exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable
alienation of a nation's soul for some pieces of foreign silver. And so we
ask: What advantage, which cannot be equally drawn from a qualified
Filipino, can be gained by the Filipinos Manila Hotel — and all that it
stands for — is sold to a non-Filipino? How much of national pride will
vanish if the nation's cultural heritage is entrusted to a foreign entity? On
the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and
well-meaning Filipino? This is the plain and simple meaning of the Filipino
First Policy provision of the Philippine Constitution. And this Court,
heeding the clarion call of the Constitution and accepting the duty of
being the elderly watchman of the nation, will continue to respect and
protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL are directed to CEASE and DESIST from selling 51% of the
shares of the Manila Hotel Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL
CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the
necessary clearances and to do such other acts and deeds as may be
necessary for purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima,
Jr., JJ., concur.
Separate Opinions
PADILLA, J., concurring:
I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I
would like to expound a bit more on the concept of national patrimony as
including within its scope and meaning institutions such as the Manila
Hotel.
It is argued by petitioner that the Manila Hotel comes under "national
patrimony" over which qualified Filipinos have the preference, in
ownership and operation. The Constitutional provision on point states:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall Give
preference to qualified Filipinos.1
Petitioner's argument, I believe, is well taken. Under the 1987
Constitution, "national patrimony" consists of the natural resources
provided by Almighty God (Preamble) in our territory (Article I) consisting
of land, sea, and air.2study of the 1935 Constitution, where the concept of
"national patrimony" originated, would show that its framers decided to
adopt the even more comprehensive expression "Patrimony of the
Nation" in the belief that the phrase encircles a concept embracing not
only their natural resources of the country but practically everything that
belongs to the Filipino people, the tangible and the material as well as the
intangible and the spiritual assets and possessions of the people. It is to
be noted that the framers did not stop with conservation. They knew that
conservation alone does not spell progress; and that this may be
achieved only through development as a correlative factor to assure to
the people not only the exclusive ownership, but also the exclusive
benefits of their national patrimony).3
Moreover, the concept of national patrimony has been viewed as
referring not only to our rich natural resources but also to the cultural
heritage of our
race.4
There is no doubt in my mind that the Manila Hotel is very much a part of
our national patrimony and, as such, deserves constitutional protection as
to who shall own it and benefit from its operation. This institution has
played an important role in our nation's history, having been the venue of
many a historical event, and serving as it did, and as it does, as the
Philippine Guest House for visiting foreign heads of state, dignitaries,
celebrities, and others.5
It is therefore our duty to protect and preserve it for future generations of
Filipinos. As President Manuel L. Quezon once said, we must exploit the
natural resources of our country, but we should do so with. an eye to the
welfare of the future generations. In other words, the leaders of today are
the trustees of the patrimony of our race. To preserve our national
patrimony and reserve it for Filipinos was the intent of the distinguished
gentlemen who first framed our Constitution. Thus, in debating the need
for nationalization of our lands and natural resources, one expounded
that we should "put more teeth into our laws, and; not make the
nationalization of our lands and natural resources a subject of ordinary
legislation but of constitutional enactment"6 To quote further: "Let not our
children be mere tenants and trespassers in their own country. Let us
preserve and bequeath to them what is rightfully theirs, free from all
foreign liens and encumbrances".7
Now, a word on preference. In my view "preference to qualified Filipinos",
to be meaningful, must refer not only to things that are peripheral,
collateral, or tangential. It must touch and affect the very "heart of the
existing order." In the field of public bidding in the acquisition of things
that pertain to the national patrimony, preference to qualified Filipinos
must allow a qualified Filipino to match or equal the higher bid of a non-
Filipino; the preference shall not operate only when the bids of the
qualified Filipino and the non-Filipino are equal in which case, the award
should undisputedly be made to the qualified Filipino. The Constitutional
preference should give the qualified Filipino an opportunity to match or
equal the higher bid of the non-Filipino bidder if the preference of the
qualified Filipino bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards
foreign investments in our country, stress is on the elimination of barriers
to foreign trade and investment in the country. While government
agencies, including the courts should re-condition their thinking to such a
trend, and make it easy and even attractive for foreign investors to come
to our shores, yet we should not preclude ourselves from reserving to us
Filipinos certain areas where our national identity, culture and heritage
are involved. In the hotel industry, for instance, foreign investors have
established themselves creditably, such as in the Shangri-La, the Nikko,
the Peninsula, and Mandarin Hotels. This should not stop us from
retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino
people to preserve our national patrimony, including our historical and
cultural heritage in the hands of Filipinos.
VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements,
shared by Mr. Justice Reynato S. Puno in a well written separate
(dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the
grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified
Filipinos"1 is self-executory. The provision verily does not need, although
it can obviously be amplified or regulated by, an enabling law or a set of
rules.
Second, the term "patrimony" does not merely refer to the country's
natural resources but also to its cultural heritage. A "historical landmark,"
to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now
indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a
government entity which derives its authority from the State, in selling
51% of its share in MHC should be considered an act of the State subject
to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I
find it somewhat difficult to take the same path traversed by the forceful
reasoning of Justice Puno. In the particular case before us, the only
meaningful preference, it seems, would really be to allow the qualified
Filipino to match the foreign bid for, as a particular matter, I cannot see
any bid that literally calls for millions of dollars to be at par (to the last
cent) with another. The magnitude of the magnitude of the bids is such
that it becomes hardly possible for the competing bids to stand exactly
"equal" which alone, under the dissenting view, could trigger the right of
preference.
It is most unfortunate that Renong Berhad has not been spared this great
disappointment, a letdown that it did not deserve, by a simple and timely
advise of the proper rules of bidding along with the peculiar constitutional
implications of the proposed transaction. It is also regrettable that the
Court at time is seen, to instead, be the refuge for bureaucratic
inadequate which create the perception that it even takes on non-
justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only way
to enforce the constitutional mandate that "[i]n the grant of rights,
privileges and concessions covering the national patrimony the State
shall give preference to qualified Filipinos"1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the
purchase of the controlling shares of stocks in the Manila Hotel
Corporation. Indeed, it is the only way a qualified Filipino of Philippine
corporation can be given preference in the enjoyment of a right, privilege
or concession given by the State, by favoring it over a foreign national
corporation.
Under the rules on public bidding of the Government Service and
Insurance System, if petitioner and the Malaysian firm had offered the
same price per share, "priority [would be given] to the bidder seeking the
larger ownership interest in MHC,"2 so that petitioner bid for more shares,
it would be preferred to the Malaysian corporation for that reason and not
because it is a Philippine corporation. Consequently, it is only in cases
like the present one, where an alien corporation is the highest bidder, that
preferential treatment of the Philippine corporation is mandated not by
declaring it winner but by allowing it "to match the highest bid in terms of
price per share" before it is awarded the shares of stocks.3 That, to me, is
what "preference to qualified Filipinos" means in the context of this case
— by favoring Filipinos whenever they are at a disadvantage vis-a-
vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute
giving "preference to Filipino citizens in the lease of public market
stalls."5 This Court upheld the cancellation of existing leases covering
market stalls occupied by persons who were not Filipinos and the award
thereafter of the stalls to qualified Filipino vendors as ordered by the
Department of Finance. Similarly, in Vda. de Salgado v. De la
Fuente,6 this Court sustained the validity of a municipal ordinance passed
pursuant to the statute (R.A. No. 37), terminating existing leases of public
market stalls and granting preference to Filipino citizens in the issuance
of new licenses for the occupancy of the stalls. In Chua Lao
v. Raymundo,7 the preference granted under the statute was held to apply
to cases in which Filipino vendors sought the same stalls occupied by
alien vendors in the public markets even if there were available other
stalls as good as those occupied by aliens. "The law, apparently, is
applicable whenever there is a conflict of interest between Filipino
applicants and aliens for lease of stalls in public markets, in which
situation the right to preference immediately arises."8
Our legislation on the matter thus antedated by a quarter of a century
efforts began only in the 1970s in America to realize the promise of
equality, through affirmative action and reverse discrimination programs
designed to remedy past discrimination against colored people in such
areas as employment, contracting and licensing.9 Indeed, in vital areas of
our national economy, there are situations in which the only way to place
Filipinos in control of the national economy as contemplated in the
Constitution 10 is to give them preferential treatment where they can at
least stand on equal footing with aliens.
There need be no fear that thus preferring Filipinos would either invite
foreign retaliation or deprive the country of the benefit of foreign capital or
know-how. We are dealing here not with common trades of common
means of livelihood which are open to aliens in our midst, 11 but with the
sale of government property, which is like the grant of government
largess of benefits and concessions covering the national economy" and
therefore no one should begrudge us if we give preferential treatment to
our citizens. That at any rate is the command of the Constitution. For the
Manila Hotel is a business owned by the Government. It is being
privatized. Privatization should result in the relinquishment of the
business in favor of private individuals and groups who are Filipino
citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to
petitioner we would be trading competence and capability for nationalism.
Both petitioner and the Malaysian firm are qualified, having hurdled the
prequalification process. 12 It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the
highest bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino
bidder to match the highest bid of an alien could encourage speculation,
since all that a Filipino entity would then do would be not to make a bid or
make only a token one and, after it is known that a foreign bidder has
submitted the highest bid, make an offer matching that of the foreign firm.
This is not possible under the rules on public bidding of the GSIS. Under
these rules there is a minimum bid required (P36.87 per share for a range
of 9 to 15 million shares). 13 Bids below the minimum will not be
considered. On the other hand, if the Filipino entity, after passing the
prequalification process, does not submit a bid, he will not be allowed to
match the highest bid of the foreign firm because this is a privilege
allowed only to those who have "validly submitted bids." 14 The suggestion
is, to say the least, fanciful and has no basis in fact.
For the foregoing reasons, I vote to grant the petition.
TORRES, JR., J., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we PREFERENCE TO
are not confronted in the case at bar with legal and constitutional issues QUALIFIED FILIPINOS".
— and yet I am driven so to speak on the side of history. The reason And the word "Filipinos"
perhaps is due to the belief that in the words of Justice Oliver Wendell here, as intended by the
Holmes, Jr., a "page of history is worth a volume of logic." proponents, will include
not only individual Filipinos
I will, however, attempt to share my thoughts on whether the Manila Hotel but also Filipino-Controlled
has a historical and cultural aspect within the meaning of the constitution entities fully controlled by
and thus, forming part of the "patrimony of the nation". Filipinos (Vol. III, Records
of the Constitutional
Section 10, Article XII of the 1987 Constitution provides: Commission, p. 608).

xxx xxx xxx MR. MONSOD. We also

wanted to add, as
Commissioner Villegas
In the grant of rights, privileges, and concessions covering
said, this committee and
the national economy and patrimony, the State shall give
this body already approved
preference to qualified Filipinos.
what is known as the
Filipino First policy which
The State shall regulate and exercise authority over was suggested by
foreign investments within its national goals and priorities. Commissioner de Castro.
So that it is now in our
The foregoing provisions should be read in conjunction with Article II of Constitution (Vol. IV,
the same Constitution pertaining to "Declaration of Principles and State Records of the
Policies" which ordain — Constitutional
Commission, p. 225).
The State shall develop a self-reliant and independent
national economy effectively by Filipinos. (Sec. 19). Commissioner Jose Nolledo explaining the provision
adverted to above, said:
Interestingly, the matter of giving preference to "qualified Filipinos" was
one of the highlights in the 1987 Constitution Commission proceedings MR. NOLLEDO. In the
thus: grant of rights, privileges
and concessions covering
xxx xxx xxx the national economy and
patrimony, the State shall
MR. NOLLEDO. The give preference to qualified
Amendment will read: "IN Filipinos.
THE GRANT OF RIGHTS,
PRIVILEGES AND MR. FOZ. In connection
CONCESSIONS with that amendment, if a
COVERING THE foreign enterprise is
NATIONAL ECONOMY qualified and the Filipinos
AND PATRIMONY, THE enterprise is also qualified,
STATE SHALL GIVE
 will the Filipino enterprise
still be given a preference?
MR. NOLLEDO.
Obviously.
MR. FOZ. If the foreigner
is more qualified in some
aspects than the Filipino
enterprise, will the Filipino
still be preferred:?
MR. NOLLEDO. The
answer is "yes". (Vol. III, p.
616, Records of the
Constitutional
Commission).
The nationalistic provisions of the 1987 Constitution reflect the history
and spirit of the Malolos Constitution of 1898, the 1935 Constitution and
the 1973 Constitutions. That we have no reneged on this nationalist
policy is articulated in one of the earliest case, this Court said —
The nationalistic tendency is manifested in various
provisions of the Constitution. . . . It cannot therefore be
said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is
unreasonable, invalid or unconstitutional (Ichong, et al. vs.
Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are
not legislated and is the product of events, customs, usages and
practices. It is actually a product of growth and acceptance by the
collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of
the Manila Hotel is witness to historic events (too numerous to mention)
which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the
single instances of the legal largese which have given rise to this
controversy. As I believe that has been exhaustively discussed in
the ponencia. Suffice it to say at this point that the history of the Manila
Hotel should not be placed in the auction block of a purely business
transaction, where profits subverts the cherished historical values of our
people.
As a historical landmark in this "Pearl of the Orient Seas", it has its
enviable tradition which, in the words of the philosopher Salvador de
Madarriaga tradition is "more of a river than a stone, it keeps flowing, and
one must view the flowing , and one must view the flow of both directions.
If you look towards the hill from which the river flows, you see tradition in
the form of forceful currents that push the river or people towards the
future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the
kind of tradition. Let us not jettison the tradition of the Manila Hotel and
thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different
lights.
I remember, however, a Spanish proverb which says — "He is always
right who suspects that he makes mistakes". On this note, I say that if I
have to make a mistake, I would rather err upholding the belief that the
Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.
PUNO, J., dissenting:
This is a. petition for prohibition and mandamus filed by the Manila Prince
Hotel Corporation, a domestic corporation, to stop the Government
Service Insurance System (GSIS) from selling the controlling shares of
the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the
Constitution.
Respondent GSIS is a government-owned and controlled corporation. It
is the sole owner of the Manila Hotel which it operates through its
subsidiary, the Manila Hotel Corporation. Manila Hotel was included in
the privatization program of the government. In 1995, GSIS proposed to
sell to interested buyers 30% to 51% of its shares, ranging from
9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After
the absence of bids at the first public bidding, the block of shares offered The Winning Bidder/Strategic Partner will
for sale was increased from a maximum of 30% to 51%. Also, the winning be expected to provide management
bidder, or the eventual "strategic partner" of the GSIS was required to expertise and/or an international
"provide management expertise and/or an international marketing reservation system, and
marketing/reservation system, and financial support to strengthen the financial support to strengthen the
profitability and performance of the Manila Hotel"1 The proposal was profitability and performance of The
approved by respondent Committee on Privatization. Manila Hotel. In this context, the GSIS is
inviting to the prequalification process any
In July 1995, a conference was held where prequalification documents local and/or foreign corporation,
and the bidding rules were furnished interested parties. Petitioner Manila consortium/joint venture or juridical entity
Prince Hotel, a domestic corporation, and Renong Berhad, Malaysian with at least one of the following
firm with ITT Sheraton as operator, prequalified.2 qualifications:

The bidding rules and procedures entitled "Guidelines and Procedures: a. Proven management
Second Prequalification and Public Bidding of the MHC Privatization" .expertise in the hotel
provide: industry; or

I INTRODUCTION AND HIGHLIGHTS b. Significant equity

ownership (i.e. board
DETERMINING THE WINNING BIDDER/STRATEGIC representation) in another
PARTNER hotel company; or

The party that accomplishes the steps set forth below will c. Overall management
be declared the Winning Bidder/Strategic Partner and will and marketing expertise to
be awarded the Block of Shares: successfully operate the
Manila Hotel.
First — Pass the prequalification process;
Parties interested in bidding for MHC
should be able to provide access to the
Second — Submit the highest bid on a price per share
requisite management expertise and/or
basis for the Block of Shares;
international marketing/reservation system
for The Manila Hotel.
Third — Negotiate and execute the necessary contracts
with GSIS/MHC not later than October 23, 1995;
xxx xxx xxx
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
IV GUIDELINES FOR PREQUALIFICATION
xxx xxx xxx
A. PARTIES WHO MAP APPLY FOR
E. APPLICATION PROCEDURE
PREQUALIFICATION
1. DOCUMENTS AVAILABLE AT THE
REGISTRATION OFFICE
 The prequalification documents can be
secured at the Registration Office
between 9:00 AM to 4:00 PM during
working days within the period specified in
Section III. Each set of documents
consists of the following:
a. Guidelines and
Procedures: Second
Prequalification and Public
Bidding of the MHC
Privatization
b. Confidential Information
Memorandum: The Manila
Hotel Corporation
c. Letter of Invitation. to
the Prequalification and
Bidding Conference
xxx xxx xxx
between 9:00 AM to 4:00 PM during
working days within the period specified in
Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be
evaluated by the PBAC
with the assistance of the
TEC based on the
Information Package and
other information available
to the PBAC.
2. If the Applicant is a
Consortium/Joint Venture,
the evaluation will consider
the overall qualifications of
the group, taking into
account the contribution of
each member to the
venture.

4. PREQUALIFICATION AND BIDDING CONFERENCE 3. The decision of the

PBAC with respect to the
A prequalification and bidding conference results of the PBAC
will be held at The Manila Hotel on the evaluation will be final.
date specified in Section III to allow the
Applicant to seek clarifications and further 4. The Applicant shall be
information regarding the guidelines and evaluated according to the
procedures. Only those who purchased criteria set forth below:
the prequalification documents will be
allowed in this conference. Attendance to a. Business
this conference is strongly advised, manageme
although the Applicant will not be nt
penalized if it does not attend. expertise,
track
5. SUBMISSION OF PREQUALIFICATION record, and
DOCUMENTS experience

The applicant should submit 5 sets of the b. Financial

prequalification documents (1 original set capability.
plus 4 copies) at the Registration Office
 c.
Feasibility
and
acceptabilit
y of the
proposed
strategic
plan for the
Manila
Hotel
5. The PBAC will shortlist such number of
Applicants as it may deem appropriate.
6. The parties that prequalified in the first
MHC public bidding — ITT Sheraton,
Marriot International Inc., Renaissance
Hotels International Inc., consortium of
RCBC Capital/Ritz Carlton — may
participate in the Public Bidding without
having to undergo the prequalification
process again.
G. SHORTLIST OF QUALIFIED
BIDDERS
1. A notice of prequalification results
containing the shortlist of Qualified
Bidders will be posted at the Registration
Office at the date specified in Section III.
2. In the case of a Consortium/Joint
Venture, the withdrawal by member
whose qualification was a material
consideration for being included in the
shortlist is ground for disqualification of
the Applicant.
V. GUIDELINES FOR THE PUBLIC
BIDDING
A. PARTIES WHO MAY PARTICIPATE IN
THE PUBLIC BIDDING
All parties in the shortlist of Qualified
Bidders will be eligible to participate in the
Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to
Fifteen Million Three Hundred Thousand
(15,300,000) shares of stock representing
Thirty Percent to Fifty-One Percent (30%-
51%) of the issued and outstanding
shares of MHC, will be offered in the
Public Bidding by the GSIS. The Qualified
Bidders will have the Option of
determining the number of shares within
the range to bid for. The range is intended
to attract bidders with different
preferences and objectives for the
operation and management of The Manila
Hotel.
C. MINIMUM BID REQUIRED ON A
PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per
share basis. The minimum bid required on
a price per share basis for the Block of
Shares is Thirty-Six Pesos and Sixty-
Seven Centavos (P36.67).
2. Bids should be in the Philippine
currency payable to the GSIS.
3. Bids submitted with an equivalent price
per share below the minimum required will
not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the 2. BID SECURITY
prescribed Official Bid Form, a copy of
which is attached as Annex IV. The a. The Qualified Bidder should deposit
Official Bid Form must be properly Thirty-Three Million Pesos (P33,000,00),
accomplished in all details; improper in Philippine currency as Bid Security in
accomplishment may be a sufficient basis the form of:
for disqualification.
i. Manager's check or
2. During the Public Bidding, the Qualified unconditional demand
Bidder will submit the Official Bid Form, draft payable to the
which will indicate the offered purchase "Government Service
price, in a sealed envelope marked Insurance System" and
"OFFICIAL BID." issued by a reputable
banking institution duly
F. SUPPORTING DOCUMENTS licensed to do business in
the Philippines and
During the Public Bidding, the following acceptable to GSIS; or
documents should be submitted along
with the bid in a separate envelop marked ii. Standby-by letter of
"SUPPORTING DOCUMENTS": credit issued by a
reputable banking
1. WRITTEN AUTHORITY TO BID institution acceptable to
(UNDER OATH). the GSIS.

If the Qualified Bidder is a corporation, the
representative of the Qualified Bidder
should submit a Board resolution which
adequately authorizes such representative
to bid for and in behalf of the corporation
with full authority to perform such acts
necessary or requisite to bind the
Qualified Bidder.
If the Qualified Bidder is a
Consortium/Joint Venture, each member
of the Consortium/Joint venture should
submit a Board resolution authorizing one
of its members and such member's
representative to make the bid on behalf
of the group with full authority to perform
such acts necessary or requisite to bind
the Qualified Bidder.
b. The GSIS will reject a bid if:
i. The bid does not have
Bid Security; or
ii. The Bid Security
accompanying the bid is
for less than the required
amount.
c. If the Bid Security is in the form of a
manager's check or unconditional demand
draft, the interest earned on the Bid
Security will be for the account of GSIS.
d. If the Qualified Bidder becomes the
winning Bidder/Strategic Partner, the Bid
Security will be applied as the
downpayment on the Qualified Bidder's
offered purchase price.
e. The Bid Security of the Qualified Bidder
will be returned immediately after the
Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by
October 23, 1995 if the Highest Bidder is
unable to negotiate and execute with
GSIS/MHC the Management Contract,
International Marketing/Reservation
System Contract or other types of contract
specified by the Highest Bidder in its
strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder
will be forfeited in favor of GSIS if the
Highest Bidder, after negotiating and
executing the Management Contract,
International Marketing/Reservation
System Contract specified by the Highest
Bidder or other types of contract in its
strategic plan for The Manila Hotel, fails or
refuses to:
i. Execute the Stock
Purchase and Sale
Agreement with GSIS not
later than October 23,
1995; or
ii. Pay the full amount of
the offered purchase price
not later than October 23,
1995; or
iii. Consummate the sale
of the Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on
September 7, 1995 at the following
location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro
Manila.
2. The Secretariat of the PBAC will be
stationed at the Public Bidding to accept
any and all bids and supporting
requirements. Representatives from the
Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its
bid using the Official Bid Form. The
accomplished Official Bid Form should be
submitted in a sealed envelope marked
"OFFICIAL BID."
4. The Qualified Bidder should submit the
following documents in another sealed
envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked
"OFFICIAL BID" and "SUPPORTING BID
DOCUMENTS" must be submitted
simultaneously to the Secretariat between
9:00 AM and 2:00 PM, Philippine
Standard Time, on the date of the Public
Bidding. No bid shall be accepted after the
closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the
actual time of submission of the two
sealed envelopes. The actual time of 5. The Public Bidding will be declared a
submission will also be indicated by the failed bidding in case:
Secretariat on the face of the two
envelopes. a. No single bid is
submitted within the
7. After Step No. 6, the two sealed prescribed period; or
envelopes will be dropped in the
corresponding bid boxes provided for the b. There is only one (1) bid
purpose. These boxes will be in full view that is submitted and
of the invited public. acceptable to the PBAC.

H. OPENING AND READING OF BIDS I. EXECUTION OF THE NECESSARY

CONTRACTS WITH GSIS/MHC
1. After the closing time of 2:00 PM on the
date of the Public Bidding, the PBAC will 1. The Highest Bidder must comply with
open all sealed envelopes marked the conditions set forth below by October
"SUPPORTING BID DOCUMENTS" for 23, 1995 or the Highest Bidder will lose
screening, evaluation and acceptance. the right to purchase the Block of Shares
Those who submitted and GSIS will instead offer the Block of
incomplete/insufficient documents or Shares to the other Qualified Bidders:
document/s which is/are not substantially
in the form required by PBAC will be a. The Highest Bidder
disqualified. The envelope containing their must negotiate and
Official Bid Form will be immediately execute with GSIS/MHC
returned to the disqualified bidders. the Management Contract,
International Marketing
2. The sealed envelopes marked Reservation System
"OFFICIAL BID" will be opened at 3:00 Contract or other type of
PM. The name of the bidder and the contract specified by the
amount of its bid price will be read publicly Highest Bidder in its
as the envelopes are opened. strategic plan for The
Manila Hotel. If the Highest
3. Immediately following the reading of the Bidder is intending to
bids, the PBAC will formally announce the provide only financial
highest bid and the Highest Bidder. support to The Manila
Hotel, a separate
4. The highest bid will be, determined on institution may enter into
a price per share basis. In the event of a the aforementioned
tie wherein two or more bids have the contract/s with GSIS/MHC.
same equivalent price per share, priority
will be given to the bidder seeking the b. The Highest Bidder
larger ownership interest in MHC. must execute the Stock
Purchase and Sale
 Agreement with GSIS, a
copy of which will be
distributed to each of the
Qualified Bidder after the
prequalification process is
completed.
2. In the event that the Highest Bidder
chooses a Management Contract for The
Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC
are prepared to accept in the
Management Contract are as follows:
a. Basic management fee:
Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum
of 8.0% of gross operating
profit(1) after deducting
undistributed overhead
expenses and the basic
management fee.
c. Fixed component of the
international
marketing/reservation
system fee: Maximum of
2.0% of gross room
revenues.(1) The Applicant
should indicate in its
Information Package if it is
wishes to charge this fee.
Note (1): As defined in the uniform system
of account for hotels.
The GSIS/MHC have indicated above the
acceptable parameters for the hotel
management fees to facilitate the
negotiations with the Highest Bidder for
the Management Contract after the Public
Bidding.
A Qualified Bidder envisioning a
Management Contract for The Manila
Hotel should determine whether or not the
management fee structure above is
acceptable before submitting their
prequalification documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder
cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified
Bidders that have validly submitted bids
provided that these Qualified are willing to
match the highest bid in terms of price per
share.
2. The order of priority among the
interested Qualified Bidders will be in
accordance wit the equivalent price per
share of their respective bids in their
public Bidding, i.e., first and second
priority will be given to the Qualified
Bidders that submitted the second and
third highest bids on the price per
share basis, respectively, and so on.
K. DECLARATION OF THE WINNING
BIDDER/STRATEGIC PARTNER
The Highest Bidder will be declared the
Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the
necessary contract with
GSIS/MHC not later than
October 23, 1995; and
 b. Requisite approvals
from the GSIS/MHC and
COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF
SHARES
1. Upon execution of the necessary
contracts with GSIS/MHC, the Winning
Bidder/Strategic Partner must fully pay,
not later than October 23, 1995, the
offered purchase price for the Block of
Shares after deducting the Bid Security
applied as downpayment.
2. All payments should be made in the
form of a Manager's Check or
unconditional Demand Draft, payable to
the "Government Service Insurance
System," issued by a reputable banking
institution licensed to do business in the
Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the
right to reject any or all applications, waive
any formality therein, or accept such
application as maybe considered most
advantageous to the GSIS. The GSIS
similarly reserves the right to require the
submission of any additional information
from the Applicant as the PBAC may
deem necessary.
2. The GSIS further reserves the right to
call off the Public Bidding prior to
acceptance of the bids and call for a new
public bidding under amended rules, and
without any liability whatsoever to any or
all the Qualified Bidders, except the
obligation to return the Bid Security.
3. The GSIS reserves the right to reset the
date of the prequalification/bidding
conference, the deadline for the
submission of the prequalification
documents, the date of the Public Bidding
or other pertinent activities at least three
(3) calendar days prior to the respective
deadlines/target dates.
4. The GSIS sells only whatever rights,
interest and participation it has on the
Block of Shares.
5. All documents and materials submitted
by the Qualified Bidders, except the Bid
Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the
results of the Public Bidding is final. The
Qualified Bidders, by participating in the
Public Bidding, are deemed to have
agreed to accept and abide by these
results.
7. The GSIS will be held free and
harmless form any liability, suit or
allegation arising out of the Public Bidding
by the Qualified Bidders who have
participated in the Public Bidding.3
The second public bidding was held on September 18, 1995. Petitioner
bidded P41.00 per share for 15,300,000 shares and Renong Berhad
bidded P44.00 per share also for 15,300,000 shares. The GSIS declared
Renong Berhad the highest bidder and immediately returned petitioner's
bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to
GSIS offering to match the bid price of Renong Berhad. It requested that
the award be made to itself citing the second paragraph of Section 10,
Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong
Berhad the terms and conditions of the contract and technical
agreements in the operation of the hotel, refused to entertain petitioner's
request.
Hence, petitioner filed the present petition. We issued a temporary
restraining order on October 18, 1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section
10 of the Constitution4 on the "National Economy and Patrimony" which
provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the
Constitution is a self-executing provision and does not
need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-
executing whether the controlling shares of the Manila
Hotel Corporation form part of our patrimony as a nation;
(3) Whether GSIS is included in the term "State," hence,
mandated to implement section 10, paragraph 2 of Article
XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to
give preference to petitioner, a qualified Filipino
corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the
Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the
sale of the shares to Renong Berhad, a foreign
corporation.
Anent the first issue, it is now familiar learning that a Constitution
provides the guiding policies and principles upon which is built the
substantial foundation and general framework of the law and
government.5 As a rule, its provisions are deemed self-executing and can
be enforced without further legislative action.6 Some of its provisions,
however, can be implemented only through appropriate laws enacted by
the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-
executing is a hard row to hoe. The key lies on the intent of the framers of
the fundamental law oftentimes submerged in its language. A searching
inquiry should be made to find out if the provision is intended as a
present enactment, complete in itself as a definitive law, or if it needs
future legislation for completion and enforcement.7 The inquiry demands a
micro-analysis of the text and the context of the provision in question.8
Courts as a rule consider the provisions of the Constitution as self-
executing,9 rather than as requiring future legislation for their
enforcement. 10 The reason is not difficult to discern. For if they are not
treated as self-executing, the mandate of the fundamental law ratified by
the sovereign people can be easily ignored and nullified by
Congress. 11 Suffused with wisdom of the ages is the unyielding rule that
legislative actions may give breath to constitutional rights but
congressional in action should not suffocate them. 12
Thus, we have treated as self-executing the provisions in the Bill of
Rights on arrests, searches and seizures, 13 the rights of a person under
custodial investigation, 14 the rights of an accused, 15 and the privilege
against self-incrimination, 16 It is recognize a that legislation is
unnecessary to enable courts to effectuate constitutional provisions
guaranteeing the fundamental rights of life, liberty and the protection of
property. 17 The same treatment is accorded to constitutional provisions
forbidding the taking or damaging of property for public use without just
compensation.18
Contrariwise, case law lays down the rule that a constitutional provision is
not self-executing where it merely announces a policy and its language
empowers the Legislature to prescribe the means by which the policy
shall be carried into effect. 19 Accordingly, we have held that the
provisions in Article II of our Constitution entitled "Declaration of
Principles and State Policies" should generally be construed as mere
statements of principles of the State. 20 We have also ruled that some
provisions of Article XIII on "Social Justice and Human Rights," 21 and
Article XIV on "Education Science and Technology, Arts, Culture end
Sports" 22 cannot be the basis of judicially enforceable rights. Their
enforcement is addressed to the discretion of Congress though they
provide the framework for legislation 23 to effectuate their policy content. 24
Guided by this map of settled jurisprudence, we now consider whether
Section 10, Article XII of the 1987 Constitution is self-executing or not. It
reads:
Sec. 10. The Congress shall, upon recommendation of
the economic and planning agency, when the national
interest dictates, reserve to citizens of the Philippines or
to corporations or associations at least sixty per centum of
whose capital is owned by such citizens, or such higher
percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will
encourage the formation and operation of enterprises
whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos.
The State shall regulate and exercise authority over
foreign investments within its national jurisdiction and in
accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of
investments in the country 25 to Filipino citizens or to corporations
sixty per
cent 26 of whose capital stock is owned by Filipinos. It further
commands Congress to enact laws that will encourage the
formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders
the entire State to give preference to qualified Filipinos in the
grant of rights and privileges covering the national economy and
patrimony. The third paragraph also directs the State to regulate
foreign investments in line with our national goals and well-set
priorities.
The first paragraph of Section 10 is not self-executing. By its
express text, there is a categorical command for Congress to
enact laws restricting foreign ownership in certain areas of
investments in the country and to encourage the formation and
operation of wholly-owned Filipino enterprises. The right granted
by the provision is clearly still in esse. Congress has to breathe
life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973
Constitution. 27 The provision in the 1973 Constitution affirmed our
ruling in the landmark case of Lao Ichong v. Hernandez, 28where
we upheld the discretionary authority of Congress to Filipinize
certain areas of investments. 29 By reenacting the 1973 provision,
the first paragraph of section 10 affirmed the power of Congress
to nationalize certain areas of investments in favor of Filipinos.
The second and third paragraphs of Section 10 are different. They are
directed to the State and not to Congress alone which is but one of the
three great branches of our government. Their coverage is also broader
for they cover "the national economy and patrimony" and "foreign
investments within [the] national jurisdiction" and not merely "certain
areas of investments." Beyond debate, they cannot be read as granting
Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges
covering our national economy and patrimony. Their language does not
suggest that any of the State agency or instrumentality has the privilege
to hedge or to refuse its implementation for any reason whatsoever. Their
duty to implement is unconditional and it is now. The second and the third
paragraphs of Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled
"Declaration of Principles and State Policies." Its Section 19 provides that
"[T]he State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos." It engrafts the all-important
Filipino First policy in our fundamental law and by the use of the
mandatory word "shall," directs its enforcement by the whole State
without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the
Manila Hotel Corporation involves the disposition of part of our national
patrimony. The records of the Constitutional Commission show that the
Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural
resources but also to the cultural heritage of our race. 30 By this yardstick,
the sale of Manila Hotel falls within the coverage of the constitutional
provision giving preferential treatment to qualified Filipinos in the grant of
rights involving our national patrimony. The unique value of the Manila
Hotel to our history and culture cannot be viewed with a myopic eye. The
value of the hotel goes beyond pesos and centavos. As chronicled by
Beth Day Romulo, 31 the hotel first opened on July 4, 1912 as a first-class
hotel built by the American Insular Government for Americans living in, or
passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For
sometime, it was exclusively used by American and Caucasian travelers
and served as the "official guesthouse" of the American Insular
Government for visiting foreign dignitaries. Filipinos began coming to the
Hotel as guests during the Commonwealth period. When the Japanese
occupied Manila, it served as military headquarters and lodging for the
highest-ranking officers from Tokyo. It was at the Hotel and the
Intramuros that the Japanese made their last stand during the Liberation
of Manila. After the war, the Hotel again served foreign guests and
Filipinos alike. Presidents and kings, premiers and potentates, as well as
glamorous international film and sports celebrities were housed in the
Hotel. It was also the situs of international conventions and conferences.
In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues
reaping numerous recognitions and awards from international hotel and
travel award-giving bodies, a fitting acknowledgment of Filipino talent and
ingenuity. These are judicially cognizable facts which cannot be bent by a
biased mind.
The Hotel may not, as yet, have been declared a national cultural
treasure pursuant to Republic Act No. 4846 but that does not exclude it
from our national patrimony. Republic Act No. 4846, "The Cultural
Properties Preservation and Protection Act," merely provides a procedure
whereby a particular cultural property may be classified a "national
cultural treasure" or an "important cultural property. 32 Approved on June
18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
and cannot be read as the exclusive law implementing section 10, Article
XII of the 1987 Constitution. To be sure, the law does not equate cultural
treasure and cultural property as synonymous to the phrase "patrimony of
the nation."
The third issue is whether the constitutional command to the State
includes the respondent GSIS. A look at its charter will reveal that GSIS
is a government-owned and controlled corporation that administers funds
that come from the monthly contributions of government employees and
the government. 33 The funds are held in trust for a distinct purpose which
cannot be disposed of indifferently. 34 They are to be used to finance the
retirement, disability and life insurance benefits of the employees and the
administrative and operational expenses of the GSIS, 35Excess funds,
however, are allowed to be invested in business and other ventures for
the benefit of the employees.36 It is thus contended that the GSIS
investment in the Manila Hotel Corporation is a simple business venture,
hence, an act beyond the contemplation of section 10, paragraph 2 of
Article XII of the Constitution.
The submission is unimpressive. The GSIS is not a pure private
corporation. It is essentially a public corporation created by Congress and
granted an original charter to serve a public purpose. It is subject to the
jurisdictions of the Civil Service Commission 37 and the Commission on
Audit. 38 As state-owned and controlled corporation, it is skin-bound to
adhere to the policies spelled out in the general welfare of the people.
One of these policies is the Filipino First policy which the people elevated
as a constitutional command.
The fourth issue demands that we look at the content of phrase "qualified
Filipinos" and their "preferential right." The Constitution desisted from
defining their contents. This is as it ought to be for a Constitution only
lays down flexible policies and principles which can bent to meet today's
manifest needs and tomorrow's unmanifested demands. Only a
constitution strung with elasticity can grow as a living constitution.
Thus, during the deliberations in the Constitutional Commission,
Commissioner Nolledo to define the phrase brushed aside a suggestion
to define the phrase "qualified Filipinos." He explained that present and
prospective "laws" will take care of the problem of its interpretation, viz:
xxx xxx xxx
THE PRESIDENT. What is
the suggestion of
Commissioner Rodrigo? Is
it to remove the word
"QUALIFIED?"
MR. RODRIGO. No, no,
but say definitely "TO
QUALIFIED FILIPINOS"
as against whom? As
against aliens over aliens?
 MR. NOLLEDO. Madam
President, I think that is
understood. We use the
word "QUALIFIED"
because the existing laws
or the prospective laws will
always lay down
conditions under which
business map be done, for
example, qualifications on
capital, qualifications on
the setting up of other
financial structures, et
cetera.
MR. RODRIGO. It is just a
matter of style.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say,
"PREFERENCE TO
QUALIFIED FILIPINOS," it
can be understood as
giving preference to
qualified Filipinos as
against Filipinos who are
not qualified.
MR. NOLLEDO. Madam
President, that was the
intention of the
proponents. The
committee has accepted
the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce
the Filipino First policy is addressed to the State and not to
Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which
include applicable rules and regulations adopted by agencies and
instrumentalities of the State in the exercise of their rule-making
power. In the case at bar, the bidding rules and regulations set
forth the standards to measure the qualifications of bidders
Filipinos and foreigners alike. It is not seriously disputed that
petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which
GSIS should have accorded petitioner, a qualified Filipino, over Renong
Berhad, a foreigner, in the purchase of the controlling shares of the
Manila Hotel. Petitioner claims that after losing the bid, this right of
preference gives it a second chance to match the highest bid of Renong
Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from
the premise that the second paragraph of section 10, Article XII of the
Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for it gives
preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions
covering the national economy and patrimony. Indeed, in the absence of
qualified Filipinos, the State is not prohibited from granting these rights,
privileges and concessions to foreigners if the act will promote the weal of
the nation.
In implementing the policy articulated in section 10, Article XII of the
Constitution, the stellar task of our State policy-makers is to maintain a
creative tension between two desiderata — first, the need to develop our
economy and patrimony with the help of foreigners if necessary, and,
second, the need to keep our economy controlled by Filipinos. Rightfully,
the framers of the Constitution did not define the degree of the right of
preference to be given to qualified Filipinos. They knew that for the right
to serve the general welfare, it must have a malleable content that can be
adjusted by our policy-makers to meet the changing needs of our people.
In fine, the right of preference of qualified Filipinos is to be determined by
degree as time dictates and circumstances warrant. The lesser the need
for alien assistance, the greater the degree of the right of preference can
be given to Filipinos and vice verse.
Again, it should be stressed that the right and the duty to determine the
degree of this privilege at any given time is addressed to the entire State.
While under our constitutional scheme, the right primarily belongs to
Congress as the lawmaking department of our government, other
branches of government, and all their agencies and instrumentalities,
share the power to enforce this state policy. Within the limits of their
authority, they can act or promulgate rules and regulations defining the
degree of this right of preference in cases where they have to make
grants involving the national economy and judicial duty. On the other
hand, our duty is to strike down acts of the state that violate the policy.
To date, Congress has not enacted a law defining the degree of the
preferential right. Consequently, we must turn to the rules and regulations
of on respondents Committee Privatization and GSIS to determine the
degree of preference that petitioner is entitled to as a qualified Filipino in
the subject sale. A tearless look at the rules and regulations will show
that they are silent on the degree of preferential right to be accorded
qualified Filipino bidder. Despite their silence, however, they cannot be
read to mean that they do not grant any degree of preference to petitioner
for paragraph 2, section 10, Article XII of the Constitution is deemed part
of said rules and regulations. Pursuant to legal hermeneutics which
demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid
of Benong Berhad. In that instance, all things stand equal, and bidder, as
a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner
has a right to match the bid of Renong Berhad. Petitioner's submission
must be supported by the rules but even if we examine the rules inside-
out .thousand times, they can not justify the claimed right. Under the
rules, the right to match the highest bid arises only "if for any reason, the
highest bidder cannot be awarded block of shares . . ." No reason has
arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest
bid. It was declared as the highest bidder by the GSIS and the rules say
this decision is final. It deserves the award as a matter of right for the
rules clearly did not give to the petitioner as a qualified Filipino privilege
to match the higher bid of a foreigner. What the rules did not grant,
petitioner cannot demand. Our symphaties may be with petitioner but the
court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of
preference depend on galaxy of facts and factors whose determination
belongs to the province of the policy-making branches and agencies of
the State. We are duty-bound to respect that determination even if we
differ with the wisdom of their judgment. The right they grant may be little
but we must uphold the grant for as long as the right of preference is not
denied. It is only when a State action amounts to a denial of the right that
the Court can come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid
of Renong Berhad. Petitioner was aware of the rules and regulations of
the bidding. It knew that the rules and regulations do not provide that a
qualified Filipino bidder can match the winning bid submitting an inferior
bid. It knew that the bid was open to foreigners and that foreigners
qualified even during the first bidding. Petitioner cannot be allowed to
repudiate the rules which it agreed to respect. It cannot be allowed to
obey the rules when it wins and disregard them when it loses. If
sustained, petitioners' stance will wreak havoc on he essence of bidding.
Our laws, rules and regulations require highest bidding to raise as much
funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged
by Filipinos and foreigners participating in a bidding contest and the rules
are carefully written to attain this objective. Among others, bidders are
prequalified to insure their financial capability. The bidding is secret and
the bids are sealed to prevent collusion among the parties. This objective
will be undermined if we grant petitioner that privilege to know the
winning bid and a chance to match it. For plainly, a second chance to bid
will encourage a bidder not to strive to give the highest bid in the first
bidding.
We support the Filipino First policy without any reservation. The visionary
nationalist Don Claro M. Recto has warned us that the greatest tragedy
that can befall a Filipino is to be an alien in his own land. The Constitution
has embodied Recto's counsel as a state policy. But while the Filipino
First policy requires that we incline to a Filipino, it does not demand that
we wrong an alien. Our policy makers can write laws and rules giving
favored treatment to the Filipino but we are not free to be unfair to a
foreigner after writing the laws and the rules. After the laws are written,
they must be obeyed as written, by Filipinos and foreigners alike. The
equal protection clause of the Constitution protects all against unfairness.
We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.
PANGANIBAN, J., dissenting:
I regret I cannot join the majority. To the incisive Dissenting Opinion of
Mr. Justice Reynato S. Puno, may I just add
1. The majority contends the Constitution should be interpreted to mean
that, after a bidding process is concluded, the losing Filipino bidder
should be given the right to equal the highest foreign bid, and thus to win.
However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the
grant of rights . . . covering the national economy and patrimony, the
State shall give preference to qualified Filipinos." The majority concedes
that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to
increase his bid and equal that of the winning foreigner. In the absence of
such empowering law, the majority's strained interpretation, I respectfully
submit constitutes unadulterated judicial legislation, which makes bidding
a ridiculous sham where no Filipino can lose and where no foreigner can
win. Only in the Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-
sighted and, viewed properly, gravely prejudicial to long-term Filipino
interest. It encourages other countries — in the guise of reverse comity or
worse, unabashed retaliation — to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and
defeat the higher bids of Filipino enterprises solely, while on the other
hand, allowing similar bids of other foreigners to remain unchallenged by
their nationals. The majority's thesis will thus marginalize Filipinos as
pariahs in the global marketplace with absolute no chance of winning any
bidding outside our country. Even authoritarian regimes and hermit
kingdoms have long ago found out unfairness, greed and isolation are
self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont
want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino
First" policy of the Constitution, the constitutional preference for the
"qualified Filipinos" may be allowed only where all the bids are equal. In
this manner, we put the Filipino ahead without self-destructing him and
without being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only
when the scores are tied. But not when the ballgame is over and the
foreigner clearly posted the highest score.
Separate Opinions
PADILLA, J., concurring:
I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I
would like to expound a bit more on the concept of national patrimony as
including within its scope and meaning institutions such as the Manila
Hotel.
It is argued by petitioner that the Manila Hotel comes under "national
patrimony" over which qualified Filipinos have the preference, in
ownership and operation. The Constitutional provision on point states:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall Give
preference to qualified Filipinos.1
Petitioner's argument, I believe, is well taken. Under the 1987
Constitution, "national patrimony" consists of the natural resources
provided by Almighty God (Preamble) in our territory (Article I) consisting
of land, sea, and air.2study of the 1935 Constitution, where the concept of
"national patrimony" originated, would show that its framers decided to
adopt the even more comprehensive expression "Patrimony of the
Nation" in the belief that the phrase encircles a concept embracing not
only their natural resources of the country but practically everything that
belongs to the Filipino people, the tangible and the material as well as the
intangible and the spiritual assets and possessions of the people. It is to
be noted that the framers did not stop with conservation. They knew that
conservation alone does not spell progress; and that this may be
achieved only through development as a correlative factor to assure to
the people not only the exclusive ownership, but also the exclusive
benefits of their national patrimony).3
Moreover, the concept of national patrimony has been viewed as
referring not only to our rich natural resources but also to the cultural
heritage of our
race.4
There is no doubt in my mind that the Manila Hotel is very much a part of
our national patrimony and, as such, deserves constitutional protection as
to who shall own it and benefit from its operation. This institution has
played an important role in our nation's history, having been the venue of
many a historical event, and serving as it did, and as it does, as the
Philippine Guest House for visiting foreign heads of state, dignitaries,
celebrities, and others.5
It is therefore our duty to protect and preserve it for future generations of
Filipinos. As President Manuel L. Quezon once said, we must exploit the
natural resources of our country, but we should do so with. an eye to the
welfare of the future generations. In other words, the leaders of today are
the trustees of the patrimony of our race. To preserve our national
patrimony and reserve it for Filipinos was the intent of the distinguished
gentlemen who first framed our Constitution. Thus, in debating the need
for nationalization of our lands and natural resources, one expounded
that we should "put more teeth into our laws, and; not make the
nationalization of our lands and natural resources a subject of ordinary
legislation but of constitutional enactment"6 To quote further: "Let not our
children be mere tenants and trespassers in their own country. Let us
preserve and bequeath to them what is rightfully theirs, free from all
foreign liens and encumbrances".7
Now, a word on preference. In my view "preference to qualified Filipinos",
to be meaningful, must refer not only to things that are peripheral,
collateral, or tangential. It must touch and affect the very "heart of the
existing order." In the field of public bidding in the acquisition of things
that pertain to the national patrimony, preference to qualified Filipinos
must allow a qualified Filipino to match or equal the higher bid of a non-
Filipino; the preference shall not operate only when the bids of the
qualified Filipino and the non-Filipino are equal in which case, the award
should undisputedly be made to the qualified Filipino. The Constitutional
preference should give the qualified Filipino an opportunity to match or
equal the higher bid of the non-Filipino bidder if the preference of the
qualified Filipino bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards
foreign investments in our country, stress is on the elimination of barriers
to foreign trade and investment in the country. While government
agencies, including the courts should re-condition their thinking to such a
trend, and make it easy and even attractive for foreign investors to come
to our shores, yet we should not preclude ourselves from reserving to us
Filipinos certain areas where our national identity, culture and heritage
are involved. In the hotel industry, for instance, foreign investors have
established themselves creditably, such as in the Shangri-La, the Nikko,
the Peninsula, and Mandarin Hotels. This should not stop us from
retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino
people to preserve our national patrimony, including our historical and
cultural heritage in the hands of Filipinos.
VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements,
shared by Mr. Justice Reynato S. Puno in a well written separate
(dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the
grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified
Filipinos"1 is self-executory. The provision verily does not need, although
it can obviously be amplified or regulated by, an enabling law or a set of
rules.
Second, the term "patrimony" does not merely refer to the country's
natural resources but also to its cultural heritage. A "historical landmark,"
to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now
indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a
government entity which derives its authority from the State, in selling
51% of its share in MHC should be considered an act of the State subject
to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I
find it somewhat difficult to take the same path traversed by the forceful
reasoning of Justice Puno. In the particular case before us, the only
meaningful preference, it seems, would really be to allow the qualified
Filipino to match the foreign bid for, as a particular matter, I cannot see
any bid that literally calls for millions of dollars to be at par (to the last
cent) with another. The magnitude of the magnitude of the bids is such
that it becomes hardly possible for the competing bids to stand exactly
"equal" which alone, under the dissenting view, could trigger the right of
preference.
It is most unfortunate that Renong Berhad has not been spared this great
disappointment, a letdown that it did not deserve, by a simple and timely
advise of the proper rules of bidding along with the peculiar constitutional
implications of the proposed transaction. It is also regrettable that the
Court at time is seen, to instead, be the refuge for bureaucratic
inadequate which create the perception that it even takes on non-
justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only way
to enforce the constitutional mandate that "[i]n the grant of rights,
privileges and concessions covering the national patrimony the State
shall give preference to qualified Filipinos"1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the
purchase of the controlling shares of stocks in the Manila Hotel
Corporation. Indeed, it is the only way a qualified Filipino of Philippine
corporation can be given preference in the enjoyment of a right, privilege
or concession given by the State, by favoring it over a foreign national
corporation.
Under the rules on public bidding of the Government Service and
Insurance System, if petitioner and the Malaysian firm had offered the
same price per share, "priority [would be given] to the bidder seeking the
larger ownership interest in MHC,"2 so that petitioner bid for more shares,
it would be preferred to the Malaysian corporation for that reason and not
because it is a Philippine corporation. Consequently, it is only in cases
like the present one, where an alien corporation is the highest bidder, that
preferential treatment of the Philippine corporation is mandated not by
declaring it winner but by allowing it "to match the highest bid in terms of
price per share" before it is awarded the shares of stocks.3 That, to me, is
what "preference to qualified Filipinos" means in the context of this case
— by favoring Filipinos whenever they are at a disadvantage vis-a-
vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute
giving "preference to Filipino citizens in the lease of public market
stalls."5 This Court upheld the cancellation of existing leases covering
market stalls occupied by persons who were not Filipinos and the award
thereafter of the stalls to qualified Filipino vendors as ordered by the
Department of Finance. Similarly, in Vda. de Salgado v. De la
Fuente,6 this Court sustained the validity of a municipal ordinance passed
pursuant to the statute (R.A. No. 37), terminating existing leases of public
market stalls and granting preference to Filipino citizens in the issuance
of new licenses for the occupancy of the stalls. In Chua Lao
v. Raymundo,7 the preference granted under the statute was held to apply
to cases in which Filipino vendors sought the same stalls occupied by
alien vendors in the public markets even if there were available other
stalls as good as those occupied by aliens. "The law, apparently, is
applicable whenever there is a conflict of interest between Filipino
applicants and aliens for lease of stalls in public markets, in which
situation the right to preference immediately arises."8
Our legislation on the matter thus antedated by a quarter of a century
efforts began only in the 1970s in America to realize the promise of
equality, through affirmative action and reverse discrimination programs
designed to remedy past discrimination against colored people in such
areas as employment, contracting and licensing.9 Indeed, in vital areas of
our national economy, there are situations in which the only way to place
Filipinos in control of the national economy as contemplated in the
Constitution 10 is to give them preferential treatment where they can at
least stand on equal footing with aliens.
There need be no fear that thus preferring Filipinos would either invite
foreign retaliation or deprive the country of the benefit of foreign capital or
know-how. We are dealing here not with common trades of common
means of livelihood which are open to aliens in our midst, 11 but with the
sale of government property, which is like the grant of government
largess of benefits and concessions covering the national economy" and
therefore no one should begrudge us if we give preferential treatment to
our citizens. That at any rate is the command of the Constitution. For the
Manila Hotel is a business owned by the Government. It is being
privatized. Privatization should result in the relinquishment of the
business in favor of private individuals and groups who are Filipino
citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to
petitioner we would be trading competence and capability for nationalism.
Both petitioner and the Malaysian firm are qualified, having hurdled the
prequalification process. 12 It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the
highest bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino
bidder to match the highest bid of an alien could encourage speculation,
since all that a Filipino entity would then do would be not to make a bid or
make only a token one and, after it is known that a foreign bidder has
submitted the highest bid, make an offer matching that of the foreign firm.
This is not possible under the rules on public bidding of the GSIS. Under
these rules there is a minimum bid required (P36.87 per share for a range
of 9 to 15 million shares). 13 Bids below the minimum will not be xxx xxx xxx
considered. On the other hand, if the Filipino entity, after passing the
prequalification process, does not submit a bid, he will not be allowed to MR. NOLLEDO. The
match the highest bid of the foreign firm because this is a privilege Amendment will read: "IN
allowed only to those who have "validly submitted bids." 14 The suggestion THE GRANT OF RIGHTS,
is, to say the least, fanciful and has no basis in fact. PRIVILEGES AND
CONCESSIONS
For the foregoing reasons, I vote to grant the petition. COVERING THE
NATIONAL ECONOMY
TORRES, JR., J., separate opinion: AND PATRIMONY, THE
STATE SHALL GIVE
Constancy in law is not an attribute of a judicious mind. I say this as we PREFERENCE TO
are not confronted in the case at bar with legal and constitutional issues QUALIFIED FILIPINOS".
— and yet I am driven so to speak on the side of history. The reason And the word "Filipinos"
perhaps is due to the belief that in the words of Justice Oliver Wendell here, as intended by the
Holmes, Jr., a "page of history is worth a volume of logic." proponents, will include
not only individual Filipinos
but also Filipino-Controlled
I will, however, attempt to share my thoughts on whether the Manila Hotel
entities fully controlled by
has a historical and cultural aspect within the meaning of the constitution
Filipinos (Vol. III, Records
and thus, forming part of the "patrimony of the nation".
of the Constitutional
Commission, p. 608).
Section 10, Article XII of the 1987 Constitution provides:
MR. MONSOD. We also
xxx xxx xxx wanted to add, as
Commissioner Villegas
In the grant of rights, privileges, and concessions covering said, this committee and
the national economy and patrimony, the State shall give this body already approved
preference to qualified Filipinos. what is known as the
Filipino First policy which
The State shall regulate and exercise authority over was suggested by
foreign investments within its national goals and priorities. Commissioner de Castro.
So that it is now in our
The foregoing provisions should be read in conjunction with Article II of Constitution (Vol. IV,
the same Constitution pertaining to "Declaration of Principles and State Records of the
Policies" which ordain — Constitutional
Commission, p. 225).
The State shall develop a self-reliant and independent
national economy effectively by Filipinos. (Sec. 19). Commissioner Jose Nolledo explaining the provision
adverted to above, said:
Interestingly, the matter of giving preference to "qualified Filipinos" was
one of the highlights in the 1987 Constitution Commission proceedings MR. NOLLEDO. In the
thus: grant of rights, privileges
and concessions covering
 the national economy and
patrimony, the State shall
give preference to qualified
Filipinos.
MR. FOZ. In connection
with that amendment, if a
foreign enterprise is
qualified and the Filipinos
enterprise is also qualified,
will the Filipino enterprise
still be given a preference?
MR. NOLLEDO.
Obviously.
MR. FOZ. If the foreigner
is more qualified in some
aspects than the Filipino
enterprise, will the Filipino
still be preferred:?
MR. NOLLEDO. The
answer is "yes". (Vol. III, p.
616, Records of the
Constitutional
Commission).
The nationalistic provisions of the 1987 Constitution reflect the history
and spirit of the Malolos Constitution of 1898, the 1935 Constitution and
the 1973 Constitutions. That we have no reneged on this nationalist
policy is articulated in one of the earliest case, this Court said —
The nationalistic tendency is manifested in various
provisions of the Constitution. . . . It cannot therefore be
said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is
unreasonable, invalid or unconstitutional (Ichong, et al. vs.
Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are
not legislated and is the product of events, customs, usages and
practices. It is actually a product of growth and acceptance by the
collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of
the Manila Hotel is witness to historic events (too numerous to mention)
which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the
single instances of the legal largese which have given rise to this
controversy. As I believe that has been exhaustively discussed in
the ponencia. Suffice it to say at this point that the history of the Manila
Hotel should not be placed in the auction block of a purely business
transaction, where profits subverts the cherished historical values of our
people.
As a historical landmark in this "Pearl of the Orient Seas", it has its
enviable tradition which, in the words of the philosopher Salvador de
Madarriaga tradition is "more of a river than a stone, it keeps flowing, and
one must view the flowing , and one must view the flow of both directions.
If you look towards the hill from which the river flows, you see tradition in
the form of forceful currents that push the river or people towards the
future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the
kind of tradition. Let us not jettison the tradition of the Manila Hotel and
thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different
lights.
I remember, however, a Spanish proverb which says — "He is always
right who suspects that he makes mistakes". On this note, I say that if I
have to make a mistake, I would rather err upholding the belief that the
Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.
PUNO, J., dissenting:
This is a. petition for prohibition and mandamus filed by the Manila Prince
Hotel Corporation, a domestic corporation, to stop the Government
Service Insurance System (GSIS) from selling the controlling shares of Third — Negotiate and execute the necessary contracts
the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale with GSIS/MHC not later than October 23, 1995;
violates the second paragraph of section 10, Article XII of the
Constitution. xxx xxx xxx

Respondent GSIS is a government-owned and controlled corporation. It IV GUIDELINES FOR PREQUALIFICATION

is the sole owner of the Manila Hotel which it operates through its
subsidiary, the Manila Hotel Corporation. Manila Hotel was included in A. PARTIES WHO MAP APPLY FOR
the privatization program of the government. In 1995, GSIS proposed to PREQUALIFICATION
sell to interested buyers 30% to 51% of its shares, ranging from
9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After
The Winning Bidder/Strategic Partner will
the absence of bids at the first public bidding, the block of shares offered
be expected to provide management
for sale was increased from a maximum of 30% to 51%. Also, the winning
expertise and/or an international
bidder, or the eventual "strategic partner" of the GSIS was required to
marketing reservation system, and
"provide management expertise and/or an international
financial support to strengthen the
marketing/reservation system, and financial support to strengthen the
profitability and performance of The
profitability and performance of the Manila Hotel"1 The proposal was
Manila Hotel. In this context, the GSIS is
approved by respondent Committee on Privatization.
inviting to the prequalification process any
local and/or foreign corporation,
In July 1995, a conference was held where prequalification documents consortium/joint venture or juridical entity
and the bidding rules were furnished interested parties. Petitioner Manila with at least one of the following
Prince Hotel, a domestic corporation, and Renong Berhad, Malaysian qualifications:
firm with ITT Sheraton as operator, prequalified.2
a. Proven management
The bidding rules and procedures entitled "Guidelines and Procedures: .expertise in the hotel
Second Prequalification and Public Bidding of the MHC Privatization" industry; or
provide:
b. Significant equity
I INTRODUCTION AND HIGHLIGHTS ownership (i.e. board
representation) in another
DETERMINING THE WINNING BIDDER/STRATEGIC hotel company; or
PARTNER
c. Overall management
The party that accomplishes the steps set forth below will and marketing expertise to
be declared the Winning Bidder/Strategic Partner and will successfully operate the
be awarded the Block of Shares: Manila Hotel.

First — Pass the prequalification process; Parties interested in bidding for MHC
should be able to provide access to the
Second — Submit the highest bid on a price per share requisite management expertise and/or
basis for the Block of Shares; international marketing/reservation system
for The Manila Hotel.
 xxx xxx xxx the prequalification documents will be
allowed in this conference. Attendance to
D. PREQUALIFICATION DOCUMENTS this conference is strongly advised,
although the Applicant will not be
xxx xxx xxx penalized if it does not attend.

E. APPLICATION PROCEDURE 5. SUBMISSION OF PREQUALIFICATION

DOCUMENTS
1. DOCUMENTS AVAILABLE AT THE
REGISTRATION OFFICE The applicant should submit 5 sets of the
prequalification documents (1 original set
plus 4 copies) at the Registration Office
The prequalification documents can be
between 9:00 AM to 4:00 PM during
secured at the Registration Office
working days within the period specified in
between 9:00 AM to 4:00 PM during
Section III.
working days within the period specified in
Section III. Each set of documents
consists of the following: F. PREQUALIFICATION PROCESS

a. Guidelines and 1. The Applicant will be

Procedures: Second evaluated by the PBAC
Prequalification and Public with the assistance of the
Bidding of the MHC TEC based on the
Privatization Information Package and
other information available
to the PBAC.
b. Confidential Information
Memorandum: The Manila
Hotel Corporation 2. If the Applicant is a
Consortium/Joint Venture,
the evaluation will consider
c. Letter of Invitation. to
the overall qualifications of
the Prequalification and
the group, taking into
Bidding Conference
account the contribution of
each member to the
xxx xxx xxx venture.

4. PREQUALIFICATION AND BIDDING CONFERENCE 3. The decision of the

PBAC with respect to the
A prequalification and bidding conference results of the PBAC
will be held at The Manila Hotel on the evaluation will be final.
date specified in Section III to allow the
Applicant to seek clarifications and further 4. The Applicant shall be
information regarding the guidelines and evaluated according to the
procedures. Only those who purchased criteria set forth below:
 a. Business 2. In the case of a Consortium/Joint
manageme Venture, the withdrawal by member
nt whose qualification was a material
expertise, consideration for being included in the
track shortlist is ground for disqualification of
record, and the Applicant.
experience
V. GUIDELINES FOR THE PUBLIC
b. Financial BIDDING
capability.
A. PARTIES WHO MAY PARTICIPATE IN
c. THE PUBLIC BIDDING
Feasibility
and All parties in the shortlist of Qualified
acceptabilit Bidders will be eligible to participate in the
y of the Public Bidding.
proposed
strategic B. BLOCK OF SHARES
plan for the
Manila
A range of Nine Million (9,000,000) to
Hotel
Fifteen Million Three Hundred Thousand
(15,300,000) shares of stock representing
5. The PBAC will shortlist such number of Thirty Percent to Fifty-One Percent (30%-
Applicants as it may deem appropriate. 51%) of the issued and outstanding
shares of MHC, will be offered in the
6. The parties that prequalified in the first Public Bidding by the GSIS. The Qualified
MHC public bidding — ITT Sheraton, Bidders will have the Option of
Marriot International Inc., Renaissance determining the number of shares within
Hotels International Inc., consortium of the range to bid for. The range is intended
RCBC Capital/Ritz Carlton — may to attract bidders with different
participate in the Public Bidding without preferences and objectives for the
having to undergo the prequalification operation and management of The Manila
process again. Hotel.

G. SHORTLIST OF QUALIFIED C. MINIMUM BID REQUIRED ON A

BIDDERS PRICE PER SHARE BASIS

1. A notice of prequalification results 1. Bids will be evaluated on a price per

containing the shortlist of Qualified share basis. The minimum bid required on
Bidders will be posted at the Registration a price per share basis for the Block of
Office at the date specified in Section III. Shares is Thirty-Six Pesos and Sixty-
Seven Centavos (P36.67).
2. Bids should be in the Philippine necessary or requisite to bind the
currency payable to the GSIS. Qualified Bidder.

3. Bids submitted with an equivalent price If the Qualified Bidder is a

per share below the minimum required will Consortium/Joint Venture, each member
not considered. of the Consortium/Joint venture should
submit a Board resolution authorizing one
D. TRANSFER COSTS of its members and such member's
representative to make the bid on behalf
xxx xxx xxx of the group with full authority to perform
such acts necessary or requisite to bind
the Qualified Bidder.
E. OFFICIAL BID FORM
2. BID SECURITY
1. Bids must be contained in the
prescribed Official Bid Form, a copy of
which is attached as Annex IV. The a. The Qualified Bidder should deposit
Official Bid Form must be properly Thirty-Three Million Pesos (P33,000,00),
accomplished in all details; improper in Philippine currency as Bid Security in
accomplishment may be a sufficient basis the form of:
for disqualification.
i. Manager's check or
2. During the Public Bidding, the Qualified unconditional demand
Bidder will submit the Official Bid Form, draft payable to the
which will indicate the offered purchase "Government Service
price, in a sealed envelope marked Insurance System" and
"OFFICIAL BID." issued by a reputable
banking institution duly
licensed to do business in
F. SUPPORTING DOCUMENTS
the Philippines and
acceptable to GSIS; or
During the Public Bidding, the following
documents should be submitted along
ii. Standby-by letter of
with the bid in a separate envelop marked
credit issued by a
"SUPPORTING DOCUMENTS":
reputable banking
institution acceptable to
1. WRITTEN AUTHORITY TO BID the GSIS.
(UNDER OATH).
b. The GSIS will reject a bid if:
If the Qualified Bidder is a corporation, the
representative of the Qualified Bidder
i. The bid does not have
should submit a Board resolution which
Bid Security; or
adequately authorizes such representative
to bid for and in behalf of the corporation
with full authority to perform such acts
 ii. The Bid Security
accompanying the bid is
for less than the required
amount.
c. If the Bid Security is in the form of a
manager's check or unconditional demand
draft, the interest earned on the Bid
Security will be for the account of GSIS.
d. If the Qualified Bidder becomes the
winning Bidder/Strategic Partner, the Bid
Security will be applied as the
downpayment on the Qualified Bidder's
offered purchase price.
e. The Bid Security of the Qualified Bidder
will be returned immediately after the
Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by
October 23, 1995 if the Highest Bidder is
unable to negotiate and execute with
GSIS/MHC the Management Contract,
International Marketing/Reservation
System Contract or other types of contract
specified by the Highest Bidder in its
strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder
will be forfeited in favor of GSIS if the
Highest Bidder, after negotiating and
executing the Management Contract,
International Marketing/Reservation
System Contract specified by the Highest
Bidder or other types of contract in its
strategic plan for The Manila Hotel, fails or
refuses to:
i. Execute the Stock
Purchase and Sale
Agreement with GSIS not
later than October 23,
1995; or
ii. Pay the full amount of
the offered purchase price
not later than October 23,
1995; or
iii. Consummate the sale
of the Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on
September 7, 1995 at the following
location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro
Manila.
2. The Secretariat of the PBAC will be
stationed at the Public Bidding to accept
any and all bids and supporting
requirements. Representatives from the
Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its
bid using the Official Bid Form. The
accomplished Official Bid Form should be
submitted in a sealed envelope marked
"OFFICIAL BID."
4. The Qualified Bidder should submit the
following documents in another sealed
envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
 b. Bid Security
5. The two sealed envelopes marked
"OFFICIAL BID" and "SUPPORTING BID
DOCUMENTS" must be submitted
simultaneously to the Secretariat between
9:00 AM and 2:00 PM, Philippine
Standard Time, on the date of the Public
Bidding. No bid shall be accepted after the
closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the
actual time of submission of the two
sealed envelopes. The actual time of
submission will also be indicated by the
Secretariat on the face of the two
envelopes.
7. After Step No. 6, the two sealed
envelopes will be dropped in the
corresponding bid boxes provided for the
purpose. These boxes will be in full view
of the invited public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the
date of the Public Bidding, the PBAC will
open all sealed envelopes marked
"SUPPORTING BID DOCUMENTS" for
screening, evaluation and acceptance.
Those who submitted
incomplete/insufficient documents or
document/s which is/are not substantially
in the form required by PBAC will be
disqualified. The envelope containing their
Official Bid Form will be immediately
returned to the disqualified bidders.
2. The sealed envelopes marked
"OFFICIAL BID" will be opened at 3:00
PM. The name of the bidder and the
amount of its bid price will be read publicly
as the envelopes are opened.
3. Immediately following the reading of the
bids, the PBAC will formally announce the
highest bid and the Highest Bidder.
4. The highest bid will be, determined on
a price per share basis. In the event of a
tie wherein two or more bids have the
same equivalent price per share, priority
will be given to the bidder seeking the
larger ownership interest in MHC.
5. The Public Bidding will be declared a
failed bidding in case:
a. No single bid is
submitted within the
prescribed period; or
b. There is only one (1) bid
that is submitted and
acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY
CONTRACTS WITH GSIS/MHC
1. The Highest Bidder must comply with
the conditions set forth below by October
23, 1995 or the Highest Bidder will lose
the right to purchase the Block of Shares
and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder
must negotiate and
execute with GSIS/MHC
the Management Contract,
International Marketing
Reservation System
Contract or other type of
contract specified by the
 Highest Bidder in its
strategic plan for The
Manila Hotel. If the Highest
Bidder is intending to
provide only financial
support to The Manila
Hotel, a separate
institution may enter into
the aforementioned
contract/s with GSIS/MHC.
b. The Highest Bidder
must execute the Stock
Purchase and Sale
Agreement with GSIS, a
copy of which will be
distributed to each of the
Qualified Bidder after the
prequalification process is
completed.
2. In the event that the Highest Bidder
chooses a Management Contract for The
Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC
are prepared to accept in the
Management Contract are as follows:
a. Basic management fee:
Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum
of 8.0% of gross operating
profit(1) after deducting
undistributed overhead
expenses and the basic
management fee.
c. Fixed component of the
international
marketing/reservation
system fee: Maximum of
2.0% of gross room
revenues.(1) The Applicant
should indicate in its
Information Package if it is
wishes to charge this fee.
Note (1): As defined in the uniform system
of account for hotels.
The GSIS/MHC have indicated above the
acceptable parameters for the hotel
management fees to facilitate the
negotiations with the Highest Bidder for
the Management Contract after the Public
Bidding.
A Qualified Bidder envisioning a
Management Contract for The Manila
Hotel should determine whether or not the
management fee structure above is
acceptable before submitting their
prequalification documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder
cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified
Bidders that have validly submitted bids
provided that these Qualified are willing to
match the highest bid in terms of price per
share.
2. The order of priority among the
interested Qualified Bidders will be in
accordance wit the equivalent price per
share of their respective bids in their
public Bidding, i.e., first and second
priority will be given to the Qualified
Bidders that submitted the second and
third highest bids on the price per
share basis, respectively, and so on.
K. DECLARATION OF THE WINNING
BIDDER/STRATEGIC PARTNER
The Highest Bidder will be declared the
Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the
necessary contract with
GSIS/MHC not later than
October 23, 1995; and
b. Requisite approvals
from the GSIS/MHC and
COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF
SHARES
1. Upon execution of the necessary
contracts with GSIS/MHC, the Winning
Bidder/Strategic Partner must fully pay,
not later than October 23, 1995, the
offered purchase price for the Block of
Shares after deducting the Bid Security
applied as downpayment.
2. All payments should be made in the
form of a Manager's Check or
unconditional Demand Draft, payable to
the "Government Service Insurance
System," issued by a reputable banking
institution licensed to do business in the
Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the
right to reject any or all applications, waive
any formality therein, or accept such
application as maybe considered most
advantageous to the GSIS. The GSIS
similarly reserves the right to require the
submission of any additional information
from the Applicant as the PBAC may
deem necessary.
2. The GSIS further reserves the right to
call off the Public Bidding prior to
acceptance of the bids and call for a new
public bidding under amended rules, and
without any liability whatsoever to any or
all the Qualified Bidders, except the
obligation to return the Bid Security.
3. The GSIS reserves the right to reset the
date of the prequalification/bidding
conference, the deadline for the
submission of the prequalification
documents, the date of the Public Bidding
or other pertinent activities at least three
(3) calendar days prior to the respective
deadlines/target dates.
4. The GSIS sells only whatever rights,
interest and participation it has on the
Block of Shares.
5. All documents and materials submitted
by the Qualified Bidders, except the Bid
Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the
results of the Public Bidding is final. The
Qualified Bidders, by participating in the
Public Bidding, are deemed to have
agreed to accept and abide by these
results.
7. The GSIS will be held free and
harmless form any liability, suit or
allegation arising out of the Public Bidding
by the Qualified Bidders who have
participated in the Public Bidding.3
The second public bidding was held on September 18, 1995. Petitioner
bidded P41.00 per share for 15,300,000 shares and Renong Berhad
bidded P44.00 per share also for 15,300,000 shares. The GSIS declared
Renong Berhad the highest bidder and immediately returned petitioner's
bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to
GSIS offering to match the bid price of Renong Berhad. It requested that
the award be made to itself citing the second paragraph of Section 10,
Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong
Berhad the terms and conditions of the contract and technical
agreements in the operation of the hotel, refused to entertain petitioner's
request.
Hence, petitioner filed the present petition. We issued a temporary
restraining order on October 18, 1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section
10 of the Constitution4 on the "National Economy and Patrimony" which
provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the
Constitution is a self-executing provision and does not
need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-
executing whether the controlling shares of the Manila
Hotel Corporation form part of our patrimony as a nation;
(3) Whether GSIS is included in the term "State," hence,
mandated to implement section 10, paragraph 2 of Article
XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to
give preference to petitioner, a qualified Filipino
corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the
Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the
sale of the shares to Renong Berhad, a foreign
corporation.
Anent the first issue, it is now familiar learning that a Constitution
provides the guiding policies and principles upon which is built the
substantial foundation and general framework of the law and
government.5 As a rule, its provisions are deemed self-executing and can
be enforced without further legislative action.6 Some of its provisions,
however, can be implemented only through appropriate laws enacted by
the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-
executing is a hard row to hoe. The key lies on the intent of the framers of
the fundamental law oftentimes submerged in its language. A searching
inquiry should be made to find out if the provision is intended as a
present enactment, complete in itself as a definitive law, or if it needs
future legislation for completion and enforcement.7 The inquiry demands a
micro-analysis of the text and the context of the provision in question.8
Courts as a rule consider the provisions of the Constitution as self-
executing,9 rather than as requiring future legislation for their
enforcement. 10 The reason is not difficult to discern. For if they are not
treated as self-executing, the mandate of the fundamental law ratified by
the sovereign people can be easily ignored and nullified by
Congress. 11 Suffused with wisdom of the ages is the unyielding rule that
legislative actions may give breath to constitutional rights but
congressional in action should not suffocate them. 12
Thus, we have treated as self-executing the provisions in the Bill of
Rights on arrests, searches and seizures, 13 the rights of a person under
custodial investigation, 14 the rights of an accused, 15 and the privilege
against self-incrimination, 16 It is recognize a that legislation is
unnecessary to enable courts to effectuate constitutional provisions
guaranteeing the fundamental rights of life, liberty and the protection of
property. 17 The same treatment is accorded to constitutional provisions
forbidding the taking or damaging of property for public use without just
compensation.18
Contrariwise, case law lays down the rule that a constitutional provision is
not self-executing where it merely announces a policy and its language
empowers the Legislature to prescribe the means by which the policy
shall be carried into effect. 19 Accordingly, we have held that the
provisions in Article II of our Constitution entitled "Declaration of
Principles and State Policies" should generally be construed as mere
statements of principles of the State. 20 We have also ruled that some
provisions of Article XIII on "Social Justice and Human Rights," 21 and
Article XIV on "Education Science and Technology, Arts, Culture end
Sports" 22 cannot be the basis of judicially enforceable rights. Their
enforcement is addressed to the discretion of Congress though they
provide the framework for legislation 23 to effectuate their policy content. 24
Guided by this map of settled jurisprudence, we now consider whether
Section 10, Article XII of the 1987 Constitution is self-executing or not. It
reads:
Sec. 10. The Congress shall, upon recommendation of
the economic and planning agency, when the national
interest dictates, reserve to citizens of the Philippines or
to corporations or associations at least sixty per centum of
whose capital is owned by such citizens, or such higher
percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will
encourage the formation and operation of enterprises
whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos.
The State shall regulate and exercise authority over
foreign investments within its national jurisdiction and in
accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of
investments in the country 25 to Filipino citizens or to corporations
sixty per
cent 26 of whose capital stock is owned by Filipinos. It further
commands Congress to enact laws that will encourage the
formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders
the entire State to give preference to qualified Filipinos in the
grant of rights and privileges covering the national economy and
patrimony. The third paragraph also directs the State to regulate
foreign investments in line with our national goals and well-set
priorities.
The first paragraph of Section 10 is not self-executing. By its
express text, there is a categorical command for Congress to
enact laws restricting foreign ownership in certain areas of
investments in the country and to encourage the formation and
operation of wholly-owned Filipino enterprises. The right granted
by the provision is clearly still in esse. Congress has to breathe
life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973
Constitution. 27 The provision in the 1973 Constitution affirmed our
ruling in the landmark case of Lao Ichong v. Hernandez, 28where
we upheld the discretionary authority of Congress to Filipinize
certain areas of investments. 29 By reenacting the 1973 provision,
the first paragraph of section 10 affirmed the power of Congress
to nationalize certain areas of investments in favor of Filipinos.
The second and third paragraphs of Section 10 are different. They are
directed to the State and not to Congress alone which is but one of the
three great branches of our government. Their coverage is also broader
for they cover "the national economy and patrimony" and "foreign
investments within [the] national jurisdiction" and not merely "certain
areas of investments." Beyond debate, they cannot be read as granting
Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges
covering our national economy and patrimony. Their language does not
suggest that any of the State agency or instrumentality has the privilege
to hedge or to refuse its implementation for any reason whatsoever. Their
duty to implement is unconditional and it is now. The second and the third
paragraphs of Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled
"Declaration of Principles and State Policies." Its Section 19 provides that
"[T]he State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos." It engrafts the all-important
Filipino First policy in our fundamental law and by the use of the
mandatory word "shall," directs its enforcement by the whole State
without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the
Manila Hotel Corporation involves the disposition of part of our national
patrimony. The records of the Constitutional Commission show that the
Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural
resources but also to the cultural heritage of our race. 30 By this yardstick,
the sale of Manila Hotel falls within the coverage of the constitutional
provision giving preferential treatment to qualified Filipinos in the grant of
rights involving our national patrimony. The unique value of the Manila
Hotel to our history and culture cannot be viewed with a myopic eye. The
value of the hotel goes beyond pesos and centavos. As chronicled by
Beth Day Romulo, 31 the hotel first opened on July 4, 1912 as a first-class
hotel built by the American Insular Government for Americans living in, or
passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For
sometime, it was exclusively used by American and Caucasian travelers
and served as the "official guesthouse" of the American Insular
Government for visiting foreign dignitaries. Filipinos began coming to the
Hotel as guests during the Commonwealth period. When the Japanese
occupied Manila, it served as military headquarters and lodging for the
highest-ranking officers from Tokyo. It was at the Hotel and the
Intramuros that the Japanese made their last stand during the Liberation
of Manila. After the war, the Hotel again served foreign guests and
Filipinos alike. Presidents and kings, premiers and potentates, as well as
glamorous international film and sports celebrities were housed in the
Hotel. It was also the situs of international conventions and conferences.
In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues
reaping numerous recognitions and awards from international hotel and
travel award-giving bodies, a fitting acknowledgment of Filipino talent and
ingenuity. These are judicially cognizable facts which cannot be bent by a
biased mind.
The Hotel may not, as yet, have been declared a national cultural
treasure pursuant to Republic Act No. 4846 but that does not exclude it
from our national patrimony. Republic Act No. 4846, "The Cultural
Properties Preservation and Protection Act," merely provides a procedure
whereby a particular cultural property may be classified a "national
cultural treasure" or an "important cultural property. 32 Approved on June
18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
and cannot be read as the exclusive law implementing section 10, Article
XII of the 1987 Constitution. To be sure, the law does not equate cultural
treasure and cultural property as synonymous to the phrase "patrimony of
the nation."
The third issue is whether the constitutional command to the State
includes the respondent GSIS. A look at its charter will reveal that GSIS
is a government-owned and controlled corporation that administers funds
that come from the monthly contributions of government employees and
the government. 33 The funds are held in trust for a distinct purpose which
cannot be disposed of indifferently. 34 They are to be used to finance the
retirement, disability and life insurance benefits of the employees and the
administrative and operational expenses of the GSIS, 35Excess funds,
however, are allowed to be invested in business and other ventures for
the benefit of the employees.36 It is thus contended that the GSIS
investment in the Manila Hotel Corporation is a simple business venture,
hence, an act beyond the contemplation of section 10, paragraph 2 of
Article XII of the Constitution.
The submission is unimpressive. The GSIS is not a pure private
corporation. It is essentially a public corporation created by Congress and
granted an original charter to serve a public purpose. It is subject to the
jurisdictions of the Civil Service Commission 37 and the Commission on
Audit. 38 As state-owned and controlled corporation, it is skin-bound to
adhere to the policies spelled out in the general welfare of the people.
One of these policies is the Filipino First policy which the people elevated
as a constitutional command.
The fourth issue demands that we look at the content of phrase "qualified
Filipinos" and their "preferential right." The Constitution desisted from
defining their contents. This is as it ought to be for a Constitution only
lays down flexible policies and principles which can bent to meet today's
manifest needs and tomorrow's unmanifested demands. Only a
constitution strung with elasticity can grow as a living constitution.
Thus, during the deliberations in the Constitutional Commission,
Commissioner Nolledo to define the phrase brushed aside a suggestion
to define the phrase "qualified Filipinos." He explained that present and
prospective "laws" will take care of the problem of its interpretation, viz:
xxx xxx xxx
THE PRESIDENT. What is
the suggestion of
Commissioner Rodrigo? Is
it to remove the word
"QUALIFIED?"
MR. RODRIGO. No, no,
but say definitely "TO
QUALIFIED FILIPINOS"
as against whom? As
against aliens over aliens?
MR. NOLLEDO. Madam
President, I think that is
understood. We use the
word "QUALIFIED"
because the existing laws
or the prospective laws will
always lay down
conditions under which
business map be done, for
example, qualifications on
capital, qualifications on
the setting up of other
financial structures, et
cetera.
MR. RODRIGO. It is just a
matter of style.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say,
"PREFERENCE TO
QUALIFIED FILIPINOS," it
can be understood as
giving preference to
qualified Filipinos as
against Filipinos who are
not qualified.
MR. NOLLEDO. Madam
President, that was the
intention of the
proponents. The
committee has accepted
the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce
the Filipino First policy is addressed to the State and not to
Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which
include applicable rules and regulations adopted by agencies and
instrumentalities of the State in the exercise of their rule-making
power. In the case at bar, the bidding rules and regulations set
forth the standards to measure the qualifications of bidders
Filipinos and foreigners alike. It is not seriously disputed that
petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which
GSIS should have accorded petitioner, a qualified Filipino, over Renong
Berhad, a foreigner, in the purchase of the controlling shares of the
Manila Hotel. Petitioner claims that after losing the bid, this right of
preference gives it a second chance to match the highest bid of Renong
Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from
the premise that the second paragraph of section 10, Article XII of the
Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for it gives
preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions
covering the national economy and patrimony. Indeed, in the absence of
qualified Filipinos, the State is not prohibited from granting these rights,
privileges and concessions to foreigners if the act will promote the weal of
the nation.
In implementing the policy articulated in section 10, Article XII of the
Constitution, the stellar task of our State policy-makers is to maintain a
creative tension between two desiderata — first, the need to develop our
economy and patrimony with the help of foreigners if necessary, and,
second, the need to keep our economy controlled by Filipinos. Rightfully,
the framers of the Constitution did not define the degree of the right of
preference to be given to qualified Filipinos. They knew that for the right
to serve the general welfare, it must have a malleable content that can be
adjusted by our policy-makers to meet the changing needs of our people.
In fine, the right of preference of qualified Filipinos is to be determined by
degree as time dictates and circumstances warrant. The lesser the need
for alien assistance, the greater the degree of the right of preference can
be given to Filipinos and vice verse.
Again, it should be stressed that the right and the duty to determine the
degree of this privilege at any given time is addressed to the entire State.
While under our constitutional scheme, the right primarily belongs to
Congress as the lawmaking department of our government, other
branches of government, and all their agencies and instrumentalities,
share the power to enforce this state policy. Within the limits of their
authority, they can act or promulgate rules and regulations defining the
degree of this right of preference in cases where they have to make
grants involving the national economy and judicial duty. On the other
hand, our duty is to strike down acts of the state that violate the policy.
To date, Congress has not enacted a law defining the degree of the
preferential right. Consequently, we must turn to the rules and regulations
of on respondents Committee Privatization and GSIS to determine the
degree of preference that petitioner is entitled to as a qualified Filipino in
the subject sale. A tearless look at the rules and regulations will show
that they are silent on the degree of preferential right to be accorded
qualified Filipino bidder. Despite their silence, however, they cannot be
read to mean that they do not grant any degree of preference to petitioner
for paragraph 2, section 10, Article XII of the Constitution is deemed part
of said rules and regulations. Pursuant to legal hermeneutics which
demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid
of Benong Berhad. In that instance, all things stand equal, and bidder, as
a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner
has a right to match the bid of Renong Berhad. Petitioner's submission
must be supported by the rules but even if we examine the rules inside-
out .thousand times, they can not justify the claimed right. Under the
rules, the right to match the highest bid arises only "if for any reason, the
highest bidder cannot be awarded block of shares . . ." No reason has
arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest
bid. It was declared as the highest bidder by the GSIS and the rules say
this decision is final. It deserves the award as a matter of right for the
rules clearly did not give to the petitioner as a qualified Filipino privilege
to match the higher bid of a foreigner. What the rules did not grant,
petitioner cannot demand. Our symphaties may be with petitioner but the
court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of
preference depend on galaxy of facts and factors whose determination
belongs to the province of the policy-making branches and agencies of
the State. We are duty-bound to respect that determination even if we
differ with the wisdom of their judgment. The right they grant may be little
but we must uphold the grant for as long as the right of preference is not
denied. It is only when a State action amounts to a denial of the right that
the Court can come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid
of Renong Berhad. Petitioner was aware of the rules and regulations of
the bidding. It knew that the rules and regulations do not provide that a
qualified Filipino bidder can match the winning bid submitting an inferior
bid. It knew that the bid was open to foreigners and that foreigners
qualified even during the first bidding. Petitioner cannot be allowed to
repudiate the rules which it agreed to respect. It cannot be allowed to
obey the rules when it wins and disregard them when it loses. If
sustained, petitioners' stance will wreak havoc on he essence of bidding.
Our laws, rules and regulations require highest bidding to raise as much
funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged
by Filipinos and foreigners participating in a bidding contest and the rules
are carefully written to attain this objective. Among others, bidders are
prequalified to insure their financial capability. The bidding is secret and
the bids are sealed to prevent collusion among the parties. This objective
will be undermined if we grant petitioner that privilege to know the
winning bid and a chance to match it. For plainly, a second chance to bid
will encourage a bidder not to strive to give the highest bid in the first
bidding.
We support the Filipino First policy without any reservation. The visionary
nationalist Don Claro M. Recto has warned us that the greatest tragedy
that can befall a Filipino is to be an alien in his own land. The Constitution
has embodied Recto's counsel as a state policy. But while the Filipino
First policy requires that we incline to a Filipino, it does not demand that
we wrong an alien. Our policy makers can write laws and rules giving
favored treatment to the Filipino but we are not free to be unfair to a
foreigner after writing the laws and the rules. After the laws are written,
they must be obeyed as written, by Filipinos and foreigners alike. The
equal protection clause of the Constitution protects all against unfairness.
We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition. 3. In the absence of a law specifying the degree or extent of the "Filipino
First" policy of the Constitution, the constitutional preference for the
Narvasa, C.J., and Melo, J., concur. "qualified Filipinos" may be allowed only where all the bids are equal. In
this manner, we put the Filipino ahead without self-destructing him and
without being unfair to the foreigner.

In short, the Constitution mandates a victory for the qualified Filipino only
when the scores are tied. But not when the ballgame is over and the
foreigner clearly posted the highest score.
PANGANIBAN, J., dissenting:
Footnotes
I regret I cannot join the majority. To the incisive Dissenting Opinion of
Mr. Justice Reynato S. Puno, may I just add
1 See Sec. 10, par. 2, Art. XII, 1987 Constitution
1. The majority contends the Constitution should be interpreted to mean
that, after a bidding process is concluded, the losing Filipino bidder 2 Par I. Introduction and Highlights; Guidelines and
should be given the right to equal the highest foreign bid, and thus to win. Procedures: Second Prequailifications and Public Bidding
However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the of the MHC Privatization; Annex "A," Consolidated Reply
grant of rights . . . covering the national economy and patrimony, the to Comments of Respondents; Rollo, p. 142.
State shall give preference to qualified Filipinos." The majority concedes
that there is no law defining the extent or degree of such 3 Par. V. Guidelines for the Public Bidding, id., pp. 153-
preference. Specifically, no statute empowers a losing Filipino bidder to 154.
increase his bid and equal that of the winning foreigner. In the absence of
such empowering law, the majority's strained interpretation, I respectfully 4 Annex "A," Petition for Prohibition and Mandamus with
submit constitutes unadulterated judicial legislation, which makes bidding Temporary Restraining Order; Rollo, pp. 13-14.
a ridiculous sham where no Filipino can lose and where no foreigner can
win. Only in the Philippines!. 5 Annex "B," Petition for Prohibition and Mandamus with
Temporary Restraining Order; id., p. 15.
2. Aside from being prohibited by the Constitution, such judicial is short-
sighted and, viewed properly, gravely prejudicial to long-term Filipino 6 Petition for Prohibition and Mandamus with Temporary
interest. It encourages other countries — in the guise of reverse comity or Restraining Order, pp. 5-6; id., pp. 6-7.
worse, unabashed retaliation — to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and 7 Consolidated Reply to Comments of Respondents, p.
defeat the higher bids of Filipino enterprises solely, while on the other 17; id., p. 133.
hand, allowing similar bids of other foreigners to remain unchallenged by
their nationals. The majority's thesis will thus marginalize Filipinos as
8 Par. V.J. 1, Guidelines for Public Bidding, Guidelines
pariahs in the global marketplace with absolute no chance of winning any
and Procedures: second Prequalifications and Public
bidding outside our country. Even authoritarian regimes and hermit
Bidding of the MHC Privatization, Annex "A,"
kingdoms have long ago found out unfairness, greed and isolation are
Consolidated Reply to Comments of Respondents; id., p.
self-defeating and in the long-term, self-destructing.
154.
The moral lesson here is simple: Do not do unto other what you dont
9 Respondents' Joint Comment with Urgent Motion to Lift
want other to do unto you.
Temporary Restraining Order, p. 9; Rollo, p. 44.
10 Marbury v. Madison, 5, U.S. 138 (1803).
11 Am Jur. 606.
12 16 Am Jur. 2d 281.
13 Id., p. 282.
14 See Note 12.
15 Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-
10.
16 Record of the Constitutional Commission, Vol. 3, 22
August 1986, p. 608.
17 16 Am Jur 2d 283-284.
18 Sec. 10, first par., reads: The Congress shall, upon
recommendation of the economic and planning agency,
when the national interest dictates, reserve to citizens of
the Philippines or to corporations or associations at least
sixty per centum of whose capital is owned by such
citizens, or such higher percentage as Congress may
prescribe, certain areas of investments. The Congress
shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly
owned by Filipinos.
Sec. 10, third par., reads: The State shall regulate and
exercise authority over foreign investments within its
national jurisdiction and in accordance with its national
goals and priorities.
19 State ex rel. Miller v. O'Malley, 342 Mo. 641, 117
SW2d 319.
20 G.R. No. 91649, 14 May 1991, 197 SCRA 52.
21 Sec. 11, Art. II (Declaration of Principles and State
Policies), provides that [t]he State values the dignity of
every human person and guarantees full respect for
human rights.
22 Sec. 12, Art. II, provides that [t]he State recognizes the
sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall
equally protect the life of the mother and the life of the
unborn from conception. The natural and primary right
and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall
receive the support of the government.
23 Sec. 13, Art. II, provides that [t]he State recognizes the
vital role of the youth in nation-building and shall promote
and protect their physical, moral, spiritual, intellectual, and
social well-being. It shall inculcate in the youth patriotism
and nationalism, and encourage their involvement in
public and civic affairs.
24 Sec. 1, Art. XIII (Social Justice and Human Rights),
provides that [t]he Congress shall give highest priority to
the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social,
economic and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political power
for the common good.
To this end, the State shall regulate the acquisition,
ownership, use, and disposition of property and its
increments.
Sec. 2, Art. XIII, provides that [t]he promotion of social
justice shall include the commitment to create economic
opportunities based on freedom of initiative and self-
reliance.
25 Sec. 2, Art. XIV (Education, Science and Technology,
Arts, Culture, and Sports), provides that [t]he State shall:
(1) Establish, maintain, and support a complete,
adequate, and integrated system of education relevant to
the needs of the people and society;
(2) Establish and maintain a system of free public
education in the elementary and high school levels.
Without limiting the natural right of parents to rear their
children, elementary education is compulsory for all
children of school age;
(3) Establish and maintain a system of scholarship grants,
student loan programs, subsidies, and other incentives
which shall be available to deserving students in both
public and private schools, especially to the
underprivileged.
(4) Encourage non-formal, informal, and indegenous
learning, independent, and out-of-school study programs
particularly those that respond to community needs; and
(5) Provide adult citizens, the disabled, and out-of-school
youth with training in civics, vocational efficiency, and
other skills.
26 G.R. 115455, 25 August 1994, 235 SCRA 630.
27 See Note 25.
28 Sec. 1 Art. XIV, provides that [t]he State shall protect
and promote the right of all citizens to quality education at
all levels of education and shall take appropriate steps to
make such education accessible to all.
29 G.R. No. 118910, 17 July 1995.
30 Sec. 5 Art. II (Declaration of Principles and State
Policies), provides that [t]he maintenance of peace and
order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of
democracy.
31 See Note 23.
32 See Note 24.
33 Sec. 17, Art II, provides that [t]he State shall give
priority to education, science and technology, arts,
culture, and sports to foster patriotism and nationalism,
accelerate social progress, and promote total human
liberation and development.
34 Nolledo, Jose N., The New Constitution of the
Philippines Annotated, 1990 ed., p. 72.
35 Webster's Third New International Dictionary, 1986
ed., p. 1656.
36 The guest list of the Manila Hotel includes Gen.
Douglas MacArthur, the Duke of Windsor, President
Richard Nixon of U.S.A., Emperor Akihito of Japan,
President Dwight Eisenhower of U.S.A, President Nguyen
Van Thieu of Vietnam, President Park Chung Hee of
Korea, Prime Minister Richard Holt of Australia, Prime
Minister Keith Holyoake of New Zealand, President
Lyndon Johnson of U.S.A., President Jose Lopez Portillo
of Mexico, Princess Margaret of England, Prime Minister
Malcolm Fraser of Australia, Prime Minister Yasuhiro
Nakasone of Japan, Prime Minister Pierre Elliot Trudeau
of Canada, President Raul Alfonsin of Argentina,
President Felipe Gonzalez of Spain, Prime Minister
Noboru Takeshita of Japan, Prime Minister Hussain
Muhammad Ershad of Bangladesh, Prime Minister Bob
Hawke of Australia, Prime Minister Yasuhiro Nakasone of
Japan, Premier Li Peng of China, Sultan Hassanal
Bolkiah of Brunei, President Ramaswani Venkataraman of
India, Prime Minister Go Chok Tong of Singapore, Prime
Minister Enrique Silva Cimma of Chile, Princess
Chulaborn and Mahacharri Sirindhorn of Thailand, Prime
Minister Tomiichi Murayama of Japan, Sultan Azlan Shah
and Raja Permaisuri Agong of Malaysia, President Kim
President Young Sam of Korea, Princess Infanta Elena of
Spain, President William Clinton of U.S.A., Prime Minister
Mahathir Mohamad of Malaysia, King Juan Carlos I and
Queen Sofia of Spain, President Carlos Saul Menem of
Argentina, Prime Ministers Chatichai Choonvan and Prem
Tinsulanonda of Thailand, Prime Minister Benazir Bhutto
of Pakistan, President Vaclav Havel of Czech Republic,
Gen. Norman Schwarzcopf of U.S.A, President Ernesto
Perez Balladares of Panama, Prime Minister Adolfas
Slezevicius of Lithuania, President Akbar Hashemi
Rafsanjani of Iran, President Frei Ruiz Tagle of Chile,
President Le Duc Anh of Vietnam, and Prime Minister
Julius Chan of Papua New Guinea, see Memorandum for
Petitioner, pp. 16-19.
37 Authored by Beth Day Romulo.
38 See Note 9, pp. 15-16; Rollo, pp. 50-51.
39 Record of the Constitutional Commission. Vol. 3, 22
August 1986. p. 607.
40 Id., p. 612.
41 Id., p. 616.
42 Id., p. 606.
43 Nolledo, J.N., The New Constitution of the Philippines
Annotated, 1990 ed., pp. 930-931.
44 Bidders were required to have at least one of the these
qualifications to be able to participate in the bidding
process; see Note 2.
45 Memorandum of Fr. Joaquin G. Bernas, S.J., p. 6.
46 Id., pp. 3-4.
47 See Note 8.
48 Keynote Address at the ASEAN Regional Symposium
of Enforcement of Industrial Property Rights held 23
October 1995 at New World Hotel, Makati City.
49 Speech of Senior Associate Justice Teodoro R. Padilla
at the Induction of Officers and Directors of the
PHILCONSA for 1996 held 16 January 1996 at the Sky-
Top, Hotel Intercontinental, Makati City.
50 Memorandum of Authorities submitted by former Chief
Justice Enrique M. Fernando, p. 5.
51 8 March 1996 issue of Philippine Daily Inquirer, p. B13.
PADILLA, J., concurring:
1 Article XII, Section 10, par. 2, 1987 Constitution.
2 Padilla, The 1987 Constitution of the Republic of the
Philippines, Volume III, p. 89.
3 Sinco, Philippine Political Law, 11th ed, p. 112.
4 Nolledo, The New Constitution of the Philippines,
Announced, 1990 ed., p. 72.
5 Memorandum for Petitioner, p. 1.
6 Laurel, Proceedings of the Philippine Constitutional
Convention (1934-1935), p. 507.
7 Id., p. 562.
VITUG, J., concurring:
1 Second par. Section 10, Art. XII, 1987 Constitution.
MENDOZA, J., concurring:
1 Art. XII, §10, second paragraph.
2 GUIDELINES AND PROCEDURES: SECOND
PREQUALIFICATION AND PUBLIC BIDDING OF THE
MHC PRIVATIZATION (hereafter referred to as
GUIDELINES), Part. V, par. H(4)..
3 Id.
4 83 Phil. 242 (1949).
5 R.A. No. 37, §1.
6 87 Phil. 343 (1950).
7 104 Phil. 302 (1958).
8 Id, at 309.
9 For an excellent analysis of American cases on reverse
discrimination in these areas, see GERALD GUNTHER,
CONSTITUTIONAL LAW 780-819 (1991).
10 Art. II, §19: "The State shall develop a self-reliant and
independent national economy effectively controlled by
Filipinos." (Emphasis added)
11 See Villegas v. Hiu Chiung Tsai Pao Ho, 86 SCRA 270
(1978) (invalidating an ordinance imposing a flat fee of
P500 on aliens for the privilege of earning a livelihood).
12 Petitioner passed the criteria set forth in the
GUIDELINES, Part IV, par. F(4), of the GSIS, relating to
the following:
a. Business management expertise, tract
record, and experience
b. Financial capability
c. Feasibility and acceptability of the
proposed strategic plan for the Manila
Hotel.
13 GUIDELINES, Part V, par. (1)(3), in relation to Part. I.
14 Id., Part V, par. V (1).
PUNO, J., dissenting:
1 Introduction and Highlights, Guidelines and Procedures:
Second Prequalification and Public Bidding of the MHC
Privatization, Annex "A" to Petitioner's Consolidated
Reply to Comments of Respondents, Rollo, p. 142.
2 The four bidders who previously prequalified for the first
bidding, namely, ITT Sheraton, Marriot International, Inc.,
Renaissance Hotel International, Inc., and the consortium
of RCBC and the Ritz Carlton, were deemed prequalified
for the second bidding.
3 Annex "A" to the Consolidated Reply to Comments of
Respondents, Rollo, pp. 140-155.
4 Former Chief Justice Enrique Fernando and
Commissioner Joaquin Bernas were invited by the Court
as amicus curiae to shed light on its meaning.
5 Lopez v. de los Reyes, 55 Phil. 170, 190 [1930].
6 16 Am Jur 2d, Constitutional Law, Sec. 139 p. 510
[1979 ed. ]; 6 R.C.L. Sec. 52 p. 57 [1915]; see also Willis
v. St. Paul Sanitation Co. 48 Minn. 140, 50 N.W. 1110, 31
A.J.R. 626, 16 L.R.A. 281 [1892]; State ex rel. Schneider
v. Kennedy, 587 P. 2d 844, 225 Kan [1978].
7 Willis v. St. Paul Sanitation, supra, at 1110-1111; see
also Cooley, A Treatise on Constitutional Limitations 167,
vol. 1 [1927].
8 16 C.J.S., Constitutional Law, Sec. 48, p. 100.
9 Cooley, supra, at 171; 6 R.C.L. Sec. 53, pp. 57-58;
Brice v. McDow, 116 S.C. 324, 108 S.E. 84, 87
[1921]; see also Gonzales, Philippine Constitutional Law
p. 26 [1969].
10 16 C.J.S., Constitutional Law, Sec. 48, p. 101.
11 Way v. Barney, 116 Minn. 285, 133 N.W. 801, 804 38
L.R.A. (N.S.) 648, Ann. Cas. 1913 A, 719 [1911]; Brice v.
McDow, supra, at 87; Morgan v. Board of Supervisors, 67
Ariz. 133, 192 P. 2d 236, 241 [1948]; Gonzales, supra..
12 Ninth Decennial Digest Part I, Constitutional Law, (Key
No. 28), p. 1638.
13 Article III, Section 2; see Webb v. de Leon, 247 SCRA
652 [1995]; People v. Saycon, 236 SCRA 325 (1994];
Allado v. Diokno, 232 SCRA 192 (1994]; Burgos v. Chief
of Staff, 133 SCRA 800 [1984]; Yee Sue Kuy v. Almeda,
70 Phil. 141 [1940]; Pasion Vda. de Garcia v. Locsin, 65
Phil. 689 [1938]; and a host of other cases.
14 Article III, Section 12, pars. 1 to 3; People v. Alicando,
251 SCRA 293 [1995]; People v. Bandula 232 SCRA 566
[1994]; People v. Nito 228 SCRA 442 [1993]; People v.
Duero, 104 SCRA 379 [1981]; People v. Galit, 135 SCRA
465 [1985]; and a host of other cases.
15 Article III, Section 14; People v. Digno, 250 SCRA 237
[1995]; People v. Godoy, 250 SCRA 676 [1995]; People v.
Colcol 219 SCRA [1993]; Borja v. Mendoza, 77 SCRA
422 [1977]; People v. Dramayo, 42 SCRA 59 [1971]; and
a host of other cases.
16 Galman v. Pamaran, 138 SCRA 274 [1985]; Chavez v.
Court of Appeals 24 SCRA 663 [1968]; People v.
Otadura, 86 Phil. 244 [1950]; Bermudez v. Castillo, 64
Phil, 485 [1937]; and a host of other cases.
17 Harley v. Schuylkill County, 476 F. Supp, 191, 195-196
[1979]; Erdman v. Mitchell, 207 Pa. St. 79, 56 Atl. 327, 99
A.S.R. 783 63 L.R.A. 534 [1903]; see Ninth Decennial
Digest Part I, Constitutional Law, (Key No. 28), pp. 1638-
1639.
18 City of Chicago v. George F. Harding Collection, 217
N.E. 2d 381, 383, 70 Ill. App. 2d 254 [1966]; People v.
Buellton Dev. Co., 136 P. 2d 793, 796, 58 Cal. App. 2d
178 [1943]; Bordy v. State, 7 N.W. 2d 632, 635, 142 Neb.
714 [1943]; Cohen v. City of Chicago, 36 N.E. 2d 220,
224, 377 Ill 221 [1941].
19 16 Am Jur 2d, Constitutional Law, Sec. 143, p. 514; 16
C.J.S. Constitutional Law, Sec. 48, p. 100; 6 R.C.L. Sec.
54, p. 59; see also State ex rel. Noe v. Knop La. App. 190
So. 135, 142 [1939]; State ex rel. Walker v. Board of
Comm'rs. for Educational Lands and Funds, 3 N.W. 2d
196, 200, 141 Neb. 172 [1942]; Maddox v. Hunt, 83 P. 2d
553, 556, 83 Okl. 465 [1938].
20 Article II, Sections 11, 12 and 13 (Basco v. Phil.
Amusements and Gaming Corporation, 197 SCRA 52, 68
[1991]); Sections 5, 12, 13 and 17 (Kilosbayan, Inc. v.
Morato, 246 SCRA 540, 564 [1995]).
21 Article XIII, Section 13 (Basco, supra).
22 Article XIV, Section 2 (Basco, supra).
23 Kilosbayan v. Morato, supra, at 564.
24 Basco v. Phil. Amusements and Gaming
Corporation, supra, at 68.
25 Congress had previously passed the Retail Trade Act
(R.A. 1180); the Private Security Agency Act (R.A. 5487;
the law on engaging in the rice and corn industry (R.A.
3018, P.D. 194), etc.
26 Or such higher percentage as Congress may
prescribe.
27 Article XIV, section 3 of the 1973 Constitution reads:
"Sec. 3. The Batasang Pambansa shall, upon
recommendation of the National Economic and
Development Authority, reserve to citizens of the
Philippines or to corporations or associations wholly
owned by such citizens, certain traditional areas of
investments when the national interest so dictates,"
28 101 Phil. 1155 [1957].
29 See Bernas, The Constitution of the Republic of the
Philippines 450, vol. II [1988]. The Lao Ichong case
upheld the Filipinization of the retail trade and implied that
particular areas of business may be Filipinized without
doing violence to the equal protection clause of the
Constitution.
30 Nolledo The New Constitution of the Philippines,
Annotated, 1990 ed., p. 72. The word "patrimony" first
appeared in the preamble of the 1935 Constitution and
was understood to cover everything that belongs to the
Filipino people, the tangible and the material as well as
the intangible and the spiritual assets and possessions of
the nation (Sinco, Philippine Political Law, Principles and
Concepts [1962 ed.], p. 112; Speech of Delegate of
Conrado Benitez defending the draft preamble of the
1935 Constitution in Laurel, Proceedings of the
Constitutional Convention, vol. III, p. 325 [1966]).
31 Commissioned by the Manila Hotel Corporation for the
Diamond Jubilee celebration of the Hotel in 1987; see The
Manila Hotel: The Heart and Memory of a City.any
32 Section 7 of R.A. 4846 provides:
Sec. 7. In the designation of a particular cultural property
as a .national cultural treasure," the following procedure
shall be observed:
(a) Before the actual designation, the owner, if the
property is privately owned, shall be notified at least
fifteen days prior to the intended designation, and he shall
be invited to attend the deliberation and given a chance to
be heard. Failure on the part of the owner to attend the
deliberation shall not bar the panel to render its decision.
Decision shall be given by the panel within a week after
its deliberation. In the event that the owner desires to
seek reconsideration of the designation made by the
panel, he may do so within thirty days from the date that
the decision has been rendered. If no request for
reconsideration is filed after this period, the designation is
then considered final and executory. Any request for
reconsideration filed within thirty days and subsequently
again denied by the panel, may be further appealed to
another panel chairmanned by the Secretary of Education
with two experts as members appointed by the Secretary
of Education. Their decision shall final and binding.
(b) Within each kind or class of objects, only the rare and
unique objects may be designated as "National Cultural
Treasures." The remainder, if any shall be treated as
cultural property.
xxx xxx xxx
33 P.D. 1146, Sec, 5; P.D, 1146, known as "The Revised
Government Service Insurance Act of 1977" amended
Commonwealth Act No. 186, the "Government Service
Insurance Act" of 1936.
34 Beronilla v. Government Service Insurance System, 36
SCRA 44, 53 [1970]; Social Security System Employees
Association v. Soriano, 7 SCRA 1016, 1023 [1963].
35 Id., secs. 28 and 29.
36 Id., Sec. 30.
37 Constitution, Article IX (B), section 2 (1).
38 Constitution, Article IX (D), section 2 (1).
39 It is meet to note that our laws do not debar foreigners
from engaging in the hotel business. Republic Act No.
7042, entitled the "Foreign Investments Act of 1991" was
enacted by Congress to "attract, promote and welcome . .
. foreign investments . . . in activities which significantly
contribute to national industrialization and socio-economic
development to the extent that foreign investment is
allowed by the Constitution and relevant laws." The law
contains a list, called the Negative List specifying areas of
economic activity where foreign participation is limited or
prohibited. Areas of economic activity not included in the
Negative List are open to foreign participation up to one
hundred per cent (Sees. 6 and 7). Foreigners now own
and run a great number of our five-star hotels.
G.R. No. 160261 November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner,
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA
MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND
MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER
JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE
PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO
C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND
HENEDINA RAZON-ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO
QUADRA, petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR
ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE
VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE
SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160263 November 10, 2003
ARTURO M. DE CASTRO AND SOLEDAD M.
CAGAMPANG, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioners-in-intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT,
AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF
THE HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003
FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE
HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS
CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF
THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM
FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM
BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIÑO-
SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS
BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR
ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO
MARAÑON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO,
FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE
CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA
JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL
DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO,
FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON,
LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE
SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR.,
EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO,
CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO,
JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO
YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS,
CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS
ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO
BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH
SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ,
RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT
REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI,
BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA,
ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON,
REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR.,
AND RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA.
CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR.,
ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P.
NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE
HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M.
GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER
OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE
G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE
OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160310 November 10, 2003
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR,
MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO,
EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE,
LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA,
MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA,
WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL,
ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA,
LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY
EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON
ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ,
ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS,
ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER
QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA,
FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO
LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX
VILLAESTER, AND EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON.
SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED
BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX
FUENTEBELLA, ET AL., respondents.
x---------------------------------------------------------x
G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,
vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF
REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M.
DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents.
x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER
OF THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND
ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER
AND MEMBER OF THE ENGINEERING PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83
HONORABLE MEMBERS OF THE HOUSE LED BY HON.
REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.
x---------------------------------------------------------x
G.R. No. 160343 November 10, 2003
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER
OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE
G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE
OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160360 November 10, 2003
CLARO B. FLORES, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER,
AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE
PRESIDENT, respondents.
x---------------------------------------------------------x
G.R. No. 160365 November 10, 2003
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C.
PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS,
LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON,
ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA,
KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-
PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER
CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE
VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT
FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX
FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND
AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE
REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT
COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO
G. DAVIDE, JR. respondents.
x---------------------------------------------------------x
G.R. No. 160370 November 10, 2003
FR. RANHILIO CALLANGAN AQUINO, petitioner,
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE
SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents.
x---------------------------------------------------------x
G.R. No. 160376 November 10, 2003
NILO A. MALANYAON, petitioner,
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN
REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES
OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE,
JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE
PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
VENECIA, respondents.
x---------------------------------------------------------x
G.R. No. 160392 November 10, 2003
VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G.
DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH
SENATE PRESIDENT FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160397 November 10, 2003
IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST
CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U.
VALLEJOS, JR., petitioner.
x---------------------------------------------------------x
G.R. No. 160403 November 10, 2003
PHILIPPINE BAR ASSOCIATION, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR
PRESIDING OFFICER, HON. JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE
OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON.
FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY
CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU
PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD
MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW,
UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU,
INC. [YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI,
CONFEDERATION OF ACCREDITED MEDIATORS OF THE
PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R.
POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW],
REPRESENTED BY FELIPE VELASQUEZ, FEDERACION
INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY
THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU
CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY
LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE
NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU
CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE
PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP.
JOSE G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE,
REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE
PRESIDENT, respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how
passionate and seemingly irreconcilable it may appear to be, over the
determination by the independent branches of government of the nature,
scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional,
at times turbulent, dynamics of the relationship among these co-equal
branches. This Court is confronted with one such today involving the
legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous
sentiments thereon.
There may indeed be some legitimacy to the characterization that the
present controversy subject of the instant petitions – whether the filing of
the second impeachment complaint against Chief Justice Hilario G.
Davide, Jr. with the House of Representatives falls within the one year
bar provided in the Constitution, and whether the resolution thereof is a
political question – has resulted in a political crisis. Perhaps even more
truth to the view that it was brought upon by a political crisis of
conscience.
In any event, it is with the absolute certainty that our Constitution is
sufficient to address all the issues which this controversy spawns that this
Court unequivocally pronounces, at the first instance, that the feared
resort to extra-constitutional methods of resolving it is neither necessary
nor legally permissible. Both its resolution and protection of the public
interest lie in adherence to, not departure from, the Constitution.
In passing over the complex issues arising from the controversy, this
Court is ever mindful of the essential truth that the inviolate doctrine of
separation of powers among the legislative, executive or judicial
branches of government by no means prescribes for absolute autonomy
in the discharge by each of that part of the governmental power assigned
to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which
has been carefully calibrated by the Constitution to temper the official
acts of each of these three branches must be given effect without
destroying their indispensable co-equality.
Taken together, these two fundamental doctrines of republican
government, intended as they are to insure that governmental power is
wielded only for the good of the people, mandate a relationship of
interdependence and coordination among these branches where the
delicate functions of enacting, interpreting and enforcing laws are
harmonized to achieve a unity of governance, guided only by what is in
the greater interest and well-being of the people. Verily, salus populi est
suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency,
act with patriotism and justice, and lead modest lives.
SECTION 2. The President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from office,
on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust. All other public officers and
employees may be removed from office as provided by law, but
not by impeachment.
SECTION 3. (1) The House of Representatives shall have
the exclusive power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon a
resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and
referred to the proper Committee within three session days
thereafter. The Committee, after hearing, and by a majority vote
of all its Members, shall submit its report to the House within sixty
session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration
by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House
shall be necessary either to affirm a favorable resolution with the
Articles of Impeachment of the Committee, or override its contrary
resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is
filed by at least one-third of all the Members of the House, the
same shall constitute the Articles of Impeachment, and trial by the
Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
(6) The Senate shall have the sole power to try and decide all
cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of the Supreme Court
shall preside, but shall not vote. No person shall be convicted
without the concurrence of two-thirds of all the Members of the
Senate.
(7) Judgment in cases of impeachment shall not extend further
than removal from office and disqualification to hold any office
under the Republic of the Philippines, but the party convicted
shall nevertheless be liable and subject to prosecution, trial, and
punishment according to law.
(8) The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section. (Emphasis
and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the
12th Congress of the House of Representatives adopted and approved
the Rules of Procedure in Impeachment Proceedings (House
Impeachment Rules) on November 28, 2001, superseding the previous
House Impeachment Rules1 approved by the 11th Congress.
The relevant distinctions between these two Congresses' House
Impeachment Rules are shown in the following tabulation:
 11TH CONGRESS RULES
RULE II
INITIATING IMPEACHMENT
Section 2. Mode of Initiating
Impeachment. – Impeachment shall
be initiated only by a verified
complaint for impeachment filed by
any Member of the House of
Representatives or by any citizen
upon a resolution of endorsement by
any Member thereof or by a verified
complaint or resolution of
impeachment filed by at least one-
third (1/3) of all the Members of the
House.
12TH CONGRESS NEW RULES resolution of impeachment with
the Secretary General.
RULE V
BAR AGAINST INITIATION OF
RULE V Section 17. Bar Against
IMPEACHMENT PROCEEDINGS
Initiation Of Impeachment
AGAINST THE SAME OFFICIAL
BAR AGAINST IMPEACHMENT Proceedings. – Within a period o
one (1) year from the date
Section 16. – Impeachment impeachment proceedings are
Proceedings Deemed Initiated. – Section 14. Scope of Bar. – No
impeachment proceedings shall be deemed initiated as provided in
In cases where a Member of the Section 16 hereof, no
House files a verified complaint of initiated against the same official
more than once within the period of impeachment proceedings, as
impeachment or a citizen files a such, can be initiated against the
verified complaint that is endorsed one (1) year.
same official. (Italics in the origina
by a Member of the House through emphasis and underscoring
a resolution of endorsement supplied)
against an impeachable officer,
impeachment proceedings against
such official are deemed initiated On July 22, 2002, the House of Representatives adopted a
on the day the Committee on Resolution,2 sponsored by Representative Felix William D. Fuentebella,
Justice finds that the verified which directed the Committee on Justice "to conduct an investigation, in
complaint and/or resolution against aid of legislation, on the manner of disbursements and expenditures by
such official, as the case may be,the Chief Justice of the Supreme Court of the Judiciary Development
Fund (JDF)."3
is sufficient in substance, or on the
date the House votes to overturn
or affirm the finding of the said On June 2, 2003, former President Joseph E. Estrada filed an
Committee that the verified impeachment complaint4 (first impeachment complaint) against Chief
complaint and/or resolution, as the Justice Hilario G. Davide Jr. and seven Associate Justices5 of this Court
case may be, is not sufficient in for "culpable violation of the Constitution, betrayal of the public trust and
substance. other high crimes."6 The complaint was endorsed by Representatives
Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang
In cases where a verified Dilangalen,7 and was referred to the House Committee on Justice on
complaint or a resolution of August 5, 20038 in accordance with Section 3(2) of Article XI of the
impeachment is filed or endorsed,Constitution which reads:
as the case may be, by at least
one-third (1/3) of the Members of Section 3(2) A verified complaint for impeachment may be filed by
the House, impeachment any Member of the House of Representatives or by any citizen
proceedings are deemed upon a resolution of endorsement by any Member thereof, which
initiated at the time of the filing shall be included in the Order of Business within ten session
of such verified complaint or days, and referred to the proper Committee within three session
days thereafter. The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the
 corresponding resolution. The resolution shall be calendared for
consideration by the House within ten session days from receipt
thereof.
The House Committee on Justice ruled on October 13, 2003 that the first
impeachment complaint was "sufficient in form,"9 but voted to dismiss the
same on October 22, 2003 for being insufficient in substance.10 To date,
the Committee Report to this effect has not yet been sent to the House in
plenary in accordance with the said Section 3(2) of Article XI of the
Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first
complaint or on October 23, 2003, a day after the House Committee on
Justice voted to dismiss it, the second impeachment complaint11 was filed
with the Secretary General of the House12 by Representatives Gilberto C.
Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third
District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr.,
founded on the alleged results of the legislative inquiry initiated by above-
mentioned House Resolution. This second impeachment complaint was
accompanied by a "Resolution of Endorsement/Impeachment" signed by
at least one-third (1/3) of all the Members of the House of
Representatives.13
Thus arose the instant petitions against the House of Representatives, et.
al., most of which petitions contend that the filing of the second
impeachment complaint is unconstitutional as it violates the provision of
Section 5 of Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more than once
within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging
that he has a duty as a member of the Integrated Bar of the Philippines to
use all available legal remedies to stop an unconstitutional impeachment,
that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he "himself was a
victim of the capricious and arbitrary changes in the Rules of Procedure
in Impeachment Proceedings introduced by the 12th Congress,"14 posits
that his right to bring an impeachment complaint against then
Ombudsman Aniano Desierto had been violated due to the capricious
and arbitrary changes in the House Impeachment Rules adopted and
approved on November 28, 2001 by the House of Representatives and
prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8,
and 9 thereof be declared unconstitutional; (2) this Court issue a writ of
mandamus directing respondents House of Representatives et. al. to
comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to
return the second impeachment complaint and/or strike it off the records
of the House of Representatives, and to promulgate rules which are
consistent with the Constitution; and (3) this Court permanently enjoin
respondent House of Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens
and taxpayers, alleging that the issues of the case are of transcendental
importance, pray, in their petition for Certiorari/Prohibition, the issuance
of a writ "perpetually" prohibiting respondent House of Representatives
from filing any Articles of Impeachment against the Chief Justice with the
Senate; and for the issuance of a writ "perpetually" prohibiting
respondents Senate and Senate President Franklin Drilon from accepting
any Articles of Impeachment against the Chief Justice or, in the event
that the Senate has accepted the same, from proceeding with the
impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad
Cagampang, as citizens, taxpayers, lawyers and members of the
Integrated Bar of the Philippines, alleging that their petition for Prohibition
involves public interest as it involves the use of public funds necessary to
conduct the impeachment trial on the second impeachment complaint,
pray for the issuance of a writ of prohibition enjoining Congress from
conducting further proceedings on said second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this
Court has recognized that he has locus standi to bring petitions of this
nature in the cases of Chavez v. PCGG15 and Chavez v. PEA-Amari
Coastal Bay Development Corporation,16 prays in his petition for
Injunction that the second impeachment complaint be declared
unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers
and members of the legal profession, pray in their petition for Prohibition
for an order prohibiting respondent House of Representatives from
drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno
from transmitting the Articles of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and
Deputy Speaker Raul M. Gonzalez, alleging that, as members of the
House of Representatives, they have a legal interest in ensuring that only
constitutional impeachment proceedings are initiated, pray in their petition
for Certiorari/Prohibition that the second impeachment complaint and any
act proceeding therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that
they have a right to be protected against all forms of senseless spending
of taxpayers' money and that they have an obligation to protect the
Supreme Court, the Chief Justice, and the integrity of the Judiciary,
allege in their petition for Certiorari and Prohibition that it is instituted as
"a class suit" and pray that (1) the House Resolution endorsing the
second impeachment complaint as well as all issuances emanating
therefrom be declared null and void; and (2) this Court enjoin the Senate
and the Senate President from taking cognizance of, hearing, trying and
deciding the second impeachment complaint, and issue a writ of
prohibition commanding the Senate, its prosecutors and agents to desist
from conducting any proceedings or to act on the impeachment
complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose
members are citizens and taxpayers, and its co-petitioner Crispin T.
Reyes, a citizen, taxpayer and a member of the Philippine Bar, both
allege in their petition, which does not state what its nature is, that the
filing of the second impeachment complaint involves paramount public
interest and pray that Sections 16 and 17 of the House Impeachment
Rules and the second impeachment complaint/Articles of Impeachment
be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen
and a member of the Philippine Bar Association and of the Integrated Bar
of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a
taxpayer, pray in their petition for the issuance of a Temporary
Restraining Order and Permanent Injunction to enjoin the House of
Representatives from proceeding with the second impeachment
complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging
that it is mandated by the Code of Professional Responsibility to uphold
the Constitution, prays in its petition for Certiorari and Prohibition that
Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the
House Impeachment Rules be declared unconstitutional and that the
House of Representatives be permanently enjoined from proceeding with
the second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his
petition for Certiorari and Prohibition that the House Impeachment Rules
be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc.,
et. al., in their petition for Prohibition and Injunction which they claim is a
class suit filed in behalf of all citizens, citing Oposa v. Factoran17 which
was filed in behalf of succeeding generations of Filipinos, pray for the
issuance of a writ prohibiting respondents House of Representatives and
the Senate from conducting further proceedings on the second
impeachment complaint and that this Court declare as unconstitutional
the second impeachment complaint and the acts of respondent House of
Representatives in interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan
Aquino, alleging that the issues in his petition for Prohibition are of
national and transcendental significance and that as an official of the
Philippine Judicial Academy, he has a direct and substantial interest in
the unhampered operation of the Supreme Court and its officials in
discharging their duties in accordance with the Constitution, prays for the
issuance of a writ prohibiting the House of Representatives from
transmitting the Articles of Impeachment to the Senate and the Senate
from receiving the same or giving the impeachment complaint due
course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges
in his petition for Prohibition that respondents Fuentebella and Teodoro at
the time they filed the second impeachment complaint, were "absolutely
without any legal power to do so, as they acted without jurisdiction as far
as the Articles of Impeachment assail the alleged abuse of powers of the
Chief Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L.
Hofileña, alleging that as professors of law they have an abiding interest
in the subject matter of their petition for Certiorari and Prohibition as it
pertains to a constitutional issue "which they are trying to inculcate in the
minds of their students," pray that the House of Representatives be
enjoined from endorsing and the Senate from trying the Articles of
Impeachment and that the second impeachment complaint be declared
null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without
alleging his locus standi, but alleging that the second impeachment
complaint is founded on the issue of whether or not the Judicial
Development Fund (JDF) was spent in accordance with law and that the
House of Representatives does not have exclusive jurisdiction in the
examination and audit thereof, prays in his petition "To Declare Complaint
Null and Void for Lack of Cause of Action and Jurisdiction" that the
second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that
the issues raised in the filing of the second impeachment complaint
involve matters of transcendental importance, prays in its petition for
Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent
House of Representatives be prohibited from transmitting the Articles of
Impeachment to the Senate; and (3) respondent Senate be prohibited
from accepting the Articles of Impeachment and from conducting any
proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens
and taxpayers, pray in their petition for Certiorari/Prohibition that (1) the
second impeachment complaint as well as the resolution of endorsement
and impeachment by the respondent House of Representatives be
declared null and void and (2) respondents Senate and Senate President
Franklin Drilon be prohibited from accepting any Articles of Impeachment
against the Chief Justice or, in the event that they have accepted the
same, that they be prohibited from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and
160263, the first three of the eighteen which were filed before this
Court,18 prayed for the issuance of a Temporary Restraining Order and/or
preliminary injunction to prevent the House of Representatives from
transmitting the Articles of Impeachment arising from the second
impeachment complaint to the Senate. Petition bearing docket number
G.R. No. 160261 likewise prayed for the declaration of the November 28,
2001 House Impeachment Rules as null and void for being
unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and
160295, which were filed on October 28, 2003, sought similar relief. In
addition, petition bearing docket number G.R. No. 160292 alleged that
House Resolution No. 260 (calling for a legislative inquiry into the
administration by the Chief Justice of the JDF) infringes on the
constitutional doctrine of separation of powers and is a direct violation of
the constitutional principle of fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of
Representatives, a motion was put forth that the second impeachment
complaint be formally transmitted to the Senate, but it was not carried
because the House of Representatives adjourned for lack of
quorum,19 and as reflected above, to date, the Articles of Impeachment
have yet to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order
and/or writ of preliminary injunction which were filed on or before October
28, 2003, Justices Puno and Vitug offered to recuse themselves, but the
Court rejected their offer. Justice Panganiban inhibited himself, but the
Court directed him to participate.
Without necessarily giving the petitions due course, this Court in its
Resolution of October 28, 2003, resolved to (a) consolidate the petitions;
(b) require respondent House of Representatives and the Senate, as well
as the Solicitor General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral arguments on
November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal
experts as amici curiae.20 In addition, this Court called on petitioners and
respondents to maintain the status quo, enjoining all the parties and
others acting for and in their behalf to refrain from committing acts that
would render the petitions moot.
Also on October 28, 2003, when respondent House of Representatives
through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by
way of special appearance, submitted a Manifestation asserting that this
Court has no jurisdiction to hear, much less prohibit or enjoin the House
of Representatives, which is an independent and co-equal branch of
government under the Constitution, from the performance of its
constitutionally mandated duty to initiate impeachment cases. On even
date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion
to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the
consolidated petitions be dismissed for lack of jurisdiction of the Court
over the issues affecting the impeachment proceedings and that the sole
power, authority and jurisdiction of the Senate as the impeachment court
to try and decide impeachment cases, including the one where the Chief
Justice is the respondent, be recognized and upheld pursuant to the
provisions of Article XI of the Constitution."22
Acting on the other petitions which were subsequently filed, this Court
resolved to (a) consolidate them with the earlier consolidated petitions;
(b) require respondents to file their comment not later than 4:30 p.m. of
November 3, 2003; and (c) include them for oral arguments on November
5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate
President Franklin M. Drilon, filed a Manifestation stating that insofar as it
is concerned, the petitions are plainly premature and have no basis in law
or in fact, adding that as of the time of the filing of the petitions, no
justiciable issue was presented before it since (1) its constitutional duty to
constitute itself as an impeachment court commences only upon its
receipt of the Articles of Impeachment, which it had not, and (2) the
principal issues raised by the petitions pertain exclusively to the
proceedings in the House of Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and
160295, questioning the status quo Resolution issued by this Court on
October 28, 2003 on the ground that it would unnecessarily put Congress
and this Court in a "constitutional deadlock" and praying for the dismissal
of all the petitions as the matter in question is not yet ripe for judicial
determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino
Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene
and to Admit the Herein Incorporated Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No.
160261. On November 5, 2003, World War II Veterans Legionnaires of
the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292,
160295, and 160310.
The motions for intervention were granted and both Senator Pimentel's
Comment and Attorneys Macalintal and Quadra's Petition in Intervention
were admitted.
On November 5-6, 2003, this Court heard the views of the amici
curiae and the arguments of petitioners, intervenors Senator Pimentel
and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the
principal issues outlined in an Advisory issued by this Court on November
3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be
invoked; who can invoke it; on what issues and at what time; and
whether it should be exercised by this Court at this time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of
impeachment;
e) Senate's "sole" power to try and decide all cases of
impeachment;
f) constitutionality of the House Rules on
Impeachment vis-a-vis Section 3(5) of Article XI of the
Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues
arising from the instant petitions as well as the myriad arguments and
opinions presented for and against the grant of the reliefs prayed for, this
Court has sifted and determined them to be as follows: (1) the threshold
and novel issue of whether or not the power of judicial review extends to
those arising from impeachment proceedings; (2) whether or not the
essential pre-requisites for the exercise of the power of judicial review
have been fulfilled; and (3) the substantive issues yet remaining. These
matters shall now be discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power
of judicial review to determine the validity of the second impeachment
complaint.
This Court's power of judicial review is conferred on the judicial branch of
the government in Section 1, Article VIII of our present 1987 Constitution:
 SECTION 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon
by Justice Jose P. Laurel in the definitive 1936 case of Angara v.
Electoral Commission23 after the effectivity of the 1935 Constitution
whose provisions, unlike the present Constitution, did not contain the
present provision in Article VIII, Section 1, par. 2 on what judicial power
includes. Thus, Justice Laurel discoursed:
x x x 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.
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 checks 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 a 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 of 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 sterile conclusions unrelated to actualities.
Narrowed as its function 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.24 (Italics in the original;
emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to "determine
the proper allocation of powers" of the different branches of government
and "to direct the course of government along constitutional channels" is
inherent in all courts25 as a necessary consequence of the judicial power
itself, which is "the power of the court to settle actual controversies
involving rights which are legally demandable and enforceable."26
Thus, even in the United States where the power of judicial review is not
explicitly conferred upon the courts by its Constitution, such power has
"been set at rest by popular acquiescence for a period of more than one
and a half centuries." To be sure, it was in the 1803 leading case
of Marbury v. Madison27 that the power of judicial review was first
articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring
what shall be the supreme law of the land, the constitution itself is
first mentioned; and not the laws of the United States generally,
but those only which shall be made in pursuance of the
constitution, have that rank.
Thus, the particular phraseology of the constitution of the
United States confirms and strengthens the principle, supposed
to be essential to all written constitutions, that a law
repugnant to the constitution is void; and that courts, as well
as other departments, are bound by that instrument.28(Italics
in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express
grant in the 1935 Constitution, the power of judicial review was exercised
by our courts to invalidate constitutionally infirm acts.29 And as pointed out
by noted political law professor and former Supreme Court Justice
Vicente V. Mendoza,30 the executive and legislative branches of our
government in fact effectively acknowledged this power of judicial review
in Article 7 of the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, or
custom or practice to the contrary.
When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws or
the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is
indeed an integral component of the delicate system of checks and
balances which, together with the corollary principle of separation of
powers, forms the bedrock of our republican form of government and
insures that its vast powers are utilized only for the benefit of the people
for which it serves.
The separation of powers is a fundamental principle in our
system of government. It obtains not through express provision
but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. But it does not
follow from the fact that the three powers are to be kept separate
and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution
has provided for an elaborate system of checks and
balances to secure coordination in the workings of the
various departments of the government. x x x And the
judiciary in turn, with the Supreme Court as the final arbiter,
effectively checks the other departments in the exercise of
its power to determine the law, and hence to declare
executive and legislative acts void if violative of the
Constitution.32 (Emphasis and underscoring supplied)
In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, "x x x judicial review is essential for the maintenance and
enforcement of the separation of powers and the balancing of powers
among the three great departments of government through the definition
and maintenance of the boundaries of authority and control between
them."33 To him, "[j]udicial review is the chief, indeed the only, medium of
participation – or instrument of intervention – of the judiciary in that
balancing operation."34
To ensure the potency of the power of judicial review to curb grave abuse
of discretion by "any branch or instrumentalities of government," the
afore-quoted Section 1, Article VIII of the Constitution engraves, for the
first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale
for which are mirrored in the following excerpt from the sponsorship
speech of its proponent, former Chief Justice Constitutional
Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions.
It says:
The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it
first and explain.
Judicial power includes the duty of courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable and to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part or instrumentality of the
government.
Fellow Members of this Commission, this is actually a product
of our experience during martial law. As a matter of fact, it has
some antecedents in the past, but the role of the judiciary
during the deposed regime was marred considerably by the
circumstance that in a number of cases against the
government, which then had no legal defense at all, the
solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law
failed because the government set up the defense of political
question. And the Supreme Court said: "Well, since it is political,
we have no authority to pass upon it." The Committee on the
Judiciary feels that this was not a proper solution of the
questions involved. It did not merely request an
encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law
regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power
of the agencies and offices of the government as well as
those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of
government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as
to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means
that the courts cannot hereafter evade the duty to settle
matters of this nature, by claiming that such matters
constitute a political question.35 (Italics in the original;
emphasis and underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this
Court must necessarily turn to the Constitution itself which employs the
well-settled principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the
Constitution must be given their ordinary meaning except where technical
terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure
Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:
We look to the language of the document itself in our search
for its meaning. We do not of course stop there, but that is
where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary
meaning except where technical terms are employed in
which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyer's document,
it being essential for the rule of law to obtain that it should ever be
present in the people's consciousness, its language as much as
possible should be understood in the sense they have in common
use. What it says according to the text of the provision to be
construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the
people mean what they say. Thus these are the cases where the
need for construction is reduced to a minimum.37 (Emphasis and
underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the
Constitution should be interpreted in accordance with the intent of its
framers. And so did this Court apply this principle in Civil Liberties Union
v. Executive Secretary38 in this wise:
A foolproof yardstick in constitutional construction is the intention
underlying the provision under consideration. Thus, it has been
held that the Court in construing a Constitution should bear in
mind the object sought to be accomplished by its adoption, and
the evils, if any, sought to be prevented or remedied. A doubtful
provision will be examined in the light of the history of the times,
and the condition and circumstances under which the Constitution
was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the
particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to
make the words consonant to that reason and calculated to
effect that purpose.39 (Emphasis and underscoring supplied)
As it did in Nitafan v. Commissioner on Internal Revenue40 where,
speaking through Madame Justice Amuerfina A. Melencio-Herrera, it
declared:
x x x The ascertainment of that intent is but in keeping with
the fundamental principle of constitutional construction that
the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter assure
the realization of the purpose of the framers and of the people in
the adoption of the Constitution. It may also be safely assumed
that the people in ratifying the Constitution were guided
mainly by the explanation offered by the framers.41 (Emphasis
and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted
as a whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief
Justice Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could
not have dedicated a provision of our Constitution merely for
the benefit of one person without considering that it could
also affect others.When they adopted subsection 2, they
permitted, if not willed, that said provision should function to
the full extent of its substance and its terms, not by itself
alone, but in conjunction with all other provisions of that
great document.43 (Emphasis and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court
affirmed that:
It is a well-established rule in constitutional construction that
no one provision of the Constitution is to be separated from
all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate
the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted
together as to effectuate the whole purpose of the
Constitution and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be
made to stand together.
In other words, the court 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 the words idle and
nugatory.45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort
to other aids is available. In still the same case of Civil Liberties Union v.
Executive Secretary, this Court expounded:
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, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the
force of fundamental law. We think it safer to construe the
constitution from what appears upon its face." The proper
interpretation therefore depends more on how it was
understood by the people adopting it than in the framers's
understanding thereof.46 (Emphasis and underscoring supplied)
It is in the context of the foregoing backdrop of constitutional refinement
and jurisprudential application of the power of judicial review that
respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel
raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et.
al. that impeachment is a political action which cannot assume a judicial
character. Hence, any question, issue or incident arising at any stage of
the impeachment proceeding is beyond the reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the Senate's "sole
power to try" impeachment cases48 (1) entirely excludes the application of
judicial review over it; and (2) necessarily includes the Senate's power to
determine constitutional questions relative to impeachment
proceedings.49
In furthering their arguments on the proposition that impeachment
proceedings are outside the scope of judicial review, respondents
Speaker De Venecia, et. al. and intervenor Senator Pimentel rely heavily
on American authorities, principally the majority opinion in the case
of Nixon v. United States.50 Thus, they contend that the exercise of
judicial review over impeachment proceedings is inappropriate since it
runs counter to the framers' decision to allocate to different fora the
powers to try impeachments and to try crimes; it disturbs the system of
checks and balances, under which impeachment is the only legislative
check on the judiciary; and it would create a lack of finality and difficulty in
fashioning relief.51 Respondents likewise point to deliberations on the US
Constitution to show the intent to isolate judicial power of review in cases
of impeachment.
Respondents' and intervenors' reliance upon American jurisprudence, the
American Constitution and American authorities cannot be credited to
support the proposition that the Senate's "sole power to try and decide
impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all
issues pertaining to impeachment to the legislature, to the total exclusion
of the power of judicial review to check and restrain any grave abuse of
the impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the inherently
judicial power to determine constitutional questions incident to
impeachment proceedings.
Said American jurisprudence and authorities, much less the American
Constitution, are of dubious application for these are no longer controlling
within our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned. As held in the case of Garcia
vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should
not be beguiled by foreign jurisprudence some of which are hardly
applicable because they have been dictated by different constitutional
settings and needs."53 Indeed, although the Philippine Constitution can
trace its origins to that of the United States, their paths of development
have long since diverged. In the colorful words of Father Bernas, "[w]e
have cut the umbilical cord."
The major difference between the judicial power of the Philippine
Supreme Court and that of the U.S. Supreme Court is that while the
power of judicial review is only impliedly granted to the U.S. Supreme
Court and is discretionary in nature, that granted to the Philippine
Supreme Court and lower courts, as expressly provided for in the
Constitution, is not just a power but also a duty, and it was given an
expanded definition to include the power to correct any grave abuse of
discretion on the part of any government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the
Philippine Constitution with respect to the power of the House of
Representatives over impeachment proceedings. While the U.S.
Constitution bestows sole power of impeachment to the House of
Representatives without limitation,54 our Constitution, though vesting in
the House of Representatives the exclusive power to initiate
impeachment cases,55 provides for several limitations to the exercise of
such power as embodied in Section 3(2), (3), (4) and (5), Article XI
thereof. These limitations include the manner of filing, required vote to
impeach, and the one year bar on the impeachment of one and the same
official.
Respondents are also of the view that judicial review of impeachments
undermines their finality and may also lead to conflicts between Congress
and the judiciary. Thus, they call upon this Court to exercise judicial
statesmanship on the principle that "whenever possible, the Court should
defer to the judgment of the people expressed legislatively, recognizing
full well the perils of judicial willfulness and pride."56
But did not the people also express their will when they instituted the
above-mentioned safeguards in the Constitution? This shows that the
Constitution did not intend to leave the matter of impeachment to the sole
discretion of Congress. Instead, it provided for certain well-defined limits,
or in the language of Baker v. Carr,57"judicially discoverable standards"
for determining the validity of the exercise of such discretion, through the
power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by
respondents in support of the argument that the impeachment power is
beyond the scope of judicial review, are not in point. These cases
concern the denial of petitions for writs of mandamus to compel the
legislature to perform non-ministerial acts, and do not concern the
exercise of the power of judicial review.
There is indeed a plethora of cases in which this Court exercised the
power of judicial review over congressional action. Thus, in Santiago v.
Guingona, Jr.,60 this Court ruled that it is well within the power and
jurisdiction of the Court to inquire whether the Senate or its officials
committed a violation of the Constitution or grave abuse of discretion in
the exercise of their functions and prerogatives. In Tanada v. Angara,61 in
seeking to nullify an act of the Philippine Senate on the ground that it
contravened the Constitution, it held that the petition raises a justiciable
controversy and that when an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute. In Bondoc v.
Pineda,62 this Court declared null and void a resolution of the House of
Representatives withdrawing the nomination, and rescinding the election,
of a congressman as a member of the House Electoral Tribunal for being
violative of Section 17, Article VI of the Constitution. In Coseteng v.
Mitra,63 it held that the resolution of whether the House representation in
the Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18, Article VI
of the Constitution is subject to judicial review. In Daza v. Singson,64 it
held that the act of the House of Representatives in removing the
petitioner from the Commission on Appointments is subject to judicial
review. In Tanada v. Cuenco,65 it held that although under the
Constitution, the legislative power is vested exclusively in Congress, this
does not detract from the power of the courts to pass upon the
constitutionality of acts of Congress. In Angara v. Electoral
Commission,66 it ruled that confirmation by the National Assembly of the
election of any member, irrespective of whether his election is contested,
is not essential before such member-elect may discharge the duties and
enjoy the privileges of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the
exercise of judicial review over impeachment proceedings would upset
the system of checks and balances. Verily, the Constitution is to be
interpreted as a whole and "one section is not to be allowed to defeat
another."67 Both are integral components of the calibrated system of
independence and interdependence that insures that no branch of
government act beyond the powers assigned to it by the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of
judicial review, like almost all powers conferred by the Constitution, is
subject to several limitations, namely: (1) an actual case or controversy
calling for the exercise of judicial power; (2) the person challenging the
act must have "standing" to challenge; he must have a personal and
substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and
(4) the issue of constitutionality must be the very lis mota of the case.
x x x 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 sterile conclusions unrelated to actualities.
Narrowed as its function 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.68 (Italics in the
original)
Standing
Locus standi or legal standing or has been defined as a personal and
substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being
challenged. The gist of the question of standing is whether a party alleges
such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional
questions.69
Intervenor Soriano, in praying for the dismissal of the petitions, contends
that petitioners do not have standing since only the Chief Justice has
sustained and will sustain direct personal injury. Amicus curiae former
Justice Minister and Solicitor General Estelito Mendoza similarly
contends.
Upon the other hand, the Solicitor General asserts that petitioners have
standing since this Court had, in the past, accorded standing to
taxpayers, voters, concerned citizens, legislators in cases involving
paramount public interest70 and transcendental importance,71 and that
procedural matters are subordinate to the need to determine whether or
not the other branches of the government have kept themselves within
the limits of the Constitution and the laws and that they have not abused
the discretion given to them.72 Amicus curiae Dean Raul Pangalangan of
the U.P. College of Law is of the same opinion, citing transcendental
importance and the well-entrenched rule exception that, when the real
party in interest is unable to vindicate his rights by seeking the same
remedies, as in the case of the Chief Justice who, for ethical reasons,
cannot himself invoke the jurisdiction of this Court, the courts will grant
petitioners standing.
There is, however, a difference between the rule on real-party-in-interest
and the rule on standing, for the former is a concept of civil
procedure73 while the latter has constitutional underpinnings.74 In view of
the arguments set forth regarding standing, it behooves the Court to
reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant
by locus standi and to distinguish it from real party-in-interest.
The difference between the rule on standing and real party in
interest has been noted by authorities thus: "It is important to note
. . . that standing because of its constitutional and public policy
underpinnings, is very different from questions relating to whether
a particular plaintiff is the real party in interest or has capacity to
sue. Although all three requirements are directed towards
ensuring that only certain parties can maintain an action, standing
restrictions require a partial consideration of the merits, as well as
broader policy concerns relating to the proper role of the judiciary
in certain areas.
Standing is a special concern in constitutional law because in
some cases suits are brought not by parties who have been
personally injured by the operation of a law or by official action
taken, but by concerned citizens, taxpayers or voters who actually
sue in the public interest. Hence the question in standing is
whether such parties have "alleged such a personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is
whether he is "the party who would be benefited or injured by the
judgment, or the 'party entitled to the avails of the
suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured by the
alleged unconstitutional acts of the House of Representatives, none of
the petitioners before us asserts a violation of the personal rights of the
Chief Justice. On the contrary, they invariably invoke the vindication of
their own rights – as taxpayers; members of Congress; citizens,
individually or in a class suit; and members of the bar and of the legal
profession – which were supposedly violated by the alleged
unconstitutional acts of the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and
legislators when specific requirements have been met have been given
standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able
to show, not only that the law or any government act is invalid, but also
that he sustained or is in imminent danger of sustaining some direct injury
as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining has
been or is about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.77 In fine, when the
proceeding involves the assertion of a public right,78 the mere fact that he
is a citizen satisfies the requirement of personal interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that
public funds are illegally disbursed, or that public money is being
deflected to any improper purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional
law.79 Before he can invoke the power of judicial review, however, he
must specifically prove that he has sufficient interest in preventing the
illegal expenditure of money raised by taxation and that he would sustain
a direct injury as a result of the enforcement of the questioned statute or
contract. It is not sufficient that he has merely a general interest common
to all members of the public.80
At all events, courts are vested with discretion as to whether or not a
taxpayer's suit should be entertained.81 This Court opts to grant standing
to most of the petitioners, given their allegation that any impending
transmittal to the Senate of the Articles of Impeachment and the ensuing
trial of the Chief Justice will necessarily involve the expenditure of public
funds.
As for a legislator, he is allowed to sue to question the validity of any
official action which he claims infringes his prerogatives as a
legislator.82 Indeed, a member of the House of Representatives has
standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in his office.83
While an association has legal personality to represent its
members,84 especially when it is composed of substantial taxpayers and
the outcome will affect their vital interests,85 the mere invocation by
the Integrated Bar of the Philippines or any member of the legal
profession of the duty to preserve the rule of law and nothing more,
although undoubtedly true, does not suffice to clothe it with standing. Its
interest is too general. It is shared by other groups and the whole
citizenry. However, a reading of the petitions shows that it has advanced
constitutional issues which deserve the attention of this Court in view of
their seriousness, novelty and weight as precedents.86 It, therefore,
behooves this Court to relax the rules on standing and to resolve the
issues presented by it.
In the same vein, when dealing with class suits filed in behalf of all
citizens, persons intervening must be sufficiently numerous to fully
protect the interests of all concerned87 to enable the court to deal properly
with all interests involved in the suit,88 for a judgment in a class suit,
whether favorable or unfavorable to the class, is, under the res
judicata principle, binding on all members of the class whether or not they
were before the court.89 Where it clearly appears that not all interests can
be sufficiently represented as shown by the divergent issues raised in the
numerous petitions before this Court, G.R. No. 160365 as a class suit
ought to fail. Since petitioners additionallyallege standing as citizens and
taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole
ground of transcendental importance, while Atty. Dioscoro U. Vallejos, in
G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the
following instructive determinants formulated by former Supreme Court
Justice Florentino P. Feliciano are instructive: (1) the character of the
funds or other assets involved in the case; (2) the presence of a clear
case of disregard of a constitutional or statutory prohibition by the public
respondent agency or instrumentality of the government; and (3) the lack
of any other party with a more direct and specific interest in raising the
questions being raised.90 Applying these determinants, this Court is
satisfied that the issues raised herein are indeed of transcendental
importance.
In not a few cases, this Court has in fact adopted a liberal attitude on
the locus standi of a petitioner where the petitioner is able to craft an
issue of transcendental significance to the people, as when the issues
raised are of paramount importance to the public.91 Such liberality does
not, however, mean that the requirement that a party should have an
interest in the matter is totally eliminated. A party must, at the very least,
still plead the existence of such interest, it not being one of which courts
can take judicial notice. In petitioner Vallejos' case, he failed to allege any
interest in the case. He does not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the
Rules of Court requires an intervenor to possess a legal interest in the
matter in litigation, or in the success of either of the parties, or an interest
against both, or is so situated as to be adversely affected by a distribution
or other disposition of property in the custody of the court or of an officer
thereof. While intervention is not a matter of right, it may be permitted by
the courts when the applicant shows facts which satisfy the requirements
of the law authorizing intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's
case, they seek to join petitioners Candelaria, et. al. in G.R. No. 160262.
Since, save for one additional issue, they raise the same issues and the
same standing, and no objection on the part of petitioners Candelaria, et.
al. has been interposed, this Court as earlier stated, granted the Motion
for Leave of Court to Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261.
Invoking their right as citizens to intervene, alleging that "they will suffer if
this insidious scheme of the minority members of the House of
Representatives is successful," this Court found the requisites for
intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261,
160262, 160263, 160277, 160292, 160295, and 160310 were of
transcendental importance, World War II Veterans Legionnaires of the
Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene"
to raise the additional issue of whether or not the second impeachment
complaint against the Chief Justice is valid and based on any of the
grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., et al. and World War II Veterans
Legionnaires of the Philippines, Inc. possess a legal interest in the matter
in litigation the respective motions to intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the
limited purpose of making of record and arguing a point of view that
differs with Senate President Drilon's. He alleges that submitting to this
Court's jurisdiction as the Senate President does will undermine the
independence of the Senate which will sit as an impeachment court once
the Articles of Impeachment are transmitted to it from the House of
Representatives. Clearly, Senator Pimentel possesses a legal interest in
the matter in litigation, he being a member of Congress against which the
herein petitions are directed. For this reason, and to fully ventilate all
substantial issues relating to the matter at hand, his Motion to Intervene
was granted and he was, as earlier stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be
denied for, while he asserts an interest as a taxpayer, he failed to meet
the standing requirement for bringing taxpayer's suits as set forth
in Dumlao v. Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and
spent in violation of specific constitutional protection against
abuses of legislative power," or that there is a misapplication of
such funds by respondent COMELEC, or that public money is
being deflected to any improper purpose. Neither do petitioners
seek to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law.94 (Citations
omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege
that the act of petitioners will result in illegal disbursement of public funds
or in public money being deflected to any improper purpose. Additionally,
his mere interest as a member of the Bar does not suffice to clothe him
with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held
that for a case to be considered ripe for adjudication, "it is a prerequisite
that something had by then been accomplished or performed by either
branch before a court may come into the picture."96 Only then may the
courts pass on the validity of what was done, if and when the latter is
challenged in an appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing
of the second impeachment complaint against the Chief Justice in
accordance with the House Impeachment Rules adopted by the 12th
Congress, the constitutionality of which is questioned. The questioned
acts having been carried out, i.e., the second impeachment complaint
had been filed with the House of Representatives and the 2001 Rules
have already been already promulgated and enforced, the prerequisite
that the alleged unconstitutional act should be accomplished and
performed before suit, as Tan v. Macapagal holds, has been complied
with.
Related to the issue of ripeness is the question of whether the instant
petitions are premature. Amicus curiae former Senate President Jovito R.
Salonga opines that there may be no urgent need for this Court to render
a decision at this time, it being the final arbiter on questions of
constitutionality anyway. He thus recommends that all remedies in the
House and Senate should first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of
Law who suggests to this Court to take judicial notice of on-going
attempts to encourage signatories to the second impeachment complaint
to withdraw their signatures and opines that the House Impeachment
Rules provide for an opportunity for members to raise constitutional
questions themselves when the Articles of Impeachment are presented
on a motion to transmit to the same to the Senate. The dean maintains
that even assuming that the Articles are transmitted to the Senate, the
Chief Justice can raise the issue of their constitutional infirmity by way of
a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the
Representatives of their signatures would not, by itself, cure the House
Impeachment Rules of their constitutional infirmity. Neither would such a
withdrawal, by itself, obliterate the questioned second impeachment
complaint since it would only place it under the ambit of Sections 3(2) and
(3) of Article XI of the Constitution97 and, therefore, petitioners would
continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either
or both Houses of Congress before coming to this Court is shown by the
fact that, as previously discussed, neither the House of Representatives
nor the Senate is clothed with the power to rule with definitiveness on the
issue of constitutionality, whether concerning impeachment proceedings
or otherwise, as said power is exclusively vested in the judiciary by the
earlier quoted Section I, Article VIII of the Constitution. Remedy cannot
be sought from a body which is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto
Concepcion defined the term "political question," viz:
[T]he term "political question" connotes, in legal parlance, what it
means in ordinary parlance, namely, a question of policy. In other
words, in the language of Corpus Juris Secundum, 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.99(Italics in the original)
Prior to the 1973 Constitution, without consistency and seemingly without
any rhyme or reason, this Court vacillated on its stance of taking
cognizance of cases which involved political questions. In some cases,
this Court hid behind the cover of the political question doctrine and
refused to exercise its power of judicial review.100 In other cases,
however, despite the seeming political nature of the therein issues
involved, this Court assumed jurisdiction whenever it found
constitutionally imposed limits on powers or functions conferred upon
political bodies.101 Even in the landmark 1988 case of Javellana v.
Executive Secretary102 which raised the issue of whether the 1973
Constitution was ratified, hence, in force, this Court shunted the political
question doctrine and took cognizance thereof. Ratification by the people
of a Constitution is a political question, it being a question decided by the
people in their sovereign capacity.
The frequency with which this Court invoked the political question
doctrine to refuse to take jurisdiction over certain cases during the
Marcos regime motivated Chief Justice Concepcion, when he became a
Constitutional Commissioner, to clarify this Court's power of judicial
review and its application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose,
the usual comment that the judiciary is the weakest among the three
major branches of the service. Since the legislature holds the purse and
the executive the sword, the judiciary has nothing with which to enforce
its decisions or commands except the power of reason and appeal to
conscience which, after all, reflects the will of God, and is the most
powerful of all other powers without exception. x x x And so, with the
body's indulgence, I will proceed to read the provisions drafted by the
Committee on the Judiciary.
The first section starts with a sentence copied from former Constitutions.
It says:
The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it
first and explain.
Judicial power includes the duty of courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable and to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part or instrumentality of the
government.
Fellow Members of this Commission, this is actually a product of
our experience during martial law. As a matter of fact, it has some
antecedents in the past, but the role of the judiciary during the
deposed regime was marred considerably by the
circumstance that in a number of cases against the
government, which then had no legal defense at all, the
solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees,
and other matters related to the operation and effect of
martial law failed because the government set up the
defense of political question. And the Supreme Court said:
"Well, since it is political, we have no authority to pass upon
it." The Committee on the Judiciary feels that this was not a
proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but
it, in effect, encouraged further violations thereof during the
martial law regime. I am sure the members of the Bar are
familiar with this situation. But for the benefit of the Members of
the Commission who are not lawyers, allow me to explain. I will
start with a decision of the Supreme Court in 1973 on the case
of Javellana vs. the Secretary of Justice, if I am not mistaken.
Martial law was announced on September 22, although the
proclamation was dated September 21. The obvious reason for
the delay in its publication was that the administration had
apprehended and detained prominent newsmen on September
21. So that when martial law was announced on September 22,
the media hardly published anything about it. In fact, the media
could not publish any story not only because our main writers
were already incarcerated, but also because those who
succeeded them in their jobs were under mortal threat of being
the object of wrath of the ruling party. The 1971 Constitutional
Convention had begun on June 1, 1971 and by September 21 or
22 had not finished the Constitution; it had barely agreed in the
fundamentals of the Constitution. I forgot to say that upon the
proclamation of martial law, some delegates to that 1971
Constitutional Convention, dozens of them, were picked up. One
of them was our very own colleague, Commissioner Calderon.
So, the unfinished draft of the Constitution was taken over by
representatives of Malacañang. In 17 days, they finished what the
delegates to the 1971 Constitutional Convention had been unable
to accomplish for about 14 months. The draft of the 1973
Constitution was presented to the President around December 1,
1972, whereupon the President issued a decree calling a
plebiscite which suspended the operation of some provisions in
the martial law decree which prohibited discussions, much less
public discussions of certain matters of public concern. The
purpose was presumably to allow a free discussion on the draft of
the Constitution on which a plebiscite was to be held sometime in
January 1973. If I may use a word famous by our colleague,
Commissioner Ople, during the interregnum, however, the draft of
the Constitution was analyzed and criticized with such a telling
effect that Malacañang felt the danger of its approval. So, the
President suspended indefinitely the holding of the plebiscite and
announced that he would consult the people in a referendum to
be held from January 10 to January 15. But the questions to be
submitted in the referendum were not announced until the eve of
its scheduled beginning, under the supposed supervision not of
the Commission on Elections, but of what was then designated as
"citizens assemblies or barangays." Thus the barangays came
into existence. The questions to be propounded were released
with proposed answers thereto, suggesting that it was
unnecessary to hold a plebiscite because the answers given in
the referendum should be regarded as the votes cast in the
plebiscite. Thereupon, a motion was filed with the Supreme Court
praying that the holding of the referendum be suspended. When
the motion was being heard before the Supreme Court, the
Minister of Justice delivered to the Court a proclamation of the
President declaring that the new Constitution was already in force
because the overwhelming majority of the votes cast in the
referendum favored the Constitution. Immediately after the
departure of the Minister of Justice, I proceeded to the session
room where the case was being heard. I then informed the Court
and the parties the presidential proclamation declaring that the
1973 Constitution had been ratified by the people and is now in
force.
A number of other cases were filed to declare the presidential
proclamation null and void. The main defense put up by the
government was that the issue was a political question and that
the court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January 10
to January 15, the vast majority ratified the draft of the
Constitution. Note that all members of the Supreme Court were
residents of Manila, but none of them had been notified of any
referendum in their respective places of residence, much less did
they participate in the alleged referendum. None of them saw any
referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a
majority of the members of the Court felt that there had been no
referendum.
Second, a referendum cannot substitute for a plebiscite. There is
a big difference between a referendum and a plebiscite. But
another group of justices upheld the defense that the issue
was a political question. Whereupon, they dismissed the
case. This is not the only major case in which the plea of
"political question" was set up. There have been a number of
other cases in the past.
x x x The defense of the political question was rejected
because the issue was clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its
functions, it faced the following questions: What is judicial power?
What is a political question?
The Supreme Court, like all other courts, has one main function:
to settle actual controversies involving conflicts of rights which are
demandable and enforceable. There are rights which are
guaranteed by law but cannot be enforced by a judiciary party. In
a decided case, a husband complained that his wife was unwilling
to perform her duties as a wife. The Court said: "We can tell your
wife what her duties as such are and that she is bound to comply
with them, but we cannot force her physically to discharge her
main marital duty to her husband. There are some rights
guaranteed by law, but they are so personal that to enforce them
by actual compulsion would be highly derogatory to human
dignity."
This is why the first part of the second paragraph of Section I provides
that:
Judicial power includes the duty of courts to settle actual
controversies involving rights which are legally demandable or
enforceable . . .
The courts, therefore, cannot entertain, much less decide,
hypothetical questions. In a presidential system of
government, the Supreme Court has, also another important
function. The powers of government are generally
considered divided into three branches: the Legislative, the
Executive and the Judiciary. Each one is supreme within its
own sphere and independent of the others. Because of that
supremacy power to determine whether a given law is valid
or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power
of the agencies and offices of the government as well as
those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of
government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as
to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which
means that the courts cannot hereafter evade the duty to
settle matters of this nature, by claiming that such matters
constitute a political question.
I have made these extended remarks to the end that the
Commissioners may have an initial food for thought on the
subject of the judiciary.103 (Italics in the original; emphasis
supplied)
During the deliberations of the Constitutional Commission, Chief Justice
Concepcion further clarified the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial
power" but judicial power is not vested in the Supreme Court
alone but also in other lower courts as may be created by
law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman
seems to identify political questions with jurisdictional
questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to
ordinary cases but where there is a question as to whether
the government had authority or had abused its authority to
the extent of lacking jurisdiction or excess of jurisdiction,
that is not a political question. Therefore, the court has the
duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be
decided by the Supreme Court according to the new numerical
need for votes.
On another point, is it the intention of Section 1 to do away
with the political question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse
of discretion, amounting to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not
intended to do away with the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to
define what is judicial power. But the Gentleman will notice it
says, "judicial power includes" and the reason being that the
definition that we might make may not cover all possible
areas.
FR. BERNAS. So, this is not an attempt to solve the problems
arising from the political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact
that truly political questions are beyond the pale of judicial
power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional
Commission, it is clear that judicial power is not only a power; it is also a
duty, a duty which cannot be abdicated by the mere specter of this
creature called the political question doctrine. Chief Justice Concepcion
hastened to clarify, however, that Section 1, Article VIII was not intended
to do away with "truly political questions." From this clarification it is
gathered that there are two species of political questions: (1) "truly
political questions" and (2) those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason for
respect of the doctrine of separation of powers to be maintained. On the
other hand, by virtue of Section 1, Article VIII of the Constitution, courts
can review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP
College of Law, this Court has in fact in a number of cases taken
jurisdiction over questions which are not truly political following the
effectivity of the present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice
Irene Cortes, held:
The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas
which the Court, under previous constitutions, would have
normally left to the political departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice
Teodoro Padilla, this Court declared:
 The "allocation of constitutional boundaries" is a task that this
Court must perform under the Constitution. Moreover, as held in a
recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries
has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said
provision by no means does away with the applicability of
the principle in appropriate cases."108 (Emphasis and
underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this
Court ruled:
In the case now before us, the jurisdictional objection becomes
even less tenable and decisive. The reason is that, even if we
were to assume that the issue presented before us was political
in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question.110 x x x (Emphasis and
underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable
political questions and non-justiciable political questions, however.
Identification of these two species of political questions may be
problematic. There has been no clear standard. The American case
of Baker v. Carr111 attempts to provide some:
x x x Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or
a lack of judicially discoverable 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 questioning adherence to a
political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.112(Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a
textually demonstrable constitutional commitment of the issue to a
coordinate political department; (2) the lack of judicially discoverable and
manageable standards for resolving it; and (3) the impossibility of
deciding without an initial policy determination of a kind clearly for non-
judicial discretion. These standards are not separate and distinct
concepts but are interrelated to each in that the presence of one
strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American
concept of judicial review is radically different from our current concept,
for Section 1, Article VIII of the Constitution provides our courts with far
less discretion in determining whether they should pass upon a
constitutional issue.
In our jurisdiction, the determination of a truly political question from a
non-justiciable political question lies in the answer to the question of
whether there are constitutionally imposed limits on powers or functions
conferred upon political bodies. If there are, then our courts are duty-
bound to examine whether the branch or instrumentality of the
government properly acted within such limits. This Court shall thus now
apply this standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment
complaint constitute valid impeachable offenses under the
Constitution.
II. Whether the second impeachment complaint was filed in
accordance with Section 3(4), Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on
Justice into the Judicial Development Fund is an unconstitutional
infringement of the constitutionally mandated fiscal autonomy of
the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on
Impeachment adopted by the 12th Congress are unconstitutional
for violating the provisions of Section 3, Article XI of the
Constitution.
V. Whether the second impeachment complaint is barred under
Section 3(5) of Article XI of the Constitution.
 The first issue goes into the merits of the second impeachment
complaint over which this Court has no jurisdiction. More
importantly, any discussion of this issue would require this Court
to make a determination of what constitutes an impeachable
offense. Such a determination is a purely political question which
the Constitution has left to the sound discretion of the legislation.
Such an intent is clear from the deliberations of the Constitutional
Commission.113
Although Section 2 of Article XI of the Constitution enumerates six
grounds for impeachment, two of these, namely, other high crimes and
betrayal of public trust, elude a precise definition. In fact, an examination
of the records of the 1986 Constitutional Commission shows that the
framers could find no better way to approximate the boundaries of
betrayal of public trust and other high crimes than by alluding to both
positive and negative examples of both, without arriving at their clear cut
definition or even a standard therefor.114 Clearly, the issue calls upon this
court to decide a non-justiciable political question which is beyond the
scope of its judicial power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the
constitutionality of a governmental act should be avoided whenever
possible. Thus, in the case of Sotto v. Commission on Elections,115 this
Court held:
x x x It is a well-established rule that a court should not pass upon
a constitutional question and decide a law to be unconstitutional
or invalid, unless such question is raised by the parties and that
when it is raised, if the record also presents some other
ground upon which the court may rest its judgment, that
course will be adopted and the constitutional question will
be left for consideration until a case arises in which a
decision upon such question will be
unavoidable.116 [Emphasis and underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian
Reform,117 where this Court invalidated Sections 13 and 32 of Republic
Act No. 6657 for being confiscatory and violative of due process, to wit:
It has been established that this Court will assume jurisdiction
over a constitutional question only if it is shown that the
essential requisites of a judicial inquiry into such a question
are first satisfied. Thus, there must be an actual case or
controversy involving a conflict of legal rights susceptible of
judicial determination, the constitutional question must have been
opportunely raised by the proper party, and the resolution of the
question is unavoidably necessary to the decision of the
case itself.118 [Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it
is truly unavoidable and is the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the
invalidity of the second impeachment complaint, collectively raise several
constitutional issues upon which the outcome of this controversy could
possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided
by the related cannon of adjudication that "the court should not form a
rule of constitutional law broader than is required by the precise facts to
which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that,
among other reasons, the second impeachment complaint is invalid since
it directly resulted from a Resolution120 calling for a legislative inquiry into
the JDF, which Resolution and legislative inquiry petitioners claim to
likewise be unconstitutional for being: (a) a violation of the rules and
jurisprudence on investigations in aid of legislation; (b) an open breach of
the doctrine of separation of powers; (c) a violation of the constitutionally
mandated fiscal autonomy of the judiciary; and (d) an assault on the
independence of the judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is
the studied opinion of this Court that the issue of the constitutionality of
the said Resolution and resulting legislative inquiry is too far removed
from the issue of the validity of the second impeachment complaint.
Moreover, the resolution of said issue would, in the Court's opinion,
require it to form a rule of constitutional law touching on the separate and
distinct matter of legislative inquiries in general, which would thus be
broader than is required by the facts of these consolidated cases. This
opinion is further strengthened by the fact that said petitioners have
raised other grounds in support of their petition which would not be
adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative
inquiries has already been enunciated by this Court in Bengzon, Jr. v.
Senate Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both
houses of Congress to conduct inquiries in aid of legislation.
Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation
in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall
be respected.
The power of both houses of Congress to conduct inquiries in aid
of legislation is not, therefore absolute or unlimited. Its exercise is
circumscribed by the afore-quoted provision of the Constitution.
Thus, as provided therein, the investigation must be "in aid of
legislation in accordance with its duly published rules of
procedure" and that "the rights of persons appearing in or
affected by such inquiries shall be respected." It follows then that
the right rights of persons under the Bill of Rights must be
respected, including the right to due process and the right not be
compelled to testify against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino
Quadra, while joining the original petition of petitioners Candelaria, et.
al., introduce the new argument that since the second impeachment
complaint was verified and filed only by Representatives Gilberto
Teodoro, Jr. and Felix William Fuentebella, the same does not fall under
the provisions of Section 3 (4), Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the Members of
the House, the same shall constitute the Articles of Impeachment,
and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of
Representatives signed a Resolution of Endorsement/Impeachment, the
same did not satisfy the requisites for the application of the afore-
mentioned section in that the "verified complaint or resolution of
impeachment" was not filed "by at least one-third of all the Members of
the House." With the exception of Representatives Teodoro and
Fuentebella, the signatories to said Resolution are alleged to have
verified the same merely as a "Resolution of Endorsement." Intervenors
point to the "Verification" of the Resolution of Endorsement which states
that:
"We are the proponents/sponsors of the Resolution of
Endorsement of the abovementioned Complaint of
Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what the
Constitution requires in order for said second impeachment complaint to
automatically become the Articles of Impeachment and for trial in the
Senate to begin "forthwith," is that the verified complaint be "filed," not
merely endorsed, by at least one-third of the Members of the House of
Representatives. Not having complied with this requirement, they
concede that the second impeachment complaint should have been
calendared and referred to the House Committee on Justice under
Section 3(2), Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by
any Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof, which
shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session
days thereafter. The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for
consideration by the House within ten session days from receipt
thereof.
Intervenors' foregoing position is echoed by Justice Maambong who
opined that for Section 3 (4), Article XI of the Constitution to apply, there
should be 76 or more representatives who signed and verified the second
impeachment complaint as complainants, signed and verified the
signatories to a resolution of impeachment. Justice Maambong likewise
asserted that the Resolution of Endorsement/Impeachment signed by at
least one-third of the members of the House of Representatives
as endorsers is not the resolution of impeachment contemplated by the
Constitution, such resolution of endorsement being necessary only from
at least one Member whenever a citizen files a verified impeachment
complaint.
While the foregoing issue, as argued by intervenors Macalintal and
Quadra, does indeed limit the scope of the constitutional issues to the
provisions on impeachment, more compelling considerations militate
against its adoption as the lis mota or crux of the present controversy.
Chief among this is the fact that only Attorneys Macalintal and Quadra,
intervenors in G.R. No. 160262, have raised this issue as a ground for
invalidating the second impeachment complaint. Thus, to adopt this
additional ground as the basis for deciding the instant consolidated
petitions would not only render for naught the efforts of the original
petitioners in G.R. No. 160262, but the efforts presented by the other
petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary
for the determination of the instant cases is made easier by the fact that
said intervenors Macalintal and Quadra have joined in the petition of
Candelaria, et. al., adopting the latter's arguments and issues as their
own. Consequently, they are not unduly prejudiced by this Court's
decision.
In sum, this Court holds that the two remaining issues, inextricably linked
as they are, constitute the very lis mota of the instant controversy: (1)
whether Sections 15 and 16 of Rule V of the House Impeachment Rules
adopted by the 12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution; and (2) whether, as
a result thereof, the second impeachment complaint is barred under
Section 3(5) of Article XI of the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the
ground that the Senate, sitting as an impeachment court, has the sole
power to try and decide all cases of impeachment. Again, this Court
reiterates that the power of judicial review includes the power of review
over justiciable issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that
"[t]here is a moral compulsion for the Court to not assume jurisdiction
over the impeachment because all the Members thereof are subject to
impeachment."125But this argument is very much like saying the
Legislature has a moral compulsion not to pass laws with penalty clauses
because Members of the House of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option
before this Court. Adjudication may not be declined, because this Court is
not legally disqualified. Nor can jurisdiction be renounced as there is no
other tribunal to which the controversy may be referred."126 Otherwise,
this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2)
of the Constitution. More than being clothed with authority thus, this Court
is duty-bound to take cognizance of the instant petitions.127 In the august
words of amicus curiae Father Bernas, "jurisdiction is not just a power; it
is a solemn duty which may not be renounced. To renounce it, even if it is
vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our system
of government cannot inhibit itself and must rule upon the challenge
because no other office has the authority to do so.128 On the occasion that
this Court had been an interested party to the controversy before it, it has
acted upon the matter "not with officiousness but in the discharge of an
unavoidable duty and, as always, with detachment and fairness."129 After
all, "by [his] appointment to the office, the public has laid on [a member of
the judiciary] their confidence that [he] is mentally and morally fit to pass
upon the merits of their varied contentions. For this reason, they expect
[him] to be fearless in [his] pursuit to render justice, to be unafraid to
displease any person, interest or power and to be equipped with a moral
fiber strong enough to resist the temptations lurking in [his] office."130
The duty to exercise the power of adjudication regardless of interest had
already been settled in the case of Abbas v. Senate Electoral
Tribunal.131 In that case, the petitioners filed with the respondent Senate
Electoral Tribunal a Motion for Disqualification or Inhibition of the
Senators-Members thereof from the hearing and resolution of SET Case
No. 002-87 on the ground that all of them were interested parties to said
case as respondents therein. This would have reduced the Tribunal's
membership to only its three Justices-Members whose disqualification
was not sought, leaving them to decide the matter. This Court held:
Where, as here, a situation is created which precludes the
substitution of any Senator sitting in the Tribunal by any of his
other colleagues in the Senate without inviting the same
objections to the substitute's competence, the proposed mass
disqualification, if sanctioned and ordered, would leave the
Tribunal no alternative but to abandon a duty that no other court
or body can perform, but which it cannot lawfully discharge if
shorn of the participation of its entire membership of Senators.
 To our mind, this is the overriding consideration — that the
Tribunal be not prevented from discharging a duty which it alone
has the power to perform, the performance of which is in the
highest public interest as evidenced by its being expressly
imposed by no less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that the
framers of the Constitution could not have been unaware of the
possibility of an election contest that would involve all Senators—
elect, six of whom would inevitably have to sit in judgment
thereon. Indeed, such possibility might surface again in the wake
of the 1992 elections when once more, but for the last time, all 24
seats in the Senate will be at stake. Yet the Constitution provides
no scheme or mode for settling such unusual situations or for the
substitution of Senators designated to the Tribunal whose
disqualification may be sought. Litigants in such situations must
simply place their trust and hopes of vindication in the fairness
and sense of justice of the Members of the Tribunal. Justices and
Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member
of the Senate Electoral Tribunal may inhibit or disqualify himself
from sitting in judgment on any case before said Tribunal.
Every Member of the Tribunal may, as his conscience dictates,
refrain from participating in the resolution of a case where he
sincerely feels that his personal interests or biases would stand in
the way of an objective and impartial judgment. What we are
merely saying is that in the light of the Constitution, the Senate
Electoral Tribunal cannot legally function as such, absent its
entire membership of Senators and that no amendment of its
Rules can confer on the three Justices-Members alone the power
of valid adjudication of a senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was held that:
Moreover, to disqualify any of the members of the Court,
particularly a majority of them, is nothing short of pro
tanto depriving the Court itself of its jurisdiction as established by
the fundamental law. Disqualification of a judge is a deprivation of
his judicial power. And if that judge is the one designated by the
Constitution to exercise the jurisdiction of his court, as is the case
with the Justices of this Court, the deprivation of his or their
judicial power is equivalent to the deprivation of the judicial power
of the court itself. It affects the very heart of judicial
independence. The proposed mass disqualification, if sanctioned
and ordered, would leave the Court no alternative but to abandon
a duty which it cannot lawfully discharge if shorn of the
participation of its entire membership of Justices.133 (Italics in the
original)
Besides, there are specific safeguards already laid down by the Court
when it exercises its power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited
the "seven pillars" of limitations of the power of judicial review,
enunciated by US Supreme Court Justice Brandeis in Ashwander v.
TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation
in a friendly, non-adversary proceeding, declining because to
decide such questions 'is legitimate only in the last resort, and as
a necessity in the determination of real, earnest and vital
controversy between individuals. It never was the thought that, by
means of a friendly suit, a party beaten in the legislature could
transfer to the courts an inquiry as to the constitutionality of the
legislative act.'
2. The Court will not 'anticipate a question of constitutional law in
advance of the necessity of deciding it.' . . . 'It is not the habit of
the Court to decide questions of a constitutional nature unless
absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although
properly presented by the record, if there is also present some
other ground upon which the case may be disposed of. This rule
has found most varied application. Thus, if a case can be decided
on either of two grounds, one involving a constitutional question,
the other a question of statutory construction or general law, the
Court will decide only the latter. Appeals from the highest court of
a state challenging its decision of a question under the Federal
Constitution are frequently dismissed because the judgment can
be sustained on an independent state ground.
 5. The Court will not pass upon the validity of a statute upon
complaint of one who fails to show that he is injured by its
operation. Among the many applications of this rule, none is more
striking than the denial of the right of challenge to one who lacks
a personal or property right. Thus, the challenge by a public
official interested only in the performance of his official duty will
not be entertained . . . In Fairchild v. Hughes, the Court affirmed
the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional.
In Massachusetts v. Mellon, the challenge of the federal Maternity
Act was not entertained although made by the Commonwealth on
behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at
the instance of one who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in
question, and even if a serious doubt of constitutionality is raised,
it is a cardinal principle that this Court will first ascertain whether
a construction of the statute is fairly possible by which the
question may be avoided (citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized
in Ashwander v. TVA from different decisions of the United States
Supreme Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as
required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of
the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court
in the exercise of judicial review:
1. actual case or controversy calling for the exercise of judicial
power
2. the person challenging the act must have "standing" to
challenge; he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a
result of its enforcement
3. the question of constitutionality must be raised at the earliest
possible opportunity
4. the issue of constitutionality must be the very lis mota of the
case.136
Respondents Speaker de Venecia, et. al. raise another argument for
judicial restraint the possibility that "judicial review of impeachments
might also lead to embarrassing conflicts between the Congress and the
[J]udiciary." They stress the need to avoid the appearance of impropriety
or conflicts of interest in judicial hearings, and the scenario that it would
be confusing and humiliating and risk serious political instability at home
and abroad if the judiciary countermanded the vote of Congress to
remove an impeachable official.137 Intervenor Soriano echoes this
argument by alleging that failure of this Court to enforce its Resolution
against Congress would result in the diminution of its judicial authority
and erode public confidence and faith in the judiciary.
Such an argument, however, is specious, to say the least. As correctly
stated by the Solicitor General, the possibility of the occurrence of a
constitutional crisis is not a reason for this Court to refrain from upholding
the Constitution in all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not precipitate,
a crisis.
Justice Feliciano warned against the dangers when this Court refuses to
act.
x x x Frequently, the fight over a controversial legislative or
executive act is not regarded as settled until the Supreme Court
has passed upon the constitutionality of the act involved, the
judgment has not only juridical effects but also political
consequences. Those political consequences may follow even
where the Court fails to grant the petitioner's prayer to nullify an
act for lack of the necessary number of votes. Frequently, failure
 to act explicitly, one way or the other, itself constitutes a decision
for the respondent and validation, or at least quasi-validation,
follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was split
and "in the end there were not enough votes either to grant the petitions,
or to sustain respondent's claims,"140 the pre-existing constitutional order
was disrupted which paved the way for the establishment of the martial
law regime.
Such an argument by respondents and intervenor also presumes that the
coordinate branches of the government would behave in a lawless
manner and not do their duty under the law to uphold the Constitution
and obey the laws of the land. Yet there is no reason to believe that any
of the branches of government will behave in a precipitate manner and
risk social upheaval, violence, chaos and anarchy by encouraging
disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is well guided
by the doctrine in People v. Veneracion, to wit:141
Obedience to the rule of law forms the bedrock of our system of
justice. If [public officers], under the guise of religious or political
beliefs were allowed to roam unrestricted beyond boundaries
within which they are required by law to exercise the duties of
their office, then law becomes meaningless. A government of
laws, not of men excludes the exercise of broad discretionary
powers by those acting under its authority. Under this system,
[public officers] are guided by the Rule of Law, and ought "to
protect and enforce it without fear or favor," resist encroachments
by governments, political parties, or even the interference of their
own personal beliefs.142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia,
argues that Sections 16 and 17 of Rule V of the House Impeachment
Rules do not violate Section 3 (5) of Article XI of our present Constitution,
contending that the term "initiate" does not mean "to file;" that Section 3
(1) is clear in that it is the House of Representatives, as a collective body,
which has the exclusive power to initiate all cases of impeachment; that
initiate could not possibly mean "to file" because filing can, as Section 3
(2), Article XI of the Constitution provides, only be accomplished in 3
ways, to wit: (1) by a verified complaint for impeachment by any member
of the House of Representatives; or (2) by any citizen upon a resolution
of endorsement by any member; or (3) by at least 1/3 of all the members
of the House. Respondent House of Representatives concludes that the
one year bar prohibiting the initiation of impeachment proceedings
against the same officials could not have been violated as the
impeachment complaint against Chief Justice Davide and seven
Associate Justices had not been initiated as the House of
Representatives, acting as the collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term
"initiate." Resort to statutory construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution,
Commissioner Florenz Regalado, who eventually became an Associate
Justice of this Court, agreed on the meaning of "initiate" as "to file," as
proffered and explained by Constitutional Commissioner Maambong
during the Constitutional Commission proceedings, which he
(Commissioner Regalado) as amicus curiae affirmed during the oral
arguments on the instant petitions held on November 5, 2003 at which he
added that the act of "initiating" included the act of taking initial action on
the complaint, dissipates any doubt that indeed the word "initiate" as it
twice appears in Article XI (3) and (5) of the Constitution means to file the
complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as
dictionaries do, to begin, to commence, or set going. As Webster's Third
New International Dictionary of the English Language concisely puts it, it
means "to perform or facilitate the first action," which jibes with Justice
Regalado's position, and that of Father Bernas, who elucidated during the
oral arguments of the instant petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a
comlexus of acts consisting of a beginning, a middle and an end.
The end is the transmittal of the articles of impeachment to the
Senate. The middle consists of those deliberative moments
leading to the formulation of the articles of impeachment. The
beginning or the initiation is the filing of the complaint and its
referral to the Committee on Justice.
 Finally, it should be noted that the House Rule relied upon by
Representatives Cojuangco and Fuentebella says that
impeachment is "deemed initiated" when the Justice Committee
votes in favor of impeachment or when the House reverses a
contrary vote of the Committee. Note that the Rule does not say
"impeachment proceedings" are initiated but rather are "deemed
initiated." The language is recognition that initiation happened
earlier, but by legal fiction there is an attempt to postpone it to a
time after actual initiation. (Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is
looking into the intent of the law. Fortunately, the intent of the framers of
the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the
procedure and the substantive provisions on impeachment, I
understand there have been many proposals and, I think, these
would need some time for Committee action.
However, I would just like to indicate that I submitted to the
Committee a resolution on impeachment proceedings, copies of
which have been furnished the Members of this body. This is
borne out of my experience as a member of the Committee on
Justice, Human Rights and Good Government which took charge
of the last impeachment resolution filed before the First Batasang
Pambansa. For the information of the Committee, the
resolution covers several steps in the impeachment
proceedings starting with initiation, action of the Speaker
committee action, calendaring of report, voting on the report,
transmittal referral to the Senate, trial and judgment by the
Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a
reconsideration of the approval of the amendment submitted by
Commissioner Regalado, but I will just make of record my
thinking that we do not really initiate the filing of the Articles of
Impeachment on the floor. The procedure, as I have pointed
out earlier, was that the initiation starts with the filing of the
complaint. And what is actually done on the floor is that the
committee resolution containing the Articles of Impeachment
is the one approved by the body.
As the phraseology now runs, which may be corrected by the
Committee on Style, it appears that the initiation starts on the
floor. If we only have time, I could cite examples in the case of the
impeachment proceedings of President Richard Nixon wherein
the Committee on the Judiciary submitted the recommendation,
the resolution, and the Articles of Impeachment to the body, and it
was the body who approved the resolution. It is not the body
which initiates it. It only approves or disapproves the
resolution. So, on that score, probably the Committee on Style
could help in rearranging these words because we have to be
very technical about this. I have been bringing with me The Rules
of the House of Representatives of the U.S. Congress. The
Senate Rules are with me. The proceedings on the case of
Richard Nixon are with me. I have submitted my proposal, but the
Committee has already decided. Nevertheless, I just want to
indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration
of the approval of Section 3 (3). My reconsideration will not at all
affect the substance, but it is only in keeping with the exact
formulation of the Rules of the House of Representatives of the
United States regarding impeachment.
I am proposing, Madam President, without doing damage to any
of this provision, that on page 2, Section 3 (3), from lines 17 to
18, we delete the words which read: "to initiate impeachment
proceedings" and the comma (,) and insert on line 19 after the
word "resolution" the phrase WITH THE ARTICLES, and then
capitalize the letter "i" in "impeachment" and replace the word
"by" with OF, so that the whole section will now read: "A vote of at
least one-third of all the Members of the House shall be
necessary either to affirm a resolution WITH THE ARTICLES of
Impeachment OF the Committee or to override its contrary
resolution. The vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far
as the House of Representatives of the United States is
concerned, really starts from the filing of the verified
complaint and every resolution to impeach always carries with it
the Articles of Impeachment. As a matter of fact, the words
"Articles of Impeachment" are mentioned on line 25 in the case of
the direct filing of a verified compliant of one-third of all the
 Members of the House. I will mention again, Madam President,
that my amendment will not vary the substance in any way. It is
only in keeping with the uniform procedure of the House of
Representatives of the United States Congress. Thank you,
Madam President.143 (Italics in the original; emphasis and
udnerscoring supplied)
This amendment proposed by Commissioner Maambong was clarified
and accepted by the Committee on the Accountability of Public
Officers.144
It is thus clear that the framers intended "initiation" to start with the filing
of the complaint. In his amicus curiae brief, Commissioner Maambong
explained that "the obvious reason in deleting the phrase "to initiate
impeachment proceedings" as contained in the text of the provision of
Section 3 (3) was to settle and make it understood once and for all
that the initiation of impeachment proceedings starts with the filing
of the complaint, and the vote of one-third of the House in a resolution
of impeachment does not initiate the impeachment proceedings which
was already initiated by the filing of a verified complaint under
Section 3, paragraph (2), Article XI of the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same
view as is Father Bernas, who was also a member of the 1986
Constitutional Commission, that the word "initiate" as used in Article XI,
Section 3(5) means to file, both adding, however, that the filing must be
accompanied by an action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that
the word "initiate," appearing in the constitutional provision on
impeachment, viz:
Section 3 (1) The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year,
(Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment
proceeding."
Father Bernas explains that in these two provisions, the common verb is
"to initiate." The object in the first sentence is "impeachment case." The
object in the second sentence is "impeachment proceeding." Following
the principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the
legal controversy that must be decided by the Senate. Above-quoted first
provision provides that the House, by a vote of one-third of all its
members, can bring a case to the Senate. It is in that sense that the
House has "exclusive power" to initiate all cases of impeachment. No
other body can do it. However, before a decision is made to initiate a
case in the Senate, a "proceeding" must be followed to arrive at a
conclusion. A proceeding must be "initiated." To initiate, which comes
from the Latin word initium, means to begin. On the other hand,
proceeding is a progressive noun. It has a beginning, a middle, and an
end. It takes place not in the Senate but in the House and consists of
several steps: (1) there is the filing of a verified complaint either by a
Member of the House of Representatives or by a private citizen endorsed
by a Member of the House of the Representatives; (2) there is the
processing of this complaint by the proper Committee which may either
reject the complaint or uphold it; (3) whether the resolution of the
Committee rejects or upholds the complaint, the resolution must be
forwarded to the House for further processing; and (4) there is the
processing of the same complaint by the House of Representatives which
either affirms a favorable resolution of the Committee or overrides a
contrary resolution by a vote of one-third of all the members. If at least
one third of all the Members upholds the complaint, Articles of
Impeachment are prepared and transmitted to the Senate. It is at this
point that the House "initiates an impeachment case." It is at this point
that an impeachable public official is successfully impeached. That is, he
or she is successfully charged with an impeachment "case" before the
Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not
initiated when the complaint is transmitted to the Senate for trial because
that is the end of the House proceeding and the beginning of another
proceeding, namely the trial. Neither is the "impeachment proceeding"
initiated when the House deliberates on the resolution passed on to it by
the Committee, because something prior to that has already been done.
The action of the House is already a further step in the proceeding, not its
initiation or beginning. Rather, the proceeding is initiated or begins, when
a verified complaint is filed and referred to the Committee on Justice for
action. This is the initiating step which triggers the series of steps that
follow.
The framers of the Constitution also understood initiation in its ordinary
meaning. Thus when a proposal reached the floor proposing that "A vote
of at least one-third of all the Members of the House shall be necessary…
to initiate impeachment proceedings," this was met by a proposal to
delete the line on the ground that the vote of the House does not initiate
impeachment proceeding but rather the filing of a complaint does.146 Thus
the line was deleted and is not found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment
proceeding shall be initiated against the same official more than once
within a period of one year," it means that no second verified complaint
may be accepted and referred to the Committee on Justice for action. By
his explanation, this interpretation is founded on the common
understanding of the meaning of "to initiate" which means to begin. He
reminds that the Constitution is ratified by the people, both ordinary and
sophisticated, as they understand it; and that ordinary people read
ordinary meaning into ordinary words and not abstruse meaning, they
ratify words as they understand it and not as sophisticated lawyers
confuse it.
To the argument that only the House of Representatives as a body can
initiate impeachment proceedings because Section 3 (1) says "The
House of Representatives shall have the exclusive power to initiate all
cases of impeachment," This is a misreading of said provision and is
contrary to the principle of reddendo singula singulis by equating
"impeachment cases" with "impeachment proceeding."
From the records of the Constitutional Commission, to the amicus
curiae briefs of two former Constitutional Commissioners, it is without a
doubt that the term "to initiate" refers to the filing of the impeachment
complaint coupled with Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of filing and
referral or endorsement of the impeachment complaint to the House
Committee on Justice or, by the filing by at least one-third of the
members of the House of Representatives with the Secretary General of
the House, the meaning of Section 3 (5) of Article XI becomes clear.
Once an impeachment complaint has been initiated, another
impeachment complaint may not be filed against the same official within a
one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules,
impeachment proceedings are deemed initiated (1) if there is a finding by
the House Committee on Justice that the verified complaint and/or
resolution is sufficient in substance, or (2) once the House itself affirms or
overturns the finding of the Committee on Justice that the verified
complaint and/or resolution is not sufficient in substance or (3) by the
filing or endorsement before the Secretary-General of the House of
Representatives of a verified complaint or a resolution of impeachment by
at least 1/3 of the members of the House. These rules clearly contravene
Section 3 (5) of Article XI since the rules give the term "initiate" a
meaning different meaning from filing and referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court
could not use contemporaneous construction as an aid in the
interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino147 wherein
this Court stated that "their personal opinions (referring to Justices who
were delegates to the Constitution Convention) on the matter at issue
expressed during this Court's our deliberations stand on a different
footing from the properly recorded utterances of debates and
proceedings." Further citing said case, he states that this Court likened
the former members of the Constitutional Convention to actors who are
so absorbed in their emotional roles that intelligent spectators may know
more about the real meaning because of the latter's balanced
perspectives and disinterestedness.148
Justice Gutierrez's statements have no application in the present
petitions. There are at present only two members of this Court who
participated in the 1986 Constitutional Commission – Chief Justice
Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part
in these proceedings for obvious reasons. Moreover, this Court has not
simply relied on the personal opinions now given by members of the
Constitutional Commission, but has examined the records of the
deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8)
of Article XI, it is clear and unequivocal that it and only it has the power
to make and interpret its rules governing impeachment. Its argument is
premised on the assumption that Congress has absolute power to
promulgate its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate
its rules on impeachment to effectively carry out the purpose of this
section." Clearly, its power to promulgate its rules on impeachment is
limited by the phrase "to effectively carry out the purpose of this section."
Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out.
Moreover, Section 3 of Article XI clearly provides for other specific
limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon a
resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and
referred to the proper Committee within three session days
thereafter. The Committee, after hearing, and by a majority vote
of all its Members, shall submit its report to the House within sixty
session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration
by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House
shall be necessary to either affirm a favorable resolution with the
Articles of Impeachment of the Committee, or override its contrary
resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is
filed by at least one-third of all the Members of the House, the
same shall constitute the Articles of Impeachment, and trial by the
Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
It is basic that all rules must not contravene the Constitution which is the
fundamental law. If as alleged Congress had absolute rule making power,
then it would by necessary implication have the power to alter or amend
the meaning of the Constitution without need of referendum.
In Osmeña v. Pendatun, this Court held that it is within the province of
149
either House of Congress to interpret its rules and that it was the best
judge of what constituted "disorderly behavior" of its members. However,
in Paceta v. Secretary of the Commission on Appointments,150 Justice
(later Chief Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151 declared that where
the construction to be given to a rule affects persons other than members
of the Legislature, the question becomes judicial in nature. In Arroyo v.
De Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice
Vicente Mendoza, speaking for this Court, held that while the Constitution
empowers each house to determine its rules of proceedings, it may not
by its rules ignore constitutional restraints or violate fundamental rights,
and further that there should be a reasonable relation between the mode
or method of proceeding established by the rule and the result which is
sought to be attained. It is only within these limitations that all matters of
method are open to the determination of the Legislature. In the same
case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring
and Dissenting Opinion, was even more emphatic as he stressed that in
the Philippine setting there is even more reason for courts to inquire into
the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the
petitioner are non-justiciable. Nor do I agree that we will
trivialize the principle of separation of power if we assume
jurisdiction over he case at bar. Even in the United States, the
principle of separation of power is no longer an impregnable
impediment against the interposition of judicial power on cases
involving breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US
1) as a window to view the issues before the Court. It is
in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review congressional
rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house
may determine the rules of its proceedings." It appears that in
pursuance of this authority the House had, prior to that day,
passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the
Speaker, the names of members sufficient to make a quorum in
the hall of the House who do not vote shall be noted by the clerk
and recorded in the journal, and reported to the Speaker with the
names of the members voting, and be counted and announced in
determining the presence of a quorum to do business. (House
Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The
question, therefore, is as to the validity of this rule, and not
what methods the Speaker may of his own motion resort to for
determining the presence of a quorum, nor what matters the
Speaker or clerk may of their own volition place upon the journal.
Neither do the advantages or disadvantages, the wisdom or folly,
of such a rule present any matters for judicial consideration. With
the courts the question is only one of power. The Constitution
empowers each house to determine its rules of proceedings.
It may not by its rules ignore constitutional restraints or
violate fundamental rights, and there should be a reasonable
relation between the mode or method of proceedings
established by the rule and the result which is sought to be
attained. But within these limitations all matters of method are
open to the determination of the House, and it is no impeachment
of the rule to say that some other way would be better, more
accurate, or even more just. It is no objection to the validity of a
rule that a different one has been prescribed and in force for a
length of time. The power to make rules is not one which once
exercised is exhausted. It is a continuous power, always subject
to be exercised by the House, and within the limitations
suggested, absolute and beyond the challenge of any other body
or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass
upon the validity of congressional rules, i.e, whether they are
constitutional. Rule XV was examined by the Court and it was
found to satisfy the test: (1) that it did not ignore any constitutional
restraint; (2) it did not violate any fundamental right; and (3) its
method had a reasonable relationship with the result sought to be
attained. By examining Rule XV, the Court did not allow its
jurisdiction to be defeated by the mere invocation of the principle
of separation of powers.154
xxx
In the Philippine setting, there is a 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 "x x x 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 not also
xeroxed from the US Constitution or any foreign state
constitution. The CONCOM 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.155
xxx
The Constitution cannot be any clearer. What it granted to this
Court is not a mere power which it can decline to exercise.
Precisely to deter this disinclination, the Constitution
imposed it as a duty of this Court to strike down any act of a
branch or instrumentality of government or any of its
officials done with grave abuse of discretion amounting to
lack or excess of jurisdiction. Rightly or wrongly, the
Constitution has elongated the checking powers of this Court
against the other branches of government despite their more
democratic character, the President and the legislators being
elected by the people.156
xxx
The provision defining judicial power as including the 'duty of the
courts of justice. . . 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' constitutes the capstone of the efforts of the
Constitutional Commission to upgrade the powers of this court
vis-à-vis the other branches of government. This provision was
dictated by our experience under martial law which taught us that
a stronger and more independent judiciary is needed to abort
abuses in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul
acts of government committed with grave abuse of discretion, the
 new Constitution transformed this Court from passivity to
activism. This transformation, dictated by our distinct experience
as nation, is not merely evolutionary but revolutionary.Under the
1935 and the 1973 Constitutions, this Court approached
constitutional violations by initially determining what it cannot
do; under the 1987 Constitution, there is a shift in stress –
this Court is mandated to approach constitutional violations
not by finding out what it should not do but what
it must do. The Court must discharge this solemn duty by not
resuscitating a past that petrifies the present.
I urge my brethren in the Court to give due and serious
consideration to this new constitutional provision as the case at
bar once more calls us to define the parameters of our power to
review violations of the rules of the House. We will not be true to
our trust as the last bulwark against government abuses if
we refuse to exercise this new power or if we wield it with
timidity. To be sure, it is this exceeding timidity to unsheathe
the judicial sword that has increasingly emboldened other
branches of government to denigrate, if not defy, orders of
our courts. In Tolentino, I endorsed the view of former Senator
Salonga that this novel provision stretching the latitude of judicial
power is distinctly Filipino and its interpretation should not be
depreciated by undue reliance on inapplicable foreign
jurisprudence. In resolving the case at bar, the lessons of our own
history should provide us the light and not the experience of
foreigners.157 (Italics in the original emphasis and underscoring
supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant
petitions. Here, the third parties alleging the violation of private rights and
the Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v.
US158 as basis for arguing that this Court may not decide on the
constitutionality of Sections 16 and 17 of the House Impeachment Rules.
As already observed, the U.S. Federal Constitution simply provides that
"the House of Representatives shall have the sole power of
impeachment." It adds nothing more. It gives no clue whatsoever as to
how this "sole power" is to be exercised. No limitation whatsoever is
given. Thus, the US Supreme Court concluded that there was a textually
demonstrable constitutional commitment of a constitutional power to the
House of Representatives. This reasoning does not hold with regard to
impeachment power of the Philippine House of Representatives since our
Constitution, as earlier enumerated, furnishes several provisions
articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House
Impeachment Rules which state that impeachment proceedings are
deemed initiated (1) if there is a finding by the House Committee on
Justice that the verified complaint and/or resolution is sufficient in
substance, or (2) once the House itself affirms or overturns the finding of
the Committee on Justice that the verified complaint and/or resolution is
not sufficient in substance or (3) by the filing or endorsement before the
Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members
of the House thus clearly contravene Section 3 (5) of Article XI as they
give the term "initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the
impeachment complaint and referral to the House Committee on Justice,
the initial action taken thereon, the meaning of Section 3 (5) of Article XI
becomes clear. Once an impeachment complaint has been initiated in the
foregoing manner, another may not be filed against the same official
within a one year period following Article XI, Section 3(5) of the
Constitution.
In fine, considering that the first impeachment complaint, was filed by
former President Estrada against Chief Justice Hilario G. Davide, Jr.,
along with seven associate justices of this Court, on June 2, 2003 and
referred to the House Committee on Justice on August 5, 2003, the
second impeachment complaint filed by Representatives Gilberto C.
Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on
October 23, 2003 violates the constitutional prohibition against the
initiation of impeachment proceedings against the same impeachable
officer within a one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a
phenomenon that takes the center stage of our individual and collective
consciousness as a people with our characteristic flair for human drama,
conflict or tragedy. Of course this is not to demean the seriousness of the
controversy over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and emotionally
exhausting experience. Both sides have fought bitterly a dialectical
struggle to articulate what they respectively believe to be the correct
position or view on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of the Chief
Justice, took to the streets armed with their familiar slogans and chants to
air their voice on the matter. Various sectors of society - from the
business, retired military, to the academe and denominations of faith –
offered suggestions for a return to a state of normalcy in the official
relations of the governmental branches affected to obviate any perceived
resulting instability upon areas of national life.
Through all these and as early as the time when the Articles of
Impeachment had been constituted, this Court was specifically asked,
told, urged and argued to take no action of any kind and form with
respect to the prosecution by the House of Representatives of the
impeachment complaint against the subject respondent public official.
When the present petitions were knocking so to speak at the doorsteps of
this Court, the same clamor for non-interference was made through what
are now the arguments of "lack of jurisdiction," "non-justiciability," and
"judicial self-restraint" aimed at halting the Court from any move that may
have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the
question of the constitutionality of initiating the impeachment complaint
against Chief Justice Davide is concerned. To reiterate what has been
already explained, the Court found the existence in full of all the requisite
conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the
construction or interpretation of a provision of the fundamental law of the
land. What lies in here is an issue of a genuine constitutional material
which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers under our
system of government. Face-to-face thus with a matter or problem that
squarely falls under the Court's jurisdiction, no other course of action can
be had but for it to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the
process of impeachment has effectively set up a regime of judicial
supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and
resolved on the merits only the main issue of whether the impeachment
proceedings initiated against the Chief Justice transgressed the
constitutionally imposed one-year time bar rule. Beyond this, it did not go
about assuming jurisdiction where it had none, nor indiscriminately turn
justiciable issues out of decidedly political questions. Because it is not at
all the business of this Court to assert judicial dominance over the other
two great branches of the government. Rather, the raison d'etre of the
judiciary is to complement the discharge by the executive and legislative
of their own powers to bring about ultimately the beneficent effects of
having founded and ordered our society upon the rule of law.
It is suggested that by our taking cognizance of the issue of
constitutionality of the impeachment proceedings against the Chief
Justice, the members of this Court have actually closed ranks to protect a
brethren. That the members' interests in ruling on said issue is as much
at stake as is that of the Chief Justice. Nothing could be farther from the
truth.
The institution that is the Supreme Court together with all other courts
has long held and been entrusted with the judicial power to resolve
conflicting legal rights regardless of the personalities involved in the suits
or actions. This Court has dispensed justice over the course of time,
unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by
whatever imputations or speculations could be made to it, so long as it
rendered judgment according to the law and the facts. Why can it not now
be trusted to wield judicial power in these petitions just because it is the
highest ranking magistrate who is involved when it is an incontrovertible
fact that the fundamental issue is not him but the validity of a government
branch's official act as tested by the limits set by the Constitution? Of
course, there are rules on the inhibition of any member of the judiciary
from taking part in a case in specified instances. But to disqualify this
entire institution now from the suit at bar is to regard the Supreme Court
as likely incapable of impartiality when one of its members is a party to a
case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any
legal system which recognizes equality of all men before the law as
essential to the law's moral authority and that of its agents to secure
respect for and obedience to its commands. Perhaps, there is no other
government branch or instrumentality that is most zealous in protecting
that principle of legal equality other than the Supreme Court which has
discerned its real meaning and ramifications through its application to
numerous cases especially of the high-profile kind in the annals of
jurisprudence. The Chief Justice is not above the law and neither is any
other member of this Court. But just because he is the Chief Justice does
not imply that he gets to have less in law than anybody else. The law is
solicitous of every individual's rights irrespective of his station in life.
The Filipino nation and its democratic institutions have no doubt been put
to test once again by this impeachment case against Chief Justice Hilario
Davide. Accordingly, this Court has resorted to no other than the
Constitution in search for a solution to what many feared would ripen to a
crisis in government. But though it is indeed immensely a blessing for this
Court to have found answers in our bedrock of legal principles, it is
equally important that it went through this crucible of a democratic
process, if only to discover that it can resolve differences without the use
of force and aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure
in Impeachment Proceedings which were approved by the House of
Representatives on November 28, 2001 are unconstitutional.
Consequently, the second impeachment complaint against Chief Justice
Hilario G. Davide, Jr. which was filed by Representatives Gilberto C.
Teodoro, Jr. and Felix William B. Fuentebella with the Office of the
Secretary General of the House of Representatives on October 23, 2003
is barred under paragraph 5, section 3 of Article XI of the Constitution.
SO ORDERED.
Bellosillo and Tinga, JJ., see separate opinion.
Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see
separate concurring opinion.
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate
opinion of J. Vitug.
Corona, J., will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.
Footnotes
1 Rollo, G.R. No. 160261 at 180-182; Annex "H."
2Per Special Appearance with Manifestation of House Speaker
Jose C. De Venecia, Jr. (Rollo, G.R. No. 160261 at 325-363) the
pertinent House Resolution is HR No. 260, but no copy of the
same was submitted before this Court.
3 Id. at 329. Created through PD No. 1949 (July 18, 1984), the
JDF was established "to help ensure and guarantee the
independence of the Judiciary as mandated by the Constitution
and public policy and required by the impartial administration of
justice" by creating a special fund to augment the allowances of
the members and personnel of the Judiciary and to finance the
acquisition, maintenance and repair of office equipment and
facilities."
4 Rollo, G.R. No. 160261 at 120-139; Annex "E."
5The initial complaint impleaded only Justices Artemio V.
Panganiban, Josue N. Bellosillo, Reynato S. Puno, Antonio T.
Carpio and Renato C. Corona, and was later amended to include
Justices Jose C. Vitug, and Leonardo A. Quisumbing.
6 Supra note 4 at 123-124.
7 Rollo, G.R. No. 160403 at 48-53; Annex "A."
8http://www.congress.gov.ph/search/bills/hist_show.php?bill_no=
RPT9999
9 Rollo, G.R. No. 160262 at 8.
10 Rollo, G.R. No. 160295 at 11.
11 Rollo, G.R. No. 160262 at 43-84; Annex "B."
12 Supra note 2.
13A perusal of the attachments submitted by the various
petitioners reveals the following signatories to the second
impeachment complaint and the accompanying
Resolution/Endorsement. 1. Gilbert Teodoro, Jr., NPC, Tarlac
(principal complainant) 2. Felix Fuentebella, NPC, Camarines Sur
(second principal complainant) 3. Julio Ledesma, IV, NPC,
Negros Occidental 4. Henry Lanot, NPC, Lone District of Pasig
City 5. Kim Bernardo-Lokin, Party List-CIBAC 6. Marcelino
Libanan, NPC, Lone District of Eastern Samar, (Chairman, House
Committee on Justice) 7. Emmylou Talino-Santos, Independent,
1st District, North Cotobato 8. Douglas RA. Cagas, NPC, 1st
District, Davao del Sur 9. Sherwin Gatchalian, NPC, 1st District,
Valenzuela City 10. Luis Bersamin, Jr., PDSP-PPC, Lone District
of Abra 11. Nerissa Soon-Ruiz Alayon, 6th District, Cebu 12.
Ernesto Nieva, Lakas, 1st District, Manila 13. Edgar R. Erice,
Lakas, 2nd District, Kalookan City 14. Ismael Mathay III,
Independent, 2nd District, Quezon City 15. Samuel Dangwa,
Reporma, Lone District of Benguet 16. Alfredo Marañon, Jr.,
NPC, 2nd District, Negros Occidental 17. Cecilia Jalosjos-
Carreon, Reporma, 1st District, Zamboanga del Norte 18. Agapito
A. Aquino, LDP, 2nd District, Makati City 19. Fausto L. Seachon,
Jr., NPC, 3rd District, Masbate 20. Georgilu Yumul-Hermida,
Pwersa ng Masa, 4th District, Quezon 21. Jose Carlos Lacson,
Lakas, 3rd District, Negros Occidental 22. Manuel C. Ortega,
NPC, 1st District, La Union 23. Uliran Joaquin, NPC, 1st District,
Laguna 24. Soraya C. Jaafar, Lakas, Lone District of Tawi-Tawi
25. Wilhelmino Sy-Alvarado, Lakas, 1st District, Bulacan 26.
Claude P. Bautista, NPC, 2nd District, Davao Del Sur 27. Del De
Guzman, Lakas, Lone District of Marikina City 28. Zeneida Cruz-
Ducut, NPC, 2nd District, Pampanga 29. Augusto Baculio,
Independent-LDP, 2nd District, Misamis Oriental 30. Faustino Dy
III, NPC-Lakas, 3rd District, Isabela 31. Agusto Boboy Syjuco,
Lakas, 2nd District, Iloilo 32. Rozzano Rufino B. Biazon, LDP,
Lone District of Muntinlupa City 33. Leovigildo B. Banaag, NPC-
Lakas, 1st District, Agusan del Norte 34. Eric Singson, LP, 2nd
District, Ilocos Sur 35. Jacinto Paras, Lakas, 1st District, Negros
Oriental 36. Jose Solis, Independent, 2nd District, Sorsogon 37.
Renato B. Magtubo, Party List-Partido ng Manggagawa 38.
Herminio G. Teves, Lakas, 3rd District, Negros Oriental 39.
Amado T. Espino, Jr., Lakas, 2nd District, Pangasinan 40. Emilio
Macias, NPC, 2nd District, Negros Oriental 41. Arthur Y. Pingoy,
Jr., NPC, 2nd District, South Cotobato 42. Francis Nepomuceno,
NPC, 1st District, Pampanga 43. Conrado M. Estrella III, NPC,
6th District, Pangasinan 44. Elias Bulut, Jr., NPC, Lone District of
Apayao 45. Jurdin Jesus M. Romualdo, NPC, Lone District of
Camiguin 46. Juan Pablo Bondoc, NPC, 4th District, Pampanga
47. Generoso DC. Tulagan, NPC, 3rd District, Pangasinan 48.
Perpetuo Ylagan, Lakas, Lone District of Romblon 49. Michael
Duavit, NPC, 1st District, Rizal 50. Joseph Ace H. Durano, NPC,
5th District, Cebu 51. Jesli Lapus, NPC, 3rd District, Tarlac 52.
Carlos Q. Cojuangco, NPC, 4th District, Negros Occidental 53.
Georgidi B. Aggabao, NPC, 4th District, Santiago, Isabela 54.
Francis Escudero, NPC, 1st District, Sorsogon 55. Rene M.
Velarde, Party List-Buhay 56. Celso L. Lobregat, LDP, Lone
District of Zamboanga City 57. Alipio Cirilo V. Badelles, NPC, 1st
District, Lanao del Norte 58. Didagen P. Dilangalen, Pwersa ng
Masa, Lone District of Maguindanao 59. Abraham B. Mitra, LDP,
2nd District, Palawan 60. Joseph Santiago, NPC, Lone District of
Catanduanes 61. Darlene Antonino-Custodio, NPC, 1st District of
South Cotobato & General Santos City 62. Aleta C. Suarez, LP,
3rd District, Quezon 63. Rodolfo G. Plaza, NPC, Lone District of
Agusan del Sur 64. JV Bautista, Party List-Sanlakas 65. Gregorio
Ipong, NPC, 2nd District, North Cotabato 66. Gilbert C. Remulla,
LDP, 2nd District, Cavite 67. Rolex T. Suplico, LDP, 5th District,
Iloilo 68. Celia Layus, NPC, Cagayan 69. Juan Miguel Zubiri,
Lakas, 3rd District, Bukidnon 70. Benasing Macarambon Jr,.
NPC, 2nd District, Lanao del Sur 71. Josefina Joson, NPC, Lone
District of Nueva Ecija 72. Mark Cojuangco, NPC, 5th District,
Pangasinan 73. Mauricio Domogan, Lakas, Lone District of
Baguio City 74. Ronaldo B. Zamora, Pwersa ng Masa, Lone
District of San Juan 75. Angelo O. Montilla, NPC, Lone District of
Sultan Kudarat 76. Roseller L. Barinaga, NPC, 2nd District,
Zamboanga del Norte 77. Jesnar R. Falcon, NPC, 2nd District,
Surigao del Sur 78. Ruy Elias Lopez, NPC, 3rd District, Davao
City.
14Rollo, G.R. No. 160261 at 5. Petitioner had previously filed two
separate impeachment complaints before the House of
Representatives against Ombudsman Aniano Desierto.
15 299 SCRA 744 (1998). In Chavez v. PCGG, petitioner Chavez
argued that as a taxpayer and a citizen, he had the legal
personality to file a petition demanding that the PCGG make
public any and all negotiations and agreements pertaining to the
PCGG's task of recovering the Marcoses' ill-gotten wealth.
Petitioner Chavez further argued that the matter of recovering the
ill-gotten wealth of the Marcoses is an issue of transcendental
importance to the public. The Supreme Court, citing Tañada v.
Tuvera, 136 SCRA 27 (1985), Legaspi v. Civil Service
Commission, 150 SCRA 530 (1987) and Albano v. Reyes, 175
SCRA 264 (1989) ruled that petitioner had standing. The Court,
however, went on to elaborate that in any event, the question on
the standing of petitioner Chavez was rendered moot by the
intervention of the Jopsons who are among the legitimate
claimants to the Marcos wealth.
16384 SCRA 152 (2002). In Chavez v. PEA-Amari Coastal Bay
Development Corporation, wherein the petition sought to compel
the Public Estates Authority (PEA) to disclose all facts on its then
on-going negotiations with Amari Coastal Development
Corporation to reclaim portions of Manila Bay, the Supreme Court
said that petitioner Chavez had the standing to bring a taxpayer's
suit because the petition sought to compel PEA to comply with its
constitutional duties.
17 224 SCRA 792 (1993).
18Subsequent petitions were filed before this Court seeking
similar relief. Other than the petitions, this Court also received
Motions for Intervention from among others, Sen. Aquilino
Pimentel, Jr., and Special Appearances by House Speaker Jose
C. de Venecia, Jr., and Senate President Franklin Drilon.
19 Supra note 2 at 10.
20Justice Florenz D. Regalado, Former Constitutional
Commissioners Justice Regalado E. Maambong and Father
Joaquin G. Bernas, SJ, Justice Hugo E. Gutierrez, Jr., Former
Minister of Justice and Solicitor General Estelito P. Mendoza,
Deans Pacifico Agabin and Raul C. Pangalangan, and Former
Senate President Jovito R. Salonga,.
21 Rollo, G.R. No. 160261 at 275-292.
22 Id. at 292.
23 63 Phil 139 (1936).
In Casanovas v. Hord, 8 Phil 125 (1907), this Court invalidated a
statute imposing a tax on mining claims on the ground that a
government grant stipulating that the payment of certain taxes by
the grantee would be in lieu of other taxes was a contractual
obligation which could not be impaired by subsequent legislation.
In Concepcion v. Paredes, 42 Phil 599 (1921), Section 148 (2) of
the Administrative Code, as amended, which provided that judges
of the first instance with the same salaries would, by lot,
exchange judicial districts every five years, was declared invalid
for being a usurpation of the power of appointment vested in the
Governor General. In McDaniel v. Apacible, 42 Phil 749 (1922),
Act No. 2932, in so far as it declares open to lease lands
containing petroleum which have been validly located and held,
was declared invalid for being a depravation of property without
due process of law. In U.S. v. Ang Tang Ho, 43 Phil 1 (1922), Act
No. 2868, in so far as it authorized the Governor-General to fix
the price of rice by proclamation and to make the sale of rice in
violation of such a proclamation a crime, was declared an invalid
delegation of legislative power.
30Vicente V. Mendoza, Sharing The Passion and Action of our
Time 62-53 (2003).
31 Supra note 23.
32 Id. at 156-157.
Florentino P. Feliciano, The Application of Law: Some
33

Recurring Aspects Of The Process Of Judicial Review And

24 Id. at 157-159. Decision Making, 37 AMJJUR 17, 24 (1992).

Vide Alejandrino v. Quezon, 46 Phil 83 (1924); Tañada v.

25
34 Ibid.
Cuenco, 103 Phil 1051 (1957); Ynot v. Intermediate Appellate
Court, 148 SCRA 659, 665 (1987). 35
I Record of the Constitutional Commission 434-436 (1986).
26 Const., art. VIII, sec. 1. 36 31 SCRA 413 (1970)
27 5 US 137 (1803). 37Id. at 422-423; Vide Baranda v. Gustilo, 165 SCRA 757, 770
(1988); Luz Farms v. Secretary of the Department of Agrarian
28 Id. at 180. Reform, 192 SCRA 51 (1990); Ordillo v. Commission on
Elections, 192 SCRA 100 (1990).
29 In In re Prautch, 1 Phil 132 (1902), this Court held that a statute
allowing for imprisonment for non-payment of a debt was invalid. 38 194 SCRA 317 (1991).
39 Id. at 325 citing Maxwell v. Dow, 176 US 581. 52 227 SCRA 100 (1993).

40 152 SCRA 284 (1987). 53 Id. at 112.

41Id. at 291 citing Gold Creek Mining v. Rodriguez, 66 Phil 259
(1938), J.M. Tuason & Co., Inc v. Land Tenure Administration,
supra note 36, and I Tañada and Fernando, Constitution of the
Philippines 21 ( Fourth Ed. ).
42 82 Phil 771 (1949).
54US Constititon. Section 2. x x x The House of Representatives
shall have the sole Power of Impeachment.
551987 Constitution, Article XI, Section 3 (1). The House of
Representatives shall have the exclusive power to initiate all
cases of impeachment.

43 Id. at 775. Supra note 2 at 355 citing Agresto, The Supreme Court and
56

Constitutional Democracy, 1984, pp. 112-113.

44 Supra note 38.
57 369 U.S. 186 (1962).
45 Id. at 330-331.
58 141 SCRA 263 (1986).
Id. at 337-338 citing 16 CJS 2.31; Commonwealth v. Ralph, 111
46

Pa. 365, 3 Atl. 220 and Household Finance Corporation v. 59 Supra note 25.
Shaffner, 203, SW 2d, 734, 356 Mo. 808.
60 298 SCRA 756 (1998).
47 Supra note 2.
61 272 SCRA 18 (1997).
48 Citing Section 3 (6), Article VIII of the Constitution provides:
62 201 SCRA 792 (1991).
(6) The Senate shall have the sole power to try and
decide all cases of impeachment. When sitting for that 63 187 SCRA 377 (1990).
purpose, the Senators shall be on oath or affirmation.
When the President of the Philippines is on trial, the Chief 64 180 SCRA 496 (1989).
Justice of the Supreme Court shall preside, but shall not
vote. No person shall be convicted without the 65 Supra note 25.
concurrence of two-thirds of all the Members of the
Senate. 66 Supra note 23.
49 Supra note 21. 67Civil Liberties Union v. Executive Secretary, supra note 38 at
330-331.
50 506 U.S. 224 (1993).
68 Id. at 158-159.
51Supra note 2 at 349-350 citing Gerhardt, Michael J. The
Federal Impeachment Process: A Constitutional and Historical
Analysis, 1996, p. 119. IBP v. Zamora, 338 SCRA 81 (2000) citing Joya v. PCGG, 225
69

SCRA 568 (1993); House International Building Tenants

Association, Inc. v. Intermediate Appellate Court, 151 SCRA 703
(1987); Baker v. Carr, supra note 57.
70 Citing Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995).
Citing Tatad v. Secretary of the Department of Energy, 281
71
SCRA 330 (1997).
72Citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng
Pilipinas, 163 SCRA 371, 378 (1988).
73 Rule 3, Section 2. Parties in interest. — A real party in interest
is the party who stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of the suit. Unless
otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest.
74JG Summit Holdings, Inc. v. Court of Appeals, 345 SCRA 143,
152 (2000).
75 246 SCRA 540 (1995).
76
Id. at 562-564.
77Agan v. PIATCO, G.R. No. 155001, May 5, 2003 citing BAYAN
v. Zamora, 342 SCRA 449, 562-563 (2000) and Baker v. Carr,
supra note 57; Vide Gonzales v. Narvasa, 337 SCRA 733
(2000); TELEBAP v. COMELEC, 289 SCRA 337 (1998).
78 Chavez v. PCGG, supra note 15.
79Del Mar v. PAGCOR 346 SCRA 485, 501 (2000) citing
Kilosbayan, Inc., et.al. v. Morato, supra note 70; Dumlao v.
COMELEC, 95 SCRA 392 (1980); Sanidad v. Comelec, 73 SCRA
333 (1976); Philconsa v. Mathay,18 SCRA 300 (1966); Pascual v.
Secretary of Public Works, 110 Phil 331 (1960); Vide Gonzales v.
Narvasa, supra note 77; Pelaez v. Auditor General, 15 SCRA 569
(1965); Philconsa v. Gimenez, 15 SCRA 479 (1965); Iloilo Palay
& Corn Planters Association v. Feliciano, 13 SCRA 377 (1965).
BAYAN v. Zamora, supra note 77 citing Bugnay v. Laron, 176
80
SCRA 240, 251-252 (1989); Vide Del Mar v. PAGCOR,
supra note 79; Gonzales v. Narvasa, supra note 77; TELEBAP v.
COMELEC, supra note 77; Kilosbayan, Inc. v. Morato, supra note
70; Joya v. PCGG, supra note 69; Dumlao v. COMELEC,
supra note 79; Sanidad v. COMELEC, supra note 79; Philconsa
v. Mathay, supra note 79; Pelaez v. Auditor General, supra note
79; Philconsa v. Gimenez, supra note 79; Iloilo Palay & Corn
Planters Association v. Feliciano, supra note 79; Pascual v. Sec.
of Public Works, supra note 79.
81Gonzales v. Narvasa, supra note 77 citing Dumlao v.
COMELEC, supra note 79; Sanidad v. COMELEC, supra note
79; Tan v. Macapagal, 43 SCRA 677 (1972).
82Tatad v. Garcia, Jr., 243 SCRA 436 (1995); Kilosbayan, Inc. v.
Morato, supra note 70 at 140-141 citing Philconsa v.
Enriquez, 235 SCRA 506 (1994); Guingona v. PCGG, 207 SCRA
659 (1992); Gonzales v. Macaraig, 191 SCRA 452
(1990); Tolentino v. COMELEC, 41 SCRA 702 (1971).
83Del Mar v. PAGCOR, supra note 79 at 502-503 citing Philconsa
v. Mathay, supra note 79.
84Chinese Flour Importers Association v. Price Stabilization
Board, 89 Phil 439, 461 (1951) citing Gallego et al. vs. Kapisanan
Timbulan ng mga Manggagawa, 46 Off. Gaz, 4245.
85Philippine Constitution Association v. Gimenez, supra note
79 citing Gonzales v. Hechanova, 118 Phil. 1065 (1963); Pascual
v. Secretary, supra note 79.
86Integrated Bar of the Philippines v. Zamora, 338 SCRA 81
(2000).
MVRS Publications, Inc. v. Islamic Da'wah Council of the
87
Philippines, G.R. No. 135306, January 28, 2003, citing Industrial
Generating Co. v. Jenkins 410 SW 2d 658; Los Angeles County
Winans, 109 P 640; Weberpals v. Jenny, 133 NE 62.
88 Mathay v. Consolidated Bank and Trust Company, 58 SCRA
559, 570-571 (1974), citing Moore's Federal Practice 2d ed., Vol.
III, pages 3423-3424; 4 Federal Rules Service, pages 454-
455; Johnson, et al., vs. Riverland Levee Dist., et al., 117 2d 711,
715; Borlasa v. Polistico, 47 Phil. 345, 348 (1925).
89MVRS Publications, Inc. v. Islamic Da'wah Council of the
Philippines, supra note 87, dissenting opinion of Justice
Carpio; Bulig-bulig Kita Kamag-Anak Assoc. v. Sulpicio
Lines, 173 SCRA 514, 514-515 (1989); Re: Request of the Heirs
of the Passengers of Doña Paz, 159 SCRA 623, 627 (1988) citing
Moore, Federal Practice, 2d ed., Vol. 3B, 23-257, 23-258; Board
of Optometry v. Colet, 260 SCRA 88 (1996), citing Section
12, Rule 3, Rules of Court; Mathay v. Consolidated Bank and
Trust Co., supra note 88; Oposa v. Factoran, supra note 17.
thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper
Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its
Members, shall submit its report to the House within sixty
session days from such referral, together with the
corresponding resolution. The resolution shall be
calendared for consideration by the House within ten
session days from receipt thereof.

90 Kilosbayan v. Guingona, 232 SCRA 110 (1994). (3) A vote of at least one-third of all the Members of the
House shall be necessary either to affirm a favorable
91
Kilosbayan, Inc. v. Morato, supra note 70 citing Civil Liberties resolution with the Articles of Impeachment of the
Union v. Executive Secretary, supra note 38; Philconsa v. Committee, or override its contrary resolution. The vote of
Giménez, supra note 79; Iloilo Palay and Corn Planters each Member shall be recorded.
Association v. Feliciano, supra note 79;Araneta v. Dinglasan, 84
Phil. 368 (1949); vide Tatad v. Secretary of the Department of 98 Supra note 25.
Energy, 281 SCRA 330 (1997); Santiago v. COMELEC, 270
SCRA 106 (1997); KMU v. Garcia, Jr., 239 SCRA 386 99 Id. at 1067.
(1994); Joya v. PCGG, 225 SCRA 368 (1993); Carpio v.
Executive Secretary, 206 SCRA 290 (1992); Osmeña v. Vide Barcelon v. Baker, 5 Phil. 87 (1905); Montenegro v.
100
COMELEC, 199 SCRA 750 (1991); Basco v. PAGCOR, 197 Castañeda, 91 Phil. 882 (1952); De la Llana v. COMELEC, 80
SCRA 52 (1991); Guingona v. Carague, 196 SCRA 221 SCRA 525 (1977).
(1991); Daza v. Singson, supra note 64; Dumlao v. COMELEC,
supra note 79. 101Vide Avelino v. Cuenco, 83 Phil. 17 (1949); Macias v.
COMELEC, 3 SCRA 1 (1961); Cunanan v. Tan, Jr.,5 SCRA 1
92Firestone Ceramics, Inc. v. Court of Appeals, 313 SCRA 522, (1962); Gonzales v. COMELEC, 21 SCRA 774 (1967); Lansang
531 (1999) citing Gibson vs. Revilla, 92 SCRA 219; Magsaysay- v. Garcia, 42 SCRA 448 (1971); Tolentino v. COMELEC,
Labrador v. Court of Appeals, 180 SCRA 266, 271 (1989). supra note 82.
93 Supra note 79. 102 50 SCRA 30 (1973).
94 Id. at 403. 103Record of the Constitution Commission, Vol. 1, July 10, 1986
at 434-436.
95 Supra note 81.
104 Id. at 439-443.
96 Id. at 681.
105 177 SCRA 668 (1989).
97 SECTION 3. x x x
106 Id. at 695.
(2) A verified complaint for impeachment may be filed by
any Member of the House of Representatives or by any 107 203 SCRA 767 (1991).
citizen upon a resolution of endorsement by any Member
108Id. at 776 citing Gonzales v. Macaraig, 191 SCRA 452, 463 125 Supra note 2 at 342.
(1990).
126 Perfecto v. Meer, 85 Phil 552, 553 (1950).
109 Supra note 64.
127Estrada v. Desierto, 356 SCRA 108, 155-156 (2001); Vide
110 Id. at 501. Abbas v. Senate Electoral Tribunal, 166 SCRA 651
(1988); Vargas v. Rilloraza, et al., 80 Phil. 297, 315-316
111 Supra note 57. (1948); Planas v. COMELEC, 49 SCRA 105 (1973), concurring
opinion of J. Concepcion.
112 Id. at 217.
128Philippine Judges Association v. Prado, 227 SCRA 703, 705
113 2 Record of the Constitutional Commission at 286. (1993).

114 Id. at 278, 316, 272, 283-284, 286.

129 Ibid.

115 76 Phil 516 (1946).

130 Ramirez v. Corpuz-Macandog, 144 SCRA 462, 477 (1986).

116 Id. at 522.

131 Supra note 127.

117 Supra note 37.

132 Estrada v. Desierto, supra note 127.

118Id. at 58 citing Association of Small Landowners in the Id. at 155-156 citing Abbas, et al. v. Senate Electoral Tribunal,
133

Philippines, Inc. v. Secretary of Agrarian Reform,175 SCRA 343 supra note 127; Vargas v. Rilloraza, et al., supra note 127.
(1989).
134 Supra note 119 at 210-211.
119Vide concurring opinion of Justice Vicente Mendoza in Estrada
v.Desierto, 353 SCRA 452, 550 (2001); Demetria v. Alba, 148 135 Supra note 119.
SCRA 208, 210-211 (1987) citing Ashwander v. TVA, 297 U.S.
288 (1936). 136Board of Optometry v. Colet, 260 SCRA 88, 103 (1996); Joya
v. PCGG, supra note 69 at 575; Macasiano v. National Housing
120As adverted to earlier, neither a copy the Resolution nor a Authority, 224 SCRA 236, 242 (1993); Santos III v. Northwestern
record of the hearings conducted by the House Committee on Airlines, 210 SCRA 256, 261-262 (1992), National Economic
Justice pursuant to said Resolution was submitted to the Court by Protectionism Association v. Ongpin, 171 SCRA 657, 665 (1989).
any of the parties.
137 Supra note 2 at 353.
121 Rollo, G.R. No. 160310 at 38.
138 Supra note 33 at 32.
122 Supra note 107.
139 Supra note 102.
123 Id. at 777 (citations omitted).
140 Supra note 33.
124 Rollo, G.R. No. 160262 at 73.
141 249 SCRA 244, 251 (1995).

142 Id. at 251.

143 2 Records of the Constitutional Commission at 342-416.

144 Id. at 416.

145 Commissioner Maambong's Amicus Curiae Brief at 15.

146 2 Record of the Constitutional Commission at 375-376, 416

147 77 Phil. 192 (1946).

148 Justice Hugo Guiterrez's Amicus Curiae Brief at 7.

149 109 Phil. 863 (1960).

150 40 SCRA 58, 68 (1971).

151 286 U.S. 6, 33 (1932).

152 277 SCRA 268, 286 (1997).

153 144 U.S. 1 (1862).

154 Supra note 152 at 304-306.

155 Id. at 311.

156 Id. at 313.

157 Supra note 152 at 314-315.

158 Supra note 50.

 Republic of the Philippines Resolutions; and (c) the Auditor General from passing in audit any
SUPREME COURT disbursement from the appropriation of funds made in said Republic Act
Manila No. 4913; and

EN BANC 2) declaring said Act unconstitutional and void.

G.R. No. L-28196 November 9, 1967 The main facts are not disputed. On March 16, 1967, the Senate and the
House of Representatives passed the following resolutions:
RAMON A. GONZALES, petitioner,
vs. 1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5,
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and Article VI, of the Constitution of the Philippines, be amended so as to
AUDITOR GENERAL, respondents. increase the membership of the House of Representatives from a
maximum of 120, as provided in the present Constitution, to a maximum
G.R. No. L-28224 November 9, 1967 of 180, to be apportioned among the several provinces as nearly as may
be according to the number of their respective inhabitants, although each
PHILIPPINE CONSTITUTION ASSOCIATION province shall have, at least, one (1) member;
(PHILCONSA), petitioner,
vs. 2. R. B. H. No. 2, calling a convention to propose amendments to said
COMMISSION ON ELECTIONS, respondent. Constitution, the convention to be composed of two (2) elective delegates
from each representative district, to be "elected in the general elections to
No. 28196: be held on the second Tuesday of November, 1971;" and
Ramon A. Gonzales for and in his own behalf as petitioner.
Juan T. David as amicus curiae 3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same
Office of the Solicitor General for respondents. Constitution, be amended so as to authorize Senators and members of
the House of Representatives to become delegates to the
No. 28224: aforementioned constitutional convention, without forfeiting their
Salvador Araneta for petitioner. respective seats in Congress.
Office of the Solicitor General for respondent.
Subsequently, Congress passed a bill, which, upon approval by the
CONCEPCION, C.J.: President, on June 17, 1967, became Republic Act No. 4913, providing
that the amendments to the Constitution proposed in the aforementioned
Resolutions No. 1 and 3 be submitted, for approval by the people, at the
G. R. No. L-28196 is an original action for prohibition, with preliminary
general elections which shall be held on November 14, 1967.
injunction.
The petition in L-28196 was filed on October 21, 1967. At the hearing
Petitioner therein prays for judgment:
thereof, on October 28, 1967, the Solicitor General appeared on behalf of
respondents. Moreover, Atty. Juan T. David and counsel for the
1) Restraining: (a) the Commission on Elections from enforcing Republic Philippine Constitution Association — hereinafter referred to as the
Act No. 4913, or from performing any act that will result in the holding of PHILCONSA — were allowed to argue as amici curiae. Said counsel for
the plebiscite for the ratification of the constitutional amendments the PHILCONSA, Dr. Salvador Araneta, likewise prayed that the decision
proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of in this case be deferred until after a substantially identical case brought
Congress of the Philippines, approved on March 16, 1967; (b) the by said organization before the Commission on Elections,1 which was
Director of Printing from printing ballots, pursuant to said Act and expected to decide it any time, and whose decision would, in all
probability, be appealed to this Court — had been submitted thereto for
final determination, for a joint decision on the identical issues raised in
both cases. In fact, on October 31, 1967, the PHILCONSA filed with this
Court the petition in G. R. No. L-28224, for review by certiorari of the
resolution of the Commission on Elections2 dismissing the petition
therein. The two (2) cases were deemed submitted for decision on
November 8, 1967, upon the filing of the answer of respondent, the
memorandum of the petitioner and the reply memorandum of respondent
in L-28224.
Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino
citizen, a taxpayer, and a voter. He claims to have instituted case L-
28196 as a class unit, for and in behalf of all citizens, taxpayers, and
voters similarly situated. Although respondents and the Solicitor General
have filed an answer denying the truth of this allegation, upon the ground
that they have no knowledge or information to form a belief as to the truth
thereof, such denial would appear to be a perfunctory one. In fact, at the
hearing of case L-28196, the Solicitor General expressed himself in favor
of a judicial determination of the merits of the issued raised in said case.
The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly
organized and existing under the laws of the Philippines, and a civic, non-
profit and non-partisan organization the objective of which is to uphold
the rule of law in the Philippines and to defend its Constitution against
erosions or onslaughts from whatever source. Despite his
aforementioned statement in L-28196, in his answer in L-28224 the
Solicitor General maintains that this Court has no jurisdiction over the
subject-matter of L-28224, upon the ground that the same is "merely
political" as held in Mabanag vs. Lopez Vito.3 Senator Arturo M.
Tolentino, who appeared before the Commission on Elections and filed
an opposition to the PHILCONSA petition therein, was allowed to appear
before this Court and objected to said petition upon the ground: a) that
the Court has no jurisdiction either to grant the relief sought in the
petition, or to pass upon the legality of the composition of the House of
Representatives; b) that the petition, if granted, would, in effect, render in
operational the legislative department; and c) that "the failure of Congress
to enact a valid reapportionment law . . . does not have the legal effect of
rendering illegal the House of Representatives elected thereafter, nor of
rendering its acts null and void."
JURISDICTION
As early as Angara vs. Electoral Commission,4 this Court — speaking
through one of the leading members of the Constitutional Convention and
a respected professor of Constitutional Law, Dr. Jose P. Laurel —
declared that "the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent
units thereof." It is true that in Mabanag vs. Lopez Vito,5 this Court
characterizing the issue submitted thereto as a political one, declined to
pass upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution — which
was being submitted to the people for ratification — satisfied the three-
fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate,6 Avelino vs. Cuenco,7 Tañada vs.
Cuenco,8 and Macias vs. Commission on Elections.9In the first, we held
that the officers and employees of the Senate Electoral Tribunal are
under its supervision and control, not of that of the Senate President, as
claimed by the latter; in the second, this Court proceeded to determine
the number of Senators necessary for a quorum in the Senate; in the
third, we nullified the election, by Senators belonging to the party having
the largest number of votes in said chamber, purporting to act on behalf
of the party having the second largest number of votes therein, of two (2)
Senators belonging to the first party, as members, for the second party,
of the, Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the
representative districts for the House of Representatives, upon the
ground that the apportionment had not been made as may be possible
according to the number of inhabitants of each province. Thus we
rejected the theory, advanced in these four (4) cases, that the issues
therein raised were political questions the determination of which is
beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments
thereto is not included in the general grant of legislative powers to
Congress.10 It is part of the inherent powers of the people — as the
repository of sovereignty in a republican state, such as ours11 — to make,
and, hence, to amend their own Fundamental Law. Congress may
propose amendments to the Constitution merely because the same
explicitly grants such power.12 Hence, when exercising the same, it is said
that Senators and Members of the House of Representatives act, not as
members of Congress, but as component elements of a constituent
assembly. When acting as such, the members of Congress derive their
authority from the Constitution, unlike the people, when performing the
same function,13 for their authority does not emanate from the
Constitution — they are the very source of all powers of
government, including the Constitution itself .
Since, when proposing, as a constituent assembly, amendments to the
Constitution, the members of Congress derive their authority from the
Fundamental Law, it follows, necessarily, that they do not have the final
say on whether or not their acts are within or beyond constitutional limits.
Otherwise, they could brush aside and set the same at naught, contrary
to the basic tenet that ours is a government of laws, not of men, and to
the rigid nature of our Constitution. Such rigidity is stressed by the fact
that, the Constitution expressly confers upon the Supreme Court,14 the
power to declare a treaty unconstitutional,15 despite the eminently political
character of treaty-making power.
In short, the issue whether or not a Resolution of Congress — acting as a
constituent assembly — violates the Constitution essentially justiciable,
not political, and, hence, subject to judicial review, and, to the extent that
this view may be inconsistent with the stand taken in Mabanag vs. Lopez
Vito,16 the latter should be deemed modified accordingly. The Members of
the Court are unanimous on this point.
THE MERITS
Section 1 of Article XV of the Constitution, as amended, reads:
The Congress in joint session assembled by a vote of three-
fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to
this Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their ratification.
Pursuant to this provision, amendments to the Constitution may be
proposed, either by Congress, or by a convention called by Congress for
that purpose. In either case, the vote of "three-fourths of all the members
of the Senate and of the House of Representatives voting separately" is
necessary. And, "such amendments shall be valid as part of" the
"Constitution when approved by a majority of the votes cast at an election
at which the amendments are submitted to the people for their
ratification."
In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have
been approved by a vote of three-fourths of all the members of the
Senate and of the House of Representatives voting separately. This,
notwithstanding, it is urged that said resolutions are null and void
because:
1. The Members of Congress, which approved the proposed
amendments, as well as the resolution calling a convention to propose
amendments, are, at best, de facto Congressmen;
2. Congress may adopt either one of two alternatives propose —
amendments or call a convention therefore but may not avail of both —
that is to say, propose amendment and call a convention — at the same
time;
3. The election, in which proposals for amendment to the Constitution
shall be submitted for ratification, must be
a special election, not a general election, in which officers of the national
and local governments — such as the elections scheduled to be held on
November 14, 1967 — will be chosen; and
4. The spirit of the Constitution demands that the election, in which
proposals for amendment shall be submitted to the people for ratification,
must be held under such conditions — which, allegedly, do not exist —
as to give the people a reasonable opportunity to have a fair grasp of the
nature and implications of said amendments.
Legality of Congress and Legal Status of the Congressmen
The first objection is based upon Section 5, Article VI, of the Constitution,
which provides:
The House of Representatives shall be composed of not more
than one hundred and twenty Members who shall be apportioned
among the several provinces as nearly as may be according to
the number of their respective inhabitants, but each province shall
have at least one Member. The Congress shall by law make an
apportionment within three years after the return of every
enumeration, and not otherwise. Until such apportionment shall
have been made, the House of Representatives shall have the
same number of Members as that fixed by law for the National
Assembly, who shall be elected by the qualified electors from the
present Assembly districts. Each representative district shall
comprise, as far as practicable, contiguous and compact territory.
It is urged that the last enumeration or census took place in 1960; that, no
apportionment having been made within three (3) years thereafter, the
Congress of the Philippines and/or the election of its Members became
illegal; that Congress and its Members, likewise, became a de
facto Congress and/or de facto congressmen, respectively; and that,
consequently, the disputed Resolutions, proposing amendments to the
Constitution, as well as Republic Act No. 4913, are null and void.
It is not true, however, that Congress has not made an apportionment
within three years after the enumeration or census made in 1960. It did
actually pass a bill, which became Republic Act No. 3040,17 purporting to
make said apportionment. This Act was, however, declared
unconstitutional, upon the ground that the apportionment therein
undertaken had not been made according to the number of inhabitants of
the different provinces of the Philippines.18
Moreover, we are unable to agree with the theory that, in view of the
failure of Congress to make a valid apportionment within the period
stated in the Constitution, Congress became an "unconstitutional
Congress" and that, in consequence thereof, the Members of its House of
Representatives are de facto officers. The major premise of this process
of reasoning is that the constitutional provision on "apportionment within
three years after the return of every enumeration, and not otherwise," is
mandatory. The fact that Congress is under legal obligation to make said
apportionment does not justify, however, the conclusion that failure to
comply with such obligation rendered Congress illegal or unconstitutional,
or that its Members have become de facto officers.
It is conceded that, since the adoption of the Constitution in 1935,
Congress has not made a valid apportionment as required in said
fundamental law. The effect of this omission has been envisioned in the
Constitution, pursuant to which:
. . . Until such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that
fixed by law for the National Assembly, who shall be elected by
the qualified electors from the present Assembly districts. . . . .
The provision does not support the view that, upon the expiration of the
period to make the apportionment, a Congress which fails to make it is
dissolved or becomes illegal. On the contrary, it implies necessarily that
Congress shall continue to function with the representative districts
existing at the time of the expiration of said period.
It is argued that the above-quoted provision refers only to the elections
held in 1935. This theory assumes that an apportionment had to be made
necessarily before the first elections to be held after the inauguration of
the Commonwealth of the Philippines, or in 1938.19 The assumption, is,
however, unwarranted, for there had been no enumeration in 1935, and
nobody could foretell when it would be made. Those who drafted and
adopted the Constitution in 1935 could be certain, therefore, that the
three-year period, after the earliest possible enumeration, would expire
after the elections in 1938.
What is more, considering that several provisions of the Constitution,
particularly those on the legislative department, were amended in 1940,
by establishing a bicameral Congress, those who drafted and adopted
said amendment, incorporating therein the provision of the original
Constitution regarding the apportionment of the districts for
representatives, must have known that the three-year period therefor
would expire after the elections scheduled to be held and actually held in
1941.
Thus, the events contemporaneous with the framing and ratification of the
original Constitution in 1935 and of the amendment thereof in 1940
strongly indicate that the provision concerning said apportionment and
the effect of the failure to make it were expected to be applied to
conditions obtaining after the elections in 1935 and 1938, and even
after subsequent elections.
Then again, since the report of the Director of the Census on the last
enumeration was submitted to the President on November 30, 1960, it
follows that the three-year period to make the apportionment did not
expire until 1963, or after the Presidential elections in 1961. There can be
no question, therefore, that the Senate and the House of Representatives
organized or constituted on December 30, 1961, were de jure bodies,
and that the Members thereof were de jure officers. Pursuant to the
theory of petitioners herein, upon expiration of said period of three years,
or late in 1963, Congress became illegal and its Members, or at least,
those of the House of Representatives, became illegal holder of their
respective offices, and were de facto officers.
Petitioners do not allege that the expiration of said three-year period
without a reapportionment, had the effect of abrogating or repealing the
legal provision creating Congress, or, at least, the House of
Representatives, and are not aware of any rule or principle of law that
would warrant such conclusion. Neither do they allege that the term of
office of the members of said House automatically expired or that
they ipso facto forfeited their seats in Congress, upon the lapse of said
period for reapportionment. In fact, neither our political law, nor our law
on public officers, in particular, supports the view that failure to discharge
a mandatory duty, whatever it may be, would automatically result in the
forfeiture of an office, in the absence of a statute to this effect.
Similarly, it would seem obvious that the provision of our Election Law
relative to the election of Members of Congress in 1965 were not
repealed in consequence of the failure of said body to make an
apportionment within three (3) years after the census of 1960. Inasmuch
as the general elections in 1965 were presumably held in conformity with
said Election Law, and the legal provisions creating Congress — with a
House of Representatives composed of members elected by qualified
voters of representative districts as they existed at the time of said
elections — remained in force, we can not see how said Members of the
House of Representatives can be regarded as de facto officers owing to
the failure of their predecessors in office to make a reapportionment
within the period aforementioned.
Upon the other hand, the Constitution authorizes the impeachment of the
President, the Vice-President, the Justices of the Supreme Court and the
Auditor General for, inter alia, culpable violation of the Constitution,20 the
enforcement of which is, not only their mandatory duty, but also, their
main function. This provision indicates that, despite the violation of such
mandatory duty, the title to their respective offices remains unimpaired,
until dismissal or ouster pursuant to a judgment of conviction rendered in
accordance with Article IX of the Constitution. In short, the loss of office
or the extinction of title thereto is not automatic.
Even if we assumed, however, that the present Members of Congress
are merely de facto officers, it would not follow that the contested
resolutions and Republic Act No. 4913 are null and void. In fact, the main
reasons for the existence of the de facto doctrine is that public interest
demands that acts of persons holding, under color of title, an office
created by a valid statute be, likewise, deemed valid insofar as the public
— as distinguished from the officer in question — is concerned.21 Indeed,
otherwise, those dealing with officers and employees of the Government
would be entitled to demand from them satisfactory proof of their title to
the positions they hold, before dealing with them, or before recognizing
their authority or obeying their commands, even if they should act within
the limits of the authority vested in their respective offices, positions or
employments.22 One can imagine this great inconvenience, hardships and
evils that would result in the absence of the de facto doctrine.
As a consequence, the title of a de facto officer cannot be assailed
collaterally.23 It may not be contested except directly, by quo
warranto proceedings. Neither may the validity of his acts be questioned
upon the ground that he is merely a de facto officer.24 And the reasons
are obvious: (1) it would be an indirect inquiry into the title to the office;
and (2) the acts of a de facto officer, if within the competence of his
office, are valid, insofar as the public is concerned.
It is argued that the foregoing rules do not apply to the cases at bar
because the acts therein involved have not been completed and
petitioners herein are not third parties. This pretense is untenable. It is
inconsistent with Tayko vs. Capistrano.25 In that case, one of the parties
to a suit being heard before Judge Capistrano objected to his continuing
to hear the case, for the reason that, meanwhile, he had reached the age
of retirement. This Court held that the objection could not be entertained,
because the Judge was at least, a de facto Judge, whose title can not be
assailed collaterally. It should be noted that Tayko was not a third party
insofar as the Judge was concerned. Tayko was one of the parties in the
aforementioned suit. Moreover, Judge Capistrano had not, as yet,
finished hearing the case, much less rendered decision therein. No rights
had vested in favor of the parties, in consequence of the acts of said
Judge. Yet, Tayko's objection was overruled. Needless to say, insofar as
Congress is concerned, its acts, as regards the Resolutions herein
contested and Republic Act No. 4913, are complete. Congress has
nothing else to do in connection therewith.
The Court is, also, unanimous in holding that the objection under
consideration is untenable.
Available Alternatives to Congress
Atty. Juan T. David, as amicus curiae, maintains that Congress may
either propose amendments to the Constitution or call a convention for
that purpose, but it can not do both, at the same time. This theory is
based upon the fact that the two (2) alternatives are connected in the
Constitution by the disjunctive "or." Such basis is, however, a weak one,
in the absence of other circumstances — and none has brought to our
attention — supporting the conclusion drawn by the amicus curiae. In
fact, the term "or" has, oftentimes, been held to mean "and," or vice-
versa, when the spirit or context of the law warrants it.26
It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to
the constitutional provision on Congress, to be submitted to the people
for ratification on November 14, 1967, whereas R. B. H. No. 2 calls for a
convention in 1971, to consider proposals for amendment to the
Constitution, in general. In other words, the subject-matter of R. B. H. No.
2 is different from that of R B. H. Nos. 1 and 3. Moreover, the
amendments proposed under R. B. H. Nos. 1 and 3, will be submitted for
ratification several years before those that may be proposed by the
constitutional convention called in R. B. H. No. 2. Again, although the
three (3) resolutions were passed on the same date, they were taken up
and put to a vote separately, or one after the other. In other words, they
were not passed at the same time.
In any event, we do not find, either in the Constitution, or in the history
thereof anything that would negate the authority of different Congresses
to approve the contested Resolutions, or of the same Congress to pass
the same in, different sessions or different days of the same
congressional session. And, neither has any plausible reason been
advanced to justify the denial of authority to adopt said resolutions on the
same day.
Counsel ask: Since Congress has decided to call a constitutional
convention to propose amendments, why not let the whole thing be
submitted to said convention, instead of, likewise, proposing some
specific amendments, to be submitted for ratification before said
convention is held? The force of this argument must be conceded. but the
same impugns the wisdom of the action taken by Congress, not
its authority to take it. One seeming purpose thereof to permit Members
of Congress to run for election as delegates to the constitutional
convention and participate in the proceedings therein, without forfeiting
their seats in Congress. Whether or not this should be done is a political
question, not subject to review by the courts of justice.
On this question there is no disagreement among the members of the
Court.
May Constitutional Amendments Be Submitted for Ratification in
a General Election?
Article XV of the Constitution provides:
. . . The Congress in joint session assembled, by a vote of three-
fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to
this Constitution or call a contention for that purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their ratification.
There is in this provision nothing to indicate that the "election" therein
referred to is a "special," not a general, election. The circumstance that
three previous amendments to the Constitution had been submitted to the
people for ratification in special elections merely shows that Congress
deemed it best to do so under the circumstances then obtaining. It does
not negate its authority to submit proposed amendments for ratification in
general elections.
It would be better, from the viewpoint of a thorough discussion of the
proposed amendments, that the same be submitted to the people's
approval independently of the election of public officials. And there is no
denying the fact that an adequate appraisal of the merits and demerits
proposed amendments is likely to be overshadowed by the great
attention usually commanded by the choice of personalities involved in
general elections, particularly when provincial and municipal officials are
to be chosen. But, then, these considerations are addressed to the
wisdom of holding a plebiscite simultaneously with the election of public
officer. They do not deny the authority of Congress to choose either
alternative, as implied in the term "election" used, without qualification, in
the abovequoted provision of the Constitution. Such authority becomes
even more patent when we consider: (1) that the term "election," normally
refers to the choice or selection of candidates to public office by popular
vote; and (2) that the word used in Article V of the Constitution,
concerning the grant of suffrage to women is, not "election," but
"plebiscite."
Petitioners maintain that the term "election," as used in Section 1 of Art.
XV of the Constitution, should be construed as meaning a
special election. Some members of the Court even feel that said term
("election") refers to a "plebiscite," without any "election," general or
special, of public officers. They opine that constitutional amendments are,
in general, if not always, of such important, if not transcendental and vital
nature as to demand that the attention of the people be focused
exclusively on the subject-matter thereof, so that their votes thereon may
reflect no more than their intelligent, impartial and considered view on the
merits of the proposed amendments, unimpaired, or, at least, undiluted
by extraneous, if not insidious factors, let alone the partisan political
considerations that are likely to affect the selection of elective officials.
This, certainly, is a situation to be hoped for. It is a goal the attainment of
which should be promoted. The ideal conditions are, however, one thing.
The question whether the Constitution forbids the submission of
proposals for amendment to the people except under such conditions, is
another thing. Much as the writer and those who concur in this opinion
admire the contrary view, they find themselves unable to subscribe
thereto without, in effect, reading into the Constitution what they believe
is not written thereon and can not fairly be deduced from the letter
thereof, since the spirit of the law should not be a matter of sheer
speculation.
The majority view — although the votes in favor thereof are insufficient to
declare Republic Act No. 4913 unconstitutional — as ably set forth in the
opinion penned by Mr. Justice Sanchez, is, however, otherwise.
Would the Submission now of the Contested Amendments to the People
Violate the Spirit of the Constitution?
It should be noted that the contested Resolutions were approved on
March 16, 1967, so that, by November 14, 1967, our citizenry shall have
had practically eight (8) months to be informed on the amendments in
question. Then again, Section 2 of Republic Act No. 4913 provides:
(1) that "the amendments shall be published in three consecutive issues
of the Official Gazette, at least twenty days prior to the election;"
(2) that "a printed copy of the proposed amendments shall be posted in a
conspicuous place in every municipality, city and provincial office building
and in every polling place not later than October 14, 1967," and that said
copy "shall remain posted therein until after the election;"
(3) that "at least five copies of said amendment shall be kept in each
polling place, to be made available for examination by the qualified
electors during election day;"
(4) that "when practicable, copies in the principal native languages, as
may be determined by the Commission on Elections, shall be kept in
each polling place;"
(5) that "the Commission on Elections shall make available copies of said
amendments in English, Spanish and, whenever practicable, in the
principal native languages, for free distributing:" and
(6) that the contested Resolutions "shall be printed in full" on the back of
the ballots which shall be used on November 14, 1967.
We are not prepared to say that the foregoing measures are palpably
inadequate to comply with the constitutional requirement that proposals
for amendment be "submitted to the people for their ratification," and that
said measures are manifestly insufficient, from a constitutional viewpoint,
to inform the people of the amendment sought to be made.
These were substantially the same means availed of to inform the people
of the subject submitted to them for ratification, from the original
Constitution down to the Parity Amendment. Thus, referring to the original
Constitution, Section 1 of Act No. 4200, provides:
Said Constitution, with the Ordinance appended thereto, shall be
published in the Official Gazette, in English and in Spanish, for
three consecutive issues at least fifteen days prior to said
election, and a printed copy of said Constitution, with the
Ordinance appended thereto, shall be posted in a conspicuous
place in each municipal and provincial government office building
and in each polling place not later than the twenty-second day of
April, nineteen hundred and thirty-five, and shall remain posted
therein continually until after the termination of the election. At
least ten copies of the Constitution with the Ordinance appended
thereto, in English and in Spanish, shall be kept at each polling
place available for examination by the qualified electors during
election day. Whenever practicable, copies in the principal local
dialects as may be determined by the Secretary of the Interior
shall also be kept in each polling place.
The provision concerning woman's suffrage is Section 1 of
Commonwealth Act No. 34, reading:
Said Article V of the Constitution shall be published in the Official
Gazette, in English and in Spanish, for three consecutive issues
at least fifteen days prior to said election, and the said Article V
shall be posted in a conspicuous place in each municipal and
provincial office building and in each polling place not later than
the twenty-second day of April, nineteen and thirty-seven, and
shall remain posted therein continually until after the termination
of the plebiscite. At least ten copies of said Article V of the
Constitution, in English and in Spanish, shall be kept at each
polling place available for examination by the qualified electors
 during the plebiscite. Whenever practicable, copies in the
principal native languages, as may be determined by the
Secretary of the Interior, shall also be kept in each polling place.
Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940
amendments, is of the following tenor:
The said amendments shall be published in English and Spanish
in three consecutive issues of the Official Gazette at least twenty
days prior to the election. A printed copy thereof shall be posted
in a conspicuous place in every municipal, city, and provincial
government office building and in every polling place not later
than May eighteen, nineteen hundred and forty, and shall remain
posted therein until after the election. At least ten copies of said
amendments shall be kept in each polling place to be made
available for examination by the qualified electors during election
day. When practicable, copies in the principal native languages,
as may be determined by the Secretary of the Interior, shall also
be kept therein.
As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to
the effect that:
The said amendment shall be published in English and Spanish
in three consecutive issues of the Official Gazette at least twenty
days prior to the election. A printed copy thereof shall be posted
in a conspicuous place in every municipal, city, and provincial
government office building and in every polling place not later
than February eleven, nineteen hundred and forty-seven, and
shall remain posted therein until after the election. At least, ten
copies of the said amendment shall be kept in each polling place
to be made available for examination by the qualified electors
during election day. When practicable, copies in the principal
native languages, as may be determined by the Commission on
Elections, shall also be kept in each polling place.
The main difference between the present situation and that obtaining in
connection with the former proposals does not arise from the law enacted
therefor. The difference springs from the circumstance that the major
political parties had taken sides on previous amendments to the
Constitution — except, perhaps, the woman's suffrage — and,
consequently, debated thereon at some length before the plebiscite took
place. Upon the other hand, said political parties have not seemingly
made an issue on the amendments now being contested and have,
accordingly, refrained from discussing the same in the current political
campaign. Such debates or polemics as may have taken place — on a
rather limited scale — on the latest proposals for amendment, have been
due principally to the initiative of a few civic organizations and some
militant members of our citizenry who have voiced their opinion thereon.
A legislation cannot, however, be nullified by reason of the failure of
certain sectors of the community to discuss it sufficiently. Its
constitutionality or unconstitutionality depends upon no other factors than
those existing at the time of the enactment thereof, unaffected by the acts
or omissions of law enforcing agencies, particularly those that take place
subsequently to the passage or approval of the law.
Referring particularly to the contested proposals for amendment, the
sufficiency or insufficiency, from a constitutional angle, of the submission
thereof for ratification to the people on November 14, 1967, depends —
in the view of those who concur in this opinion, and who, insofar as this
phase of the case, constitute the minority — upon whether the provisions
of Republic Act No. 4913 are such as to fairly apprise the people of the
gist, the main idea or the substance of said proposals, which is — under
R. B. H. No. 1 — the increase of the maximum number of seats in the
House of Representatives, from 120 to 180, and — under R. B. H. No. 3
— the authority given to the members of Congress to run for delegates to
the Constitutional Convention and, if elected thereto, to discharge the
duties of such delegates, without forfeiting their seats in Congress. We —
who constitute the minority — believe that Republic Act No. 4913
satisfies such requirement and that said Act is, accordingly,
constitutional.
A considerable portion of the people may not know how over 160 of the
proposed maximum of representative districts are actually apportioned by
R. B. H. No. 1 among the provinces in the Philippines. It is not
improbable, however, that they are not interested in the details of the
apportionment, or that a careful reading thereof may tend in their simple
minds, to impair a clear vision thereof. Upon the other hand, those who
are more sophisticated, may enlighten themselves sufficiently by reading
the copies of the proposed amendments posted in public places, the
copies kept in the polling places and the text of contested resolutions, as
printed in full on the back of the ballots they will use.
It is, likewise, conceivable that as many people, if not more, may fail to
realize or envisage the effect of R. B. H. No. 3 upon the work of the
Constitutional Convention or upon the future of our Republic. But, then,
nobody can foretell such effect with certainty. From our viewpoint, the
provisions of Article XV of the Constitution are satisfied so long as the
electorate knows that R. B. H. No. 3 permits Congressmen to retain their
seats as legislators, even if they should run for and assume the functions
of delegates to the Convention.
We are impressed by the factors considered by our distinguished and
esteemed brethren, who opine otherwise, but, we feel that such factors
affect the wisdom of Republic Act No. 4913 and that of R. B. H. Nos. 1
and 3, not the authority of Congress to approve the same.
The system of checks and balances underlying the judicial power to strike
down acts of the Executive or of Congress transcending the confines set
forth in the fundamental laws is not in derogation of the principle of
separation of powers, pursuant to which each department is supreme
within its own sphere. The determination of the conditions under which
the proposed amendments shall be submitted to the people is
concededly a matter which falls within the legislative sphere. We do not
believe it has been satisfactorily shown that Congress has exceeded the
limits thereof in enacting Republic Act No. 4913. Presumably, it could
have done something better to enlighten the people on the subject-matter
thereof. But, then, no law is perfect. No product of human endeavor is
beyond improvement. Otherwise, no legislation would be constitutional
and valid. Six (6) Members of this Court believe, however, said Act and
R. B. H. Nos. 1 and 3 violate the spirit of the Constitution.
Inasmuch as there are less than eight (8) votes in favor of declaring
Republic Act 4913 and R. B. H. Nos. 1 and 3 unconstitutional and invalid,
the petitions in these two (2) cases must be, as they are hereby, dismiss
and the writs therein prayed for denied, without special pronouncement
as to costs. It is so ordered.
Makalintal and Bengzon, J.P., JJ., concur.
Fernando, J., concurs fully with the above opinion, adding a few words on
the question of jurisdiction.
Separate Opinions
MAKALINTAL, J., concurring:
I concur in the foregoing opinion of the Chief Justice. I would make some
additional observations in connection with my concurrence. Sections 2
and 4 of Republic Act No. 4913 provide:
Sec. 2. The amendments shall be published in three consecutive
issues of the Official Gazette at least twenty days prior to the
election. A printed copy thereof shall be posted in a conspicuous
place in every municipality, city and provincial office building and
in every polling place not later than October fourteen, nineteen
hundred and sixty-seven, and shall remain posted therein until
after the election. At least five copies of the said amendments
shall be kept in each polling place to be made available for
examination by the qualified electors during election day. When
practicable, copies in the principal native languages, as may be
determined by the Commission on Elections, shall be kept in
each polling place. The Commission on Elections shall make
available copies of each amendments in English, Spanish and,
whenever practicable, in the principal native languages, for free
distribution.
xxx xxx xxx
Sec. 4. The ballots which shall be used in the election for the
approval of said amendments shall be printed in English and
Pilipino and shall be in the size and form prescribed by the
Commission on Elections: Provided, however, That at the back of
said ballot there shall be printed in full Resolutions of both
Houses of Congress Numbered One and Three, both adopted on
March sixteen, nineteen hundred and sixty-seven, proposing the
amendments: Provided, further, That the questionnaire appearing
on the face of the ballot shall be as follows:
Are you in favor of the proposed amendment to Section five of
Article VI of our Constitution printed at the back of this ballot?
Are you in favor of the proposed amendment to section sixteen of
Article VI of our Constitution printed at the back of this ballot?
To vote for the approval of the proposed amendments, the voter
shall write the word "yes" or its equivalent in Pilipino or in the local
dialect in the blank space after each question; to vote for the
rejection thereof, he shall write the word "No" or its equivalent in
Pilipino or in the local dialect.
I believe that intrinsically, that is, considered in itself and without
reference to extraneous factors and circumstances, the manner
prescribed in the aforesaid provisions is sufficient for the purpose of
having the proposed amendments submitted to the people for their
ratification, as enjoined in Section 1, Article XV of the Constitution. I am
at a loss to say what else should have been required by the Act to make
it adhere more closely to the constitutional requirement. Certainly it would
have been out of place to provide, for instance, that government officials
and employees should go out and explain the amendments to the people,
or that they should be the subject of any particular means or form of
public discussion.
The objection of some members of the Court to Republic Act No. 4913
seems to me predicated on the fact that there are so many other issues
at stake in the coming general election that the attention of the electorate,
cannot be entirely focused on the proposed amendments, such that there
is a failure to properly submit them for ratification within the intendment of
the Constitution. If that is so, then the defect is not intrinsic in the law but
in its implementation. The same manner of submitting the proposed
amendments to the people for ratification may, in a different setting, be
sufficient for the purpose. Yet I cannot conceive that the constitutionality
or unconstitutionality of a law may be made to depend willy-nilly on
factors not inherent in its provisions. For a law to be struck down as
unconstitutional it must be so by reason of some irreconcilable conflict
between it and the Constitution. Otherwise a law may be either valid or
invalid, according to circumstances not found in its provisions, such as
the zeal with which they are carried out. To such a thesis I cannot agree.
The criterion would be too broad and relative, and dependent upon
individual opinions that at best are subjective. What one may regard as
sufficient compliance with the requirement of submission to the people,
within the context of the same law, may not be so to another. The
question is susceptible of as many views as there are viewers; and I do
not think this Court would be justified in saying that its own view on the
matter is the correct one, to the exclusion of the opinions of others.
On the other hand, I reject the argument that the ratification must
necessarily be in a special election or plebiscite called for that purpose
alone. While such procedure is highly to be preferred, the Constitution
speaks simply of "an election at which the amendments are submitted to
the people for their ratification," and I do not subscribe to the restrictive
interpretation that the petitioners would place on this provision, namely,
that it means only a special election.
BENGZON, J.P., J., concurring:
It is the glory of our institutions that they are founded upon law, that no
one can exercise any authority over the rights and interests of others
except pursuant to and in the manner authorized by law.1 Based upon
this principle, petitioners Ramon A. Gonzales and Philippine Constitution
Association (PHILCONSA) come to this Court in separate petitions.
Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in
representation thru class suit of all citizens of this country, filed this suit
for prohibition with preliminary injunction to restrain the Commission on
Elections, Director of Printing and Auditor General from implementing
and/or complying with Republic Act 4913, assailing said law as
unconstitutional.
Petitioner PHILCONSA, as a civic, non-profit and non-partisan
corporation, assails the constitutionality not only of Republic Act 4913 but
also of Resolutions of Both Houses Nos. 1 and 3 of March 16, 1967.
Republic Act 4913, effective June 17, 1967, is an Act submitting to the
Filipino people for approval the amendments to the Constitution of the
Philippines proposed by the Congress of the Philippines in Resolutions of
Both Houses Numbered 1 and 3, adopted on March 16, 1967. Said
Republic Act fixes the date and manner of the election at which the
aforesaid proposed amendments shall be voted upon by the people, and
appropriates funds for said election. Resolutions of Both Houses Nos. 1
and 3 propose two amendments to the Constitution: the first, to amend
Sec. 5, Art. VI, by increasing the maximum membership of the House of
Representatives from 120 to 180, apportioning 160 of said 180 seats and
eliminating the provision that Congress shall by law make an
apportionment within three years after the return of every enumeration;
the second, to amend Sec. 16, Art. VI, by allowing Senators and
Representatives to be delegates to a constitutional convention without
forfeiting their seats.
Since both petitions relate to the proposed amendments, they are
considered together herein.
Specifically and briefly, petitioner Gonzales' objections are as follows: (1)
Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, in
submitting the proposed amendments to the Constitution, to the people
for approval, at the general election of 1967 instead of at a special
election solely for that purpose; (2) Republic Act 4913 violates Sec. 1,
Art. XV of the Constitution, since it was not passed with the 3/4 vote in
joint session required when Congress proposes amendments to the
Constitution, said Republic Act being a step in or part of the process of
proposing amendments to the Constitution; and (3) Republic Act 4913
violates the due process clause of the Constitution (Sec. 1, Subsec. 1,
Art. III), in not requiring that the substance of the proposed amendments
be stated on the face of the ballot or otherwise rendering clear the import
of the proposed amendments, such as by stating the provisions before
and after said amendments, instead of printing at the back of the ballot
only the proposed amendments.
Since observance of Constitutional provisions on the procedure for
amending the Constitution is concerned, the issue is cognizable by this
Court under its powers to review an Act of Congress to determine its
conformity to the fundamental law. For though the Constitution leaves
Congress free to propose whatever Constitutional amendment it deems
fit, so that the substance or content of said proposed amendment is a
matter of policy and wisdom and thus a political question, the Constitution
nevertheless imposes requisites as to the manner or procedure of
proposing such amendments, e.g., the three-fourths vote requirement.
Said procedure or manner, therefore, from being left to the discretion of
Congress, as a matter of policy and wisdom, is fixed by the Constitution.
And to that extent, all questions bearing on whether Congress in
proposing amendments followed the procedure required by the
Constitution, is perforce justiciable, it not being a matter of policy or
wisdom.
Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly
does not bear him on the point. It nowhere requires that the ratification be
thru an election solely for that purpose. It only requires that it be at "an
election at which the amendments are submitted to the people for their
ratification." To join it with an election for candidates to public office, that
is, to make it concurrent with such election, does not render it any less an
election at which the proposed amendments are submitted to the people
for their ratification. To prohibition being found in the plain terms of the
Constitution, none should be inferred. Had the framers of requiring
Constitution thought of requiring a special election for the purpose only of
the proposed amendments, they could have said so, by qualifying the
phrase with some word such as "special" or "solely" or "exclusively". They
did not.
It is not herein decided that such concurrence of election is wise, or that it
would not have been better to provide for a separate election exclusively
for the ratification of the proposed amendments. The point however is
that such separate and exclusive election, even if it may be better or
wiser, which again, is not for this Court to decide, is not included in the
procedure required by the Constitution to amend the same. The function
of the Judiciary is "not to pass upon questions of wisdom, justice or
expediency of legislation".2 It is limited to determining whether the action
taken by the Legislative Department has violated the Constitution or not.
On this score, I am of the opinion that it has not.
Petitioner Gonzales' second point is that Republic Act 4913 is deficient
for not having been passed by Congress in joint session by 3/4 vote.
Sec. 1, Art. XV of the Constitution provides:
Sec. 1. The Congress in joint session assembled, by a vote of
three-fourths of all the members of the Senate and of the House
of Representatives voting separately, may propose amendments
to this Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election to which
the amendments are submitted to the people for their ratification.
Does Republic Act 4913 propose amendments to the Constitution? If by
the term "propose amendment" is meant to determine WHAT said
amendment shall be, then Republic Act 4913 does not; Resolutions of
Both Houses 1 and 3 already did that. If, on the other hand, it means, or
also means, to provide for how, when, and by what means the
amendments shall be submitted to the people for approval, then it does.
A careful reading of Sec. 1, Art. XV shows that the first sense. is the one
intended. Said Section has two sentences: in the first, it requires the 3/4
voting in joint session, for Congress to "propose amendments". And then
in the second sentence, it provides that "such amendments . . . shall be
submitted to the people for their ratification". This clearly indicates that by
the term "propose amendments" in the first sentence is meant to frame
the substance or the content or the WHAT-element of the amendments;
for it is this and this alone that is submitted to the people for their
ratification. The details of when the election shall be held for approval or
rejection of the proposed amendments, or the manner of holding it, are
not submitted for ratification to form part of the Constitution. Stated
differently, the plain language of Section 1, Art. XV, shows that the act of
proposing amendments is distinct from — albeit related to — that of
submitting the amendments to the people for their ratification; and that
the 3/4 voting requirement applies only to the first step, not to the second
one.
It follows that the submission of proposed amendments can be done thru
an ordinary statute passed by Congress. The Constitution does not
expressly state by whom the submission shall be undertaken; the rule is
that a power not lodged elsewhere under the Constitution is deemed to
reside with the legislative body, under the doctrine of residuary powers.
Congress therefore validly enacted Republic Act 4913 to fix the details of
the date and manner of submitting the proposed amendments to the
people for their ratification. Since it does not "propose amendments" in
the sense referred to by Sec. 1, Art. XV of the Constitution, but merely
provides for how and when the amendments, already proposed, are
going to be voted upon, the same does not need the 3/4 vote in joint
session required in Sec. 1, Art. XV of the Constitution. Furthermore,
Republic Act 4913 is an appropriation measure. Sec. 6 thereof
appropriates P1,000,000 for carrying out its provisions. Sec. 18, Art. VI of
the Constitution states that "All appropriation . . . bills shall originate
exclusively in the House of Representatives". Republic Act 4913,
therefore, could not have been validly adopted in a joint session,
reinforcing the view that Sec. 1, Art. XV does not apply to such a
measure providing for the holding of the election to ratify the proposed
amendments, which must perforce appropriate funds for its purpose.
Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends
against substantive due process. An examination of the provisions of the
law shows no violation of the due process clause of the Constitution. The
publication in the Official Gazette at least 20 days before the election, the
posting of notices in public buildings not later than October 14, 1967, to
remain posted until after the elections, the placing of copies of the
proposed amendments in the polling places, aside from printing the same
at the back of the ballot, provide sufficient opportunity to the voters to
cast an intelligent vote on the proposal. Due process refers only to
providing fair opportunity; it does not guarantee that the opportunity given
will in fact be availed of; that is the look-out of the voter and the
responsibility of the citizen. As long as fair and reasonable opportunity to
be informed is given, and it is, the due process clause is not infringed.
Non-printing of the provisions to be amended as they now stand, and the
printing of the full proposed amendments at the back of the ballot instead
of the substance thereof at the face of the ballot, do not deprive the voter
of fair opportunity to be informed. The present wording of the Constitution
is not being veiled or suppressed from him; he is conclusively presumed
to know them and they are available should he want to check on what he
is conclusively presumed to know. Should the voters choose to remain
ignorant of the present Constitution, the fault does not lie with Congress.
For opportunity to familiarize oneself with the Constitution as it stands
has been available thru all these years. Perhaps it would have been more
convenient for the voters if the present wording of the provisions were
also to be printed on the ballot. The same however is a matter of policy.
As long as the method adopted provides sufficiently reasonable chance
to intelligently vote on the amendments, and I think it does in this case, it
is not constitutionally defective.
Petitioner Gonzales' other arguments touch on the merits or wisdom of
the proposed amendments. These are for the people in their sovereign
capacity to decide, not for this Court.
Two arguments were further advanced: first, that Congress cannot both
call a convention and propose amendments; second, that the present
Congress is a de facto one, since no apportionment law was adopted
within three years from the last census of 1960, so that the
Representatives elected in 1961 are de facto officers only. Not being de
jure, they cannot propose amendments, it is argued.
As to the first point, Sec. 1 of Art. XV states that Congress "may propose
amendments or call a convention for that purpose". The term "or",
however, is frequently used as having the same meaning as "and"
particularly in permissive, affirmative sentences so that the interpretation
of the word "or" as "and" in the Constitution in such use will not change
its meaning (Vicksburg S. & P. R. Co. v. Goodenough, 32 So. 404, 411,
108 La, 442). And it should be pointed out that the resolutions proposing
amendments (R.B.H. Nos. 1 and 3) are different from that calling for a
convention (R.B.H. No. 2). Surely, if Congress deems it better or wise to
amend the Constitution before a convention called for is elected, it should
not be fettered from doing so. For our purposes in this case, suffice it to
note that the Constitution does not prohibit it from doing so.
As to the second argument, it is also true that Sec. 5 of Art. VI of the
Constitution provides in part that "The Congress shall by law make an
apportionment within three years after the return of every enumeration,
and not otherwise". It however further states in the next sentence: "Until
such apportionment shall have been made, the House of Representatives
shall have the same number of Members as that fixed by law for the
National Assembly, who shall be elected by the qualified electors from
the present assembly districts." The failure of Congress, therefore, to
pass a valid redistricting law since the time the above provision was
adopted, does not render the present districting illegal or unconstitutional.
For the Constitution itself provides for its continuance in such case,
rendering legal and de jure the status quo.
For the above reasons, I vote to uphold the constitutionality of Republic
Act 4913, and fully concur with the opinion of the Chief Justice.
FERNANDO, J., concurring:
At the outset, we are faced with a question of jurisdiction. The opinion
prepared by the Chief Justice discusses the matter with a fullness that
erases doubts and misgivings and clarifies the applicable principles. A
few words may however be added.
We start from the premise that only where it can be shown that the
question is to be solved by public opinion or where the matter has been
left by the Constitution to the sole discretion of any of the political
branches, as was so clearly stated by the then Justice Concepcion
in Tañada v. Cuenco,1 may this Court avoid passing on the issue before
it. Whatever may be said about the present question, it is hard to speak
with certitude considering Article XV, that Congress may be entrusted
with the full and uncontrolled discretion on the procedure leading to
proposals for an amendment of the Constitution.
It may be said however that in Mabanag v. Lopez Vito,2 this Court
through Justice Tuason followed Coleman v. Miller,3 in its holding that
certain aspects of the amending process may be considered political. His
opinion quoted with approval the view of Justice Black, to which three
other members of the United States Supreme Court agreed, that the
process itself is political in its entirety, "from submission until an
amendment becomes part of the Constitution, and is not subject to
judicial guidance, control or interference at any point." In a sense that
would solve the matter neatly. The judiciary would be spared the at times
arduous and in every case soul-searching process of determining
whether the procedure for amendments required by the Constitution has
been followed.
At the same time, without impugning the motives of Congress, which
cannot be judicially inquired into at any rate, it is not beyond the realm of
possibility that a failure to observe the requirements of Article XV would
occur. In the event that judicial intervention is sought, to rely
automatically on the theory of political question to avoid passing on such
a matter of delicacy might under certain circumstances be considered,
and rightly so, as nothing less than judicial abdication or surrender.
What appears regrettable is that a major opinion of an esteemed jurist,
the late Justice Tuason, would no longer be controlling. There is comfort
in the thought that the view that then prevailed was itself a product of the
times. It could very well be that considering the circumstances existing in
1947 as well as the particular amendment sought to be incorporated in
the Constitution, the parity rights ordinance, the better part of wisdom in
view of the grave economic situation then confronting the country would
be to avoid the existence of any obstacle to its being submitted for
ratification. Moreover, the Republic being less than a year old, American
Supreme Court opinions on constitutional questions were-invariably
accorded uncritical acceptance. Thus the approach followed by Justice
Tuason is not difficult to understand. It may be said that there is less
propensity now, which is all to the good, for this Court to accord that
much deference to constitutional views coming from the quarter.
Nor is this mode of viewing the opinion of Justice Tuason to do injustice
to his memory. For as he stated in another major opinion in Araneta v.
Dinglasan,4 in ascertaining the meaning to be given the Emergency
Powers Act,5 one should not ignore what would ensue if a particular
mode of construction were followed. As he so emphatically stated, "We
test a rule by its results."
The consequences of a judicial veto on the then proposed amendment on
the economic survival of the country, an erroneous appraisal it turned out
later, constituted an effective argument for its submission. Why not then
consider the question political and let the people decide? That
assumption could have been indulged in. It could very well be the
inarticulate major premise. For many it did bear the stamp of judicial
statesmanship.
The opinion of Chief Justice Concepcion renders crystal-clear why as of
this date and in the foreseeable future judicial inquiry to assure the
utmost compliance with the constitutional requirement would be a more
appropriate response.
SANCHEZ, J., in separate opinion:
Right at the outset, the writer expresses his deep appreciation to Mr.
Justice Calixto O. Zaldivar and Mr. Justice Fred Ruiz Castro for their
invaluable contribution to the substance and form of the opinion which
follows.
Directly under attack in this, a petition for prohibition, is the
constitutionality of Republic Act 4913, approved on June 17, 1967. This
Act seeks to implement Resolutions 1 and 3 adopted by the Senate and
the House of Representatives on March 16, 1967 with the end in view of
amending vital portions of the Constitution.
Since the problem here presented has its roots in the resolutions
aforesaid of both houses of Congress, it may just as well be that we
recite in brief the salient features thereof. Resolution No. 1 increases the
membership of the House of Representatives from 120 to 180 members,
and immediately apportions 160 seats. A companion resolution is
Resolution No. 3 which permits Senators and Congressmen — without
forfeiting their seats in Congress — to be members of the Constitutional
Convention1 to be convened, as provided in another resolution —
Resolution No. 2. Parenthetically, two of these proposed amendments to
the Constitution (Resolutions I and 3) are to be submitted to the people
for their ratification next November 14, 1967. Resolution No. 2 just
adverted to calls for a constitutional convention also to propose
amendments to the Constitution. The delegates thereto are to be elected
on the second Tuesday of November 1970; the convention to sit on
June 1, 1971; and the amendments proposed by the convention to be
submitted to the people thereafter for their ratification.
Of importance now are the proposed amendments increasing the number
of members of the House of representatives under Resolution No. 1, and
that in Resolution No. 3 which gives Senators and Congressmen the right
to sit as members of the constitutional convention to be convened on
June 1, 1971. Because, these are the two amendments to be submitted
to the people in the general elections soon to be held on November 14,
1967, upon the provisions of Section 1, Republic Act 4913, which reads:
The amendments to the Constitution of the Philippines proposed
by the Congress of the Philippines in Resolutions of both Houses
Numbered One and Three, both adopted on March sixteen,
nineteen hundred and sixty- seven, shall be submitted to the
people for approval at the general election which shall be held on
November fourteen, nineteen hundred and sixty- seven, in
accordance with the provisions of this Act.
Republic Act 4913 projects the basic angle of the problem thrust upon us
— the manner in which the amendments proposed by Congress just
adverted to be brought to the people's attention.
First, to the controlling constitutional precept. In order that proposed
amendments to the Constitution may become effective, Section 1, Article
XV thereof commands that such amendments must be "approved by a
majority of the votes cast at an election at which amendments
are submitted to the people for their ratification."2 The accent is on two
words complementing each other, namely, "submitted" and "ratification."
1. We are forced to take a long hard look at the core of the problem
facing us. And this, because the amendments submitted are
transcendental and encompassing. The ceiling of the number of
Congressmen is sought to be elevated from 120 to 180 members; and
Senators and Congressmen may run in constitutional conventions without
forfeiting their seats. These certainly affect the people as a whole. The
increase in the number of Congressmen has its proportional increase in
the people's tax burdens. They may not look at this with favor, what with
the constitutional provision (Section 5, Article VI) that Congress "shall by
law make an apportionment", without the necessity of disturbing the
present constitutionally provided number of Congressmen. People in
Quezon City, for instance, may balk at the specific apportionment of the
160 seats set forth in Resolution No. 1, and ask for a Congressman of
their own, on the theory of equal representation. And then, people may
question the propriety of permitting the increased 180 Congressmen from
taking part in the forthcoming constitutional convention and future
conventions for fear that they may dominate its proceedings. They may
entertain the belief that, if at all, increase in the number of Congressmen
should be a proper topic for deliberation in a constitutional convention
which, anyway, will soon take place. They probably would ask: Why the
hurry? These ponderables require the people's close scrutiny.
2. With these as backdrop, we perforce go into the philosophy behind the
constitutional directive that constitutional amendments be submitted to
the people for their ratification.
A constitutional amendment is not a temporary expedient. Unlike a
statute which may suffer amendments three or more times in the same
year, it is intended to stand the test of time. It is an expression of the
people's sovereign will.
And so, our approach to the problem of the mechanics of submission for
ratification of amendments is that reasoning on the basis of the spirit of
the Constitution is just as important as reasoning by a strict adherence to
the phraseology thereof. We underscore this, because it is within the
realm of possibility that a Constitution maybe overhauled. Supposing
three-fourths of the Constitution is to be amended. Or, the proposal is to
eliminate the all important; Bill of Rights in its entirety. We believe it to be
beyond debate that in some such situations the amendments ought to
call for a constitutional convention rather than a legislative proposal. And
yet, nothing there is in the books or in the Constitution itself. which would
require such amendments to be adopted by a constitutional convention.
And then, too, the spirit of the supreme enactment, we are sure, forbids
that proposals therefor be initiated by Congress and thereafter presented
to the people for their ratification.
In the context just adverted to, we take the view that the words "submitted
to the people for their ratification", if construed in the light of the nature of
the Constitution — a fundamental charter that is legislation direct from the
people, an — expression of their sovereign will — is that it can only be
amended by the people expressing themselves according to the
procedure ordained by the Constitution. Therefore, amendments must be
fairly laid before the people for their blessing or spurning. The people are
not to be mere rubber stamps. They are not to vote blindly. They must be
afforded ample opportunity to mull over the original provisions compare
them with the proposed amendments, and try to reach a conclusion as
the dictates of their conscience suggest, free from the incubus of
extraneous or possibly in insidious influences. We believe, the word
"submitted" can only mean that the government, within its maximum
capabilities, should strain every effort to inform very citizen of the
provisions to be amended, and the proposed amendments and the
meaning, nature and effects thereof. By this, we are not to be understood
as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as
intended by the framers of the Constitution. What the Constitution in
effect directs is that the government, in submitting an amendment for
ratification, should put every instrumentality or agency within its structural
framework to enlighten the people, educate them with respect to their act
of ratification or rejection. For, as we have earlier stated, one thing
is submission and another is ratification. There must be fair submission,
intelligent, consent or rejection. If with all these safeguards the people still
approve the amendment no matter how prejudicial it is to them, then so
be it. For, the people decree their own fate.
Aptly had it been said:
. . . The great men who builded the structure of our state in this
respect had the mental vision of a good Constitution voiced by
Judge Cooley, who has said "A good Constitution should beyond
the reach of temporary excitement and popular caprice or
passion. It is needed for stability and steadiness; it must yield to
the thought of the people; not to the whim of the people, or the
thought evolved the excitement or hot blood, but the sober
second thought, which alone, if the government is to be safe, can
be allowed efficiency. . . . Changes in government are to be
feared unless the benefit is certain. As Montaign says: "All great
mutations shake and disorder a state. Good does not necessarily
succeed evil; another evil may succeed and a worse." Am. Law
Rev. 1889, p. 3113
3. Tersely put, the issue before us funnels down to this proposition: If the
people are not sufficiently informed of the amendments to be voted upon,
to conscientiously deliberate thereon, to express their will in a genuine
manner can it be said that in accordance with the constitutional mandate,
"the amendments are submitted to the people for their ratification?" Our
answer is "No".
We examine Republic Act 4913, approved on June 17, 1967 — the
statute that submits to the people the constitutional amendments
proposed by Congress in Resolutions 1 and 3. Section 2 of the Act
provides the manner of propagation of the nature of the amendments
throughout the country. There are five parts in said Section 2, viz:
(1) The amendment shall be published in three consecutive
issues of the Official Gazette at least twenty days prior to the
election.
(2) A printed copy thereof shall be posted in a conspicuous place
in every municipality, city and provincial office building and in
every polling place not later than October fourteen, nineteen
hundred and sixty-seven, and shall remain posted therein until
after the election.
 (3) At least five copies of the said amendments shall be kept in
each polling place to be made available for examination by the
qualified electors during election day.
(4) When practicable, copies in the principal native languages, as
may be determined by the Commission on Elections, shall be
kept in each polling place.
(5) The Commission on Elections shall make available copies of
said amendments in English, Spanish and, whenever practicable,
in the principal native languages, for free distribution.
A question that comes to mind is whether the procedure for dissemination
of information regarding the amendments effectively brings the matter to
the people. A dissection of the mechanics yields disturbing thoughts.
First, the Official Gazette is not widely read. It does not reach the barrios.
And even if it reaches the barrios, is it available to all? And if it is, would
all under stand English? Second, it should be conceded that many
citizens, especially those in the outlying barrios, do not go to municipal,
city and/or provincial office buildings, except on special occasions like
paying taxes or responding to court summonses. And if they do, will they
notice the printed amendments posted on the bulletin board? And if they
do notice, such copy again is in English (sample submitted to this Court
by the Solicitor General) for, anyway, the statute does not require that it
be in any other language or dialect. Third, it would not help any if at least
five copies are kept in the polling place for examination by qualified
electors during election day. As petitioner puts it, voting time is not study
time. And then, who can enter the polling place, except those who are
about to vote? Fourth, copies in the principal native languages shall be
kept in each polling place. But this is not, as Section 2 itself implies, in the
nature of a command because such copies shall be kept therein only
"when practicable" and "as may be determined by the Commission on
Elections." Even if it be said that these are available before election, a
citizen may not intrude into the school building where the polling places
are usually located without disturbing the school classes being held there.
Fifth, it is true that the Comelec is directed to make available copies of
such amendments in English, Spanish or whenever practicable, in the
principal native languages, for free distribution. However, Comelec is not
required to actively distribute them to the people. This is significant as to
people in the provinces, especially those in the far-flung barrios who are
completely unmindful of the discussions that go on now and then in the
cities and centers of population on the merits and demerits of the
amendments. Rather, Comelec, in this case, is but a passive agency
which may hold copies available, but which copies may notbe distributed
at all. Finally, it is of common knowledge that Comelec has more than its
hands full in these pre-election days. They cannot possibly make
extensive distribution.
Voters will soon go to the polls to say "yes" or "no". But even the official
sample ballot submitted to this Court would show that only the
amendments are printed at the back. And this, in pursuance to Republic
Act 4913 itself.
Surely enough, the voters do not have the benefit of proper notice of the
proposed amendments thru dissemination by publication in extenso.
People do not have at hand the necessary data on which to base their
stand on the merits and demerits of said amendments.
We, therefore, hold that there is no proper submission of the proposed
constitutional amendments within the meaning and intendment of Section
1, Article XV of the Constitution.
4. Contemporary history is witness to the fact that during the present
election campaign the focus is on the election of candidates. The
constitutional amendments are crowded out. Candidates on the
homestretch, and their leaders as well as the voters, gear their undivided
efforts to the election of officials; the constitutional amendments cut no
ice with them. The truth is that even in the ballot itself, the space
accorded to the casting of "yes" or "no" vote would give one the
impression that the constitutional amendments are but a bootstrap to the
electoral ballot. Worse still, the fortunes of many elective officials, on the
national and local levels, are inextricably intertwined with the results of
the votes on the plebiscite. In a clash between votes for a candidate and
conscience on the merits and demerits of the constitutional amendments,
we are quite certain that it is the latter that will be dented.
5. That proper submission of amendments to the people to enable them
to equally ratify them properly is the meat of the constitutional
requirement, is reflected in the sequence of uniform past practices. The
Constitution had been amended thrice — in 1939, 1940 and 1947. In
each case, the amendments were embodied in resolutions adopted by
the Legislature, which thereafter fixed the dates at which the proposed
amendments were to be ratified or rejected. These plebiscites have been
referred to either as an "election" or "general election". At no time,
however, was the vote for the amendments of the Constitution held
simultaneously with the election officials, national or local. Even with
regard to the 1947 parity amendment; the record shows that the sole
issue was the 1947 parity amendment; and the special elections
simultaneously held in only three provinces, Iloilo, Pangasinan and
Bukidnon, were merely incidental thereto.
In the end we say that the people are the last ramparts that guard against
indiscriminate changes in the Constitution that is theirs. Is it too much to
ask that reasonable guarantee be made that in the matter of the
alterations of the law of the land, their true voice be heard? The answer
perhaps is best expressed in the following thoughts: "It must be
remembered that the Constitution is the people's enactment. No
proposed change can become effective unless they will it so through the
compelling force of need of it and desire for it."4
For the reasons given, our vote is that Republic Act 4913 must be
stricken down as in violation of the Constitution.
Zaldivar and Castro, JJ., concur.
Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.
provision is corroborated in the case of all other constitutional
amendments in the past, that were submitted to and approved in special
elections exclusively devoted to the issue whether the legislature's
amendatory proposals should be ratified or not.
Dizon, Angeles, Zaldivar and Castro, JJ., concur.
Footnotes
1 Urging the latter to refrain from implementing Republic Act. No.
4913 and from submitting to a plebiscite in the general elections
to be held on November 14, 1967, the Constitutional
amendments proposed in the aforementioned R.B.H. Nos. 1 and
3.
2 Dated October 30, 1967.

3 78 Phil. 1.

4 63 Phil. 139, 157.

REYES, J.B.L., J., concurring:
5 Supra.
I concur in the result with the opinion penned by Mr. Justice Sanchez. To
approve a mere proposal to amend the Constitution requires (Art. XV) a 6 81 Phil. 818.
three-fourths (3/4) vote of all the members of each legislative chamber,
the highest majority ever demanded by the fundamental charter, one 7 L-2851, March 4 and 14, 1949.
higher even than that required in order to declare war (Sec. 24, Article
VI), with all its dire consequences. If such an overwhelming majority, that
was evidently exacted in order to impress upon all and sundry the
8 L-10520, February 28, 1957.
seriousness of every constitutional amendment, is asked for a proposal to
amend the Constitution, I find it impossible to believe that it was ever 9 L-18684, September 14, 1961.
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 10 Section 1, Art. VI, Constitution of the Philippines.
amendments are submitted to the people for their ratification", if the
concentration of the people's attention thereon to be diverted by other 11 Section 1, Art. II, Constitution of the Philippines.
extraneous issues, such as the choice of local and national officials. The
framers of the Constitution, aware of the fundamental character thereof, 12 Section 1, Art. XV, Constitution of the Philippines.
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 13 Of amending the Constitution.
and voted upon at an election wherein the people could devote undivided
attention to the subject. That this was the intention and the spirit of the 14 And, inferentially, to lower courts.
15 Sec. 2(1), Art. VIII of the Constitution. 1 103 Phil. 1051 (1957).

16 Supra. 2 78 Phil. 1 (1947).

17 Approved, June 17, 1961. 3 307 US 433 (1939).

18 Macias vs. Commission on Elections, supra. 4 84 Phil. 368 (1940).

19Under the original Constitution providing for a unicameral 5 Commonwealth Act No. 671 (1941).
legislative body, whose members were chosen for a term of three
(3) years (Section 1, Art. VI, of the Original Constitution). 6 Araneta v. Dinglasan, supra, at p. 376.

20 Section 1, Article IX of the Constitution. SANCHEZ, J., separate opinion:

21Lino Luna vs. Rodriguez and De los Angeles, 37 Phil. p. 192;
Nacionalista Party vs. De Vera, 85 Phil., 126; Codilla vs.
Martinez, L-14569, November 23, 1960. See, also, State vs.
Carrol, 38 Conn. 499; Wilcox vs. Smith, 5 Wendell [N.Y.] 231; 21
Am. Dec., 213; Sheenan's Case, 122 Mass., 445; 23 Am. Rep.,
323.
22 Torres vs. Ribo, 81 Phil. 50.
23 Nacionalista Party vs. De Vera, supra.
1The text of the law reads: "He (Senator or Member of the House
of Representatives) may, however, be a Member of Constitutional
Convention."
2 Emphasis supplied.
3 Ellingham vs. Dye, 99 N.E. pp. 4, 15; Emphasis supplied.
4 Elingham vs. Dye, supra, at p. 17; emphasis supplied.

24 People vs. Rogelio Gabitanan, 43 O.G. 3211.

25 53 Phil. 866.

2650 Am. Jur., Sec. 282, pp. 267-268, citing Heckathorn v.

Heckathorn, 284 Mich. 677, 280 NW 79, citing RCL; Robson v.
Cantwell, 143 SC 104, 141 SE 180, citing RCL; Geiger v. Kobilka,
26 Wash 171, 66 P 423, Am. St. Rep. 733 and many others.

BENGZON, J.P., J., concurring:

1 United States v. San Jacinto Tin Co., 125 U. S. 273.

2Angara v. Electoral Commission, 63 Phil. 139, 1958, Justice

Laurel, ponente.

FERNANDO, J., concurring:

 Republic of the Philippines and Raul M. Gonzales, both members of the Bar, taxpayers and
SUPREME COURT interested in running as candidates for delegates to the Constitutional
Manila Convention. Both impugn the constitutionality of R.A. No. 6132, claiming
during the oral argument that it prejudices their rights as such candidates.
EN BANC After the Solicitor General had filed answers in behalf the respondents,
hearings were held at which the petitioners and the amici curiae, namely
Senator Lorenzo Tañada, Senator Arturo Tolentino, Senator Jovito
Salonga, and Senator Emmanuel Pelaez argued orally.
G.R. No. L-32432 September 11, 1970
It will be recalled that on March 16, 1967, Congress, acting as a
Constituent Assembly pursuant to Art. XV of the Constitution, passed
MANUEL B. IMBONG, petitioner,
Resolution No. 2 which among others called for a Constitutional
vs.
Convention to propose constitutional amendments to be composed of two
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and
delegates from each representative district who shall have the same
CESAR MILAFLOR, as members thereof, respondents.
qualifications as those of Congressmen, to be elected on the second
Tuesday of November, 1970 in accordance with the Revised Election
G.R. No. L-32443 September 11, 1970 Code.

IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT After the adoption of said Res. No. 2 in 1967 but before the November
REGARDING THE VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN elections of that year, Congress, acting as a legislative body, enacted
AS THE CONSTITUTIONAL CONVENTION ACT OF 1970. RAUL M. Republic Act No. 4914 implementing the aforesaid Resolution No. 2 and
GONZALES, petitioner, practically restating in toto the provisions of said Resolution No. 2.
vs.
COMELEC, respondent.
On June 17, 1969, Congress, also acting as a Constituent Assembly,
passed Resolution No. 4 amending the aforesaid Resolution No. 2 of
Manuel B. Imbong in his own behalf. March 16, 1967 by providing that the convention "shall be composed of
320 delegates apportioned among the existing representative districts
Raul M. Gonzales in his own behalf. according to the number of their respective inhabitants: Provided, that a
representative district shall be entitled to at least two delegates, who shall
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor have the same qualifications as those required of members of the House
General Ricardo L. Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. of Representatives,"1 "and that any other details relating to the specific
Pardo, Rosalio A. de Leon, Vicente A. Torres and Guillermo C. Nakar for apportionment of delegates, election of delegates to, and the holding of,
respondents. the Constitutional Convention shall be embodied in an implementing
legislation: Provided, that it shall not be inconsistent with the provisions of
Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez this Resolution."2
as amici curiae.
On August 24, 1970, Congress, acting as a legislative body, enacted
Republic Act No. 6132, implementing Resolutions Nos. 2 and 4, and
expressly repealing R.A. No.
MAKASIAR, J.: 4914.3

These two separate but related petitions for declaratory relief were filed Petitioner Raul M. Gonzales assails the validity of the entire law as well
pursuant to Sec. 19 of R.A. No. 6132 by petitioners Manuel B. Imbong as the particular provisions embodied in Sections 2, 4, 5, and par. 1 of
8(a). Petitioner Manuel B. Imbong impugns the constitutionality of only
par. I of Sec. 8(a) of said R.A. No. 6132 practically on the same grounds
advanced by petitioner Gonzales.
I
The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers
and employees, whether elective or appointive, including members of the
Armed Forces of the Philippines, as well as officers and employees of
corporations or enterprises of the government, as resigned from the date
of the filing of their certificates of candidacy, was recently sustained by
this Court, on the grounds, inter alia, that the same is merely an
application of and in consonance with the prohibition in Sec. 2 of Art. XII
of the Constitution and that it does not constitute a denial of due process
or of the equal protection of the law. Likewise, the constitutionality of
paragraph 2 of Sec. 8(a) of R.A. No. 6132 was upheld.4
II
Without first considering the validity of its specific provisions, we sustain
the constitutionality of the enactment of R.A. No. 6132 by Congress
acting as a legislative body in the exercise of its broad law-making
authority, and not as a Constituent Assembly, because —
1. Congress, when acting as a Constituent Assembly
pursuant to Art. XV of the Constitution, has full and
plenary authority to propose Constitutional amendments
or to call a convention for the purpose, by a three-fourths
vote of each House in joint session assembled but voting
separately. Resolutions Nos. 2 and 4 calling for a
constitutional convention were passed by the required
three-fourths vote.
2. The grant to Congress as a Constituent Assembly of
such plenary authority to call a constitutional convention
includes, by virtue of the doctrine of necessary
implication, all other powers essential to the effective
exercise of the principal power granted, such as the
power to fix the qualifications, number, apportionment,
and compensation of the delegates as well as
appropriation of funds to meet the expenses for the
election of delegates and for the operation of the
Constitutional Convention itself, as well as all other
implementing details indispensable to a fruitful
convention. Resolutions Nos. 2 and 4 already embody the
above-mentioned details, except the appropriation of
funds.
3. While the authority to call a constitutional convention is
vested by the present Constitution solely and exclusively
in Congress acting as a Constituent Assembly, the power
to enact the implementing details, which are now
contained in Resolutions Nos. 2 and 4 as well as in R.A.
No. 6132, does not exclusively pertain to Congress acting
as a Constituent Assembly. Such implementing details
are matters within the competence of Congress in the
exercise of its comprehensive legislative power, which
power encompasses all matters not expressly or by
necessary implication withdrawn or removed by the
Constitution from the ambit of legislative action. And as
lone as such statutory details do not clash with any
specific provision of the constitution, they are valid.
4. Consequently, when Congress, acting as a Constituent
Assembly, omits to provide for such implementing details
after calling a constitutional convention, Congress, acting
as a legislative body, can enact the necessary
implementing legislation to fill in the gaps, which authority
is expressly recognized in Sec. 8 of Res No. 2 as
amended by Res. No. 4.
5. The fact that a bill providing for such implementing
details may be vetoed by the President is no argument
against conceding such power in Congress as a
legislative body nor present any difficulty; for it is not
irremediable as Congress can override the Presidential
veto or Congress can reconvene as a Constituent
Assembly and adopt a resolution prescribing the required
implementing details.
III
Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of
delegates is not in accordance with proportional representation and
therefore violates the Constitution and the intent of the law itself, without
pinpointing any specific provision of the Constitution with which it collides.
Unlike in the apportionment of representative districts, the Constitution
does not expressly or impliedly require such apportionment of delegates
to the convention on the basis of population in each congressional
district. Congress, sitting as a Constituent Assembly, may constitutionally
allocate one delegate for, each congressional district or for each
province, for reasons of economy and to avoid having an unwieldy
convention. If the framers of the present Constitution wanted the
apportionment of delegates to the convention to be based on the number
of inhabitants in each representative district, they would have done so in
so many words as they did in relation to the apportionment of the
representative districts.5
The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot
possibly conflict with its own intent expressed therein; for it merely
obeyed and implemented the intent of Congress acting as a Constituent
Assembly expressed in Sec. 1 of Res. No. 4, which provides that the 320
delegates should be apportioned among the existing representative
districts according to the number of their respective inhabitants, but fixing
a minimum of at least two delegates for a representative district. The
presumption is that the factual predicate, the latest available official
population census, for such apportionment was presented to Congress,
which, accordingly employed a formula for the necessary computation to
effect the desired proportional representation.
The records of the proceedings on Senate Bill No. 77 sponsored by
Senator Pelaez which is now R.A. No. 6132, submitted to this Tribunal by
the amici curiae, show that it based its apportionment of the delegates on
the 1970 official preliminary population census taken by the Bureau of
Census and Statistics from May 6 to June 30, 1976; and that Congress
adopted the formula to effect a reasonable apportionment of delegates.
The Director of the Bureau of Census and Statistics himself, in a letter to
Senator Pelaez dated July 30, 1970, stated that "on the basis of the
preliminary count of the population, we have computed the distribution of
delegates to the Constitutional Convention based on Senate Bill 77 (p. 2
lines 5 to 32 and p. 3 line 12) which is a fair and an equitable method of
distributing the delegates pursuant to the provisions of the joint
Resolution of both Houses No. 2, as amended. Upon your request at the
session of the Senate-House Conference Committee meeting last night,
we are submitting herewith the results of the computation on the basis of
the above-stated method."
Even if such latest census were a preliminary census, the same could still
be a valid basis for such apportionment.6The fact that the lone and small
congressional district of Batanes, may be over-represented, because it is
allotted two delegates by R.A. No. 6132 despite the fact that it has a
population very much less than several other congressional districts,
each of which is also allotted only two delegates, and therefore under-
represented, vis-a-vis Batanes alone, does not vitiate the apportionment
as not effecting proportional representation. Absolute proportional
apportionment is not required and is not possible when based on the
number of inhabitants, for the population census cannot be accurate nor
complete, dependent as it is on the diligence of the census takers,
aggravated by the constant movement of population, as well as daily
death and birth. It is enough that the basis employed is reasonable and
the resulting apportionment is substantially proportional. Resolution No. 4
fixed a minimum of two delegates for a congressional district.
While there may be other formulas for a reasonable apportionment
considering the evidence submitted to Congress by the Bureau of
Census and Statistics, we are not prepared to rule that the computation
formula adopted by, Congress for proportional representation as, directed
in Res. No. 4 is unreasonable and that the apportionment provided in
R.A. No. 6132 does not constitute a substantially proportional
representation.
In the Macias case, relied on by petitioner Gonzales, the apportionment
law, which was nullified as unconstitutional, granted more representatives
to a province with less population than the provinces with more
inhabitants. Such is not the case here, where under Sec. 2 of R.A. No.
6132 Batanes is allotted only two delegates, which number is equal to the
number of delegates accorded other provinces with more population. The
present petitions therefore do not present facts which fit the mould of the
doctrine in the case of Macias et al. vs. Comelec, supra.
The impossibility of absolute proportional representation is recognized by
the Constitution itself when it directs that the apportionment of
congressional districts among the various provinces shall be "as nearly
as may be according to their respective inhabitants, but each province
shall have at least one member" (Sec. 5, Art. VI, Phil. Const., emphasis
supplied). The employment of the phrase "as nearly as may be according
to their respective inhabitants" emphasizes the fact that the human mind
can only approximate a reasonable apportionment but cannot effect an
absolutely proportional representation with mathematical precision or
exactitude.
IV
Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue
deprivation of liberty without due process of law and denies the equal
protection of the laws. Said Sec. 5 disqualifies any elected delegate from
running "for any public office in any election" or from assuming "any
appointive office or position in any branch of the government government
until after the final adjournment of the Constitutional Convention."
That the citizen does not have any inherent nor natural right to a public
office, is axiomatic under our constitutional system. The State through its
Constitution or legislative body, can create an office and define the
qualifications and disqualifications therefor as well as impose inhibitions
on a public officer. Consequently, only those with qualifications and who
do not fall under any constitutional or statutory inhibition can be validly
elected or appointed to a public office. The obvious reason for the
questioned inhibition, is to immunize the delegates from the perverting
influence of self-interest, party interest or vested interest and to insure
that he dedicates all his time to performing solely in the interest of the
nation his high and well nigh sacred function of formulating the supreme
law of the land, which may endure for generations and which cannot
easily be changed like an ordinary statute. With the disqualification
embodied in Sec. 5, the delegate will not utilize his position as a
bargaining leverage for concessions in the form of an elective or
appointive office as long as the convention has not finally adjourned. The
appointing authority may, by his appointing power, entice votes for his
own proposals. Not love for self, but love for country must always
motivate his actuations as delegate; otherwise the several provisions of
the new Constitution may only satisfy individual or special interests,
subversive of the welfare of the general citizenry. It should be stressed
that the disqualification is not permanent but only temporary only to
continue until the final adjournment of the convention which may not
extend beyond one year. The convention that framed the present
Constitution finished its task in approximately seven months — from July
30, 1934 to February 8, 1935.
As admitted by petitioner Gonzales, this inhibition finds analogy in the
constitutional provision prohibiting a member of Congress, during the
time for which he was elected, from being appointed to any civil office
which may have been created or the emolument whereof shall have been
increased while he was a member of the Congress. (Sec. 16, Art. VI, Phil.
Constitution.)
As observed by the Solicitor General in his Answer, the overriding
objective of the challenged disqualification, temporary in nature, is to
compel the elected delegates to serve in full their term as such and to
devote all their time to the convention, pursuant to their representation
and commitment to the people; otherwise, his seat in the convention will
be vacant and his constituents will be deprived of a voice in the
convention. The inhibition is likewise "designed to prevent popular
political figures from controlling elections or positions. Also it is a brake
on the appointing power, to curtail the latter's desire to 'raid' the
convention of "talents" or attempt to control the convention." (p. 10,
Answer in L-32443.)
Thus the challenged disqualification prescribed in Sec. 5 of R.A. No.
6132 is a valid limitation on the right to public office pursuant to state
police power as it is reasonable and not arbitrary.
The discrimination under Sec. 5 against delegates to the Constitutional
Convention is likewise constitutional; for it is based on a substantial
distinction which makes for real differences, is germane to the purposes
of the law, and applies to all members of the same class.7 The function of
a delegate is more far-reaching and its effect more enduring than that of
any ordinary legislator or any other public officer. A delegate shapes the
fundamental law of the land which delineates the essential nature of the
government, its basic organization and powers, defines the liberties of the
people, and controls all other laws. Unlike ordinary statutes, constitutional
amendments cannot be changed in one or two years. No other public
officer possesses such a power, not even the members of Congress
unless they themselves, propose constitutional amendments when acting
as a Constituent Assembly pursuant to Art. XV of the Constitution. The
classification, therefore, is neither whimsical nor repugnant to the sense
of justice of the community.
As heretofore intimated, the inhibition is relevant to the object of the law,
which is to insure that the proposed amendments are meaningful to the
masses of our people and not designed for the enhancement of
selfishness, greed, corruption, or injustice.
Lastly, the disqualification applies to all the delegates to the convention
who will be elected on the second Tuesday of November, 1970.
V
Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners
as violative of the constitutional guarantees of due process, equal
protection of the laws, freedom of expressions, freedom of assembly and
freedom of association.
This Court ruled last year that the guarantees of due process, equal
protection of the laws, peaceful assembly, free expression, and the right
of association are neither absolute nor illimitable rights; they are always
subject to the pervasive and dormant police power of the State and may
be lawfully abridged to serve appropriate and important public interests.8
In said Gonzalez vs. Comelec case the Court applied the clear and
present danger test to determine whether a statute which trenches upon
the aforesaid Constitutional guarantees, is a legitimate exercise of police
power.9
Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:
1. any candidate for delegate to the convention
(a) from representing, or
(b) allowing himself to be represented as
being a candidate of any political party or
any other organization; and
2. any political party, political group, political committee,
civic, religious, professional or other organizations or
organized group of whatever nature from
(a) intervening in the nomination of any
such candidate or in the filing of his
certificate, or
(b) from giving aid or support directly or
indirectly, material or otherwise, favorable
to or against his campaign for election.
The ban against all political parties or organized groups of whatever
nature contained in par. 1 of Sec. 8(a), is confined to party or
organization support or assistance, whether material, moral, emotional or
otherwise. The very Sec. 8(a) in its provisos permits the candidate to
utilize in his campaign the help of the members of his family within the
fourth civil degree of consanguinity or affinity, and a campaign staff
composed of not more than one for every ten precincts in his district. It
allows the full exercise of his freedom of expression and his right to
peaceful assembly, because he cannot be denied any permit to hold a
public meeting on the pretext that the provision of said section may or will
be violated. The right of a member of any political party or association to
support him or oppose his opponent is preserved as long as such
member acts individually. The very party or organization to which he may
belong or which may be in sympathy with his cause or program of
reforms, is guaranteed the right to disseminate information about, or to
arouse public interest in, or to advocate for constitutional reforms,
programs, policies or constitutional proposals for amendments.
It is therefore patent that the restriction contained in Sec. 8(a) is so
narrow that the basic constitutional rights themselves remain substantially
intact and inviolate. And it is therefore a valid infringement of the
aforesaid constitutional guarantees invoked by petitioners.
In the aforesaid case of Gonzales vs. Comelec, supra, this Court
unanimously sustained the validity of the limitation on the period for
nomination of candidates in Sec. 50-A of R.A. No. 4880, thus:
The prohibition of too early nomination of candidates
presents a question that is not too formidable in character.
According to the act: "It shall be unlawful for any political
party, political committee, or political group to nominate
candidates for any elective public office voted for at large
earlier than one hundred and fifty days immediately
preceding an election, and for any other elective public
office earlier than ninety days immediately preceding an
election.
The right of association is affected. Political parties have
less freedom as to the time during which they may
nominate candidates; the curtailment is not such,
however, as to render meaningless such a basic right.
Their scope of legitimate activities, save this one, is not
unduly narrowed. Neither is there infringement of their
freedom to assemble. They can do so, but not for such a
purpose. We sustain its validity. We do so unanimously. 10
In said Gonzales vs. Comelec case, this Court likewise held that the
period for the conduct of an election campaign or partisan political activity
may be limited without offending the aforementioned constitutional
guarantees as the same is designed also to prevent a "clear and present
danger of a substantive evil, the debasement of the electoral process." 11
Even if the partisan activity consists of (a) forming organizations,
associations, clubs, committees or other group of persons for the purpose
of soliciting votes and/or undertaking any campaign or propaganda for or
against a party or candidate; (b) holding political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies for
the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against any candidate or party; and (c) giving,
soliciting, or receiving contributions for election campaign either directly
or indirectly, (Sec. 50-B, pars. (a), (b), and (c), R.A. 4880), the
abridgment was still affirmed as constitutional by six members of this
Court, which could not "ignore ... the legislative declaration that its
enactment was in response to a serious substantive evil affecting the
electoral process, not merely in danger of happening, but actually in
existence, and likely to continue unless curbed or remedied. To assert
otherwise would be to close one's eyes to the reality of the situation." 12;
Likewise, because four members dissented, this Court in said case
of Gonzales vs. Comelec, supra, failed to muster the required eight votes
to declare as unconstitutional the limitation on the period for (a) making
speeches, announcements or commentaries or holding interviews for or
against the election of any party or candidate for public office; (b)
publishing or distributing campaign literature or materials; and (e) directly
or indirectly soliciting votes and/or undertaking any campaign or
propaganda for or against any candidate or party specified in Sec. 50-B,
pars. (c), (d) & (e) of R.A. 4880. 13
The debasement of the electoral process as a substantive evil exists
today and is one of the major compelling interests that moved Congress
into prescribing the total ban contained in par. 1 of Sec. 8(a) of R.A. No.
6132, to justify such ban. In the said Gonzales vs. Comelec case, this
Court gave "due recognition to the legislative concern to cleanse, and if
possible, render spotless, the electoral process," 14 impressed as it was
by the explanation made by the author of R.A. No. 4880, Sen. Lorenzo
Tañada, who appeared as amicus curiae, "that such provisions were
deemed by the legislative body to be part and parcel of the necessary
and appropriate response not merely to a clear and present danger but to
the actual existence of a grave and substantive evil of excessive
partisanship, dishonesty and corruption as well as violence that of late
has marred election campaigns and partisan political activities in this
country. He did invite our attention likewise to the well-settled doctrine
that in the choice of remedies for an admitted malady requiring
governmental action, on the legislature primarily rests the responsibility.
Nor should the cure prescribed by it, unless clearly repugnant to
fundamental rights, be ignored or disregarded." 15
But aside from the clear and imminent danger of the debasement of the
electoral process, as conceded by Senator Pelaez, the basic motivation,
according to Senate Majority Floor Leader Senator Arturo Tolentino, the
sponsor of the Puyat-Tolentino amendment embodied in par. 1 of Sec.
8(a) of R.A. No. 6132, is to assure the candidates equal protection of the
laws by according them equality of chances. 16 The primary purpose of
the prohibition then is also to avert the clear and present danger of
another substantive evil, the denial of the equal protection of the laws.
The candidates must depend on their individual merits and not on the
support of political parties or organizations. Senator Tolentino and
Senator Salonga emphasized that under this provision, the poor
candidate has an even chance as against the rich candidate. We are not
prepared to disagree with them, because such a conclusion, predicated
as it is on empirical logic, finds support in our recent political history and
experience. Both Senators stressed that the independent candidate who
wins in the election against a candidate of the major political parties, is a
rare phenomenon in this country and the victory of an independent
candidate mainly rests on his ability to match the resources, financial and
otherwise, of the political parties or organizations supporting his
opponent. This position is further strengthened by the principle that the
guarantee of social justice under Sec. V, Art. II of the Constitution,
includes the guarantee of equal opportunity, equality of political rights,
and equality before the law enunciated by Mr. Justice Tuazon in the case
Guido vs. Rural Progress Administration. 17
While it may be true that a party's support of a candidate is not wrong per
se it is equally true that Congress in the exercise of its broad law-making
authority can declare certain acts as mala prohibita when justified by the
exigencies of the times. One such act is the party or organization support
proscribed in Sec. 8(a),which ban is a valid limitation on the freedom of
association as well as expression, for the reasons aforestated.
Senator Tolentino emphasized that "equality of chances may be better
attained by banning all organization support." 18
The questioned par. 1 of Sec. 8 (a) likewise can easily pass the
balancing-of-interest test. 19
In the apt words of the Solicitor General:
It is to be noted that right now the nation is on the
threshold of rewriting its Constitution in a hopeful
endeavor to find a solution to the grave economic, social
 and political problems besetting the country. Instead of
directly proposing the amendments Congress has chosen
to call a Constitutional Convention which shall have the
task of fashioning a document that shall embody the
aspirations and ideals of the people. Because what is to
be amended is the fundamental law of the land, it is
indispensable that the Constitutional Convention be
composed of delegates truly representative of the
people's will. Public welfare demands that the delegates
should speak for the entire nation, and their voices be not
those of a particular segment of the citizenry, or of a
particular class or group of people, be they religious,
political, civic or professional in character. Senator
Pelaez, Chairman of the Senate Committee on Codes
and Constitutional Amendments, eloquently stated that
"the function of a constitution is not to represent anyone in
interest or set of interests, not to favor one group at the
expense or disadvantage of the candidates — but to
encompass all the interests that exist within our society
and to blend them into one harmonious and balanced
whole. For the constitutional system means, not the
predominance of interests, but the harmonious balancing
thereof."
So that the purpose for calling the Constitutional
Convention will not be deflated or frustrated, it is
necessary that the delegatee thereto be independent,
beholden to no one but to God, country and conscience.
xxx xxx xxx
The evil therefore, which the law seeks to prevent lies in
the election of delegates who, because they have been
chosen with the aid and resources of organizations,
cannot be expected to be sufficiently representative of the
people. Such delegates could very well be the spokesmen
of narrow political, religious or economic interest and not
of the great majority of the people. 20
We likewise concur with the Solicitor General that the equal protection of
the laws is not unduly subverted in par. I of Sec. 8(a); because it does not
create any hostile discrimination against any party or group nor does it
confer undue favor or privilege on an individual as heretofore stated. The
discrimination applies to all organizations, whether political parties or
social, civic, religious, or professional associations. The ban is germane
to the objectives of the law, which are to avert the debasement of the
electoral process, and to attain real equality of chances among individual
candidates and thereby make real the guarantee of equal protection of
the laws.
The political parties and the other organized groups have built-in
advantages because of their machinery and other facilities, which, the
individual candidate who is without any organization support, does not
have. The fact that the other civic of religious organizations cannot have
a campaign machinery as efficient as that of a political party, does not
vary the situation; because it still has that much built-in advantage as
against the individual candidate without similar support. Moreover, these
civic religious and professional organization may band together to
support common candidates, who advocates the reforms that these
organizations champion and believe are imperative. This is admitted by
petitioner Gonzales thru the letter of Senator Ganzon dated August 17,
1970 attached to his petition as Annex "D", wherein the Senator stated
that his own "Timawa" group had agreed with the Liberal Party in Iloilo to
support petitioner Gonzales and two others as their candidates for the
convention, which organized support is nullified by the questioned ban,
Senator Ganzon stressed that "without the group moving and working in
joint collective effort" they cannot "exercise effective control and
supervision over our
leaders — the Women's League, the area commanders, etc."; but with
their joining with the LP's they "could have presented a solid front with
very bright chances of capturing all seats."
The civic associations other than political parties cannot with reason
insist that they should be exempted from the ban; because then by such
exemption they would be free to utilize the facilities of the campaign
machineries which they are denying to the political parties. Whenever all
organization engages in a political activity, as in this campaign for
election of delegates to the Constitutional Convention, to that extent it
partakes of the nature of a political organization. This, despite the fact
that the Constitution and by laws of such civic, religious, or professional
associations usually prohibit the association from engaging in partisan
political activity or supporting any candidate for an elective office. Hence,
they must likewise respect the ban.
The freedom of association also implies the liberty not to associate or join
with others or join any existing organization. A person may run
independently on his own merits without need of catering to a political
party or any other association for support. And he, as much as the
candidate whose candidacy does not evoke sympathy from any political
party or organized group, must be afforded equal chances. As
emphasized by Senators Tolentino and Salonga, this ban is to assure
equal chances to a candidate with talent and imbued with patriotism as
well as nobility of purpose, so that the country can utilize their services if
elected.
Impressed as We are by the eloquent and masterly exposition of Senator
Tañada for the invalidation of par. 1 of Sec. 8(a) of R.A. No. 6132,
demonstrating once again his deep concern for the preservation of our
civil liberties enshrined in the Bill of Rights, We are not persuaded to
entertain the belief that the challenged ban transcends the limits of
constitutional invasion of such cherished immunities.
WHEREFORE, the prayers in both petitions are hereby denied and R.A.
No. 6132 including Secs. 2, 4, 5, and 8(a), paragraph 1, thereof, cannot
be declared unconstitutional. Without costs.
Reyes, J.B.L., Dizon and Castro, JJ., concur.
Makalintal, J., concurs in the result.
Teehankee, J., is on leave.
Separate Opinions
FERNANDO, J., concurring and dissenting:
The opinion of Justice Makasiar speaking for the Court, comprehensive in
scope, persuasive in character and lucid in expression, has much to
recommend it. On the whole, I concur. I find difficulty, however, in
accepting the conclusion that there is no basis for the challenge hurled
against the validity of this provision: "No candidate for delegate to the
Convention shall represent or allow himself to be represented as being a
candidate of any political party or any other organization, and no political
party, political group, political committee, civic, religious, professional, or
other organization or organized group of whatever nature shall intervene
in the nomination of any such candidate or in the filing of his certificate of
candidacy or give aid or support directly or indirectly, material or
otherwise, favorable to or against his campaign for election: ..."1 It is with
regret then that I dissent from that portion of the decision.
1. I find it difficult to reconcile the decision reached insofar as the
aforesaid ban on political parties and civic, professional and other
organizations is concerned with the explicit provision that the freedom to
form associations or societies for purposes not contrary to law shall not
be abridged.2 The right of an individual to join others of a like persuasion
to pursue common objectives and to engage in activities is embraced
within if not actually encouraged by the regime of liberty ordained by the
Constitution. This particular freedom has an indigenous cast, its origin
being traceable to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such
character, it is the view of Justice Douglas, in a 1963 article, that it is
primarily the First Amendment of her Constitution, which safeguards
freedom of speech and of the press, of assembly and of petition "that
provides [associations] with the protection they need if they are to remain
viable and continue to contribute to our Free Society."3 Such is indeed the
case, for five years earlier the American Supreme Court had already
declared: "It is beyond debate that freedom to engage in association for
the advancement of beliefs and ideas is an inseparable aspect of the
"liberty" [embraced in] freedom of speech."4
Not long after, in 1965, Justice Douglas as; spokesman for the American
Supreme Court could elaborate further on the scope of the right of
association as including "the right to express one's attitudes or
philosophies by membership in a group or by affiliation with it or by other
lawful means, Association in that context is a form of expression of
opinion; and while it is not extremely included in the First Amendment its
existence is necessary in making the express guarantees fully
meaningful."5 Thus is further vitalized freedom of expression which, for
Justice Laurel, is at once the instrument" and the guarantee and the
bright consummate flower of all liberty"6 and, for Justice Cardozo, "the
matrix, the indispensable condition of nearly every other form of
freedom."7
2. It is in the light of the above fundamental postulates that I find merit in
the plea of petitioners to annul the challenged provision. There is much to
be said for the point emphatically stressed by Senator Lorenzo M.
Tañada, as amicus curiae, to the effect that there is nothing unlawful in a
candidate for delegate to the Convention representing or allowing himself
to be represented as such of any political party or any other organization
as well as of such political party, political group, political committee, civic,
religious, professional or other organization or organized group
intervening in his nomination, in the filing of his certificate of candidacy, or
giving aid or support, directly or indirectly, material or otherwise,
favorable to or against his campaign for election as such delegate. I find
the conclusion inescapabe therefore, that what the constitutional
provisions in question allow, more specifically the right to form
associations, is prohibited. The infirmity of the ban is thus apparent on its
face.
There is, to my mind, another avenue of approach that leads to the same
conclusion. The final proviso in the same section of the Act forbids any
construction that would in any wise "impair or abridge the freedom of
civic, political, religious, professional, trade organizations or organized
groups of whatever nature to disseminate information about, or arouse
public interest in, the forthcoming Constitutional Convention, or to
advocate constitutional reforms, programs, policies or proposals for
amendment of the present Constitution, and no prohibition contained
herein shall limit or curtail the right of their members, as long as they act
individually, to support or oppose any candidate for delegate to the
Constitutional Convention."8 It is regrettable that such an explicit
recognition of what cannot be forbidden consistently with the
constitutional guarantees of freedom of expression and freedom of
association falls short of according full respect to what is thus
commanded, by the fundamental law, as they are precluded by the very
same Act from giving aid or support precisely to the very individuals who
can carry out whatever constitutional reforms, programs, policies or
proposals for amendment they might advocate. As thus viewed, the
conviction I entertain as to its lack of validity is further strengthened and
fortified.
3. It would be a different matter, of course, if there is a clear and present
danger of a substantive evil that would justify a limitation on such
cherished freedoms. Reference has been made to Gonzales v.
Commission on Elections.9 As repression is permissible only when the
danger of substantive evil is present is explained by Justice Branders
thus: ... the evil apprehended is to imminent that it may befall before there
is opportunity for full discussion. If there be time to expose through
discussion the falsehood and fallacies, to avert the evil by the processes
of education, the remedy to be applied is more speech, not enforced
silence. For him the apprehended evil must be "relatively serious." For
"[prohibition] of free speech and assembly is a measure so stringent that
it would be inappropriate as the means for averting a relatively trivial
harm to society." Justice Black would go further. He would require that
the substantive evil be "extremely serious." Only thus may there be a
realization of the ideal envisioned by Cardozo: "There shall be no
compromise of the freedom to think one's thoughts and speak them,
except at those extreme borders where thought merges into action." It
received its original formulation from Holmes. Thus: "The question in
every case is whether the words used in such circumstances are of such
a nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent. It is a question
of proximity and degree." " 10 The majority of the Court would find the
existence of a clear and present danger of debasing the electoral
process. With due respect, I find myself unable to share such a view.
The assumption would, appear to be that there is a clear and present
danger of a grave substantive evil of partisanship running riot unless
political parties are thus restrained. There would be a sacrifice then of the
national interest involved. The Convention might not be able to live up to
the high hopes entertained for an improvement of the fundamental law. It
would appear though that what prompted such a ban is to assure that the
present majority party would not continue to play its dominant role in the
political life of the nation. The thought is entertained that otherwise, we
will not have a Convention truly responsive to the needs of the hour and
of the future insofar as they may be anticipated.
To my mind, this is to lose sight of the fact that in the national elections of
1946, 1953, 1961 and 1965, the presidency was won by the opposition
candidate. Moreover, in national elections for senators alone, that of
1951, to mention only one instance, saw a complete sweep of the field by
the then minority party. It would be unjustifiable, so I am led to believe to
assume that inevitably the prevailing dominant political party would
continue its ascendancy in the coming Convention.
Then, too, the result of the plebiscite in the two proposed amendments in
1967 indicate unmistakably that the people can, if so minded, make their
wishes prevail. There is thus no assurance that the mere identification
with party labels would automatically insure the success of a candidacy.
Even if it be assumed that to guard against the evils of party spirit carried
to excess, such a ban is called for, still no such danger is presented by
allowing civil, professional or any other organization or organized group
of whatever nature to field its own candidates or give aid or support,
directly or indirectly material or otherwise, to anyone running for the
Convention. From such a source, no such misgivings or apprehension
need arise. Nor it the fear that organizations could hastily be assembled
or put up to camouflage their true colors as satellites of the political
parties be valid. The electorate can see through such schemes and can
emphatically register its reaction. There is, moreover, the further
safeguard that whatever work the Convention may propose is ultimately
subject to popular ratification.
For me then the danger of a substantive evil is neither clear nor present.
What causes me grave concern is that to guard against such undesirable
eventuality, which may not even come to pass, a flagrant disregard of
what the Constitution ordains is minimized. A desirable end cannot be
coerced by unconstitutional means.
4. It is not easy to yield assent to the proposition that on a matter so
essentially political as the amendment or revision of an existing
Constitution, political parties or political groups are to be denied the
opportunity of launching the candidacy of their choice. Well has it been
said by Chief Justice Hughes: "The greater the importance of
safeguarding the community from incitements to the overthrow of our
institutions by force and violence, the more imperative is the need to
preserve inviolate the constitutional rights of free speech, free press and
free assembly in order to maintain the opportunity for free political
discussion, to the end that government may be responsive to the will of
the people and that changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the very foundation of
constitutional government." 11 It is to carry this essential process one step
farther to recognize and to implement the right of every political party or
group to select the candidates who, by their election, could translate into
actuality their hopes for the fundamental law that the times demand.
Moreover, is it not in keeping with the rights to intellectual freedom so
sedulously safeguarded by the Constitution to remove all obstacles to
organized civic groups making their influence felt in the task of
constitution framing, the result of which has momentuous implications for
the nation? What is decisive of this aspect of the matter is not the
character of the association or organized group as such but the
essentially political activity thus carried out.
This is not to deny the wide latitude as to the choice of means vested in
Congress to attain a desirable goal. Nor can it be successfully argued
that the judiciary should display reluctance in extending sympathy and
understanding to such legislative determination. This is merely to stress
that however worthwhile the objective, the Constitution must still be paid
deference. Moreover, it may not be altogether unrealistic to consider the
practical effects of the ban as thus worded as not lacking in effectivity
insofar as civic, religious, professional or other organizations or organized
group is concerned, but not necessarily so in the case of political party,
political group or political committee. There is the commendable
admission by Senator Tolentino, appearing as amicus curiae, that the
political leaders of stature, in their individual capacity, could continue to
assert their influence. It could very well happen, then, in not a few cases,
assuming the strength of political parties, that a candidate thus favored is
sure of emerging the victor. What is thus sought to be accomplished to
guard against the evil of party spirit prevailing could very well be doomed
to futility. The high hopes entertained by the articulate and vocal groups
of young people, intellectuals and workers, may not be realized. The
result would be that this unorthodox and novel provision could assume
the character of a tease, an illusion like a munificent bequest in a
pauper's will.
If such an appraisal is not unjustifiably tinged with pessimism, then, to my
mind, a radical approach to a problem possibly tainted with constitutional
infirmity cannot hurdle the judicial test as to its validity. It is one thing to
encourage a fresh and untried solution to a problem of gravity when the
probability of its success may be assumed. It is an entirely different
matter to cut down the exercise of what otherwise are undeniable
constitutional rights, when as in this case, the outcome might belie
expectations. Considering the well-settled principle that even though the
governmental process be legitimate and substantial, they cannot be
pursued by means that broadly stifle fundamental personal liberties, if the
end can be narrowly achieved, I am far from being persuaded that to
preclude political parties or other groups or associations from lending aid
and support to the candidates of men in whom they can repose their trust
is consistent with the constitutional rights of freedom of association and
freedom of expression. Here, the danger of overbreadth, so clear and
manifest as to be offensive to constitutional standards, magnified by the
probability that the result would be the failure and not success of the
statutory scheme, cautions against the affixing of the imprimatur of
judicial approval to the challenged provision.
5. Necessarily then, from this mode of viewing the matter, it would follow
that the holding of this Court in Gonzales v. Comelec 12 does not compel
the conclusion reached by the majority sustaining the validity of this
challenged provision. What survived the test of constitutional validity in
that case, with the Court unanimous in its opinion, is the prohibition for
any political party, political committee or political group to nominate
candidates for any elective public office voted for at large earlier than 150
days immediately preceding election and for any other public office earlier
than 90 days immediately preceding such election. 13 A corollary to the
above limitation, the provision making it unlawful for any person, whether
or not a voter or candidate, or for any group or association of persons,
whether or not a political party or political committee, to engage in an
election campaign or partisan political activity except during the above
periods successfully hurdled, the constitutional test, although the
restrictions as to the making of speeches, announcements or
commentaries or holding interviews for or against the election of any
party or candidate for public office or the publishing or distributing of
campaign literature or materials or the solicitation or undertaking any
campaign or propaganda for or against any candidate or party, directly or
indirectly, survived by the narrow margin of one vote, four members of
this Court unable to discern any constitutional infirmity as against the free
speech guarantee, thus resulting in failing to muster the necessary two-
thirds majority for a declaration of invalidity. Insofar as election campaign
or partisan political activity would limit or restrict the formation, of
organizations, associations, clubs, committees or other groups of persons
for the purpose of soliciting votes or undertaking any campaign or
propaganda for or against a party or candidate or, the giving, soliciting, or
receiving a contribution for election campaign purposes, either directly or
indirectly as well as the holding of political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies, with
a similar and in view, only five members of this Court, a minority thereof
voted, for their unconstitutionality. What emerges clearly, then, is that
definite acts short of preventing the political parties from the choice of
their candidates and thereafter working for them in effect were
considered by this Court as not violative of the constitutional freedoms of
speech, of press, of assembly and of association.
The challenged provision in these two petitions, however, goes much
farther. Political parties or any other organization or organized group are
precluded from selecting and supporting candidates for delegates to the
Constitutional Convention. To my mind, this is to enter a forbidden
domain, Congress trespassing on a field hitherto rightfully assumed to be
within the sphere of liberty. Thus, I am unable to conclude that our
previous decision in Gonzales v. Commission on Elections which already
was indicative of the cautious and hesitant judicial approach to lending its
approval to what otherwise are invasions of vital constitutional safeguards
to freedoms of belief, of expression, and of association lends support to
the decision reached by the majority insofar as this challenged provision
is concerned.
Hence my inability to subscribe in its entirety to the opinion of the Court. I
am authorized to state that the Chief Justice is in agreement with the
views herein expressed.
Concepcion, C.J., Villamor and Zaldivar, JJ., concur.
BARREDO, J., concurring and dissenting:
Without prejudice to a more extended opinion, I vote, in concurrence with
the majority, to sustain the validity of the provisions of Republic Act 6132
impugned by petitioners in these cases, except Section 4 and the portion
of Section 8(a) referring to political parties. As regards Section 4, I
reiterate my separate opinion in the cases of Subido and others. (G.R.
Nos. L-32436 and L-32439) With respect to Section 8(a), I hold that the
considerations which take the restraint on the freedoms of association,
assembly and speech involved in the ban on political parties to nominate
and support their own candidates, reasonable and within the limits of the
Constitution do not obtain when it comes to civic or non-political
organizations. As I see it, the said ban, insofar as civic or non-political
organizations are concerned, is a deceptive device to preserve the built-
in advantages of political parties while at the same time crippling
completely the other kinds of associations. The only way to accomplish
the purported objective of the law of equalizing the forces that will
campaign in behalf of the candidates to the constitutional convention is to
maintain said ban only as against political parties, for after all, only the
activities and manners of operation of these parties and/or some of their
members have made necessary the imposition thereof. Under the
resulting set up embodied in the provision in question, the individual
candidates who have never had any political party connections or very
little of it would be at an obvious disadvantage unless they are allowed to
seek and use the aid of civic organizations. Neither the elaborate
provisions of Republic Act 6132 regarding methods of campaign nor its
other provisions intended to minimize the participation of political parties
in the electorate processes of voting, counting of the votes and
canvassing of the results can overcome the advantages of candidates
more or less connected with political parties, particularly the major and
established ones, as long as the right to form other associations and the
right of these associations to campaign for their candidates are denied
considering particularly the shortness of the time that is left between now
and election day.
The issues involved in the coming elections are grave and fundamental
ones that are bound to affect the lives, rights and liberties of all the
people of this country most effectively, pervasively and permanently. The
only insurance of the people against political parties which may be
inclined towards the Establishment and the status quo is to organize
themselves to gain much needed strength and effectivity. To deny them
this right is to stifle the people's only opportunity for change.
It is axiomatic that issues, no matter how valid, if not related to particular
candidates in an organized way, similarly as in the use of platforms by
political parties, cannot have any chance of support and final adoption.
Both men and issues are important, but unrelated to each other, each of
them alone is insignificant, and the only way to relate them is by
organization. Precisely because the issues in this election of candidates
are of paramount importance second to none, it is imperative that all of
the freedoms enshrined in the constitution should have the ampliest
recognition for those who are minded to actively battle for them and any
attempt to curtail them would endanger the very purposes for which a
new constitutional convention has been conceived.
Consistently with my separate opinion in the case of Gonzales and
Cabigao vs. Comelec, G.R. No. L-27833, April 18, 1969 and for the
reasons therein stated, I maintain that the right of suffrage which is the
cornerstone of any democracy like ours is meaningless when the right to
campaign in any election therein is unreasonably and unnecessarily
curtailed, restrained or hampered, as is being done under the statute in
dispute.
It is, of course, understood that this opinion is based on my considered
view, contrary to that of the majority, that as Section 8(a) stands and
taking into account its genesis, the ban against political parties is
separable from that against other associations within the contemplation of
Section 21 of the Act which expressly refers to the separability of the
application thereof to any "persons, groups or circumstances."
I reserve my right to expand this explanation of my vote in the next few
days.
# Separate Opinions
FERNANDO, J., concurring and dissenting:
The opinion of Justice Makasiar speaking for the Court, comprehensive in
scope, persuasive in character and lucid in expression, has much to
recommend it. On the whole, I concur. I find difficulty, however, in
accepting the conclusion that there is no basis for the challenge hurled
against the validity of this provision: "No candidate for delegate to the
Convention shall represent or allow himself to be represented as being a
candidate of any political party or any other organization, and no political
party, political group, political committee, civic, religious, professional, or
other organization or organized group of whatever nature shall intervene
in the nomination of any such candidate or in the filing of his certificate of
candidacy or give aid or support directly or indirectly, material or
otherwise, favorable to or against his campaign for election: ..."1 It is with
regret then that I dissent from that portion of the decision.
1. I find it difficult to reconcile the decision reached insofar as the
aforesaid ban on political parties and civic, professional and other
organizations is concerned with the explicit provision that the freedom to
form associations or societies for purposes not contrary to law shall not
be abridged.2 The right of an individual to join others of a like persuasion
to pursue common objectives and to engage in activities is embraced
within if not actually encouraged by the regime of liberty ordained by the
Constitution. This particular freedom has an indigenous cast, its origin
being traceable to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such
character, it is the view of Justice Douglas, in a 1963 article, that it is
primarily the First Amendment of her Constitution, which safeguards
freedom of speech and of the press, of assembly and of petition "that
provides [associations] with the protection they need if they are to remain
viable and continue to contribute to our Free Society."3 Such is indeed the
case, for five years earlier the American Supreme Court had already
declared: "It is beyond debate that freedom to engage in association for
the advancement of beliefs and ideas is an inseparable aspect of the
"liberty" [embraced in] freedom of speech."4
Not long after, in 1965, Justice Douglas as; spokesman for the American
Supreme Court could elaborate further on the scope of the right of
association as including "the right to express one's attitudes or
philosophies by membership in a group or by affiliation with it or by other
lawful means, Association in that context is a form of expression of
opinion; and while it is not extremely included in the First Amendment its
existence is necessary in making the express guarantees fully
meaningful."5 Thus is further vitalized freedom of expression which, for
Justice Laurel, is at once the instrument" and the guarantee and the
bright consummate flower of all liberty"6 and, for Justice Cardozo, "the
matrix, the indispensable condition of nearly every other form of
freedom."7
2. It is in the light of the above fundamental postulates that I find merit in
the plea of petitioners to annul the challenged provision. There is much to
be said for the point emphatically stressed by Senator Lorenzo M.
Tañada, as amicus curiae, to the effect that there is nothing unlawful in a
candidate for delegate to the Convention representing or allowing himself
to be represented as such of any political party or any other organization
as well as of such political party, political group, political committee, civic,
religious, professional or other organization or organized group
intervening in his nomination, in the filing of his certificate of candidacy, or
giving aid or support, directly or indirectly, material or otherwise,
favorable to or against his campaign for election as such delegate. I find
the conclusion inescapabe therefore, that what the constitutional
provisions in question allow, more specifically the right to form
associations, is prohibited. The infirmity of the ban is thus apparent on its
face.
There is, to my mind, another avenue of approach that leads to the same
conclusion. The final proviso in the same section of the Act forbids any
construction that would in any wise "impair or abridge the freedom of
civic, political, religious, professional, trade organizations or organized
groups of whatever nature to disseminate information about, or arouse
public interest in, the forthcoming Constitutional Convention, or to
advocate constitutional reforms, programs, policies or proposals for
amendment of the present Constitution, and no prohibition contained
herein shall limit or curtail the right of their members, as long as they act
individually, to support or oppose any candidate for delegate to the
Constitutional Convention."8 It is regrettable that such an explicit
recognition of what cannot be forbidden consistently with the
constitutional guarantees of freedom of expression and freedom of
association falls short of according full respect to what is thus
commanded, by the fundamental law, as they are precluded by the very
same Act from giving aid or support precisely to the very individuals who
can carry out whatever constitutional reforms, programs, policies or
proposals for amendment they might advocate. As thus viewed, the
conviction I entertain as to its lack of validity is further strengthened and
fortified.
3. It would be a different matter, of course, if there is a clear and present
danger of a substantive evil that would justify a limitation on such
cherished freedoms. Reference has been made to Gonzales v.
Commission on Elections.9 As repression is permissible only when the
danger of substantive evil is present is explained by Justice Branders
thus: ... the evil apprehended is to imminent that it may befall before there
is opportunity for full discussion. If there be time to expose through
discussion the falsehood and fallacies, to avert the evil by the processes
of education, the remedy to be applied is more speech, not enforced
silence. For him the apprehended evil must be "relatively serious." For
"[prohibition] of free speech and assembly is a measure so stringent that
it would be inappropriate as the means for averting a relatively trivial
harm to society." Justice Black would go further. He would require that
the substantive evil be "extremely serious." Only thus may there be a
realization of the ideal envisioned by Cardozo: "There shall be no
compromise of the freedom to think one's thoughts and speak them,
except at those extreme borders where thought merges into action." It
received its original formulation from Holmes. Thus: "The question in
every case is whether the words used in such circumstances are of such
a nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent. It is a question
of proximity and degree." " 10 The majority of the Court would find the
existence of a clear and present danger of debasing the electoral
process. With due respect, I find myself unable to share such a view.
The assumption would, appear to be that there is a clear and present
danger of a grave substantive evil of partisanship running riot unless
political parties are thus restrained. There would be a sacrifice then of the
national interest involved. The Convention might not be able to live up to
the high hopes entertained for an improvement of the fundamental law. It
would appear though that what prompted such a ban is to assure that the
present majority party would not continue to play its dominant role in the
political life of the nation. The thought is entertained that otherwise, we
will not have a Convention truly responsive to the needs of the hour and
of the future insofar as they may be anticipated.
To my mind, this is to lose sight of the fact that in the national elections of
1946, 1953, 1961 and 1965, the presidency was won by the opposition
candidate. Moreover, in national elections for senators alone, that of
1951, to mention only one instance, saw a complete sweep of the field by
the then minority party. It would be unjustifiable, so I am led to believe to
assume that inevitably the prevailing dominant political party would
continue its ascendancy in the coming Convention.
Then, too, the result of the plebiscite in the two proposed amendments in
1967 indicate unmistakably that the people can, if so minded, make their
wishes prevail. There is thus no assurance that the mere identification
with party labels would automatically insure the success of a candidacy.
Even if it be assumed that to guard against the evils of party spirit carried
to excess, such a ban is called for, still no such danger is presented by
allowing civil, professional or any other organization or organized group
of whatever nature to field its own candidates or give aid or support,
directly or indirectly material or otherwise, to anyone running for the
Convention. From such a source, no such misgivings or apprehension
need arise. Nor it the fear that organizations could hastily be assembled
or put up to camouflage their true colors as satellites of the political
parties be valid. The electorate can see through such schemes and can
emphatically register its reaction. There is, moreover, the further
safeguard that whatever work the Convention may propose is ultimately
subject to popular ratification.
For me then the danger of a substantive evil is neither clear nor present.
What causes me grave concern is that to guard against such undesirable
eventuality, which may not even come to pass, a flagrant disregard of
what the Constitution ordains is minimized. A desirable end cannot be
coerced by unconstitutional means.
4. It is not easy to yield assent to the proposition that on a matter so
essentially political as the amendment or revision of an existing
Constitution, political parties or political groups are to be denied the
opportunity of launching the candidacy of their choice. Well has it been
said by Chief Justice Hughes: "The greater the importance of
safeguarding the community from incitements to the overthrow of our
institutions by force and violence, the more imperative is the need to
preserve inviolate the constitutional rights of free speech, free press and
free assembly in order to maintain the opportunity for free political
discussion, to the end that government may be responsive to the will of
the people and that changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the very foundation of
constitutional government." 11 It is to carry this essential process one step
farther to recognize and to implement the right of every political party or
group to select the candidates who, by their election, could translate into
actuality their hopes for the fundamental law that the times demand.
Moreover, is it not in keeping with the rights to intellectual freedom so
sedulously safeguarded by the Constitution to remove all obstacles to
organized civic groups making their influence felt in the task of
constitution framing, the result of which has momentuous implications for
the nation? What is decisive of this aspect of the matter is not the
character of the association or organized group as such but the
essentially political activity thus carried out.
This is not to deny the wide latitude as to the choice of means vested in
Congress to attain a desirable goal. Nor can it be successfully argued
that the judiciary should display reluctance in extending sympathy and
understanding to such legislative determination. This is merely to stress
that however worthwhile the objective, the Constitution must still be paid
deference. Moreover, it may not be altogether unrealistic to consider the
practical effects of the ban as thus worded as not lacking in effectivity
insofar as civic, religious, professional or other organizations or organized
group is concerned, but not necessarily so in the case of political party,
political group or political committee. There is the commendable
admission by Senator Tolentino, appearing as amicus curiae, that the
political leaders of stature, in their individual capacity, could continue to
assert their influence. It could very well happen, then, in not a few cases,
assuming the strength of political parties, that a candidate thus favored is
sure of emerging the victor. What is thus sought to be accomplished to
guard against the evil of party spirit prevailing could very well be doomed
to futility. The high hopes entertained by the articulate and vocal groups
of young people, intellectuals and workers, may not be realized. The
result would be that this unorthodox and novel provision could assume
the character of a tease, an illusion like a munificent bequest in a
pauper's will.
If such an appraisal is not unjustifiably tinged with pessimism, then, to my
mind, a radical approach to a problem possibly tainted with constitutional
infirmity cannot hurdle the judicial test as to its validity. It is one thing to
encourage a fresh and untried solution to a problem of gravity when the
probability of its success may be assumed. It is an entirely different
matter to cut down the exercise of what otherwise are undeniable
constitutional rights, when as in this case, the outcome might belie
expectations. Considering the well-settled principle that even though the
governmental process be legitimate and substantial, they cannot be
pursued by means that broadly stifle fundamental personal liberties, if the
end can be narrowly achieved, I am far from being persuaded that to
preclude political parties or other groups or associations from lending aid
and support to the candidates of men in whom they can repose their trust
is consistent with the constitutional rights of freedom of association and
freedom of expression. Here, the danger of overbreadth, so clear and
manifest as to be offensive to constitutional standards, magnified by the
probability that the result would be the failure and not success of the
statutory scheme, cautions against the affixing of the imprimatur of
judicial approval to the challenged provision.
5. Necessarily then, from this mode of viewing the matter, it would follow
that the holding of this Court in Gonzales v. Comelec 12 does not compel
the conclusion reached by the majority sustaining the validity of this
challenged provision. What survived the test of constitutional validity in
that case, with the Court unanimous in its opinion, is the prohibition for
any political party, political committee or political group to nominate
candidates for any elective public office voted for at large earlier than 150
days immediately preceding election and for any other public office earlier
than 90 days immediately preceding such election. 13 A corollary to the
above limitation, the provision making it unlawful for any person, whether
or not a voter or candidate, or for any group or association of persons,
whether or not a political party or political committee, to engage in an
election campaign or partisan political activity except during the above
periods successfully hurdled, the constitutional test, although the
restrictions as to the making of speeches, announcements or
commentaries or holding interviews for or against the election of any
party or candidate for public office or the publishing or distributing of
campaign literature or materials or the solicitation or undertaking any
campaign or propaganda for or against any candidate or party, directly or
indirectly, survived by the narrow margin of one vote, four members of
this Court unable to discern any constitutional infirmity as against the free
speech guarantee, thus resulting in failing to muster the necessary two-
thirds majority for a declaration of invalidity. Insofar as election campaign
or partisan political activity would limit or restrict the formation, of
organizations, associations, clubs, committees or other groups of persons
for the purpose of soliciting votes or undertaking any campaign or
propaganda for or against a party or candidate or, the giving, soliciting, or
receiving a contribution for election campaign purposes, either directly or
indirectly as well as the holding of political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies, with
a similar and in view, only five members of this Court, a minority thereof
voted, for their unconstitutionality. What emerges clearly, then, is that
definite acts short of preventing the political parties from the choice of
their candidates and thereafter working for them in effect were
considered by this Court as not violative of the constitutional freedoms of
speech, of press, of assembly and of association.
The challenged provision in these two petitions, however, goes much
farther. Political parties or any other organization or organized group are
precluded from selecting and supporting candidates for delegates to the
Constitutional Convention. To my mind, this is to enter a forbidden
domain, Congress trespassing on a field hitherto rightfully assumed to be
within the sphere of liberty. Thus, I am unable to conclude that our
previous decision in Gonzales v. Commission on Elections which already
was indicative of the cautious and hesitant judicial approach to lending its
approval to what otherwise are invasions of vital constitutional safeguards
to freedoms of belief, of expression, and of association lends support to
the decision reached by the majority insofar as this challenged provision
is concerned.
Hence my inability to subscribe in its entirety to the opinion of the Court. I
am authorized to state that the Chief Justice is in agreement with the
views herein expressed.
Concepcion, C.J., Villamor and Zaldivar, JJ., concur.
BARREDO, J., concurring and dissenting:
Without prejudice to a more extended opinion, I vote, in concurrence with
the majority, to sustain the validity of the provisions of Republic Act 6132
impugned by petitioners in these cases, except Section 4 and the portion
of Section 8(a) referring to political parties. As regards Section 4, I
reiterate my separate opinion in the cases of Subido and others. (G.R.
Nos. L-32436 and L-32439) With respect to Section 8(a), I hold that the
considerations which take the restraint on the freedoms of association,
assembly and speech involved in the ban on political parties to nominate
and support their own candidates, reasonable and within the limits of the
Constitution do not obtain when it comes to civic or non-political
organizations. As I see it, the said ban, insofar as civic or non-political
organizations are concerned, is a deceptive device to preserve the built-
in advantages of political parties while at the same time crippling
completely the other kinds of associations. The only way to accomplish
the purported objective of the law of equalizing the forces that will
campaign in behalf of the candidates to the constitutional convention is to
maintain said ban only as against political parties, for after all, only the
activities and manners of operation of these parties and/or some of their
members have made necessary the imposition thereof. Under the
resulting set up embodied in the provision in question, the individual
candidates who have never had any political party connections or very
little of it would be at an obvious disadvantage unless they are allowed to
seek and use the aid of civic organizations. Neither the elaborate
provisions of Republic Act 6132 regarding methods of campaign nor its
other provisions intended to minimize the participation of political parties
in the electorate processes of voting, counting of the votes and
canvassing of the results can overcome the advantages of candidates
more or less connected with political parties, particularly the major and
established ones, as long as the right to form other associations and the
right of these associations to campaign for their candidates are denied
considering particularly the shortness of the time that is left between now
and election day.
The issues involved in the coming elections are grave and fundamental
ones that are bound to affect the lives, rights and liberties of all the
people of this country most effectively, pervasively and permanently. The
only insurance of the people against political parties which may be
inclined towards the Establishment and the status quo is to organize
themselves to gain much needed strength and effectivity. To deny them
this right is to stifle the people's only opportunity for change.
It is axiomatic that issues, no matter how valid, if not related to particular
candidates in an organized way, similarly as in the use of platforms by
political parties, cannot have any chance of support and final adoption.
Both men and issues are important, but unrelated to each other, each of
them alone is insignificant, and the only way to relate them is by
organization. Precisely because the issues in this election of candidates
are of paramount importance second to none, it is imperative that all of
the freedoms enshrined in the constitution should have the ampliest
recognition for those who are minded to actively battle for them and any
attempt to curtail them would endanger the very purposes for which a
new constitutional convention has been conceived.
Consistently with my separate opinion in the case of Gonzales and
Cabigao vs. Comelec, G.R. No. L-27833, April 18, 1969 and for the
reasons therein stated, I maintain that the right of suffrage which is the
cornerstone of any democracy like ours is meaningless when the right to
campaign in any election therein is unreasonably and unnecessarily
curtailed, restrained or hampered, as is being done under the statute in
dispute.
3 Sec. 22, R.A. No. 6132.
4 Abelardo Subido vs. Comelec, in re validity of Sec. 4
and Sec. 8(a) par. 2, R.A. 6132, G.R. No. L-32436, and In
the matter of the petition for declaratory relief re validity
and constitutionality of Sec. 4, R.A. 6132, Hon. Guardson
Lood, Judge, CFI, Pasig, Rizal et al., petitioners, G.R. No.
L-32439, Sept. 9, 1970.
5 Sec. 5, Art. VI, Constitution.
6 Macias et al. vs. Comelec, G. R. No. L-18684, Sept. 14,
1961..
7 People vs. Vera, 65 Phil. 56; People vs. Solon, G.R. No.
L-14864, Nov. 23, 1960.
8 See Gonzales vs. Comelec, L-27833, April 18, 1969;
Vol. 27, SCRA, p. 835, 858 et seq.; Justice Douglas in
Elfbrandt v. Russel, 384 US 11, 18-19, 1966.
9 27 SCRA, pp. 860-861.
10 27 SCRA, p. 865.
11 27 SCRA, p. 869.

It is, of course, understood that this opinion is based on my considered 12 27 SCRA, pp. 864-865, 868.
view, contrary to that of the majority, that as Section 8(a) stands and
taking into account its genesis, the ban against political parties is 13 27 SCRA, pp. 869-870.
separable from that against other associations within the contemplation of
Section 21 of the Act which expressly refers to the separability of the 14 27 SCRA, p. 873.
application thereof to any "persons, groups or circumstances."
15 27 SCRA, p. 872.
I reserve my right to expand this explanation of my vote in the next few
days. 16 See his sponsorship speech of July 20, 1970.
# Footnotes
17 84 Phil. 847, 852.
1 Sec. 1 of Res. No. 4. 18 See his sponsorship speech on July 20, 1970.
2 Sec. 3, Res. No. 4.
19 See Justice Castro's separate opinion in Gonzales vs. 10 Ibid., pp. 859-860.
Comelec, supra, 27 SCRA, pp. 898-899 citing American
Communications Association vs. Douds, 339 U.S. 383, 94 11 De Jonge v. Oregon, 299 US 353, 365 (1937).
L. Ed., 925, 9437.
12 L-27833, April 18, 1969, 27 SCRA -835.
20 Pp. 4-5, 12, Answer in L-32432.
13 Sec. 50(a) of Republic Act 4880 (1967).
FERNANDO, J., concurring and dissenting:

1 Sec. 8(a), Republic Act No. 6132 (1970).

2 The Constitution provides: "The right to form

associations or societies for purposes not contrary to law
shall not be abridged." Art. III, Sec. 1, par. 6.

3 Douglas, The Right of Association, 63 Col. Law Rev.

1363 (1963).

4 NAACP v. Alabama ex rel. Patterson, 357 US 449, 460

(1958) per Harlan, J. Cf. Bates v. Little Rock, 361 US 516
(1960); Shelton v. Tucker, 364 US 479. (1960); Louisiana
ex rel. Gremillon v. NAACP, 366 US. 293 (1961);
Communist Party v. Subversive Activities Control Board,
367 US 1 (1961); Scales v. United States, 367 US 203
(1961); NAACP v. Button, 371 US 415 (1963); Gibson v.
Florida Legislative Investigation, Comm., 372 US 539
(1963); Brotherhood v. Virginia ex rel. State Bar 377 US 1
(1964); NAACP v. Alabama, 377 US 288 (1964).

5 Griswold v. Connecticut, 381 US 479, 483 (1965). In

Elfbrandt v. Russel, 384 US 11, 18 (1966) he spoke of
this right as a "cherished freedom." Cf. Keyishan v. Board
of Regents, 385 US 589 (1967).

6 Planas v. Gil, 67 Phil. 62 (1939), Justice Laurel quoting

Wendell Philipps.

7 Palko v. Connecticut, 302 US 319, 323 (1937).

8 Section 8(a), Republic Act No. 6132 (1970).

9 L-27833, April 18, 1969, 27 SCRA 835.

 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 1proposing 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." 14One 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. 15When, 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.

 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 D
Resolution No. 1 quoted as follows: A
D
xxx xxx xxx O
P
(see above) .
M
A
Pursuant to the provision of Section 14, Republic Act No.
C
6132 otherwise known as the Constitutional Convention
A
Act of 1971, may we call upon you to help the Convention
P
implement this resolution:
A
G
Sincerely, A
L
( P
S r
g e
d s
. i
) d
D e
I n
O t
S
D On September 30, 1971, COMELEC "RESOLVED to inform the
A Constitutional Convention that it will hold the plebiscite on condition that:
D
O
(a) The Constitutional Convention will undertake the
P
printing of separate official ballots, election returns and
.
tally sheets for the use of said plebiscite at its expense;
M
A
C (b) The Constitutional Convention will adopt its own
A security measures for the printing and shipment of said
P ballots and election forms; and
A
G (c) Said official ballots and election forms will be delivered
A to the Commission in time so that they could be
L distributed at the same time that the Commission will
D distribute its official and sample ballots to be used in the
I elections on November 8, 1971.
O
S
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."
 Republic of the Philippines Twenty days after or on September 22, 1976, the President issued
SUPREME COURT another related decree, Presidential Decree No. 1031, amending the
Manila previous Presidential Decree No. 991, by declaring the provisions of
presidential Decree No. 229 providing for the manner of voting and
EN BANC canvass of votes in "barangays" (Citizens Assemblies) applicable to the
national referendum-plebiscite of October 16, 1976. Quite relevantly,
G.R. No. L-44640 October 12, 1976 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
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs. On the same date of September 22, 1976, the President issued
HONORABLE COMMISSION ON ELECTIONS and HONORABLE Presidential Decree No. 1033, stating the questions to be submitted to
NATIONAL TREASURER, respondents. 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
G.R. No. L-44684. October 12,1976
body abolished and replaced thru a constitutional amendment, providing
for a legislative body, which will be submitted directly to the people in the
VICENTE M. GUZMAN, petitioner, referendum-plebiscite of October 16.
vs.
COMMISSION ELECTIONS, respondent.
The questions ask, to wit:
G.R. No. L-44714. October 12,1976
(1) Do you want martial law to be continued?
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
(2) Whether or not you want martial law to be continued, do you approve
SALAPANTAN, petitioners,
the following amendments to the Constitution? For the purpose of the
vs.
second question, the referendum shall have the effect of a plebiscite
HONORABLE COMMISSION ON SELECTIONS and HONORABLE
within the contemplation of Section 2 of Article XVI of the Constitution.
NATIONAL TREASURER, respondents.
PROPOSED AMENDMENTS:
MARTIN, J,:
1. There shall be, in lieu of the interim National Assembly, an interim
The capital question raised in these prohibition suits with preliminary
Batasang Pambansa. Members of the interim Batasang Pambansa which
injunction relates to the power of the incumbent President of the
shall not be more than 120, unless otherwise provided by law, shall
Philippines to propose amendments to the present Constitution in the
include the incumbent President of the Philippines, representatives
absence of the interim National Assembly which has not been convened.
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
On September 2, 1976, President Ferdinand E. Marcos issued those chosen by the incumbent President from the members of the
Presidential Decree No. 991 calling for a national referendum on October Cabinet. Regional representatives shall be apportioned among the
16, 1976 for the Citizens Assemblies ("barangays") to resolve, among regions in accordance with the number of their respective inhabitants and
other things, the issues of martial law, the I . assembly, its replacement, on the basis of a uniform and progressive ratio while the sectors shall be
the powers of such replacement, the period of its existence, the length of determined by law. The number of representatives from each region or
the period for tile exercise by the President of his present powers.1 sector and the, manner of their election shall be prescribed and regulated
by law.
2. The interim Batasang Pambansa shall have the same powers and its
members shall have the same functions, responsibilities, rights,
privileges, and disqualifications as the interim National Assembly and the
regular National Assembly and the members thereof. However, it shall
not exercise the power provided in Article VIII, Section 14(l) of the
Constitution.
3. The incumbent President of the Philippines shall, within 30 days from
the election and selection of the members, convene the interim Batasang
Pambansa and preside over its sessions until the Speaker shall have
been elected. The incumbent President of the Philippines shall be the
Prime Minister and he shall continue to exercise all his powers even after
the interim Batasang Pambansa is organized and ready to discharge its
functions and likewise he shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty five. Constitution and
the powers vested in the President and the Prime Minister under this
Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the
powers and functions, and discharge the responsibilities of the regular
President (Prime Minister) and his Cabinet, and shall be subject only to
such disqualifications as the President (Prime Minister) may prescribe.
The President (Prime Minister) if he so desires may appoint a Deputy
Prime Minister or as many Deputy Prime Ministers as he may deem
necessary.
5. The incumbent President shall continue to exercise legislative powers
until martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister), there
exists a grave emergency or a threat or imminence thereof, or whenever
the interim Batasang Pambansa or the regular National Assembly fails or
is unable to act adequately on any matter for any reason that in his
judgment requires immediate action, he may, in order to meet the
exigency, issue the necessary decrees, orders or letters of instructions,
which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as presently
constituted but their functions, powers, and composition may be altered
by law.
Referenda conducted thru the barangays and under the Supervision of
the Commission on Elections may be called at any time the government
deems it necessary to ascertain the will of the people regarding any
important matter whether of national or local interest.
8. All provisions of this Constitution not inconsistent with any of these
amendments shall continue in full force and effect.
9. These amendments shall take effect after the incumbent President
shall have proclaimed that they have been ratified by I majority of the
votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision
and control of the October 1976 National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V.
SANIDAD, father and son, commenced L-44640 for Prohibition with
Preliminary Injunction seeking to enjoin the Commission on Elections
from holding and conducting the Referendum Plebiscite on October 16; to
declare without force and effect Presidential Decree Nos. 991 and 1033,
insofar as they propose amendments to the Constitution, as well as
Presidential Decree No. 1031, insofar as it directs the Commission on
Elections to supervise, control, hold, and conduct the Referendum-
Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is
no grant to the incumbent President to exercise the constituent power to
propose amendments to the new Constitution. As a consequence, the
Referendum-Plebiscite on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for
respondent Commission on Elections, The Solicitor General principally
maintains that petitioners have no standing to sue; the issue raised is
political in nature, beyond judicial cognizance of this Court; at this state of
the transition period, only the incumbent President has the authority to
exercise constituent power; the referendum-plebiscite is a step towards
normalization.
On September 30, 1976, another action for Prohibition with Preliminary
Injunction, docketed as L-44684, was instituted by VICENTE M.
GUZMAN, a delegate to the 1971 Constitutional Convention, asserting
that the power to propose amendments to, or revision of the Constitution
during the transition period is expressly conferred on the interim National
Assembly under Section 16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed
on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and
ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the
implementation of Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers
under Martial Law, the incumbent President cannot act as a constituent
assembly to propose amendments to the Constitution; a referendum-
plebiscite is untenable under the Constitutions of 1935 and 1973; the
submission of the proposed amendments in such a short period of time
for deliberation renders the plebiscite a nullity; to lift Martial Law, the
President need not consult the people via referendum; and allowing 15-
.year olds to vote would amount to an amendment of the Constitution,
which confines the right of suffrage to those citizens of the Philippines 18
years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I Political questions are neatly associated with the wisdom, of the legality
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640
(Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to
challenge the constitutional premise of Presidential Decree Nos. 991,
1031, and 1033. It is now an ancient rule that the valid source of a stature
Presidential Decrees are of such nature-may be contested by one who
will sustain a direct injuries as a in result of its enforcement. At the
instance of taxpayers, laws providing for the disbursement of public funds
may be enjoined, upon the theory that the expenditure of public funds by
an officer of the State for the purpose of executing an unconstitutional act
constitutes a misapplication of such funds. 4 The breadth of Presidential
Decree No. 991 carries all appropriation of Five Million Pesos for the
effective implementation of its purposes. 5 Presidential Decree No. 1031
appropriates the sum of Eight Million Pesos to carry out its provisions. 6
The interest of the aforenamed petitioners as taxpayers in the lawful
expenditure of these amounts of public money sufficiently clothes them
with that personality to litigate the validity of the Decrees appropriating
said funds. Moreover, as regards taxpayer's suits, this Court enjoys that
open discretion to entertain the same or not. 7 For the present case, We
deem it sound to exercise that discretion affirmatively so that the authority
upon which the disputed Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure
political one, lying outside the domain of judicial review. We disagree.
The amending process both as to proposal and ratification, raises a
judicial question. 8This is especially true in cases where the power of the Presidency to initiate
the of normally exercised by the legislature, is seriously doubted. Under the terms of the 1973
Constitution, the power to propose amendments o the constitution resides in the interim National
Assembly in the period of transition (See. 15, Transitory provisions). After that period, and the regular
National Assembly in its active session, the power to propose amendments becomes ipso facto the
prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The
normal course has not been followed. Rather than calling the National Assembly to constitute itself into
a constituent assembly the incumbent President undertook the proposal of amendments and submitted
the proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on
October 16. Unavoidably, the regularity regularity of the procedure for amendments, written in lambent
words in the very Constitution sought to be amended, raises a contestable issue. The implementing
Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of
legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a justiciable
one, within the competence of this Court to pass upon. Section 2 (2), Article X of the new Constitution
provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall be
heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be
declared unconstitutional without the concurrence of at least ten Members. ..." The Supreme Court has
the last word in the construction not only of treaties and statutes, but also of the Constitution itself The
amending, like all other powers organized in the Constitution, is in form a delegated and hence a
limited power, so that the Supreme Court is vested with that authorities to determine whether that
power has been discharged within its limits.
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 cabinet rank, 91 members of the Lupong Tagapagpaganap (executive
committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the
people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitution,
including the issue of martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the
President the submission of the proposed amendments to the people on October 16. All the foregoing
led the President to initiate the proposal of amendments to the Constitution and the subsequent
issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions (proposed
amendments) to the people in the National Referendum-Plebiscite on October 16.
V is the plebiscite aspect, as contemplated in Section 2, Article XVI of the
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
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"
I
First Issue
The threshold question is not at all one of first impression Specifically on
the matter of proposals to amend the Constitution, this Court, in Mabanag
vs. Lopez Vito (78 Phil. 1), inceptively announced the dictum 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 subject." It was next set forth that in the
works on American constitutional law published in this century specially after the leading cases of
cases Sterling v. Constant in and Duncan v. Kahanamoku, "there was a fuller treatment of the question
of martial law While it is the formulation of Willoughby that for me is most acceptable, my opinion did
take note that another commentator, Burdick, came out earlier with a similar appraisal. 10 Thus: "So
called martial law, except in occupied territory of an enemy is merely the calling in of the aid of military
forces by the executive, who is charged with the enforcement of the law, with or without special
authorization by the legislature. Such declaration of martial law does not suspend the civil law, though
it may interfere with the exercise of one's ordinary rights. The right to call out the military forces to
maintain order and enforce the law is simply part of the Police power, It is only justified when it
reasonably appears necessary, and only justifies such acts as reasonably appear necessarily to meet
the exigency, including the arrest, or in extreme cases the. killing of those who create the disorder or
oppose the authorities. When the exigency is over the members of the military forces are criminally and
civilly habit for acts done beyond the scope of reasonable necessity. When honestly and reasonably
coping with a situation of insurrection or riot a member of the military forces cannot be made liable for
his acts, and persons reasonably arrested under such circumstances will not, during the insurrection or
riot, be free by writ of habeas corpus." 11 When the opinion cited Willoughby's concept of martial law,
stress was laid on his being "Partial to the claims of liberty."12 This is evident in the explicit statement
from his work quoted by me: "There is, then, strictly speaking, no such thing in American law as a
declaration of martial law whereby military law is substituted for civil law. So-called declarations of
martial law are, indeed, often made but their legal effect goes no further than to warn citizens that the
military powers have been called upon by the executive to assist him in the maintenance of law and
order, and that, while the emergency lasts, they must, upon pain of arrest and punishment not commit
any acts which will in any way render more difficult the restoration of order and the enforcement of law.
Some of the authorities stating substantially this doctrine are quoted in the footnote below Nor did I
stop there. The words of Willis were likewise cited: "Martial law proper, that is, military law in case of
insurrection, riots, and invasions, is not a substitute for the civil law, but is rather an aid to the execution
of civil law. Declarations of martial law go no further than to warn citizens that the executive has called
upon the military power to assist him in the maintenance of law and order. While martial law is in force,
no new powers are given to the executive and no civil rights of the individual, other than the writ of
habeas corpus, are suspended. The relations between the citizen and his stature unchanged."14
The conclusion reached by me as to the state of American federal law on
the question of martial law was expressed thus: 4'1 It is readily evident
that even when Milligan supplied the only authoritative doctrine, Burdick
and Willoughby did not ignore the primacy of civil liberties. Willis wrote
after Sterling. It would indeed be surprising if his opinion were otherwise.
After Duncan, such an approach becomes even more strongly fortified.
Schwartz, whose treatise is the latest to be published, has this summary
of what he considers the present state of American law: 'The Milligan and
Duncan cases show plainly that martial law is the public law of necessity.
Necessities alone calls it forth, necessity justifies its exercise; and
necessities measures the extended degree to which it may be It is, the
high Court has affirmed, an unbending rule of law that the exercise of
military power, where the rights of the citizen are concerned, may, never
be pushed beyond what the exigency requires. If martial law rule survive
the necessities on which alone it rests, for even a single minute it
becomes a mere exercise of lawless violence.' Further: Sterling v.
Constantin is of basic importance. Before it, a number of decisions,
including one the highest Court, went or on the theory that the executive
had a free hand in taking martial law measures. Under them, it has been
widely supposed that in proclamation was so far conclusive that any
action taken under it was immune from judicial scrutiny. Sterling v.
Constantin definitely discredits these earlier decisions and the doctrine of
conclusiveness derived from them. Under Sterling v. Constantin, where
martial law measures impinge upon personal or property 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."19Since, for me at least, the Rossiter characterization
of martial law has in it more of the common law connotation, less than
duly mindful of the jural effects of its inclusion in the Constitution itself as
a legitimate device for coping with emergency conditions in times of
grave danger, but always subject to attendant limitations in accordance
with the fundamental postulate of a charter's supremacy, I felt justified in
concluding: "Happily for the Philippines, the declaration of martial law
lends itself to the interpretation that the Burdick, Willoughby, Willis,
Schwartz formulations paying due regard to the primacy of liberty
possess relevance. lt cannot be said that the martial rule concept of
Rossiter, latitudinarian in scope, has been adopted, even on the
assumption that it can be reconciled with our Constitution. What is
undeniable is that President Marcos has repeatedly maintained that
Proclamation No. 1081 was precisely based on the Constitution and that
the validity of acts taken there under could be passed upon by the
Supreme court. For me that is quite reassuring, persuaded as I am
likewise that the week- of Rossiter is opposed to the fundamental concept
of our polity, which puts a premium on freedom."20
3. Candor and accuracy compel the admission that such a conclusion his
to be qualified. For in the opinion of the Court in the aforecited Aquino v.
Commission on Elections, penned by Justice Makasiar, the proposition
was expressly affirmed "that as Commander-in-Chief and enforcer or
administrator of martial law, the incumbent President of the Philippines
can reclamations, orders and decrees during the period Martial Law
essential to the security and preservation of the Republic, to the defense
of the political and social liberties of the people and to the institution of
reforms to prevent the resurgence of rebellion or insurrection or
secession or the threat thereof as well as to meet the impact of a
worldwide recession, inflation or economic crisis which presently
threatens all nations including highly developed countries." 21 To that
extent, Rossiter's view mainly relied upon, now possesses Juristic
significant in this jurisdiction. What, for me at least, gives caused for
concern is that with the opinion of the Court this intrusion of what I would
consider an alien element in the limited concept of martial law as set forth
in the Constitution would be allowed further incursion into the corpus of
the law, with the invocation of the view expressed in the last chapter of
his work approving tile "concentration of governmental power in a
democracy [as] a corrective to the crisis inefficiencies inherent in the
doctrine of the separation of powers." 22 It is to the credit of the late
Professor Rossiter as an objective scholar that in the very same last
chapter, just three pages later, he touched explicitly on the undesirable
aspect of a constitutional dictatorship. Thus: "Constitutional Dictatorship
is a dangerous thing. A declaration of martial law or the passage of an
enabling act is a step which must always be feared and sometimes
bitterly resisted, for it is at once an admission of the incapacity of
democratic institutions to defend the order within which they function and
a too conscious employment of powers and methods long ago outlawed
as destructive of constitutional government. Executive legislation, state
control of popular liberties, military courts, and arbitrary executive action
were governmental features attacked by the men who fought for freedom
not because they were inefficient or unsuccessful, but because they were
dangerous and oppressive. The reinstitution of any of these features is a
perilous matter, a step to be taken only when the dangers to a free state
will be greater if the dictatorial institution is not adopted."23
4. It is by virtue of such considerations that I find myself unable to share
the view of those of my brethren who would accord recognition to the
Rossiter concept of concentration of governmental power in the
Executive during periods of crisis. This is not to lose sight of the
undeniable fact that in this country through the zeal, vigor, and energy
lavished on projects conducive to the general welfare, considerable
progress has been achieved under martial rule. A fair summary may be
found in a recent address of the First Lady before the delegates to the
1976 international Monetary Fund-World Bank Joint Annual Meeting:
"The wonder is that so much has been done in so brief a time. Since
September 1972, when President Marcos established the crisis
government, peace and order have been restored in a country once
avoided as one of the most unsafe in the world. We have liberated
millions of Filipino farmers from the bondage of tenancy, in the most
vigorous and extensive implementation of agrarian reform."24Further, she
said: "A dynamic economy has replaced a stagnant order, and its
rewards are distributed among the many, not hoarded by a few. Our
foreign policy, once confined by fear and suspicion to a narrow alley of
self-imposed isolation, now travels the broad expressways of friendship
and constructive interaction with the whole world, these in a new spirit of
confidence and self-reliance. And finally, forced to work out our own
salvation, the Filipino has re-discovered the well-springs of his strength
and resilience As Filipinos, we have found our true Identity. And having
broken our crisis of Identity, we are no longer apologetic and
afraid. "25 The very Idea of a crisis, however, signifies a transitory, certainly not a permanent, state
of things. President Marcos accordingly has not been hesitant in giving utterance to his conviction that
full implementation of the modified parliamentary system under the present Constitution should not be
further delayed. The full restoration of civilian rule can thus be expected. That is more in accord with
the imperatives of a constitutional order. It should not go unnoticed either that the President has
referred to the present regime as one of "constitutional authoritarianism." That has a less objectionable
ring, authority being more Identified with the Idea of law, as based on right, the very antithesis of naked
force, which to the popular mind is associated with dictatorship, even if referred to as "constitutional."
For me likewise, that equally eminent scholar Corwin, also invoked in the
opinion of the Court, while no doubt a partisan of d strong Presidency,
was not averse to constitutional restraints even during periods of crisis.
So I would interpret this excerpt from the fourth edition of his classic
treatise on the Presidency: "A regime of martial law may be
compendiously, if not altogether accurately, defined as one in which the
ordinary law, as administered by the ordinary courts, is superseded for
the time being by the will of a military commander. It follows that, when
martial law is instituted under national authority, it rests ultimately on the
will of the President of the United States in his capacity as Commander-
in-Chief. It should be added at once, nevertheless, that the subject is one
in which the record of actual practice fails often to support the niceties of
theory. Thus, the employment of the military arm in the enforcement of
the civil law does not invariably, or even usually, involve martial law in the
strict sense, for, as was noted in the preceding section, soldiers are often
placed simply at the disposal and direction of the civil authorities as a
kind of supplementary police, or posse comitatus on the other hand be
reason of the discretion that the civil authorities themselves are apt to
vest in the military in any emergency requiring its assistance, the line
between such an employment of the military and a regime of martial law
is frequently any but a hard and fast one. And partly because of these
ambiguities the conception itself of martial law today bifurcates into two
conceptions, one of which shades off into military government and the
other into the situation just described, in which the civil authority remains
theoretically in control although dependent on military aid. Finally, there is
the situation that obtained throughout the North during the Civil War,
when the privilege of the writ of habeas corpus was suspended as to
certain classes of suspects, although other characteristics of martial law
were generally absent."26
It is by virtue of the above considerations that, with due respect to the
opinion of my brethren, I cannot yield assent to the Rossiter view of
concentration of governmental powers in the Executive during martial
law.
5 There is necessity then, for me at least, that the specific question raised
in all three petitions be squarely faced. It is to the credit of the opinion of
the Court that it did so. The basic issue posed concerns the boundaries
of the power of the President during this period of martial law, more
precisely whether it covers proposing amendments to the Constitution.
There is the further qualification if the stand of respondents be taken into
account that the interim National Assembly has not been convened and is
not likely to be called into session in deference to the wishes of the
people as expressed in three previous referenda. It is the ruling of the
majority that the answer be in the affirmative, such authority being well
within the area of presidential competence. Again I find myself unable to
join readily in that conviction. It does seem to me that the metes and
bounds of the executive domain, while still recognizable, do appear
blurred. This is not to assert that there is absolutely no basis for such a
conclusion, sustained as it is by a liberal construction of the principle that
underlies Aquino v. Commission on Elections as to the validity of the
exercise of the legislative prerogative by the President as long as the
interim National Assembly is not For me, the stage of certitude has not
been reached. I cannot simply ignore the vigorous plea of petitioners that
there is a constitutional deficiency consisting in the absence of any
constituent power on the part of the President, the express provision of
the Constitution conferring it on the by team National Assembly.27 The
learned advocacy reflected in the pleadings as well as the oral discourse
of Solicitor General Estelito P. Mendoza 21 failed to erase the grave
doubts in my mind that the Aquino doctrine as to the possession of
legislative competence by the President during this period of transition
with the interim lawmaking body not called into session be thus
expanded. The majority of my brethren took that step. I am not prepared
to go that far. I will explain why.
The way for me, is beset with obstacles. In the first place, such an
approach would lose sight of the distinction between matters legislative
and constituent. That is implicit in the treatise on the 1935 Constitution by
Justices Malcolm and Laurel In their casebook published the same year,
one of the four decisions on the subject of constitutional amendments is
Ellingham v. Dye 31 which categorically distinguished between
constituent and legislative powers. Dean Sinco, a well-known authority on
the subject, was quite explicit. Thus: "If there had been no express
provision in the Constitution granting Congress the power to propose
amendments, it would be outside its authority to assume that power.
Congress may not claim it under the general grant of legislative power for
such grant does not carry with it the right 'to erect the state, institute the
form of its government,' which is considered a function inherent in the
people. Congressional 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 during 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, 20the 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:
I question. . . .
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
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 1 Tagada & by Macapagal v. Cuenco, et al.. 103 Phil.
1051
It is well that the powers of the people and their relations
to organized society should be understood. No heresy 2 L-28196. Nov. 9,1967; 21 SCRA 774.
has ever been taught in this country so fraught with evil as
the doctrine that the people have a constitutional right to 3 L-34150, Oct. 16, 1971, 41 SCRA 702.
disregard the constitution, and that they can set
themselves above the instrumentalities appointed by the 4 Article XVII, Section 1, Constitution.
constitution for the administration of law. It tends directly
to the encouragement of revolution and anarchy. It is
5 Aquino vs.. Comelec, L-40004, Jan. 31, 1975, 62 SCRA
incumbent upon all who influence and mold public opinion
275, 302.
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 9 Idem, at page 4.
difference between natural and constitutional freedom.
before license becomes destructive of liberty ." (pp. 611- 10 Idem, at page 4.
616)
11 Marshall, C.J. in Marburg vs. Madison, I Cranch 137
4 Green castle Township v. Black, 5 Ind.,557, 56,5. (1803).

5 Oakley vs. Aspinwall, 3 N.Y., 547,568. 12 Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p.
81.
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,


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by
GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR
EMMANUEL PIÑOL, for and in his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.
HERMOGENES ESPERON, JR., the latter in his capacity as the
present and duly-appointed Presidential Adviser on the Peace
Process (OPAPP) or the so-called Office of the Presidential Adviser
on the Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON.
CELSO L. LOBREGAT, City Mayor of Zamboanga, and in his
personal capacity as resident of the City of Zamboanga, Rep. MA.
ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A.
FABIAN, District 2, City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL (GRP), as represented by RODOLFO
C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK
RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as
the Presidential Adviser on Peace Process,respondents.
x--------------------------------------------x
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE
LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN.
HERMOGENES ESPERON, JR., in his capacity as the present and
duly appointed Presidential Adviser on the Peace Process; and/or
SEC. EDUARDO ERMITA, in his capacity as Executive
Secretary. respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as
represented by HON. ROLANDO E. YEBES, in his capacity as
Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as
Vice-Governor and Presiding Officer of the Sangguniang
Panlalawigan, HON. CECILIA JALOSJOS CARREON,
Congresswoman, 1st Congressional District, HON. CESAR G.
JALOSJOS, Congressman, 3rd Congressional District, and Members
of the Sangguniang Panlalawigan of the Province of Zamboanga del
Norte, namely, HON. SETH FREDERICK P. JALOSJOS, HON.
FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II,
HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON.
CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON.
JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON.
ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON.
LUZVIMINDA E. TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL [GRP], as represented by HON.
RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his
capacity as the Presidential Adviser of Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L.
PIMENTEL III, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL, represented by its Chairman
RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT
PEACE NEGOTIATING PANEL, represented by its Chairman
MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-
intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal
Mayor NOEL N. DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by
MAYOR CHERRYLYN P. SANTOS-AKBAR,petitioners-in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T.
MANGUDADATU, in his capacity as Provincial Governor and a
resident of the Province of Sultan Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of
Indigenous Peoples in Mindanao Not Belonging to the
MILF, petitioner-in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT,
JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens and
residents of Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC
(MUSLAF), respondent-in-intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE &
DEVELOPMENT (MMMPD), respondent-in-intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the
President in pursuing the peace process.While the facts surrounding this
controversy center on the armed conflict in Mindanao between the
government and the Moro Islamic Liberation Front (MILF), the legal issue
involved has a bearing on all areas in the country where there has been a
long-standing armed conflict. Yet again, the Court is tasked to perform a
delicate balancing act. It must uncompromisingly delineate the bounds
within which the President may lawfully exercise her discretion, but it
must do so in strict adherence to the Constitution, lest its ruling unduly
restricts the freedom of action vested by that same Constitution in the
Chief Executive precisely to enable her to pursue the peace process
effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines
(GRP) and the MILF, through the Chairpersons of their respective peace
negotiating panels, were scheduled to sign a Memorandum of Agreement
on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when,
under the leadership of the late Salamat Hashim, it splintered from the
Moro National Liberation Front (MNLF) then headed by Nur Misuari, on
the ground, among others, of what Salamat perceived to be the
manipulation of the MNLF away from an Islamic basis towards Marxist-
Maoist orientations.1
The signing of the MOA-AD between the GRP and the MILF was not to
materialize, however, for upon motion of petitioners, specifically those
who filed their cases before the scheduled signing of the MOA-AD, this
Court issued a Temporary Restraining Order enjoining the GRP from
signing the same.
The MOA-AD was preceded by a long process of negotiation and the
concluding of several prior agreements between the two parties
beginning in 1996, when the GRP-MILF peace negotiations began. On
July 18, 1997, the GRP and MILF Peace Panels signed the Agreement
on General Cessation of Hostilities. The following year, they signed the
General Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the
MOA-AD by stating that the same contained, among others, the
commitment of the parties to pursue peace negotiations, protect and
respect human rights, negotiate with sincerity in the resolution and pacific
settlement of the conflict, and refrain from the use of threat or force to
attain undue advantage while the peace negotiations on the substantive
agenda are on-going.2
Early on, however, it was evident that there was not going to be any
smooth sailing in the GRP-MILF peace process. Towards the end of 1999
up to early 2000, the MILF attacked a number of municipalities in Central
Mindanao and, in March 2000, it took control of the town hall of
Kauswagan, Lanao del Norte.3 In response, then President Joseph
Estrada declared and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military
offensive against the MILF was suspended and the government sought a
resumption of the peace talks. The MILF, according to a leading MILF
member, initially responded with deep reservation, but when President
Arroyo asked the Government of Malaysia through Prime Minister
Mahathir Mohammad to help convince the MILF to return to the
negotiating table, the MILF convened its Central Committee to seriously
discuss the matter and, eventually, decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the talks being
facilitated by the Malaysian government, the parties signing on the same
date the Agreement on the General Framework for the Resumption of
Peace Talks Between the GRP and the MILF. The MILF thereafter
suspended all its military actions.5
Formal peace talks between the parties were held in Tripoli, Libya from
June 20-22, 2001, the outcome of which was the GRP-MILF Tripoli
Agreement on Peace (Tripoli Agreement 2001) containing the basic
principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect. With regard to the Ancestral Domain Aspect, the parties
in Tripoli Agreement 2001 simply agreed "that the same be discussed
further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on
August 5-7, 2001 which ended with the signing of the Implementing
Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading
to a ceasefire status between the parties. This was followed by the
Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which was signed
on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many
incidence of violence between government forces and the MILF from
2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July
13, 2003 and he was replaced by Al Haj Murad, who was then the chief
peace negotiator of the MILF. Murad's position as chief peace negotiator
was taken over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala
Lumpur, eventually leading to the crafting of the draft MOA-AD in its final
form, which, as mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus"
ever embodied in an instrument - the MOA-AD which is assailed
principally by the present petitions bearing docket numbers 183591,
183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on
Ancestral Domain7 and the Presidential Adviser on the Peace Process
(PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-Governor
Emmanuel Piñol filed a petition, docketed as G.R. No. 183591, for
Mandamus and Prohibition with Prayer for the Issuance of Writ of
Preliminary Injunction and Temporary Restraining Order.9 Invoking the
right to information on matters of public concern, petitioners seek to
compel respondents to disclose and furnish them the complete and
official copies of the MOA-AD including its attachments, and to prohibit
the slated signing of the MOA-AD, pending the disclosure of the contents
of the MOA-AD and the holding of a public consultation thereon.
Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.10
This initial petition was followed by another one, docketed as G.R. No.
183752, also for Mandamus and Prohibition11 filed by the City of
Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and
Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs.
Petitioners herein moreover pray that the City of Zamboanga be excluded
from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and,
in the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary
Restraining Order commanding and directing public respondents and
their agents to cease and desist from formally signing the MOA-AD.13 The
Court also required the Solicitor General to submit to the Court and
petitioners the official copy of the final draft of the MOA-AD,14 to which
she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or
Declaratory Relief, docketed as G.R. No. 183893, praying that
respondents be enjoined from signing the MOA-AD or, if the same had
already been signed, from implementing the same, and that the MOA-AD
be declared unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-
Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar
Jalosjos, and the members18 of the Sangguniang Panlalawigan of
Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari,
Mandamus and Prohibition,19 docketed as G.R. No. 183951. They
pray, inter alia, that the MOA-AD be declared null and void and without
operative effect, and that respondents be enjoined from executing the
MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino
Pimentel III filed a petition for Prohibition,20docketed as G.R. No.
183962, praying for a judgment prohibiting and permanently enjoining
respondents from formally signing and executing the MOA-AD and or any
other agreement derived therefrom or similar thereto, and nullifying the
MOA-AD for being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Negotiating
Panel represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file
their petitions-/comments-in-intervention. Petitioners-in-Intervention
include Senator Manuel A. Roxas, former Senate President Franklin
Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor Cherrylyn
Santos-Akbar, the Province of Sultan Kudarat22 and Gov. Suharto
Mangudadatu, the Municipality of Linamon in Lanao del Norte,23 Ruy
Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang
Panlungsod member Marino Ridao and businessman Kisin Buxani, both
of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat,
Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral
Movement for Peace and Development (MMMPD) filed their respective
Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the
petitions. Respondents filed Comments on the petitions, while some of
petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated
that the Executive Department shall thoroughly review the MOA-AD and
pursue further negotiations to address the issues hurled against it, and
thus moved to dismiss the cases. In the succeeding exchange of
pleadings, respondents' motion was met with vigorous opposition from
petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008
that tackled the following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view
of the disclosure of official copies of the final draft of the
Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local
Government Units is concerned, if it is considered that
consultation has become fait accompli with the finalization
of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe
for adjudication;
3. Whether respondent Government of the Republic of the
Philippines Peace Panel committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it negotiated and
initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information
on matters of public concern (1987 Constitution, Article III, Sec. 7)
under a state policy of full disclosure of all its transactions
involving public interest (1987 Constitution, Article II, Sec. 28)
including public consultation under Republic Act No. 7160
(LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the
1997 Rules of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic
of the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical
Entity (BJE) as a separate state, or a juridical, territorial or
political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to
conform to the MOA;
c) to concede to or recognize the claim of the Moro
Islamic Liberation Front for ancestral domain in violation
of Republic Act No. 8371 (THE INDIGENOUS PEOPLES
RIGHTS ACT OF 1997), particularly Section 3(g) &
Chapter VII (DELINEATION, RECOGNITION OF
ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the
authority to so bind the Government of the Republic of the
Philippines;
6. Whether the inclusion/exclusion of the Province of North
Cotabato, Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, Lanao del Norte in/from the areas
covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether desistance from signing the MOA derogates any prior
valid commitments of the Government of the Republic of the
Philippines.24
The Court, thereafter, ordered the parties to submit their respective
Memoranda. Most of the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in
the subject five petitions and six petitions-in-intervention against the
MOA-AD, as well as the two comments-in-intervention in favor of the
MOA-AD, the Court takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes
not only four earlier agreements between the GRP and MILF, but also
two agreements between the GRP and the MNLF: the 1976 Tripoli
Agreement, and the Final Peace Agreement on the Implementation of the
1976 Tripoli Agreement, signed on September 2, 1996 during the
administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act
for the Autonomous Region in Muslim Mindanao (ARMM)25 and the
Indigenous Peoples Rights Act (IPRA),26 and several international law
instruments - the ILO Convention No. 169 Concerning Indigenous and
Tribal Peoples in Independent Countries in relation to the UN Declaration
on the Rights of the Indigenous Peoples, and the UN Charter, among
others.
The MOA-AD includes as a final TOR the generic category of "compact
rights entrenchment emanating from the regime of dar-ul-mua'hada (or
territory under compact) and dar-ul-sulh (or
territory under peace agreement) that partakes the nature of a treaty
device."
During the height of the Muslim Empire, early Muslim jurists tended to
see the world through a simple dichotomy: there was the dar-ul-Islam (the
Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to
those lands where Islamic laws held sway, while the second denoted
those lands where Muslims were persecuted or where Muslim laws were
outlawed or ineffective.27 This way of viewing the world, however, became
more complex through the centuries as the Islamic world became part of
the international community of nations.
As Muslim States entered into treaties with their neighbors, even with
distant States and inter-governmental organizations, the classical division
of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning.
New terms were drawn up to describe novel ways of perceiving non-
Muslim territories. For instance, areas like dar-ul-mua'hada (land
of compact) and dar-ul-sulh (land of treaty) referred to countries which,
though under a secular regime, maintained peaceful and cooperative
relations with Muslim States, having been bound to each other by treaty
or agreement. Dar-ul-aman (land of order), on the other hand, referred to
countries which, though not bound by treaty with Muslim States,
maintained freedom of religion for Muslims.28
It thus appears that the "compact rights entrenchment" emanating from
the regime of dar-ul-mua'hada and dar-ul-sulh simply refers to all other
agreements between the MILF and the Philippine government - the
Philippines being the land of compact and peace agreement - that
partake of the nature of a treaty device, "treaty" being broadly defined as
"any solemn agreement in writing that sets out understandings,
obligations, and benefits for both parties which provides for a framework
that elaborates the principles declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND
ACKNOWLEDGED AS FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely,
Concepts and Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros
and all Indigenous peoples of Mindanao to identify themselves and be
accepted as ‘Bangsamoros.'" It defines "Bangsamoro people" as
the natives or original inhabitants of Mindanao and its adjacent islands
including Palawan and the Sulu archipelago at the time of conquest or
colonization, and their descendants whether mixed or of full
blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-
AD, includes not only "Moros" as traditionally understood even by
Muslims,31 but all indigenous peoples of Mindanao and its adjacent
islands. The MOA-AD adds that the freedom of choice of indigenous
peoples shall be respected. What this freedom of choice consists in has
not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the
ownership of which is vested exclusively in the Bangsamoro people by
virtue of their prior rights of occupation.32 Both parties to the MOA-AD
acknowledge that ancestral domain does not form part of the public
domain.33
The Bangsamoro people are acknowledged as having the right to self-
governance, which right is said to be rooted on ancestral territoriality
exercised originally under the suzerain authority of their sultanates and
the Pat a Pangampong ku Ranaw. The sultanates were described as
states or "karajaan/kadatuan" resembling a body politic endowed with all
the elements of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the
Bangsamoro people on the past suzerain authority of the sultanates. As
gathered, the territory defined as the Bangsamoro homeland was ruled
by several sultanates and, specifically in the case of the Maranao, by
the Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans, none of
whom was supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the ‘First
Nation' with defined territory and with a system of government having
entered into treaties of amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous
peoples of that territory, particularly those known as Indians. In Canada,
each of these indigenous peoples is equally entitled to be called "First
Nation," hence, all of them are usually described collectively by the plural
"First Nations."36 To that extent, the MOA-AD, by identifying the
Bangsamoro people as "the First Nation" - suggesting its exclusive
entitlement to that designation - departs from the Canadian usage of the
term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical
Entity" (BJE) to which it grants the authority and jurisdiction over the
Ancestral Domain and Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass
as well as the maritime, terrestrial, fluvial and alluvial domains, including
the aerial domain and the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region.38
More specifically, the core of the BJE is defined as the present
geographic area of the ARMM - thus constituting the following areas:
Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City.
Significantly, this core also includes certain municipalities of Lanao del
Norte that voted for inclusion in the ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities,
municipalities and barangays, which are grouped into two categories,
Category A and Category B. Each of these areas is to be subjected to a
plebiscite to be held on different dates, years apart from each other.
Thus, Category A areas are to be subjected to a plebiscite not later than
twelve (12) months following the signing of the MOA-AD.40 Category B
areas, also called "Special Intervention Areas," on the other hand, are to
be subjected to a plebiscite twenty-five (25) years from the signing of a
separate agreement - the Comprehensive Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction
over all natural resources within its "internalwaters," defined as extending
fifteen (15) kilometers from the coastline of the BJE area;42 that the BJE
shall also have "territorial waters," which shall stretch beyond the BJE
internal waters up to the baselines of the Republic of the Philippines (RP)
south east and south west of mainland Mindanao; and that within
these territorial waters, the BJE and the "Central Government" (used
interchangeably with RP) shall exercise joint jurisdiction, authority and
management over all natural resources.43 Notably, the jurisdiction over
the internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on
the territorial waters between the Central Government and the BJE, in
favor of the latter, through production sharing and economic cooperation
agreement.44 The activities which the Parties are allowed to conduct on
the territorial waters are enumerated, among which are the exploration
and utilization of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety measures.45 There is
no similar provision on the sharing of minerals and allowed activities with
respect to the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic
cooperation and trade relations with foreign countries and shall have the
option to establish trade missions in those countries. Such relationships
and understandings, however, are not to include aggression against the
GRP. The BJE may also enter into environmental cooperation
agreements.46
The external defense of the BJE is to remain the duty and obligation of
the Central Government. The Central Government is also bound to "take
necessary steps to ensure the BJE's participation in international
meetings and events" like those of the ASEAN and the specialized
agencies of the UN. The BJE is to be entitled to participate in Philippine
official missions and delegations for the negotiation of border agreements
or protocols for environmental protection and equitable sharing of
incomes and revenues involving the bodies of water adjacent to or
between the islands forming part of the ancestral domain.47
With regard to the right of exploring for, producing, and obtaining all
potential sources of energy, petroleum, fossil fuel, mineral oil and natural
gas, the jurisdiction and control thereon is to be vested in the BJE "as the
party having control within its territorial jurisdiction." This right carries
the proviso that, "in times of national emergency, when public interest so
requires," the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or
direct the operation of such resources.48
The sharing between the Central Government and the BJE of total
production pertaining to natural resources is to be 75:25 in favor of the
BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro
people arising from any unjust dispossession of their territorial and
proprietary rights, customary land tenures, or their marginalization shall
be acknowledged. Whenever restoration is no longer possible, reparation
is to be in such form as mutually determined by the Parties.50
The BJE may modify or cancel the forest concessions, timber licenses,
contracts or agreements, mining concessions, Mineral Production and
Sharing Agreements (MPSA), Industrial Forest Management Agreements
(IFMA), and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to
observe and monitor the implementation of the Comprehensive
Compact. This compact is to embody the "details for the effective
enforcement" and "the mechanisms and modalities for the actual
implementation" of the MOA-AD. The MOA-AD explicitly provides that the
participation of the third party shall not in any way affect the status of the
relationship between the Central Government and the BJE.52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and
the BJE as "associative," characterized by shared authority and
responsibility. And it states that the structure of governance is to be
based on executive, legislative, judicial, and administrative institutions
with defined powers and functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the
existing legal framework" shall take effect upon signing of the
Comprehensive Compact and upon effecting the aforesaid amendments,
with due regard to the non-derogation of prior agreements and within
the stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the present
controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own
institutions inclusive of civil service, electoral, financial and banking,
education, legislation, legal, economic, police and internal security force,
judicial system and correctional institutions, the details of which shall be
discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008
by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace
Negotiating Panels of the GRP and the MILF, respectively. Notably, the
penultimate paragraph of the MOA-AD identifies the signatories as "the
representatives of the Parties," meaning the GRP and MILF themselves,
and not merely of the negotiating panels.53 In addition, the signature page
of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd
Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED
BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic
Conference (OIC) Secretary General and Special Envoy for Peace
Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF"
Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri
Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of
whom were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective
lists cum maps of the provinces, municipalities, and barangays under
Categories A and B earlier mentioned in the discussion on the strand on
TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or
controversies.54 Courts decline to issue advisory opinions or to resolve
hypothetical or feigned problems, or mere academic questions.55 The
limitation of the power of judicial review to actual cases and controversies
defines the role assigned to the judiciary in a tripartite allocation of power,
to assure that the courts will not intrude into areas committed to the other
branches of government.56
An actual case or controversy involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. There
must be a contrariety of legal rights that can be interpreted and enforced
on the basis of existing law and jurisprudence.57 The Court can decide the
constitutionality of an act or treaty only when a proper case between
opposing parties is submitted for judicial determination.58
Related to the requirement of an actual case or controversy is the 2. Toward this end, the Parties enter into the following
requirement of ripeness. A question is ripe for adjudication when the act stipulations:
being challenged has had a direct adverse effect on the individual
challenging it.59 For a case to be considered ripe for adjudication, it is a xxxx
prerequisite that something had then been accomplished or performed by
either branch before a court may come into the picture,60 and the d. Without derogating from the requirements of prior agreements,
petitioner must allege the existence of an immediate or threatened injury the Government stipulates to conduct and deliver, using all
to itself as a result of the challenged action.61 He must show that he has possible legal measures, within twelve (12) months following the
sustained or is immediately in danger of sustaining some direct injury as signing of the MOA-AD, a plebiscite covering the areas as
a result of the act complained of.62 enumerated in the list and depicted in the map as Category A
attached herein (the "Annex"). The Annex constitutes an integral
The Solicitor General argues that there is no justiciable controversy that part of this framework agreement. Toward this end, the Parties
is ripe for judicial review in the present petitions, reasoning that shall endeavor to complete the negotiations and resolve all
outstanding issues on the Comprehensive Compact within fifteen
The unsigned MOA-AD is simply a list of consensus points (15) months from the signing of the MOA-AD.
subject to further negotiations and legislative enactments as well
as constitutional processes aimed at attaining a final peaceful xxxx
agreement. Simply put, the MOA-AD remains to be a proposal
that does not automatically create legally demandable rights and GOVERNANCE
obligations until the list of operative acts required have been duly
complied with. x x x
xxxx
xxxx
7. The Parties agree that mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
In the cases at bar, it is respectfully submitted that this Honorable Comprehensive Compact to mutually take such steps to enable it
Court has no authority to pass upon issues based on hypothetical to occur effectively.
or feigned constitutional problems or interests with no concrete
bases. Considering the preliminary character of the MOA-AD,
Any provisions of the MOA-AD requiring amendments to the
there are no concrete acts that could possibly violate petitioners'
existing legal framework shall come into force upon the signing of
and intervenors' rights since the acts complained of are mere
a Comprehensive Compact and upon effecting the necessary
contemplated steps toward the formulation of a final peace
changes to the legal framework with due regard to non-
agreement. Plainly, petitioners and intervenors' perceived injury, if
derogation of prior agreements and within the stipulated
at all, is merely imaginary and illusory apart from being
timeframe to be contained in the Comprehensive
unfounded and based on mere conjectures. (Underscoring
Compact.64 (Underscoring supplied)
supplied)
The Solicitor General's arguments fail to persuade.
The Solicitor General cites63 the following provisions of the MOA-AD:
Concrete acts under the MOA-AD are not necessary to render the
TERRITORY
present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court held:
xxxx
x x x [B]y the mere enactment of the questioned law or the
approval of the challenged action, the dispute is said to have
ripened into a judicial controversy even without any other overt
 act. Indeed, even a singular violation of the Constitution and/or
the law is enough to awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our
constitutional scheme is a coequal of Congress, is seriously
alleged to have infringed the Constitution and the laws x x x
settling the dispute becomes the duty and the responsibility of the
courts.66
In Santa Fe Independent School District v. Doe,67 the United States
Supreme Court held that the challenge to the constitutionality of the
school's policy allowing student-led prayers and speeches before games
was ripe for adjudication, even if no public prayer had yet been led under
the policy, because the policy was being challenged as unconstitutional
on its face.68
That the law or act in question is not yet effective does not negate
ripeness. For example, in New York v. United States,69 decided in 1992,
the United States Supreme Court held that the action by the State of New
York challenging the provisions of the Low-Level Radioactive Waste
Policy Act was ripe for adjudication even if the questioned provision was
not to take effect until January 1, 1996, because the parties agreed that
New York had to take immediate action to avoid the provision's
consequences.70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus.
Certiorari and Prohibition are remedies granted by law when any tribunal,
board or officer has acted, in the case of certiorari, or is proceeding, in
the case of prohibition, without or in excess of its jurisdiction or with grave
abuse of discretion amounting to lack or excess of
jurisdiction.72 Mandamus is a remedy granted by law 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, or unlawfully excludes another from the use or
enjoyment of a right or office to which such other is entitled.73 Certiorari,
Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper,
acts of legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by Executive Order
No. 3 (E.O. No. 3), issued on February 28, 2001.75 The said executive
order requires that "[t]he government's policy framework for peace,
including the systematic approach and the administrative structure for
carrying out the comprehensive peace process x x x be governed by this
Executive Order."76
The present petitions allege that respondents GRP Panel and PAPP
Esperon drafted the terms of the MOA-AD without consulting the local
government units or communities affected, nor informing them of the
proceedings. As will be discussed in greater detail later, such omission,
by itself, constitutes a departure by respondents from their mandate
under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-
AD violate the Constitution. The MOA-AD provides that "any provisions of
the MOA-AD requiring amendments to the existing legal framework shall
come into force upon the signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal framework," implying an
amendment of the Constitution to accommodate the MOA-AD. This
stipulation, in effect, guaranteed to the MILF the amendment of the
Constitution. Such act constitutes another violation of its authority. Again,
these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent
that exceed their authority, by violating their duties under E.O. No. 3
and the provisions of the Constitution and statutes, the petitions make
a prima facie case for Certiorari, Prohibition, and Mandamus, and an
actual case or controversy ripe for adjudication exists. When an act of a
branch of government is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a personal stake
in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions."78
Because constitutional cases are often public actions in which the relief
sought is likely to affect other persons, a preliminary question frequently
arises as to this interest in the constitutional question raised.79
When suing as a citizen, the person complaining must allege that he has
been or is about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.80 When the issue
concerns a public right, it is sufficient that the petitioner is a citizen and
has an interest in the execution of the laws.81
For a taxpayer, one is allowed to sue where there is an assertion that
public funds are illegally disbursed or deflected to an illegal purpose, or
that there is a wastage of public funds through the enforcement of an
invalid or unconstitutional law.82 The Court retains discretion whether or
not to allow a taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the Executive
that injures the institution of Congress causes a derivative but
nonetheless substantial injury that can be questioned by legislators. A
member of the House of Representatives has standing to maintain
inviolate the prerogatives, powers and privileges vested by the
Constitution in his office.84
An organization may be granted standing to assert the rights of its
members,85 but the mere invocation by the Integrated Bar of the
Philippines or any member of the legal profession of the duty to preserve
the rule of law does not suffice to clothe it with standing.86
As regards a local government unit (LGU), it can seek relief in order to
protect or vindicate an interest of its own, and of the other LGUs.87
Intervenors, meanwhile, may be given legal standing upon showing of
facts that satisfy the requirements of the law authorizing
intervention,88 such as a legal interest in the matter in litigation, or in the
success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality
on locus standi, given the liberal attitude it has exercised, highlighted in
the case of David v. Macapagal-Arroyo,89 where technicalities of
procedure were brushed aside, the constitutional issues raised being of
paramount public interest or of transcendental importance deserving the
attention of the Court in view of their seriousness, novelty and weight as
precedents.90 The Court's forbearing stance on locus standi on issues
involving constitutional issues has for its purpose the protection of
fundamental rights.
In not a few cases, the Court, in keeping with its duty under the
Constitution to determine whether the other branches of government
have kept themselves within the limits of the Constitution and the laws
and have not abused the discretion given them, has brushed aside
technical rules of procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No. 183951), City of
Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752)
and petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in view of the
direct and substantial injury that they, as LGUs, would suffer as their
territories, whether in whole or in part, are to be included in the intended
domain of the BJE. These petitioners allege that they did not vote for their
inclusion in the ARMM which would be expanded to form the BJE
territory. Petitioners' legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
Binay and Aquilino Pimentel III would have no standing as citizens and
taxpayers for their failure to specify that they would be denied some right
or privilege or there would be wastage of public funds. The fact that they
are a former Senator, an incumbent mayor of Makati City, and a resident
of Cagayan de Oro, respectively, is of no consequence. Considering their
invocation of the transcendental importance of the issues at hand,
however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing
as taxpayers, assert that government funds would be expended for the
conduct of an illegal and unconstitutional plebiscite to delineate the BJE
territory. On that score alone, they can be given legal standing. Their
allegation that the issues involved in these petitions are of "undeniable
transcendental importance" clothes them with added basis for their
personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his
being a member of the Senate and a citizen to enforce compliance by
respondents of the public's constitutional right to be informed of the MOA-
AD, as well as on a genuine legal interest in the matter in litigation, or in
the success or failure of either of the parties. He thus possesses the
requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman
of the 3rd district of Davao City, a taxpayer and a member of the Bagobo
tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter,
citizens and taxpayers; Marino Ridao, as taxpayer, resident and member
of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as
taxpayer, they failed to allege any proper legal interest in the present
petitions. Just the same, the Court exercises its discretion to relax the
procedural technicality on locus standi given the paramount public
interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace
and Development, an advocacy group for justice and the attainment of
peace and prosperity in Muslim Mindanao; and Muslim Legal
Assistance Foundation Inc., a non-government organization of Muslim
lawyers, allege that they stand to be benefited or prejudiced, as the case
may be, in the resolution of the petitions concerning the MOA-AD, and
prays for the denial of the petitions on the grounds therein stated. Such
legal interest suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot
with the satisfaction of all the reliefs prayed for by petitioners and the
subsequent pronouncement of the Executive Secretary that "[n]o matter
what the Supreme Court ultimately decides[,] the government will not sign
the MOA."92
In lending credence to this policy decision, the Solicitor General points
out that the President had already disbanded the GRP Peace Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and
academic" principle not being a magical formula that automatically
dissuades courts in resolving a case, it will decide cases, otherwise moot
and academic, if it finds that (a) there is a grave violation of the
Constitution;95 (b) the situation is of exceptional character and paramount
public interest is involved;96 (c) the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the
public;97 and (d) the case is capable of repetition yet evading review.98
Another exclusionary circumstance that may be considered is where
there is a voluntary cessation of the activity complained of by the
defendant or doer. Thus, once a suit is filed and the doer voluntarily
ceases the challenged conduct, it does not automatically deprive the
tribunal of power to hear and determine the case and does not render the
case moot especially when the plaintiff seeks damages or prays for
injunctive relief against the possible recurrence of the violation.99
The present petitions fall squarely into these exceptions to thus thrust
them into the domain of judicial review. The grounds cited above
in David are just as applicable in the present cases as they were, not only
in David, but also in Province of Batangas v. Romulo100 and Manalo v.
Calderon101 where the Court similarly decided them on the merits,
supervening events that would ordinarily have rendered the same moot
notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the
MOA-AD and the eventual dissolution of the GRP Peace Panel did not
moot the present petitions. It bears emphasis that the signing of the
MOA-AD did not push through due to the Court's issuance of a
Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered
a mere "list of consensus points," especially given its nomenclature,
the need to have it signed or initialed by all the parties concerned on
August 5, 2008, and the far-reaching Constitutional implications of
these "consensus points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is
a commitment on the part of respondents to amend and effect
necessary changes to the existing legal framework for certain
provisions of the MOA-AD to take effect. Consequently, the present
petitions are not confined to the terms and provisions of the MOA-AD, but
to other on-going and future negotiations and agreements necessary for
its realization. The petitions have not, therefore, been rendered moot and
academic simply by the public disclosure of the MOA-AD,102 the
manifestation that it will not be signed as well as the disbanding of the
GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount
public interest, involving a significant part of the country's territory and the
wide-ranging political modifications of affected LGUs. The assertion that
the MOA-AD is subject to further legal enactments including
possible Constitutional amendments more than ever provides
impetus for the Court to formulate controlling principles to guide
the bench, the bar, the public and, in this case, the government and
its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not
"pontificat[e] on issues which no longer legitimately constitute an actual
case or controversy [as this] will do more harm than good to the nation as
a whole."
The present petitions must be differentiated from Suplico. Primarily,
in Suplico, what was assailed and eventually cancelled was a stand-
alone government procurement contract for a national broadband
network involving a one-time contractual relation between two parties-the
government and a private foreign corporation. As the issues therein
involved specific government procurement policies and standard
principles on contracts, the majority opinion in Suplico found nothing
exceptional therein, the factual circumstances being peculiar only to the
transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series
of agreements necessary to carry out the Tripoli Agreement 2001. The
MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli
Agreement is the third such component to be undertaken following the
implementation of the Security Aspect in August 2001 and
the Humanitarian, Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of
August 28, 2008 to the Solicitor General, has stated that "no matter what
the Supreme Court ultimately decides[,] the government will not sign the
MOA[-AD]," mootness will not set in in light of the terms of the Tripoli
Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be
drawn up to carry out the Ancestral Domain Aspect of the Tripoli
Agreement 2001, in another or in any form, which could contain similar
or significantly drastic provisions. While the Court notes the word of the
Executive Secretary that the government "is committed to securing an
agreement that is both constitutional and equitable because that is the
only way that long-lasting peace can be assured," it is minded to render
a decision on the merits in the present petitions to formulate controlling
principles to guide the bench, the bar, the public and, most
especially, the government in negotiating with the MILF regarding
Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then
Chief Justice Artemio Panganiban in Sanlakas v. Reyes104 in which he
stated that the doctrine of "capable of repetition yet evading review" can
override mootness, "provided the party raising it in a proper case has
been and/or continue to be prejudiced or damaged as a direct result of
their issuance." They contend that the Court must have jurisdiction over
the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this
Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan
v. GRP) is a petition for Injunction and Declaratory Relief, the Court will
treat it as one for Prohibition as it has far reaching implications and raises
questions that need to be resolved.105 At all events, the Court has
jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again
apply the doctrine immediately referred to as what it had done in a
number of landmark cases.106 There is a reasonable expectation that
petitioners, particularly the Provinces of North Cotabato, Zamboanga del
Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela,
and the Municipality of Linamon, will again be subjected to the same
problem in the future as respondents' actions are capable of repetition, in
another or any form.
It is with respect to the prayers for Mandamus that the petitions have
become moot, respondents having, by Compliance of August 7, 2008,
provided this Court and petitioners with official copies of the final draft of
the MOA-AD and its annexes. Too, intervenors have been furnished, or
have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are
basically two SUBSTANTIVE issues to be resolved, one relating to
the manner in which the MOA-AD was negotiated and finalized, the other
relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on
public consultation and the right to information when they negotiated and
later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of
public concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis
for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the
statutory right to examine and inspect public records, a right which was
eventually accorded constitutional status.
The right of access to public documents, as enshrined in both the 1973
Constitution and the 1987 Constitution, has been recognized as a self-
executory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled
that access to public records is predicated on the right of the people to
acquire information on matters of public concern since, undoubtedly, in a
democracy, the pubic has a legitimate interest in matters of social and
political significance.
x x x The incorporation of this right in the Constitution is a recognition of
the fundamental role of free exchange of information in a democracy.
There can be no realistic perception by the public of the nation's
problems, nor a meaningful democratic decision-making if they are
denied access to information of general interest. Information is needed to
enable the members of society to cope with the exigencies of the times.
As has been aptly observed: "Maintaining the flow of such information
depends on protection for both its acquisition and its dissemination since,
if either process is interrupted, the flow inevitably ceases." x x x111
In the same way that free discussion enables members of society to cope
with the exigencies of their time, access to information of general interest
aids the people in democratic decision-making by giving them a better
perspective of the vital issues confronting the nation112 so that they may
be able to criticize and participate in the affairs of the government in a
responsible, reasonable and effective manner. It is by ensuring an
unfettered and uninhibited exchange of ideas among a well-informed
public that a government remains responsive to the changes desired by
the people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter
of public concern114 faces no serious challenge. In fact, respondents
admit that the MOA-AD is indeed of public concern.115 In previous cases,
the Court found that the regularity of real estate transactions entered in
the Register of Deeds,116 the need for adequate notice to the public of the
various laws,117 the civil service eligibility of a public employee,118 the
proper management of GSIS funds allegedly used to grant loans to public
officials,119 the recovery of the Marcoses' alleged ill-gotten wealth,120 and
the identity of party-list nominees,121 among others, are matters of public
concern. Undoubtedly, the MOA-AD subject of the present cases is of
public concern, involving as it does the sovereignty and territorial
integrity of the State, which directly affects the lives of the public at
large.
Matters of public concern covered by the right to information include
steps and negotiations leading to the consummation of the contract. In
not distinguishing as to the executory nature or commercial character of
agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of
negotiations leading to the consummation of the
transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise,
the people can never exercise the right if no contract is
consummated, and if one is consummated, it may be too late for
the public to expose its defects.
Requiring a consummated contract will keep the public in the dark
until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes fait accompli. This negates
the State policy of full transparency on matters of public concern,
 a situation which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights.
We can allow neither an emasculation of a constitutional right, nor
a retreat by the State of its avowed "policy of full disclosure of all
its transactions involving public interest."122 (Emphasis and italics
in the original)
Intended as a "splendid symmetry"123 to the right to information under the
Bill of Rights is the policy of public disclosure under Section 28, Article II
of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of
all its transactions involving public interest.124
The policy of full public disclosure enunciated in above-quoted Section
28 complements the right of access to information on matters of public
concern found in the Bill of Rights. The right to information guarantees
the right of the people to demand information, while Section 28
recognizes the duty of officialdom to give information even if nobody
demands.125
The policy of public disclosure establishes a concrete ethical principle for
the conduct of public affairs in a genuinely open democracy, with the
people's right to know as the centerpiece. It is a mandate of the State to
be accountable by following such policy.126 These provisions are vital to
the exercise of the freedom of expression and essential to hold public
officials at all times accountable to the people.127
Whether Section 28 is self-executory, the records of the deliberations of
the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will
not be enunciated or will not be in force and effect until after
Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics
immediately but, of course, the implementing law will have to be
enacted by Congress, Mr. Presiding Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought
clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr.
Presiding Officer, did I get the Gentleman correctly as having said
that this is not a self-executing provision? It would require a
legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I
accepted an amendment from Commissioner Regalado, so that
the safeguards on national interest are modified by the clause "as
may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will
immediately take effect and Congress may provide for
reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier
that it should immediately influence the climate of the
conduct of public affairs but, of course, Congress here may no
longer pass a law revoking it, or if this is approved, revoking this
principle, which is inconsistent with this policy.129 (Emphasis
supplied)
Indubitably, the effectivity of the policy of public disclosure need not
await the passing of a statute. As Congress cannot revoke this
principle, it is merely directed to provide for "reasonable safeguards." The
complete and effective exercise of the right to information necessitates
that its complementary provision on public disclosure derive the same
self-executory nature. Since both provisions go hand-in-hand, it is absurd
to say that the broader130 right to information on matters of public concern
is already enforceable while the correlative duty of the State to disclose
its transactions involving public interest is not enforceable until there is an
enabling law. Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing
dialogue or process of communication between the government and the
people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive
and be responsive to the people's will.131Envisioned to be corollary to the
twin rights to information and disclosure is the design for feedback
mechanisms.
 MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will
the people be able to participate? Will the government
provide feedback mechanisms so that the people can
participate and can react where the existing media facilities
are not able to provide full feedback mechanisms to the
government? I suppose this will be part of the government
implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and
that is how these courses take place. There is a message and a
feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make
one last sentence?
I think when we talk about the feedback network, we are not
talking about public officials but also network of private
business o[r] community-based organizations that will be
reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary
community-based organizations. So I do not think we are afraid
that there will be another OMA in the making.132(Emphasis
supplied)
The imperative of a public consultation, as a species of the right to
information, is evident in the "marching orders" to respondents. The
mechanics for the duty to disclose information and to conduct public
consultation regarding the peace agenda and process is manifestly
provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3
declares that there is a need to further enhance the contribution of civil
society to the comprehensive peace process by institutionalizing the
people's participation.
One of the three underlying principles of the comprehensive peace
process is that it "should be community-based, reflecting the sentiments,
values and principles important to all Filipinos" and "shall be defined not
by the government alone, nor by the different contending groups only, but
by all Filipinos as one community."134 Included as a component of the
comprehensive peace process is consensus-building and empowerment
for peace, which includes "continuing consultations on both national and
local levels to build consensus for a peace agenda and process, and the
mobilization and facilitation of people's participation in the peace
process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite
to effectuate "continuing" consultations, contrary to respondents'
position that plebiscite is "more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the
PAPP, one of which is to "[c]onduct regular dialogues with the National
Peace Forum (NPF) and other peace partners to seek relevant
information, comments, recommendations as well as to render
appropriate and timely reports on the progress of the comprehensive
peace process."137 E.O. No. 3 mandates the establishment of the NPF to
be "the principal forum for the PAPP to consult with and seek advi[c]e
from the peace advocates, peace partners and concerned sectors of
society on both national and local levels, on the implementation of the
comprehensive peace process, as well as for government[-]civil society
dialogue and consensus-building on peace agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on
the peace agenda, as a corollary to the constitutional right to
information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to
carry out the pertinent consultation. The furtive process by which the
MOA-AD was designed and crafted runs contrary to and in excess of
the legal authority, and amounts to a whimsical, capricious, oppressive,
arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the
consultation in a particular way or manner. It may, however, require him
to comply with the law and discharge the functions within the authority
granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary to
respondents' retort in justifying the denial of petitioners' right to be
consulted. Respondents' stance manifests the manner by which they
treat the salient provisions of E.O. No. 3 on people's participation. Such
disregard of the express mandate of the President is not much different
from superficial conduct toward token provisos that border on classic lip
service.140 It illustrates a gross evasion of positive duty and a virtual
refusal to perform the duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is
not tenable under the premises. The argument defies sound reason when
contrasted with E.O. No. 3's explicit provisions on continuing consultation
and dialogue on both national and local levels. The executive order
even recognizes the exercise of the public's right even before the
GRP makes its official recommendations or before the government
proffers its definite propositions.141 It bear emphasis that E.O. No. 3 seeks
to elicit relevant advice, information, comments and recommendations
from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of
executive privilege in view of their unqualified disclosure of the official
copies of the final draft of the MOA-AD. By unconditionally complying with
the Court's August 4, 2008 Resolution, without a prayer for the
document's disclosure in camera, or without a manifestation that it was
complying therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991
declares it a State policy to "require all national agencies and offices to
conduct periodic consultations with appropriate local government units,
non-governmental and people's organizations, and other concerned
sectors of the community before any project or program is implemented
in their respective jurisdictions"142 is well-taken. The LGC chapter on
intergovernmental relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be
implemented by government authorities unlessthe consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation
sites have been provided, in accordance with the provisions of
the Constitution.143 (Italics and underscoring supplied)
In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy
and above-quoted provision of the LGU apply only to national programs
or projects which are to be implemented in a particular local community.
Among the programs and projects covered are those that are critical to
the environment and human ecology including those that may call for
the eviction of a particular group of people residing in the locality where
these will be implemented.145 The MOA-AD is one peculiar program
that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people,146 which could pervasively and
drastically result to the diaspora or displacement of a great number
of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples
(ICCs/IPs), whose interests are represented herein by petitioner Lopez
and are adversely affected by the MOA-AD, the ICCs/IPs have, under the
IPRA, the right to participate fully at all levels of decision-making in
matters which may affect their rights, lives and destinies.147 The MOA-AD,
an instrument recognizing ancestral domain, failed to justify its non-
compliance with the clear-cut mechanisms ordained in said Act,148 which
entails, among other things, the observance of the free and prior informed
consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise. The recognition of the
ancestral domain is the raison d'etre of the MOA-AD, without which all
other stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral domain, without
complying with the IPRA, which is cited as one of the TOR of the MOA-
AD, respondents clearly transcended the boundaries of their
authority. As it seems, even the heart of the MOA-AD is still subject to
necessary changes to the legal framework. While paragraph 7 on
Governance suspends the effectivity of all provisions requiring changes
to the legal framework, such clause is itself invalid, as will be discussed in
the following section.
Indeed, ours is an open society, with all the acts of the government
subject to public scrutiny and available always to public cognizance. This
has to be so if the country is to remain democratic, with sovereignty
residing in the people and all government authority emanating from
them.149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question
that they cannot all be accommodated under the present Constitution and
laws. Respondents have admitted as much in the oral arguments before
this Court, and the MOA-AD itself recognizes the need to amend the
existing legal framework to render effective at least some of its
provisions. Respondents, nonetheless, counter that the MOA-AD is free
of any legal infirmity because any provisions therein which are
inconsistent with the present legal framework will not be effective until the
necessary changes to that framework are made. The validity of this
argument will be considered later. For now, the Court shall pass upon
how
The MOA-AD is inconsistent with the Constitution and laws as
presently worded.
In general, the objections against the MOA-AD center on the extent of the
powers conceded therein to the BJE. Petitioners assert that the powers
granted to the BJE exceed those granted to any local government under
present laws, and even go beyond those of the present ARMM. Before
assessing some of the specific powers that would have been vested in
the BJE, however, it would be useful to turn first to a general idea that
serves as a unifying link to the different provisions of the MOA-AD,
namely, the international law concept of association. Significantly, the
MOA-AD explicitly alludes to this concept, indicating that the Parties
actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11
on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last
mentioned provision, however, that the MOA-AD most clearly uses it to
describe the envisioned relationship between the BJE and the Central
Government.
4. The relationship between the Central Government and the
Bangsamoro juridical entity shall be associative
characterized by shared authority and responsibility with a
structure of governance based on executive, legislative, judicial
and administrative institutions with defined powers and functions
in the comprehensive compact. A period of transition shall be
established in a comprehensive peace compact specifying the
relationship between the Central Government and the BJE.
(Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to
be defined more precisely in the still to be forged Comprehensive
Compact. Nonetheless, given that there is a concept of "association" in
international law, and the MOA-AD - by its inclusion of international law
instruments in its TOR- placed itself in an international legal context, that
concept of association may be brought to bear in understanding the use
of the term "associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power
voluntarily establish durable links. In the basic model, one state,
the associate, delegates certain responsibilities to the other,
the principal, while maintaining its international status as a
state. Free associations represent a middle ground between
integration and independence. x x x150 (Emphasis and
underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the
Federated States of Micronesia (FSM), formerly part of the U.S.-
administered Trust Territory of the Pacific Islands,151 are associated
states of the U.S. pursuant to a Compact of Free Association. The
currency in these countries is the U.S. dollar, indicating their very close
ties with the U.S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as states was
confirmed by the UN Security Council and by their admission to UN
membership.
According to their compacts of free association, the Marshall Islands and
the FSM generally have the capacity to conduct foreign affairs in their
own name and right, such capacity extending to matters such as the law
of the sea, marine resources, trade, banking, postal, civil aviation, and
cultural relations. The U.S. government, when conducting its foreign
affairs, is obligated to consult with the governments of the Marshall
Islands or the FSM on matters which it (U.S. government) regards as
relating to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM,
the U.S. government has the authority and obligation to defend them as if
they were part of U.S. territory. The U.S. government, moreover, has the
option of establishing and using military areas and facilities within these
associated states and has the right to bar the military personnel of any
third country from having access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free
association is understood as an international association between
sovereigns. The Compact of Free Association is a treaty which is
subordinate to the associated nation's national constitution, and each
party may terminate the association consistent with the right of
independence. It has been said that, with the admission of the U.S.-
associated states to the UN in 1990, the UN recognized that the
American model of free association is actually based on an underlying
status of independence.152
In international practice, the "associated state" arrangement has usually
been used as a transitional device of former colonies on their way to full
independence. Examples of states that have passed through the status of
associated states as a transitional phase are Antigua, St. Kitts-Nevis-
Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since
become independent states.153
Back to the MOA-AD, it contains many provisions which are consistent
with the international legal concept of association, specifically the
following: the BJE's capacity to enter into economic and trade relations
with foreign countries, the commitment of the Central Government to
ensure the BJE's participation in meetings and events in the ASEAN and
the specialized UN agencies, and the continuing responsibility of the
Central Government over external defense. Moreover, the BJE's right to
participate in Philippine official missions bearing on negotiation of border
agreements, environmental protection, and sharing of revenues
pertaining to the bodies of water adjacent to or between the islands
forming part of the ancestral domain, resembles the right of the
governments of FSM and the Marshall Islands to be consulted by the
U.S. government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the
Parties aimed to vest in the BJE the status of an associated state or,
at any rate, a status closely approximating it.
The concept of association is not recognized under the present
Constitution
No province, city, or municipality, not even the ARMM, is recognized
under our laws as having an "associative" relationship with the national
government. Indeed, the concept implies powers that go beyond anything
ever granted by the Constitution to any local or regional government. It
also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction
other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for
independence.
Even the mere concept animating many of the MOA-AD's provisions,
therefore, already requires for its validity the amendment of constitutional
provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the
Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.
SECTION 15. There shall be created autonomous regions in
Muslim Mindanao and in the Cordilleras consisting of provinces,
cities, municipalities, and geographical areas sharing common
and distinctive historical and cultural heritage, economic and
social structures, and other relevant characteristics within the
framework of this Constitution and the national sovereignty
as well as territorial integrity of the Republic of the
Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its
relationship with the national government being fundamentally different
from that of the ARMM. Indeed, BJE is a state in all but name as it
meets the criteria of a state laid down in the Montevideo
Convention,154 namely, a permanent population, a defined territory,
a government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever
any portion of Philippine territory, the spirit animating it - which has
betrayed itself by its use of the concept of association - runs counter to
the national sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the
national government and the BJE being itself contrary to the
present Constitution, it is not surprising that many of the specific
provisions of the MOA-AD on the formation and powers of the BJE
are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the
autonomous region shall be effective when approved by a majority of the
votes cast by the constituent units in a plebiscite called for the purpose,
provided that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the autonomous
region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous
region. But even assuming that it is covered by the term "autonomous
region" in the constitutional provision just quoted, the MOA-AD would still
be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to
2(d) and 2(e), the present geographic area of the ARMM and, in addition,
the municipalities of Lanao del Norte which voted for inclusion in the
ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar,
Tagoloan and Tangkal - are automatically part of the BJE without need of
another plebiscite, in contrast to the areas under Categories A and B
mentioned earlier in the overview. That the present components of the
ARMM and the above-mentioned municipalities voted for inclusion
therein in 2001, however, does not render another plebiscite
unnecessary under the Constitution, precisely because what these areas
voted for then was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as
follows:
SECTION 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act
of autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
(Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous
region, the MOA-AD would require an amendment that would expand the
above-quoted provision. The mere passage of new legislation pursuant to
sub-paragraph No. 9 of said constitutional provision would not suffice,
since any new law that might vest in the BJE the powers found in the
MOA-AD must, itself, comply with other provisions of the Constitution. It
would not do, for instance, to merely pass legislation vesting the BJE with
treaty-making power in order to accommodate paragraph 4 of the strand
on RESOURCES which states: "The BJE is free to enter into any
economic cooperation and trade relations with foreign countries:
provided, however, that such relationships and understandings do not
include aggression against the Government of the Republic of the
Philippines x x x." Under our constitutional system, it is only the President
who has that power. Pimentel v. Executive Secretary155 instructs:
In our system of government, the President, being the head of
state, is regarded as the sole organ and authority in external
relations and is the country's sole representative with
foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to
international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign
relations. In the realm of treaty-making, the President has the
sole authority to negotiate with other states. (Emphasis and
underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the
scheme envisioned in the MOA-AD is to be effected. That
constitutional provision states: "The State recognizes and promotes the
rights of indigenous cultural communities within the framework of national
unity and development." (Underscoring
supplied) An associative arrangement does not uphold national unity.
While there may be a semblance of unity because of the associative ties
between the BJE and the national government, the act of placing a
portion of Philippine territory in a status which, in international practice,
has generally been a preparation for independence, is certainly not
conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is
also inconsistent with prevailing statutory law, among which are
R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the
adoption of the definition of "Bangsamoro people" used in the MOA-
AD. Paragraph 1 on Concepts and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as
"Bangsamoros". The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu archipelago at
the time of conquest or colonization of its descendants whether
mixed or of full blood. Spouses and their descendants are
classified as Bangsamoro. The freedom of choice of the
Indigenous people shall be respected. (Emphasis and
underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in
the Article X, Section 3 of the Organic Act, which, rather than lumping
together the identities of the Bangsamoro and other indigenous peoples
living in Mindanao, clearly distinguishes between Bangsamoro people
and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural
community" refers to Filipino citizens residing in the
autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and
economic conditions distinguish them from other sectors of the
national community; and
(b) Bangsa Moro people. These are citizens who are believers
in Islam and who have retained some or all of their own
social, economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the
delineation and recognition of ancestral domains. The MOA-AD's manner
of delineating the ancestral domain of the Bangsamoro people is a clear
departure from that procedure. By paragraph 1 of Territory, the Parties
simply agree that, subject to the delimitations in the agreed Schedules,
"[t]he Bangsamoro homeland and historic territory refer to the land mass
as well as the maritime, terrestrial, fluvial and alluvial domains, and the
aerial domain, the atmospheric space above it, embracing the Mindanao-
Sulu-Palawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed
procedure, as illustrated in the following provisions thereof:
SECTION 52. Delineation Process. - The identification and
delineation of ancestral domains shall be done in accordance with
the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific
perimeter may be initiated by the NCIP with the consent of the
ICC/IP concerned, or through a Petition for Delineation filed with
the NCIP, by a majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral
domain boundaries including census of all community members
therein, shall be immediately undertaken by the Ancestral
Domains Office upon filing of the application by the ICCs/IPs
concerned. Delineation will be done in coordination with the
community concerned and shall at all times include genuine
involvement and participation by the members of the communities
concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall
include the testimony of elders or community under oath, and
other documents directly or indirectly attesting to the possession
or occupation of the area since time immemorial by such
ICCs/IPs in the concept of owners which shall be any one (1) of
the following authentic documents:
1) Written accounts of the ICCs/IPs customs and
traditions;
 2) Written accounts of the ICCs/IPs political structure and
institution;
3) Pictures showing long term occupation such as those
of old improvements, burial grounds, sacred places and
old villages;
4) Historical accounts, including pacts and agreements
concerning boundaries entered into by the ICCs/IPs
concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional
communal forests and hunting grounds;
9) Pictures and descriptive histories of traditional
landmarks such as mountains, rivers, creeks, ridges, hills,
terraces and the like; and
10) Write-ups of names and places derived from the
native dialect of the community.
e) Preparation of Maps. - On the basis of such investigation and
the findings of fact based thereon, the Ancestral Domains Office
of the NCIP shall prepare a perimeter map, complete with
technical descriptions, and a description of the natural features
and landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete
copy of the preliminary census and a report of investigation, shall
be prepared by the Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a
translation in the native language of the ICCs/IPs concerned shall
be posted in a prominent place therein for at least fifteen (15)
days. A copy of the document shall also be posted at the local,
provincial and regional offices of the NCIP, and shall be published
in a newspaper of general circulation once a week for two (2)
consecutive weeks to allow other claimants to file opposition
thereto within fifteen (15) days from date of such publication:
Provided, That in areas where no such newspaper exists,
broadcasting in a radio station will be a valid substitute: Provided,
further, That mere posting shall be deemed sufficient if both
newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from
publication, and of the inspection process, the Ancestral Domains
Office shall prepare a report to the NCIP endorsing a favorable
action upon a claim that is deemed to have sufficient proof.
However, if the proof is deemed insufficient, the Ancestral
Domains Office shall require the submission of additional
evidence: Provided, That the Ancestral Domains Office shall
reject any claim that is deemed patently false or fraudulent after
inspection and verification: Provided, further, That in case of
rejection, the Ancestral Domains Office shall give the applicant
due notice, copy furnished all concerned, containing the grounds
for denial. The denial shall be appealable to the NCIP: Provided,
furthermore, That in cases where there are conflicting claims
among ICCs/IPs on the boundaries of ancestral domain claims,
the Ancestral Domains Office shall cause the contending parties
to meet and assist them in coming up with a preliminary
resolution of the conflict, without prejudice to its full adjudication
according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the
present legal system, a discussion of not only the Constitution and
domestic statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines
"adopts the generally accepted principles of international law as
part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director
of Prisons,158 held that the Universal Declaration of Human Rights is part
of the law of the land on account of which it ordered the release on bail of
a detained alien of Russian descent whose deportation order had not
been executed even after two years. Similarly, the Court in Agustin v.
Edu159 applied the aforesaid constitutional provision to the 1968 Vienna
Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of
"peoples," understood not merely as the entire population of a State but
also a portion thereof. In considering the question of whether the people
of Quebec had a right to unilaterally secede from Canada, the Canadian
Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had
occasion to acknowledge that "the right of a people to self-determination
is now so widely recognized in international conventions that the principle
has acquired a status beyond ‘convention' and is considered a general
principle of international law."
Among the conventions referred to are the International Covenant on
Civil and Political Rights161 and the International Covenant on Economic,
Social and Cultural Rights162 which state, in Article 1 of both covenants,
that all peoples, by virtue of the right of self-determination, "freely
determine their political status and freely pursue their economic, social,
and cultural development."
The people's right to self-determination should not, however, be
understood as extending to a unilateral right of secession. A distinction
should be made between the right of internal and external self-
determination. REFERENCE RE SECESSION OF QUEBEC is again
instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that
the right to self-determination of a people is normally fulfilled
through internal self-determination - a people's pursuit of its
political, economic, social and cultural development within
the framework of an existing state. A right to external self-
determination (which in this case potentially takes the form
of the assertion of a right to unilateral secession) arises in
only the most extreme of cases and, even then, under
carefully defined circumstances. x x x
External self-determination can be defined as in the following
statement from the Declaration on Friendly Relations,
supra, as
The establishment of a sovereign and independent State, the
free association or integration with an independent State or
the emergence into any other political status freely
determined by a peopleconstitute modes of implementing the
right of self-determination by that people. (Emphasis added)
127. The international law principle of self-determination has
evolved within a framework of respect for the territorial
integrity of existing states. The various international documents
that support the existence of a people's right to self-determination
also contain parallel statements supportive of the conclusion that
the exercise of such a right must be sufficiently limited to prevent
threats to an existing state's territorial integrity or the stability of
relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which
the right to external self-determination can arise, namely, where a people
is under colonial rule, is subject to foreign domination or exploitation
outside a colonial context, and - less definitely but asserted by a number
of commentators - is blocked from the meaningful exercise of its right to
internal self-determination. The Court ultimately held that the population
of Quebec had no right to secession, as the same is not under colonial
rule or foreign domination, nor is it being deprived of the freedom to make
political choices and pursue economic, social and cultural development,
citing that Quebec is equitably represented in legislative, executive and
judicial institutions within Canada, even occupying prominent positions
therein.
The exceptional nature of the right of secession is further exemplified in
the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON
THE LEGAL ASPECTS OF THE AALAND ISLANDS
QUESTION.163 There, Sweden presented to the Council of the League of
Nations the question of whether the inhabitants of the Aaland Islands
should be authorized to determine by plebiscite if the archipelago should
remain under Finnish sovereignty or be incorporated in the kingdom of
Sweden. The Council, before resolving the question, appointed an
International Committee composed of three jurists to submit an opinion
on the preliminary issue of whether the dispute should, based on
international law, be entirely left to the domestic jurisdiction of Finland.
The Committee stated the rule as follows:
 x x x [I]n the absence of express provisions in international
treaties, the right of disposing of national territory is
essentially an attribute of the sovereignty of every State.
Positive International Law does not recognize the right of
national groups, as such, to separate themselves from the
State of which they form part by the simple expression of a
wish, any more than it recognizes the right of other States to
claim such a separation. Generally speaking, the grant or
refusal of the right to a portion of its population of
determining its own political fate by plebiscite or by some
other method, is, exclusively, an attribute of the sovereignty
of every State which is definitively constituted. A dispute
between two States concerning such a question, under normal
conditions therefore, bears upon a question which International
Law leaves entirely to the domestic jurisdiction of one of the
States concerned. Any other solution would amount to an
infringement of sovereign rights of a State and would involve the
risk of creating difficulties and a lack of stability which would not
only be contrary to the very idea embodied in term "State," but
would also endanger the interests of the international community.
If this right is not possessed by a large or small section of a
nation, neither can it be held by the State to which the national
group wishes to be attached, nor by any other State. (Emphasis
and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did
not refer to a question which is left by international law to the domestic
jurisdiction of Finland, thereby applying the exception rather than the rule
elucidated above. Its ground for departing from the general rule, however,
was a very narrow one, namely, the Aaland Islands agitation originated at
a time when Finland was undergoing drastic political transformation. The
internal situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions required for the
formation of a sovereign State did not exist. In the midst of revolution,
anarchy, and civil war, the legitimacy of the Finnish national government
was disputed by a large section of the people, and it had, in fact, been
chased from the capital and forcibly prevented from carrying out its
duties. The armed camps and the police were divided into two opposing
forces. In light of these circumstances, Finland was not, during the
relevant time period, a "definitively constituted" sovereign state. The
Committee, therefore, found that Finland did not possess the right to
withhold from a portion of its population the option to separate itself - a
right which sovereign nations generally have with respect to their own
populations.
Turning now to the more specific category of indigenous peoples, this
term has been used, in scholarship as well as international, regional, and
state practices, to refer to groups with distinct cultures, histories, and
connections to land (spiritual and otherwise) that have been forcibly
incorporated into a larger governing society. These groups are regarded
as "indigenous" since they are the living descendants of pre-invasion
inhabitants of lands now dominated by others. Otherwise stated,
indigenous peoples, nations, or communities are culturally distinctive
groups that find themselves engulfed by settler societies born of the
forces of empire and conquest.164 Examples of groups who have been
regarded as indigenous peoples are the Maori of New Zealand and the
aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated
within states do not have a general right to independence or secession
from those states under international law,165 but they do have rights
amounting to what was discussed above as the right to internal self-
determination.
In a historic development last September 13, 2007, the UN General
Assembly adopted the United Nations Declaration on the Rights of
Indigenous Peoples (UN DRIP) through General Assembly Resolution
61/295. The vote was 143 to 4, the Philippines being included among
those in favor, and the four voting against being Australia, Canada, New
Zealand, and the U.S. The Declaration clearly recognized the right of
indigenous peoples to self-determination, encompassing the right
to autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By
virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters
relating to their internal and local affairs, as well as ways and
means for financing their autonomous functions.
Article 5
 Indigenous peoples have the right to maintain and strengthen
their distinct political, legal, economic, social and cultural
institutions, while retaining their right to participate fully, if they so
choose, in the political, economic, social and cultural life of the
State.
Self-government, as used in international legal discourse pertaining to
indigenous peoples, has been understood as equivalent to "internal self-
determination."166 The extent of self-determination provided for in the UN
DRIP is more particularly defined in its subsequent articles, some of
which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be
subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention
of, and redress for:
(a) Any action which has the aim or effect of depriving them
of their integrity as distinct peoples, or of their cultural
values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing
them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim
or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite
racial or ethnic discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to
the improvement of their economic and social conditions,
including, inter alia, in the areas of education, employment,
vocational training and retraining, housing, sanitation, health and
social security.
2. States shall take effective measures and, where appropriate,
special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid
to the rights and special needs of indigenous elders, women,
youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories
and resources which they have traditionally owned,
occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or
use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these
lands, territories and resources. Such recognition shall be
conducted with due respect to the customs, traditions and land
tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories
of indigenous peoples, unless justified by a relevant public
interest or otherwise freely agreed with or requested by the
indigenous peoples concerned.
2. States shall undertake effective consultations with the
indigenous peoples concerned, through appropriate procedures
and in particular through their representative institutions, prior to
using their lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop
priorities and strategies for the development or use of their lands
or territories and other resources.
2. States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior
 to the approval of any project affecting their lands or territories
and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other
resources.
3. States shall provide effective mechanisms for just and fair
redress for any such activities, and appropriate measures shall be
taken to mitigate adverse environmental, economic, social,
cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition,
observance and enforcement of treaties, agreements and other
constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties,
agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing
or eliminating the rights of indigenous peoples contained in
treaties, agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples,
shall take the appropriate measures, including legislative
measures, to achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human
Rights, must now be regarded as embodying customary international law
- a question which the Court need not definitively resolve here - the
obligations enumerated therein do not strictly require the Republic to
grant the Bangsamoro people, through the instrumentality of the BJE, the
particular rights and powers provided for in the MOA-AD. Even the more
specific provisions of the UN DRIP are general in scope, allowing for
flexibility in its application by the different States.
There is, for instance, no requirement in the UN DRIP that States now
guarantee indigenous peoples their own police and internal security
force. Indeed, Article 8 presupposes that it is the State which will provide
protection for indigenous peoples against acts like the forced
dispossession of their lands - a function that is normally performed by
police officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of the State,
then surely the protection of rights less significant to them as such
peoples would also be the duty of States. Nor is there in the UN DRIP an
acknowledgement of the right of indigenous peoples to the aerial domain
and atmospheric space. What it upholds, in Article 26 thereof, is the right
of indigenous peoples to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples
to autonomy, does not obligate States to grant indigenous peoples the
near-independent status of an associated state. All the rights recognized
in that document are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying
for any State, people, group or person any right to engage in any
activity or to perform any act contrary to the Charter of the United
Nations or construed as authorizing or encouraging any
action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and
independent States.
Even if the UN DRIP were considered as part of the law of the land
pursuant to Article II, Section 2 of the Constitution, it would not suffice to
uphold the validity of the MOA-AD so as to render its compliance with
other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous
provisions that cannot be reconciled with the Constitution and the
laws as presently worded. Respondents proffer, however, that the
signing of the MOA-AD alone would not have entailed any violation of law
or grave abuse of discretion on their part, precisely because it stipulates
that the provisions thereof inconsistent with the laws shall not take effect
until these laws are amended. They cite paragraph 7 of the MOA-AD
strand on GOVERNANCE quoted earlier, but which is reproduced below
for convenience:
7. The Parties agree that the mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it
to occur effectively.
Any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon signing of a
 Comprehensive Compact and upon effecting the necessary
changes to the legal framework with due regard to non derogation
of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of
the MOA-AD from coming into force until the necessary changes to the
legal framework are effected. While the word "Constitution" is not
mentioned in the provision now under consideration or anywhere
else in the MOA-AD, the term "legal framework" is certainly broad
enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their
mere act of incorporating in the MOA-AD the provisions thereof regarding
the associative relationship between the BJE and the Central
Government, have already violated the Memorandum of Instructions
From The President dated March 1, 2001, which states that the
"negotiations shall be conducted in accordance with x x x the principles of
the sovereignty and territorial integrityof the Republic of the
Philippines." (Emphasis supplied) Establishing an associative relationship
between the BJE and the Central Government is, for the reasons already
discussed, a preparation for independence, or worse, an implicit
acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-
AD is defective because the suspensive clause is invalid, as discussed
below.
The authority of the GRP Peace Negotiating Panel to negotiate with the
MILF is founded on E.O. No. 3, Section 5(c), which states that there shall
be established Government Peace Negotiating Panels for negotiations
with different rebel groups to be "appointed by the President as her
official emissaries to conduct negotiations, dialogues, and face-to-face
discussions with rebel groups." These negotiating panels are to report to
the President, through the PAPP on the conduct and progress of the
negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to
the Moro Problem through its negotiations with the MILF, was not
restricted by E.O. No. 3 only to those options available under the laws as
they presently stand. One of the components of a comprehensive peace
process, which E.O. No. 3 collectively refers to as the "Paths to Peace,"
is the pursuit of social, economic, and political reforms which may require
new legislation or even constitutional amendments. Sec. 4(a) of E.O. No.
3, which reiterates Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the
comprehensive peace process comprise the processes known as
the "Paths to Peace". These component processes are
interrelated and not mutually exclusive, and must therefore be
pursued simultaneously in a coordinated and integrated fashion.
They shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal
armed conflicts and social unrest. This may require
administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of
respondents to address, pursuant to this provision of E.O. No. 3, the root
causes of the armed conflict in Mindanao. The E.O. authorized them to
"think outside the box," so to speak. Hence, they negotiated and were set
on signing the MOA-AD that included various social, economic, and
political reforms which cannot, however, all be accommodated within the
present legal framework, and which thus would require new legislation
and constitutional amendments.
The inquiry on the legality of the "suspensive clause," however, cannot
stop here, because it must be asked whether the President herself
may exercise the power delegated to the GRP Peace Panel under
E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not
possess. May the President, in the course of peace negotiations, agree to
pursue reforms that would require new legislation and constitutional
amendments, or should the reforms be restricted only to those solutions
which the present laws allow? The answer to this question requires a
discussion of the extent of the President's power to conduct peace
negotiations.
That the authority of the President to conduct peace negotiations with
rebel groups is not explicitly mentioned in the Constitution does not mean
that she has no such authority. In Sanlakas v. Executive Secretary,168 in
issue was the authority of the President to declare a state of rebellion - an
authority which is not expressly provided for in the Constitution. The
Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her
thesis into jurisprudence. There, the Court, by a slim 8-7 margin,
upheld the President's power to forbid the return of her exiled
predecessor. The rationale for the majority's ruling rested on the
President's
. . . unstated residual powers which are implied from
the grant of executive power and which are necessary
for her to comply with her duties under the
Constitution. The powers of the President are not
limited to what are expressly enumerated in the
article on the Executive Department and in scattered
provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the
regime of Mr. Marcos, for the result was a limitation of
specific powers of the President, particularly those
relating to the commander-in-chief clause, but not a
diminution of the general grant of executive power.
Thus, the President's authority to declare a state of rebellion
springs in the main from her powers as chief executive and,
at the same time, draws strength from her Commander-in-
Chief powers. x x x (Emphasis and underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly
included in her powers as Chief Executive and Commander-in-Chief. As
Chief Executive, the President has the general responsibility to promote
public peace, and as Commander-in-Chief, she has the more specific
duty to prevent and suppress rebellion and lawless violence.169
As the experience of nations which have similarly gone through internal
armed conflict will show, however, peace is rarely attained by simply
pursuing a military solution. Oftentimes, changes as far-reaching as a
fundamental reconfiguration of the nation's constitutional structure is
required. The observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last
ten years, conflict cessation without modification of the political
environment, even where state-building is undertaken through
technical electoral assistance and institution- or capacity-building,
is unlikely to succeed. On average, more than 50 percent of
states emerging from conflict return to conflict. Moreover, a
substantial proportion of transitions have resulted in weak or
limited democracies.
The design of a constitution and its constitution-making process
can play an important role in the political and governance
transition. Constitution-making after conflict is an opportunity to
create a common vision of the future of a state and a road map
on how to get there. The constitution can be partly a peace
agreement and partly a framework setting up the rules by which
the new democracy will operate.170
In the same vein, Professor Christine Bell, in her article on the nature and
legal status of peace agreements, observed that the typical way that
peace agreements establish or confirm mechanisms for demilitarization
and demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal and human
rights institutions.171
In the Philippine experience, the link between peace agreements and
constitution-making has been recognized by no less than the framers of
the Constitution. Behind the provisions of the Constitution on autonomous
regions172 is the framers' intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976 between the GRP and
the MNLF, signed by then Undersecretary of National Defense Carmelo
Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have
some more questions, I will reserve my right to ask them if they
are not covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy
already exists in the Muslim region; it is working very well; it
 has, in fact, diminished a great deal of the problems. So, my
question is: since that already exists, why do we have to go
into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo.
Commissioner Yusup Abubakar is right that certain definite
steps have been taken to implement the provisions of the
Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question
that this is merely a partial response to the Tripoli
Agreement itself and to the fuller standard of regional
autonomy contemplated in that agreement, and now by state
policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted
pursuant to them have, to the credit of their drafters, been partly
successful. Nonetheless, the Filipino people are still faced with the reality
of an on-going conflict between the Government and the MILF. If the
President is to be expected to find means for bringing this conflict to an
end and to achieve lasting peace in Mindanao, then she must be given
the leeway to explore, in the course of peace negotiations, solutions that
may require changes to the Constitution for their implementation. Being
uniquely vested with the power to conduct peace negotiations with rebel
groups, the President is in a singular position to know the precise nature
of their grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions
that she considers viable, but she may not be prevented from submitting
them as recommendations to Congress, which could then, if it is minded,
act upon them pursuant to the legal procedures for constitutional
amendment and revision. In particular, Congress would have the option,
pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose
the recommended amendments or revision to the people, call a
constitutional convention, or submit to the electorate the question of
calling such a convention.
While the President does not possess constituent powers - as those
powers may be exercised only by Congress, a Constitutional Convention,
or the people through initiative and referendum - she may submit
proposals for constitutional change to Congress in a manner that does
not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President
Marcos' act of directly submitting proposals for constitutional
amendments to a referendum, bypassing the interim National Assembly
which was the body vested by the 1973 Constitution with the power to
propose such amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld the
President's act, holding that "the urges of absolute necessity" compelled
the President as the agent of the people to act as he did, there being no
interim National Assembly to propose constitutional amendments.
Against this ruling, Justices Teehankee and Muñoz Palma vigorously
dissented. The Court's concern at present, however, is not with regard to
the point on which it was then divided in that controversial case, but on
that which was not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he
disagreed that the President may directly submit proposed constitutional
amendments to a referendum, implicit in his opinion is a recognition that
he would have upheld the President's action along with the majority had
the President convened the interim National Assembly and coursed his
proposals through it. Thus Justice Teehankee opined:
"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 decrees 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."176 (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the
President - in the course of conducting peace negotiations - may validly
consider implementing even those policies that require changes to the
Constitution, but she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that
body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to
directly propose amendments through initiative and referendum, the
President may also submit her recommendations to the people, not as a
formal proposal to be voted on in a plebiscite similar to what President
Marcos did in Sanidad, but for their independent consideration of whether
these recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the
President's suggestions to the people, for any further involvement in the
process of initiative by the Chief Executive may vitiate its character as a
genuine "people's initiative." The only initiative recognized by the
Constitution is that which truly proceeds from the people. As the Court
stated in Lambino v. COMELEC:177
"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."
It will be observed that the President has authority, as stated in her oath
of office,178 only to preserve and defend the Constitution. Such
presidential power does not, however, extend to allowing her to change
the Constitution, but simply to recommend proposed amendments or
revision. As long as she limits herself to recommending these changes
and submits to the proper procedure for constitutional amendments and
revision, her mere recommendation need not be construed as an
unconstitutional act.
The foregoing discussion focused on the President's authority to
propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted practice
for Presidents in this jurisdiction to propose new legislation. One of the
more prominent instances the practice is usually done is in the yearly
State of the Nation Address of the President to Congress. Moreover, the
annual general appropriations bill has always been based on the budget
prepared by the President, which - for all intents and purposes - is a
proposal for new legislation coming from the President.179
The "suspensive clause" in the MOA-AD viewed in light of the
above-discussed standards
Given the limited nature of the President's authority to propose
constitutional amendments, she cannot guaranteeto any third party that
the required amendments will eventually be put in place, nor even be
submitted to a plebiscite. The most she could do is submit these
proposals as recommendations either to Congress or the people, in
whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all
provisions thereof which cannot be reconciled with the present
Constitution and laws "shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to
the legal framework." This stipulation does not bear the marks of a
suspensive condition - defined in civil law as a future and uncertain event
- but of a term. It is not a question of whether the necessary changes to
the legal framework will be effected, but when. That there is no
uncertainty being contemplated is plain from what follows, for the
paragraph goes on to state that the contemplated changes shall be "with
due regard to non derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to
effect the changes to the legal framework contemplated in the MOA-AD -
which changes would include constitutional amendments, as discussed
earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would
be counted among the "prior agreements" from which there could
be no derogation.
What remains for discussion in the Comprehensive Compact would
merely be the implementing details for these "consensus points" and,
notably, the deadline for effecting the contemplated changes to the legal
framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with
the limits of the President's authority to propose constitutional
amendments, it being a virtual guarantee that the Constitution and the
laws of the Republic of the Philippines will certainly be adjusted to
conform to all the "consensus points" found in the MOA-AD. Hence, it
must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a
similar provision appearing in the 1996 final peace agreement between
the MNLF and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would
be implemented in two phases. Phase Icovered a three-year transitional
period involving the putting up of new administrative structures through
Executive Order, such as the Special Zone of Peace and Development
(SZOPAD) and the Southern Philippines Council for Peace and
Development (SPCPD), while Phase II covered the establishment of the
new regional autonomous government through amendment or repeal of
R.A. No. 6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the
structure of the expanded autonomous region envisioned by the parties.
To that extent, they are similar to the provisions of the MOA-AD. There is,
however, a crucial difference between the two agreements. While the
MOA-AD virtually guarantees that the "necessary changes to the
legal framework" will be put in place, the GRP-MNLF final peace
agreement states thus: "Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for incorporation in the
amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a
binding international law obligation on the part of the Philippines to
change its Constitution in conformity thereto, on the ground that it may be
considered either as a binding agreement under international law, or a
unilateral declaration of the Philippine government to the international
community that it would grant to the Bangsamoro people all the
concessions therein stated. Neither ground finds sufficient support in
international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have
included foreign dignitaries as signatories. In addition, representatives of
other nations were invited to witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that the MOA-AD would have
had the status of a binding international agreement had it been signed.
An examination of the prevailing principles in international law, however,
leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the
Lomé Accord case) of the Special Court of Sierra Leone is enlightening.
The Lomé Accord was a peace agreement signed on July 7, 1999
between the Government of Sierra Leone and the Revolutionary United
Front (RUF), a rebel group with which the Sierra Leone Government had
been in armed conflict for around eight years at the time of signing. There
were non-contracting signatories to the agreement, among which were
the Government of the Togolese Republic, the Economic Community of
West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN
Secretary-General and the Sierra Leone Government, another agreement
was entered into by the UN and that Government whereby the Special
Court of Sierra Leone was established. The sole purpose of the Special
Court, an international court, was to try persons who bore the greatest
responsibility for serious violations of international humanitarian law and
Sierra Leonean law committed in the territory of Sierra Leone since
November 30, 1996.
Among the stipulations of the Lomé Accord was a provision for the full
pardon of the members of the RUF with respect to anything done by them
in pursuit of their objectives as members of that organization since the
conflict began.
In the Lomé Accord case, the Defence argued that the Accord created
an internationally binding obligation not to prosecute the beneficiaries
of the amnesty provided therein, citing, among other things, the
participation of foreign dignitaries and international organizations in the
finalization of that agreement. The Special Court, however, rejected this
argument, ruling that the Lome Accord is not a treaty and that it can only
create binding obligations and rights between the parties in municipal
law, not in international law. Hence, the Special Court held, it is
ineffective in depriving an international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of
an internal armed conflict it is easy to assume and to argue
with some degree of plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document
formalizing the settlement is signed by foreign heads of state
or their representatives and representatives of international
organizations, means the agreement of the parties is
internationalized so as to create obligations in international
law.
xxxx
40. Almost every conflict resolution will involve the parties to the
conflict and the mediator or facilitator of the settlement, or
persons or bodies under whose auspices the settlement took
place but who are not at all parties to the conflict, are not
contracting parties and who do not claim any obligation from the
contracting parties or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful
authority of the State and the RUF which has no status of
statehood and is to all intents and purposes a faction within
the state. The non-contracting signatories of the Lomé
Agreement were moral guarantors of the principle that, in the
terms of Article XXXIV of the Agreement, "this peace
agreement is implemented with integrity and in good faith by
both parties". The moral guarantors assumed no legal
obligation. It is recalled that the UN by its representative
appended, presumably for avoidance of doubt, an understanding
of the extent of the agreement to be implemented as not including
certain international crimes.
42. An international agreement in the nature of a treaty must
create rights and obligations regulated by international law so that
a breach of its terms will be a breach determined under
international law which will also provide principle means of
enforcement. The Lomé Agreement created neither rights nor
obligations capable of being regulated by international
law. An agreement such as the Lomé Agreement which
brings to an end an internal armed conflict no doubt creates
a factual situation of restoration of peace that the
international community acting through the Security Council
may take note of. That, however, will not convert it to an
international agreement which creates an obligation
enforceable in international, as distinguished from
municipal, law. A breach of the terms of such a peace
agreement resulting in resumption of internal armed conflict or
creating a threat to peace in the determination of the Security
Council may indicate a reversal of the factual situation of peace to
be visited with possible legal consequences arising from the new
situation of conflict created. Such consequences such as action
by the Security Council pursuant to Chapter VII arise from the
situation and not from the agreement, nor from the obligation
imposed by it. Such action cannot be regarded as a remedy for
the breach. A peace agreement which settles
an internal armed conflict cannot be ascribed the same
status as one which settles an international armed conflict
which, essentially, must be between two or more warring
States. The Lomé Agreement cannot be characterised as an
international instrument. x x x" (Emphasis, italics and
underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of
States and international organizations not parties to the Agreement would
not have sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount
to a unilateral declaration of the Philippine State, binding under
international law, that it would comply with all the stipulations stated
therein, with the result that it would have to amend its Constitution
accordingly regardless of the true will of the people. Cited as authority for
this view is Australia v. France,181 also known as the Nuclear Tests Case,
decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the
legality of France's nuclear tests in the South Pacific. France refused to
appear in the case, but public statements from its President, and similar
statements from other French officials including its Minister of Defence,
that its 1974 series of atmospheric tests would be its last, persuaded the
ICJ to dismiss the case.182 Those statements, the ICJ held, amounted to a
legal undertaking addressed to the international community, which
required no acceptance from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French
government intended to be bound to the international community in
issuing its public statements, viz:
43. It is well recognized that declarations made by way
of unilateral acts, concerning legal or factual situations, may have
the effect of creating legal obligations. Declarations of this kind
may be, and often are, very specific. When it is the intention of
the State making the declaration that it should become
bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State
being thenceforth legally required to follow a course of
conduct consistent with the declaration. An undertaking of this
kind, if given publicly, and with an intent to be bound, even
though not made within the context of international negotiations,
is binding. In these circumstances, nothing in the nature of a quid
 pro quo nor any subsequent acceptance of the declaration, nor
even any reply or reaction from other States, is required for the
declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by
which the pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a
State may choose to take up a certain position in relation to
a particular matter with the intention of being bound-the
intention is to be ascertained by interpretation of the
act. When States make statements by which their freedom of
action is to be limited, a restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests
would be the last, the French Government conveyed to the
world at large, including the Applicant, its intention
effectively to terminate these tests. It was bound to assume
that other States might take note of these statements and
rely on their being effective. The validity of these statements
and their legal consequences must be considered within the
general framework of the security of international
intercourse, and the confidence and trust which are so essential
in the relations among States. It is from the actual substance of
these statements, and from the circumstances attending
their making, that the legal implications of the unilateral act
must be deduced. The objects of these statements are clear
and they were addressed to the international community as a
whole, and the Court holds that they constitute an
undertaking possessing legal effect. The Court considers *270
that the President of the Republic, in deciding upon the effective
cessation of atmospheric tests, gave an undertaking to the
international community to which his words were addressed. x x x
(Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of
a state representative may be construed as a unilateral declaration only
when the following conditions are present: the statements were clearly
addressed to the international community, the state intended to be bound
to that community by its statements, and that not to give legal effect to
those statements would be detrimental to the security of international
intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized
in a later case decided by the ICJ entitled Burkina Faso v. Mali,183 also
known as the Case Concerning the Frontier Dispute. The public
declaration subject of that case was a statement made by the President
of Mali, in an interview by a foreign press agency, that Mali would abide
by the decision to be issued by a commission of the Organization of
African Unity on a frontier dispute then pending between Mali and
Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of
Mali's President was not a unilateral act with legal implications. It clarified
that its ruling in the Nuclear Tests case rested on the peculiar
circumstances surrounding the French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral
act, account must be taken of all the factual circumstances in
which the act occurred. For example, in the Nuclear Tests
cases, the Court took the view that since the applicant States
were not the only ones concerned at the possible
continuance of atmospheric testing by the French
Government, that Government's unilateral declarations had
‘conveyed to the world at large, including the Applicant, its
intention effectively to terminate these tests‘ (I.C.J. Reports
1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could
not express an intention to be bound otherwise than by
unilateral declarations. It is difficult to see how it could have
accepted the terms of a negotiated solution with each of the
applicants without thereby jeopardizing its contention that
its conduct was lawful. The circumstances of the present
case are radically different. Here, there was nothing to hinder
the Parties from manifesting an intention to accept the
binding character of the conclusions of the Organization of
African Unity Mediation Commission by the normal method:
a formal agreement on the basis of reciprocity. Since no
agreement of this kind was concluded between the Parties, the
Chamber finds that there are no grounds to interpret the
declaration made by Mali's head of State on 11 April 1975 as a
unilateral act with legal implications in regard to the present case.
(Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have
amounted to a unilateral declaration on the part of the Philippine State to
the international community. The Philippine panel did not draft the same
with the clear intention of being bound thereby to the international
community as a whole or to any State, but only to the MILF. While there
were States and international organizations involved, one way or another,
in the negotiation and projected signing of the MOA-AD, they participated
merely as witnesses or, in the case of Malaysia, as facilitator. As held in
the Lomé Accord case, the mere fact that in addition to the parties to the
conflict, the peace settlement is signed by representatives of states and
international organizations does not mean that the agreement is
internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States,
not to give legal effect to such commitments would not be detrimental to
the security of international intercourse - to the trust and confidence
essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD
are closer to that of Burkina Faso wherein, as already discussed, the Mali
President's statement was not held to be a binding unilateral declaration
by the ICJ. As in that case, there was also nothing to hinder the
Philippine panel, had it really been its intention to be bound to other
States, to manifest that intention by formal agreement. Here, that formal
agreement would have come about by the inclusion in the MOA-AD of a
clear commitment to be legally bound to the international community, not
just the MILF, and by an equally clear indication that the signatures of the
participating states-representatives would constitute an acceptance of
that commitment. Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine government before the
international community, which was one of the difficulties that prevented
the French Government from entering into a formal agreement with other
countries. That the Philippine panel did not enter into such a formal
agreement suggests that it had no intention to be bound to the
international community. On that ground, the MOA-AD may not
be considered a unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents' almost consummated act
of guaranteeing amendments to the legal framework is, by itself,
sufficient to constitute grave abuse of discretion. The grave abuse
lies not in the fact that they considered, as a solution to the Moro
Problem, the creation of a state within a state, but in their
brazen willingness to guarantee that Congress and the sovereign
Filipino people would give their imprimatur to their solution.
Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention,
or the people themselves through the process of initiative, for the only
way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a
portion of its own territory to the Moros for the sake of peace, for it can
change the Constitution in any it wants, so long as the change is not
inconsistent with what, in international law, is known as Jus
Cogens.184 Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to
consult the local government units or communities affected constitutes a
departure by respondents from their mandate under E.O. No. 3.
Moreover, respondents exceeded their authority by the mere act of
guaranteeing amendments to the Constitution. Any alleged violation of
the Constitution by any branch of government is a proper matter for
judicial review.
As the petitions involve constitutional issues which are of paramount
public interest or of transcendental importance, the Court grants the
petitioners, petitioners-in-intervention and intervening respondents the
requisite locus standi in keeping with the liberal stance adopted in David
v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-
AD and the eventual dissolution of the GRP Peace Panel mooted the
present petitions, the Court finds that the present petitions provide an
exception to the "moot and academic" principle in view of (a) the grave
violation of the Constitution involved; (b) the exceptional character of the
situation and paramount public interest; (c) the need to formulate
controlling principles to guide the bench, the bar, and the public; and (d)
the fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to
carry out the GRP-MILF Tripoli Agreement on Peace signed by the
government and the MILF back in June 2001. Hence, the present MOA-
AD can be renegotiated or another one drawn up that could contain
similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been
rendered moot in view of the respondents' action in providing the Court
and the petitioners with the official copy of the final draft of the MOA-AD
and its annexes.
The people's right to information on matters of public concern under Sec.
7, Article III of the Constitution is in splendid symmetry with the state
policy of full public disclosure of all its transactions involving public
interest under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand information,
while Section 28 recognizes the duty of officialdom to give information
even if nobody demands. The complete and effective exercise of the right
to information necessitates that its complementary provision on public
disclosure derive the same self-executory nature, subject only to
reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern
involving public interest in the highest order. In declaring that the right to
information contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no distinction as to the
executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing
dialogue or process of communication between the government and the
people. Corollary to these twin rights is the design for feedback
mechanisms. The right to public consultation was envisioned to be a
species of these public rights.
At least three pertinent laws animate these constitutional imperatives and
justify the exercise of the people's right to be consulted on relevant
matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing
consultations on both national and local levels and for a principal forum
for consensus-building. In fact, it is the duty of the Presidential Adviser on
the Peace Process to conduct regular dialogues to seek relevant
information, comments, advice, and recommendations from peace
partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991
requires all national offices to conduct consultations before any project or
program critical to the environment and human ecology including those
that may call for the eviction of a particular group of people residing in
such locality, is implemented therein. The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively and
drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of
1997 provides for clear-cut procedure for the recognition and delineation
of ancestral domain, which entails, among other things, the observance
of the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the
Executive Department or any government agency the power to delineate
and recognize an ancestral domain claim by mere agreement or
compromise.
The invocation of the doctrine of executive privilege as a defense to the
general right to information or the specific right to consultation is
untenable. The various explicit legal provisions fly in the face of executive
secrecy. In any event, respondents effectively waived such defense after
it unconditionally disclosed the official copies of the final draft of the
MOA-AD, for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave
abuse of discretion when he failed to carry out the pertinent consultation
process, as mandated by E.O. No. 3, Republic Act No. 7160, and
Republic Act No. 8371. The furtive process by which the MOA-AD was
designed and crafted runs contrary to and in excess of the legal authority,
and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof. It illustrates a gross evasion of positive duty
and a virtual refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and
laws. Not only its specific provisions but the very concept underlying
them, namely, the associative relationship envisioned between the GRP
and the BJE, are unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way to
independence.
While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until
that framework is amended, the same does not cure its defect. The
inclusion of provisions in the MOA-AD establishing an associative
relationship between the BJE and the Central Government is, itself, a
violation of the Memorandum of Instructions From The President dated
March 1, 2001, addressed to the government peace panel. Moreover, as
 the clause is worded, it virtually guarantees that the necessary RENATO C. CORONA ADOLFO S. AZCUNA
amendments to the Constitution and the laws will eventually be put in Associate Justice Associate Justice
place. Neither the GRP Peace Panel nor the President herself is
authorized to make such a guarantee. Upholding such an act would DANTE O. TINGA MINITA V. CHICO-NAZARIO
amount to authorizing a usurpation of the constituent powers vested only Associate Justice Associate Justice
in Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the Executive can PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
ensure the outcome of the amendment process is through an undue Associate Justice Associate Justice
influence or interference with that process.
RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO
While the MOA-AD would not amount to an international agreement or Associate Justice Associate Justice
unilateral declaration binding on the Philippines under international law,
respondents' act of guaranteeing amendments is, by itself, already a ARTURO D. BRION
constitutional violation that renders the MOA-AD fatally defective. Associate Justice

WHEREFORE, respondents' motion to dismiss is DENIED. The main and

intervening petitions are GIVEN DUE COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the
GRP-MILF Tripoli Agreement on Peace of 2001 is declared contrary to
law and the Constitution.
SO ORDERED.
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby
certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of
the Court.

CONCHITA CARPIO MORALES REYNATO S. PUNO

Associate Justice Chief Justice

WE CONCUR: Separate Concurring Opinion - C.J. Puno, J. Ynares-Santiago, J.

Carpio
REYNATO S. PUNO Separate Concurring and Dissenting Opinion - J. Leonardo-De
Chief Justice Castro, J. Brion
Separate Opinion - J. Azcuna, J. Tinga, J. Chico-Nazario, J. Reyes
LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO Dissenting Opinion - J. Velasco, Jr., J. Nachura
Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice
Footnotes
1Eric Gutierrez and Abdulwahab Guialal, The Unfinished Jihad:
The Moro Islamic Liberation Front and Peace in Mindanao in
Rebels, Warlords and Ulama: A Reader on Muslim Separatism
and the War in Southern Philippines 275 (1999).
2Memorandum of Respondents dated September 24, 2008, p.
10.
3Memorandum of Respondents dated September 24, 2008, pp.
10-11.
4Vide Salah Jubair, The Long Road to Peace: Inside the GRP-
MILF Peace Process 35-36 (2007).
5Memorandum of Respondents dated September 24, 2008, p.
12.
6Vide Salah Jubair, The Long Road to Peace: Inside the GRP-
MILF Peace Process 40-41 (2007).
7Composed of its Chairperson, Sec. Rodolfo Garcia, and
members, Atty. Leah Armamento, Atty. Sedfrey Candelaria, with
Mark Ryan Sullivan as Secretariat head.
8Represented by Governor Jesus Sacdalan and/or Vice-
Governor Emmanuel Piñol.
9 Rollo (G.R. No. 183591), pp. 3-33.
10Supplement to Petition (with motion for leave) of August 11,
2008, rollo (G.R. No. 183591), pp. 143-162.
11 Rollo (G.R. No. 183752), pp. 3-28.
12 Represented by Mayor Celso L. Lobregat.
13Rollo (G.R. No. 183591), pp. 132-135; rollo (G.R. No. 183752),
pp. 68-71.
14Rollo (G.R. No. 183591), pp. 130-131; rollo (G.R. No. 183752),
pp. 66-67.
15 Rollo (G.R. No. 183752), pp. 173-246.
16 Represented by Mayor Lawrence Lluch Cruz.
17 Represented by Governor Rolando Yebes.
18Namely, Seth Frederick Jaloslos, Fernando Cabigon, Jr.,
Uldarico Mejorada II, Edionar Zamoras, Edgar Baguio, Cedric
Adriatico, Felixberto Bolando, Joseph Brendo Ajero, Norbideiri
Edding, Anecito Darunday, Angelica Carreon, and Luzviminda
Torrino.
19 Rollo (G.R. No. 183951), pp. 3-33.
20 Rollo (G.R. No. 183962), pp. 3- 20.
21 Represented by Mayor Cherrylyn Santos-Akbar.
22 Represented by Gov. Suharto Mangudadatu.
23 Represented by Mayor Noel Deano.
24 Rollo (G.R. No. 183591), pp. 451-453.
25R.A. No. 6734, as amended by R.A. 9054 entitled An Act to
Strengthen and Expand the organic act for the Autonomous
Region in Muslim Mindanao, Amending for the purpose republic
act no. 6734, entitled an act of providing for the autonomous
region in muslim mindanao, as amended.
26 R.A. No. 8371, An act to recognize, protect and promote the
rights of indigenous cultural communities/indigenous peoples,
creating a national commission on indigenous peoples,
establishing implementing mechanisms, appropriating funds
therefor, and for other purposes, October 29, 1997.
27Cesar Adib Majul, The General Nature of Islamic Law and its
Application in the Philippines, lecture delivered as part of the
Ricardo Paras Lectures, a series jointly sponsored by the
Commission on Bar Integration of the Supreme Court, the
Integrated Bar of the Philippines and the U.P. Law Center,
September 24, 1977.
28 Ibid., vide M.A. Muqtedar Khan Ph.D., immigrant American 33 Id., par. 3.
Muslims and the Moral Dilemmas of
Citizenship, http://www.islamfortoday.com/khan04.htm, visited on 34 Id., par. 4.
September 18, 2008, and Syed Shahabuddin, Muslim World and
the contemporary Ijma' on rules of governance - Francisco L. Gonzales, Sultans of a Violent Land, in Rebels,
35
ii, http://www.milligazette.com/Archives/2004/01-15May04-Print- Warlords and Ulama: A Reader on Muslim Separatism and the
Edition/0105200471.htm, visited on September 18, 2008. War in Southern Philippines 99, 103 (1999).
29 MOA-AD Terms of Reference. 36The Charter of the Assembly of First Nations, the leading
advocacy group for the indigenous peoples of Canada, adopted
30 MOA-AD, Concepts and Principles, par. 1. in 1985, begins thus:

31
A traditional Muslim historical account of the acts of Shariff "WE THE CHIEFS OF THE INDIAN FIRST NATIONS IN
Kabungsuwan is quoted by historian Cesar Adib Majul in his CANADA HAVING DECLARED:
book, Muslims in the Philippines (1973): THAT our peoples are the original peoples of this land
having been put here by the Creator; x x x."
After a time it came to pass that Mamalu, who was the
chief man next to Kabungsuwan, journeyed to Cotabato. 37 Id., par. 6.
He found there that many of the people had ceased to
regard the teachings of the Koran and had fallen into evil 38 MOA-AD, Territory, par. 1.
ways. Mamamlu sent to Kabungsuwan word of these
things. 39 Id., par. 2(c).
Kabungsuwan with a portion of his warriors went from 40 Id., par. 2(d).
Malabang to Cotabato and found that the word sent to
him by Mamamlu was true. Then he assembled together
all the people. Those of them, who had done evilly and
41 Id., par. 2(e).
disregarded the teachings of the Koran thenceforth, he
drove out of the town into the hills, with their wives and
42 Id., par. 2(f).
children.
43 Id., par, 2(g)(1).
Those wicked one who were thus cast out were the
beginnings of the tribes of the Tirurais and Manobos, who 44 Id., par. 2(h).
live to the east of Cotabato in the country into which their
evil forefathers were driven. And even to this day they 45 Id., par. 2(i).
worship not God; neither do they obey the teachings of
the Koran . . . But the people of Kabungsuwan, who 46 MOA-AD, Resources, par. 4.
regarded the teachings of the Koran and lived in fear of
God, prospered and increased, and we Moros of today 47 Ibid.
are their descendants. (Citation omitted, emphasis
supplied). 48 Id., par. 5.
32 Id., par. 2. 49 Id., par. 6.
50 Id., par. 7. 68 Id. at 292.

51 Id., par. 9. 69 505 U.S. 144 (1992).

52 MOA-AD, Governance, par. 3. 70 Id. at 175.

53"IN WITNESS WHEREOF, the undersigned, being the
representatives of the Parties[,] hereby affix their signatures."
54 Vide 1987 Constitution, Article VIII, Section 1.
55 Vide Muskrat v. US, 219 US 346 (1911).
56 Flast v. Cohen, 88 S.Ct. 1942, 1950 (1968).
57Didipio Earth Savers' Multi-Purpose Association, Incorporated
(DESAMA) v. Gozun, G.R. No. 157882, March 30, 2006, 485
71Although only one petition is denominated a petition for
certiorari, most petitions pray that the MOA-AD be declared
unconstitutional/null and void.
72 Vide Rules of Court, Rule 65, Secs. 1 and 2.
73 Vide Rules of Court, Rule 65, Sec. 3.
74 Tañada v. Angara, 338 Phil. 546, 575 (1997).
Entitled Defining Policy and Administrative Structure for
75

SCRA 286. Government's Peace Efforts which reaffirms and reiterates

Executive Order No. 125 of September 15, 1993.
58 Vide U.S. v. Muskrat, 219 U.S. 346, 357 (1902).
76 E.O. No. 3, (2001), Sec. 1.
59Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 427-428
(1998). 77 Vide Tañada v. Angara, supra note 74.

60Francisco, Jr. v. House of Representatives, 460 Phil. 830, 901- 78 Baker v. Carr, 369 U.S. 186 (1962).
902 (2003) (citation omitted).
Vicente V. Mendoza , Judicial Review of Constitutional
79

61 Vide Warth v. Seldin, 422 US 490, 511 (1975). Questions 137 (2004).

62 Vide id. at 526. 80Francisco, Jr. v. The House of Representatives, 460 Phil. 830,
896 (2003).
63 Solicitor General's Comment to G.R. No. 183752, pp. 9-11.
81David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006,
64 MOA-AD, pp. 3-7, 10. 489 SCRA 160, 223.

65 391 Phil. 43 (2000). 82 Kilosbayan, Inc. v. Morato, 320 Phil. 171 (1995).

66 Id. at 107-108. 83Macasiano v. NHA, G.R. No. 107921, July 1, 1993, 224 SCRA
236.
67 530 US 290 (2000).
84Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307, 100 Supra note 87.
328-329 (2000) citing Phil. Constitution Ass'n., Inc. v. Mathay, et
al., 124 Phil. 890 (1966). 101 G.R. No. 178920, October 15, 2007, 536 SCRA 290.

85 Vide NAACP v. Alabama, 357 U.S. 449 (1958). 102 Chavez v. PCGG, 366 Phil. 863, 871 (1999).
86 Francisco, Jr. v. The House of Representatives, supra note 80. 103 G.R. No. 178830, July 14, 2008.

87Province of Batangas v. Romulo, G.R. No. 152774, May 27, 104 Supra note 98.
2004, 429 SCRA 736.
Ortega v. Quezon City Government, G.R. No. 161400,
105
88Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 September 2, 2005, 469 SCRA 388.
(1999) citing Gibson v. Judge Revilla, 180 Phil. 645 (1979).
Alunan III v. Mirasol, 342 Phil. 476 (1997); Viola v. Alunan III,
106
89 Supra note 81. 343 Phil. 184 (1997); Chief Superintendent Acop v. Guingona, Jr.,
supra note 98; Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509,
90Integrated Bar of the Phils. v. Hon. Zamora, 392 Phil. 618 August 22, 2006, 499 SCRA 434, 447.
(2000).
107 Constitution, Article III, Sec. 7.
91 Tatad v. Secretary of Energy, 346 Phil. 321 (1997).
108 80 Phil. 383 (1948).
92 Vide Compliance of September 1, 2008 of respondents.
Legaspi v. Civil Service Commission, G.R. No. L-72119, May
109

93 Vide Manifestation of September 4, 2008 of respondents. 29, 1987, 150 SCRA 530.

94 Supra note 81. 110 162 Phil. 868 (1976).

95 Id. citing Province of Batangas v. Romulo, supra note 87. 111 Baldoza v. Dimaano, supra at 876.

96 Id. citing Lacson v. Perez, 410 Phil. 78 (2001). 112 Legaspi v. Civil Service Commission, supra note 109.

97 Id. citing Province of Batangas v. Romulo, supra note 87. 113 Chavez v. PCGG, 360 Phil 133, 164 (1998).

Id. citing Albaña v. Comelec, 478 Phil. 941 (2004); Chief Supt.
98
Acop v. Guingona Jr., 433 Phil. 62 (2002); SANLAKAS v.
Executive Secretary Reyes, 466 Phil. 482 (2004).
99US v. W.T. Grant Co., 345 U.S. 629 (1953); US v. Trans-
Missouri Freight Assn, 166 U.S. 290, 308-310 (1897); Walling v.
Helmerich & Payne, Inc., 323 U.S. 37, 43 (1944); Gray v.
Sanders, 372 U.S. 368, 376 (1963); Defunis v. Odegaard, 416
U.S. 312 (1974).
114 In Legaspi v. Civil Service Commission, supra note 109 at 541,
it was held that:
In determining whether or not a particular information is of public
concern there is no rigid test which can be applied. `Public
concern' like `public interest' is a term that eludes exact definition.
Both terms embrace a broad spectrum of subjects which the
public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the
interest of an ordinary citizen. In the final analysis, it is for the
courts to determine on a case by case basis whether the matter
at issue is of interest or importance, as it relates to or affects the
public.
115 Respondents' Comment of August 4, 2008, p. 9.
129V Record, Constitutional Commission 28-29 (September 24,
1986). The phrase "safeguards on national interest" that may be
provided by law was subsequently replaced by "reasonable
conditions," as proposed by Commissioner Davide [vide V
Record, Constitutional Commission 30 (September 24, 1986)].
In Chavez v. National Housing Authority, G.R. No. 164527,
130

116 Subido v. Ozaeta, supra note 108. August 15, 2007, 530 SCRA 235, 331, the Court stated:

117Tañada, et al. v. Hon. Tuvera, et al., 220 Phil. 422 x x x The duty to disclose covers only transactions
(1985); Tañada, v. Hon. Tuvera, 230 Phil. 528 (1986). involving public interest, while the duty to allow access
has a broader scope of information which embraces not
118 Legaspi v. Civil Service Commission, supra note 109. only transactions involving public interest, but any matter
contained in official communications and public
documents of the government agency. (Underscoring
Valmonte v. Belmonte, Jr., G.R. No. 74930, February 13,
119
supplied)
1989, 170 SCRA 256.
131 Valmonte v. Belmonte, Jr., supra note 119.
Chavez v. PCGG, supra note 113; Chavez v. PCGG, supra
120

note 102.
V Record, Constitutional Commission 28, 30 (September 24,
132

1986).
121Bantay Republic Act or BA-RA 7941 v. Commission on
Elections, G.R. 177271, May 4, 2007, 523 SCRA 1.
133 Supra note 55.
122Chavez v. Public Estates Authority, 433 Phil. 506, 532-533
(2002).
134 Executive Order No. 3 (2001), Sec. 3 (a).

Vide V Record, Constitutional Commission 26-28 (September

123
135 Executive Order No. 3 (2001), Sec. 4 (b).
24, 1986) which is replete with such descriptive phrase used by
Commissioner Blas Ople. 136 Respondents' Memorandum of September 24, 2008, p. 44.

124 Constitution, Article II, Sec. 28. 137 Executive Order No. 3 (2001), Sec. 5 (b), par. 6.

Bernas, Joaquin, The 1987 Constitution of the Republic of the

125 138 Executive Order No. 3 (2001), Sec. 8, see also Sec. 10.
Philippines: A Commentary 100 (2003).
139Cf. Garcia v. Board of Investments, G.R. No. 88637,
Vide Bernas, Joaquin, The Intent of the 1986 Constitution
126 September 7, 1989, 177 SCRA 374, 382-384 where it was held
Writers 155 (1995). that the Omnibus Investment Code of 1987 mandates the holding
of consultations with affected communities, whenever necessary,
127 Vide Chavez v. Public Estates Authority, supra note 122. on the acceptability of locating the registered enterprise within the
community.
V Record, Constitutional Commission 25 (September 24,
128

1986).
 In their Memorandum, respondents made allegations
140
purporting to show that consultations were conducted on August
30, 2001 in Marawi City and Iligan City, on September 20, 2001 in
Midsayap, Cotabato, and on January 18-19, 2002 in Metro
Manila. (Memorandum of September 24, 2008, p. 13)
141 Cf. Chavez v. Public Estates Authority, supra note 120.
142 Republic Act No. 7160, Sec. 2(c).
143 Republic Act No. 7160, Sec. 27.
144 416 Phil. 438 (2001).
Id.; vide Alvarez v. PICOP Resources, Inc., G.R. No. 162243,
145
November 29, 2006, 508 SCRA 498; Cf. Bangus Fry Fisherfolk v.
Lanzanas, 453 Phil. 479 (2002).
146Vide MOA-AD "Concepts and Principles," pars. 2 & 7 in
relation to "Resources," par. 9 where vested property rights are
made subject to the cancellation, modification and review by the
Bangsamoro Juridical Entity.
147Republic Act No. 8371 or "The Indigenous Peoples Rights Act
of 1997," Sec. 16.
148 Id., Sec. 3 (g), Chapter VIII, inter alia.
Tañada v. Tuvera, No. L-63915, December 29, 1986, 146
149
SCRA 446, 456.
150C.I. Keitner and W.M. Reisman, Free Association: The United
States Experience, 39 Tex. Int'l L.J. 1 (2003).
151"The former Trust Territory of the Pacific Islands is made up of
the Caroline Islands, the Marshall Islands, and the Northern
Mariana Islands, which extend east of the Philippines and
northeast of Indonesia in the North Pacific Ocean." (Ibid.)
152 H. Hills, Free Association for Micronesia and the Marshall
islands: A Political Status Model, 27 U. Haw. L. Rev. 1 (2004).
Henkin, et al., International Law: Cases and Materials, 2nd ed.,
153
274 (1987).
154Convention on Rights and Duties of States, Dec. 26, 1933, 49
Stat. 3097, 165 L.N.T.S. 19.
155 G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632.
An Act to Strengthen and Expand the Organic Act for the
156
Autonomous Region in Muslim Mindanao, Amending for the
purpose Republic Act No. 6734, Entitled ‘An Act Providing for the
Autonomous Region in Muslim Mindanao,' as Amended, March
31, 2001.
157An Act To Recognize, Protect And Promote The Rights Of
Indigenous Cultural Communities/Indigenous Peoples, Creating A
National Commission On Indigenous Peoples, Establishing
Implementing Mechanisms, Appropriating Funds Therefor, And
For Other Purposes, October 29, 1997.
158 90 Phil. 70, 73-74 (1951).
159 177 Phil. 160, 178-179 (1979).
160 2 S.C.R. 217 (1998).
161 999 U.N.T.S. 171 (March 23, 1976).
162 993 U.N.T.S. 3 (January 3, 1976).
League of Nations Official Journal, Special Supp. No. 3
163
(October 1920).
164Lorie M. Graham, Resolving Indigenous Claims To Self-
Determination, 10 ILSA J. Int'l & Comp. L. 385 (2004). Vide S.
James Anaya, Superpower Attitudes Toward Indigenous Peoples
And Group Rights, 93 Am. Soc'y Int'l L. Proc. 251 (1999): "In
general, the term indigenous is used in association with groups
that maintain a continuity of cultural identity with historical
communities that suffered some form of colonial invasion, and
that by virtue of that continuity of cultural identity continue to
distinguish themselves from others."
165 Catherine J. Iorns, Indigenous Peoples And Self 176 Id. at 413.
Determination: Challenging State Sovereignty, 24 Case W. Res.
J. Int'l L. 199 (1992). 177 G.R. No. 174153, October 25, 2006, 505 SCRA 160, 264-265.

166Federico Lenzerini, "Sovereignty Revisited: International Law
And Parallel Sovereignty Of Indigenous Peoples," 42 Tex. Int'l
L.J. 155 (2006). Vide Christopher J. Fromherz, Indigenous
Peoples' Courts: Egalitarian Juridical Pluralism, Self-
Determination, And The United Nations Declaration On The
Rights Of Indigenous Peoples, 156 U. Pa. L. Rev. 1341 (2008):
"While Australia and the United States made much of the
distinction between ‘self-government' and ‘self-determination' on
September 13, 2007, the U.S. statement to the UN on May 17,
2004, seems to use these two concepts interchangeably. And,
indeed, under the DRIP [Declaration on the Rights of Indigenous
Peoples], all three terms should be considered virtually
synonymous. Self-determination under the DRIP means ‘internal
self-determination' when read in conjunction with Article 46, and
‘self-government,' articulated in Article 4, is the core of the ‘self-
178 Constitution, Art. VII, Sec. 5.
179Article VI, Section 25 (1) of the Constitution states as follows:
"The Congress may not increase the appropriations
recommended by the President for the operation of the
Government as specified in the budget. The form, content, and
manner of preparation of the budget shall be prescribed by law."
Prosecutor v. Kallon and Kamara [Case No. SCSL-2004-15-
180
AR72(E), SCSL-2004-16-AR72(E), March 13, 2004].
181 1974 I.C.J. 253, 1974 WL 3 (I.C.J.).
M. Janis and J. Noyes, International Law, Cases and
182

determination.'" Commentary, 3rd ed. 280 (2006).

Defining The Approach And Administrative Structure For

167 183 1986 I.C.J. 554, 1986 WL 15621 (I.C.J.), December 22, 1986.
Government's Comprehensive Peace Efforts, September 15,
1993. 184
Planas v. COMELEC, 151 Phil. 217, 249 (1973).

168 466 Phil. 482, 519-520 (2004).

169 Constitution, Article VII, Sec. 18.

Kirsti Samuels, Post-Conflict Peace-Building And Constitution-

170

Making, 6 Chi. J. Int'l L. 663 (2006).

171Christine Bell, Peace Agreements: Their Nature And Legal

Status, 100 Am. J. Int'l L. 373 (2006).

172 Constitution, Article X, Sections 15-21.

173 III Record, Constitutional Commission, 180 (August 11, 1986).

174 165 Phil. 303 (1976).

175 Id. at 412.

 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,7Section 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 2. NOT A SINGLE CENTAVO WOULD BE SPENT BY
Constitution, not to revision thereof. Extending or lifting of THE NATIONAL GOVERNMENT IF THE COMELEC
term limits constitutes a revision and is, therefore, outside GRANTS THE PETITION OF RESPONDENT DELFIN.
the power of the people's initiative. ALL EXPENSES IN THE SIGNATURE GATHERING ARE
ALL FOR THE ACCOUNT OF RESPONDENT DELFIN
(6) Finally, Congress has not yet appropriated funds for AND HIS VOLUNTEERS PER THEIR PROGRAM OF
people's initiative; neither the COMELEC nor any other ACTIVITIES AND EXPENDITURES SUBMITTED TO
government department, agency, or office has realigned THE COMELEC. THE ESTIMATED COST OF THE
funds for the purpose. DAILY PER DIEM OF THE SUPERVISING SCHOOL
TEACHERS IN THE SIGNATURE GATHERING TO BE
To justify their recourse to us via the special civil action for prohibition, DEPOSITED and TO BE PAID BY DELFIN AND HIS
the petitioners allege that in the event the COMELEC grants the Delfin VOLUNTEERS IS P2,571,200.00;
Petition, the people's initiative spearheaded by PIRMA would entail
expenses to the national treasury for general re-registration of voters 3. THE PENDING PETITION BEFORE THE COMELEC
amounting to at least P180 million, not to mention the millions of IS ONLY ON THE SIGNATURE GATHERING WHICH BY
additional pesos in expenses which would be incurred in the conduct of LAW COMELEC IS DUTY BOUND "TO SUPERVISE
the initiative itself. Hence, the transcendental importance to the public CLOSELY" PURSUANT TO ITS "INITIATORY
and the nation of the issues raised demands that this petition for JURISDICTION" UPHELD BY THE HONORABLE
prohibition be settled promptly and definitely, brushing aside technicalities COURT IN ITS RECENT SEPTEMBER 26, 1996
of procedure and calling for the admission of a taxpayer's and legislator's DECISION IN THE CASE OF SUBIC BAY
suit. 14 Besides, there is no other plain, speedy, and adequate remedy in METROPOLITAN AUTHORITY VS. COMELEC, ET AL.
the ordinary course of law. G.R. NO. 125416;

On 19 December 1996, this Court (a) required the respondents to 4. REP. ACT NO. 6735 APPROVED ON AUGUST 4,
comment on the petition within a non-extendible period of ten days from 1989 IS THE ENABLING LAW IMPLEMENTING THE
notice; and (b) issued a temporary restraining order, effective POWER OF PEOPLE INITIATIVE TO PROPOSE
immediately and continuing until further orders, enjoining public AMENDMENTS TO THE CONSTITUTION. SENATOR
respondent COMELEC from proceeding with the Delfin Petition, and DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A
private respondents Alberto and Carmen Pedrosa from conducting a DUPLICATION OF WHAT ARE ALREADY PROVIDED
signature drive for people's initiative to amend the Constitution. FOR IN REP. ACT NO. 6735;

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.
5. COMELEC RESOLUTION NO. 2300 PROMULGATED
ON JANUARY 16, 1991 PURSUANT TO REP. ACT 6735
WAS UPHELD BY THE HONORABLE COURT IN THE
RECENT SEPTEMBER 26, 1996 DECISION IN THE
CASE OF SUBIC BAY METROPOLITAN AUTHORITY
VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE
HONORABLE COURT SAID: "THE COMMISSION ON
ELECTIONS CAN DO NO LESS BY SEASONABLY AND
JUDICIOUSLY PROMULGATING GUIDELINES AND
RULES FOR BOTH NATIONAL AND LOCAL USE, IN
IMPLEMENTING OF THESE LAWS."
 6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE
BILL NO. 1290 CONTAINS A PROVISION DELEGATING
TO THE COMELEC THE POWER TO "PROMULGATE
SUCH RULES AND REGULATIONS AS MAY BE
NECESSARY TO CARRY OUT THE PURPOSES OF
THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS
ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM
OF OFFICE OF ELECTIVE OFFICIALS PROVIDED
UNDER THE 1987 CONSTITUTION IS NOT A
"REVISION" OF THE CONSTITUTION. IT IS ONLY AN
AMENDMENT. "AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC
PROVISIONS OF THE CONSTITUTION. REVISION
CONTEMPLATES A RE-EXAMINATION OF THE
ENTIRE DOCUMENT TO DETERMINE HOW AND TO
WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-
413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY
JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf
a Comment 16 which starts off with an assertion that the instant petition is
a "knee-jerk reaction to a draft 'Petition for Initiative on the 1987
Constitution'. . . which is not formally filed yet." What he filed on 6
December 1996 was an "Initiatory Pleading" or "Initiatory Petition," which
was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under
COMELEC power and function. On the substantive allegations of the
petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law,
R.A. No. 6735, which governs the conduct of initiative to
amend the Constitution. The absence therein of a subtitle
for such initiative is not fatal, since subtitles are not
requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that
the proposition in an initiative to amend the Constitution
approved by the majority of the votes cast in the plebiscite
shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra
vires is contradicted by (a) Section 2, Article IX-C of the
Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative,
referendum, and recall; and (b) Section 20 of R.A. 6735,
which empowers the COMELEC to promulgate such rules
and regulations as may be necessary to carry out the
purposes of the Act.
(4) The proposed initiative does not involve a revision of,
but mere amendment to, the Constitution because it
seeks to alter only a few specific provisions of the
Constitution, or more specifically, only those which lay
term limits. It does not seek to reexamine or overhaul the
entire document.
As to the public expenditures for registration of voters, Delfin considers
petitioners' estimate of P180 million as unreliable, for only the COMELEC
can give the exact figure. Besides, if there will be a plebiscite it will be
simultaneous with the 1997 Barangay Elections. In any event, fund
requirements for initiative will be a priority government expense because
it will be for the exercise of the sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2
January 1997, the Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia,
people's initiative to amend the Constitution. Its Section 2
on Statement of Policy explicitly affirms, recognizes, and
guarantees that power; and its Section 3, which
enumerates the three systems of initiative, includes
initiative on the Constitution and defines the same as the
power to propose amendments to the Constitution.
Likewise, its Section 5 repeatedly mentions initiative on
the Constitution.
(2) A separate subtitle on initiative on the Constitution is
not necessary in R.A. No. 6735 because, being national in
scope, that system of initiative is deemed included in the
subtitle on National Initiative and Referendum; and
Senator Tolentino simply overlooked pertinent provisions
 of the law when he claimed that nothing therein was
provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a
material proof that R.A. No. 6735 does not deal
with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes
a mere amendment to the Constitution, not a revision
thereof.
(5) COMELEC Resolution No. 2300 was validly issued
under Section 20 of R.A. No. 6735 and under the
Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735
was in fact upheld by this Court in Subic Bay Metropolitan
Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the
temporary restraining order; (b) noted the aforementioned Comments and
the Motion to Lift Temporary Restraining Order filed by private
respondents through Atty. Quadra, as well as the latter's Manifestation
stating that he is the counsel for private respondents Alberto and Carmen
Pedrosa only and the Comment he filed was for the Pedrosas; and (c)
granted the Motion for Intervention filed on 6 January 1997 by Senator
Raul Roco and allowed him to file his Petition in Intervention not later
than 20 January 1997; and (d) set the case for hearing on 23 January
1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang
Konstitusyon (DIK) and the Movement of Attorneys for Brotherhood
Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention.
Attached to the motion was their Petition in Intervention, which was later
replaced by an Amended Petition in Intervention wherein they contend
that:
(1) The Delfin proposal does not involve a
mere amendment to, but a revision of, the Constitution
because, in the words of Fr. Joaquin Bernas, S.J., 18 it
would involve a change from a political philosophy that
rejects unlimited tenure to one that accepts unlimited
tenure; and although the change might appear to be an
isolated one, it can affect other provisions, such as, on
synchronization of elections and on the State policy of
guaranteeing equal access to opportunities for public
service and prohibiting political
dynasties. 19 A revision cannot be done by initiative which,
by express provision of Section 2 of Article XVII of the
Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and
the limits provided for all other national and local elective
officials are based on the philosophy of governance, "to
open up the political arena to as many as there are
Filipinos qualified to handle the demands of leadership, to
break the concentration of political and economic powers
in the hands of a few, and to promote effective proper
empowerment for participation in policy and decision-
making for the common good"; hence, to remove the term
limits is to negate and nullify the noble vision of the 1987
Constitution.
(3) The Delfin proposal runs counter to the purpose of
initiative, particularly in a conflict-of-interest
situation. Initiative is intended as a fallback position that
may be availed of by the people only if they are
dissatisfied with the performance of their elective officials,
but not as a premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to
be called the enabling law that implements the
people's initiative on amendments to the Constitution. It
fails to state (a) the proper parties who may file the
petition, (b) the appropriate agency before whom the
petition is to be filed, (c) the contents of the petition, (d)
the publication of the same, (e) the ways and means of
gathering the signatures of the voters nationwide and 3%
per legislative district, (f) the proper parties who may
oppose or question the veracity of the signatures, (g) the
role of the COMELEC in the verification of the signatures
and the sufficiency of the petition, (h) the appeal from any
decision of the COMELEC, (I) the holding of a plebiscite,
and (g) the appropriation of funds for such people's
initiative. Accordingly, there being no enabling law, the
COMELEC has no jurisdiction to hear Delfin's petition.
 (5) The deficiency of R.A. No. 6735 cannot be rectified or
remedied by COMELEC Resolution No. 2300, since the
COMELEC is without authority to legislate the procedure
for a people's initiative under Section 2 of Article XVII of
the Constitution. That function exclusively pertains to
Congress. Section 20 of R.A. No. 6735 does not
constitute a legal basis for the Resolution, as the former
does not set a sufficient standard for a valid delegation of
power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that
implements the people's right to initiate constitutional amendments. This
law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he
co-authored the House Bill and even delivered a sponsorship speech
thereon. He likewise submits that the COMELEC was empowered under
Section 20 of that law to promulgate COMELEC Resolution No. 2300.
Nevertheless, he contends that the respondent Commission is without
jurisdiction to take cognizance of the Delfin Petition and to order its
publication because the said petition is not the initiatory pleading
contemplated under the Constitution, Republic Act No. 6735, and
COMELEC Resolution No. 2300. What vests jurisdiction upon the
COMELEC in an initiative on the Constitution is the filing of a petition for
initiative which is signed by the required number of registered voters. He
also submits that the proponents of a constitutional amendment cannot
avail of the authority and resources of the COMELEC to assist them is
securing the required number of signatures, as the COMELEC's role in
an initiative on the Constitution is limited to the determination of the
sufficiency of the initiative petition and the call and supervision of a
plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it
attached a Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law
mandated under Section 2, Article XVII of the 1987
Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for
the required implementing law on the initiative to amend
the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in
that it does not have the required number of signatures.
(4) The petition seeks, in effect a revision of the
Constitution, which can be proposed only by Congress or
a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the
Motions for Intervention filed by the DIK and MABINI and by the IBP, as
well as the Motion for Leave to Intervene filed by LABAN; (b) admitting
the Amended Petition in Intervention of DIK and MABINI, and the
Petitions in Intervention of Senator Roco and of the IBP; (c) requiring the
respondents to file within a nonextendible period of five days their
Consolidated Comments on the aforesaid Petitions in Intervention; and
(d) requiring LABAN to file its Petition in Intervention within a
nonextendible period of three days from notice, and the respondents to
comment thereon within a nonextendible period of five days from receipt
of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the
following pivotal issues, which the Court formulated in light of the
allegations and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a
System of Initiative and Referendum and Appropriating
Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if
so, whether the Act, as worded, adequately covers
such initiative.
2. Whether that portion of COMELEC Resolution No.
2300 (In re: Rules and Regulations Governing the
Conduct of Initiative on the Constitution, and Initiative and
Referendum on National and Local Laws) regarding the
conduct of initiative on amendments to the Constitution
is valid, considering the absence in the law of specific
provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and
local officials, as proposed in the draft "Petition for
Initiative on the 1987 Constitution," would constitute a
revision of, or an amendment to, the Constitution.
 4. Whether the COMELEC can take cognizance of, or has
jurisdiction over, a petition solely intended to obtain an
order (a) fixing the time and dates for signature gathering;
(b) instructing municipal election officers to assist Delfin's
movement and volunteers in establishing signature
stations; and (c) directing or causing the publication
of, inter alia, the unsigned proposed Petition for Initiative
on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take
cognizance of the petition when there is a pending case
before the COMELEC.
After hearing them on the issues, we required the parties to submit
simultaneously their respective memoranda within twenty days and
requested intervenor Senator Roco to submit copies of the deliberations
on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it
adopts the allegations and arguments in the main Petition. It further
submits that the COMELEC should have dismissed the Delfin Petition for
failure to state a sufficient cause of action and that the Commission's
failure or refusal to do so constituted grave abuse of discretion amounting
to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both
the Journal and the Record of the House of Representatives relating to
the deliberations of House Bill No. 21505, as well as the transcripts of
stenographic notes on the proceedings of the Bicameral Conference
Committee, Committee on Suffrage and Electoral Reforms, of 6 June
1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated
Comments on the Petitions in Intervention of Senator Roco, DIK and
MABINI, and IBP. 23 The parties thereafter filed, in due time, their
separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this
special civil action.
For a more logical discussion of the formulated issues, we shall first take
up the fifth issue which appears to pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY
IN THE COMELEC OF THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no
serious attention to the fifth issue, i.e., whether it is proper for this Court
to take cognizance of this special civil action when there is a pending
case before the COMELEC. The petitioners provide an affirmative
answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of
the petition filed by private respondent Delfin. This being
so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court,
Rule 65, Section 2, a petition for prohibition is the proper
remedy.
29. The writ of prohibition is an extraordinary judicial writ
issuing out of a court of superior jurisdiction and directed
to an inferior court, for the purpose of preventing the
inferior tribunal from usurping a jurisdiction with which it is
not legally vested. (People v. Vera, supra., p. 84). In this
case the writ is an urgent necessity, in view of the highly
divisive and adverse environmental consequences on the
body politic of the questioned Comelec order. The
consequent climate of legal confusion and political
instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional
law is threatened by the political ambitions of man, only
the Supreme Court
can save a nation in peril and uphold the paramount
majesty of the Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a
motion to dismiss the Delfin Petition on the ground that the COMELEC
has no jurisdiction or authority to entertain the petition. 26 The COMELEC
made no ruling thereon evidently because after having heard the
arguments of Delfin and the oppositors at the hearing on 12 December
1996, it required them to submit within five days their memoranda or
oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it
practically gave due course to the Delfin Petition by ordering Delfin to
cause the publication of the petition, together with the attached Petition
for Initiative, the signature form, and the notice of hearing; and by setting
the case for hearing. The COMELEC's failure to act on Roco's motion to
dismiss and its insistence to hold on to the petition rendered ripe and
viable the instant petition under Section 2 of Rule 65 of the Rules of
Court, which provides:
Sec. 2. Petition for prohibition. — Where the proceedings
of any tribunal, corporation, board, or person, whether
exercising functions judicial or ministerial, are without or in
excess of its or his jurisdiction, or with grave abuse of
discretion, and there is no appeal or any other plain,
speedy and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified
petition in the proper court alleging the facts with certainty
and praying that judgment be rendered commanding the
defendant to desist from further proceedings in the action
or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has
no jurisdiction over the Delfin Petition because the said petition is not
supported by the required minimum number of signatures of registered
voters. LABAN also asserts that the COMELEC gravely abused its
discretion in refusing to dismiss the Delfin Petition, which does not
contain the required number of signatures. In light of these claims, the
instant case may likewise be treated as a special civil action
for certiorari under Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his
Memorandum, this Court may brush aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan,
Inc. v. Guingona, Jr. 28
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. 41Thereafter, 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:
I
First, I submit that R.A. No. 6735 sufficiently implements the right of the
people to initiate amendments to the Constitution thru initiative. Our effort
to discover the meaning of R.A. No. 6735 should start with the search of
the intent of our lawmakers. A knowledge of this intent is critical for the
intent of the legislature is the law and the controlling factor in its
interpretation.1 Stated otherwise, intent is the essence of the law, the
spirit which gives life to its enactment.2
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was
intended to cover initiative to propose amendments to the Constitution." It
ought to be so for this intent is crystal clear from the history of the law
which was a consolidation of House Bill No. 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 5expressly
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 threeper
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 theponencia 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, albeitpossibly 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".6The 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:
I
First, I submit that R.A. No. 6735 sufficiently implements the right of the
people to initiate amendments to the Constitution thru initiative. Our effort
to discover the meaning of R.A. No. 6735 should start with the search of
the intent of our lawmakers. A knowledge of this intent is critical for the
intent of the legislature is the law and the controlling factor in its
interpretation.1 Stated otherwise, intent is the essence of the law, the
spirit which gives life to its enactment.2
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was
intended to cover initiative to propose amendments to the Constitution." It
ought to be so for this intent is crystal clear from the history of the law
which was a consolidation of House Bill No. 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 5expressly
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 threeper
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 theponencia 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, albeitpossibly 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".6The 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.
19 Section 26, Article II, Constitution.
20 Citing Commissioner Ople of the Constitutional
Commission, I Record of the Constitutional Commission,
405.

No Vice-President shall serve for more than two 21 Rollo, 239.

successive terms. Voluntary renunciation of the office for
any length or time shall not be considered as an 22 Rollo, 304.
interruption in the continuity of the service for the full term
for which he was elected.
23 Rollo, 568.
9 The section reads:
24 These were submitted on the following dates:
Sec. 8. The term of office of elective local officials, except
(a) Private respondent Delfin — 31
barangay officials, which shall be determined by law, shall
January 1997 (Rollo, 429);
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 (b) Private respondents Alberto and
an interruption in the continuity of his service for the full Carmen Pedrosa — 10 February 1997
term for which he was elected. (Id., 446);

10 Rollo, 19. (c) Petitioners — 12 February 1997 (Id.,

585);
11 Annex "B" of Petition, Rollo, 25.
(d) IBP — 12 February 1997 (Id., 476);
12 Order of 12 December 1996, Annex "B-1" of
Petition, Rollo, 27. (e) Senator Roco — 12 February 1997
(Id., 606);
13 Id.
(f) DIK and MABINI — 12 February 1997
(Id., 465);
14 Citing Araneta v. Dinglasan, 84 Phil. 368 [1949];
Sanidad v. COMELEC, 73 SCRA 333 [1976].
(g) COMELEC — 12 February 1997 (Id.,
489);
15 Rollo, 68.
(h) LABAN — 13 February 1997 (Id., 553).
16 Rollo, 100.
25 Rollo, 594.
17 Rollo, 130.
26 Annex "D" of Roco's Motion for Intervention in this
18 A Member of the 1986 Constitutional Commission.
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 26 See July 8, 1986 Debates of the Concom, p. 399.
(1910); US v. Navarro, 19 Phil 134 (1911).
27 1995 ed., p. 1207.
13 Francisco, Statutory Construction, 3rd ed., (1968) pp.
145-146 citing Crawford, Statutory Construction, pp. 337- 28 Cruz, op cit., p. 99.
338.
29 320 US 99.
14 Black, Handbook on the Construction and
Interpretation of the Laws (2nd ed), pp. 258-259. See 30 Balbuena v. Secretary of Education, 110 Phil 150
also Commissioner of Custom v. Relunia, 105 Phil 875 (1910).
(1959); People v. Yabut, 58 Phil 499 (1933).
31 People v. Rosenthal, 68 Phil 328 (1939).
15 Alcantara, Statutes, 1990 ed., p. 26 citing Dwarris on
Statutes, p. 237.
32 Calalang v. Williams, 70 Phil 726 (1940).
16 Entitled In re: Rules and Regulations Governing the
33 Rubi v. Provincial Board of Mindoro, 39 Phil 669
Conduct of Initiative on the Constitution, and Initiative and
(1919).
Referendum on National and Local Laws and
promulgated on January 16, 1991 by the COMELEC with
Commissioner Haydee B. Yorac as Acting Chairperson 34 International Hardwood v. Pangil Federation of Labor,
and Commissioners Alfredo E. Abueg, Jr., Leopoldo L. 70 Phil 602 (1940).
Africa, Andres R. Flores, Dario C. Rama and Magdara B.
Dimaampao. 35 Phil. Association of Colleges and Universities v.
Secretary of Education, 97 Phil 806 (1955).
17 15 SCRA 569.
36 Edu v. Ericta, 35 SCRA 481 (1990); Agustin v. Edu, 88
18 Sec. 5(b), R.A. No. 6735. SCRA 195 (1979).

19 Sec. 5(b), R.A. No. 6735. 37 Pepsi Cola Bottling Co. vs. Municipality of Tanawan
Leyte, 69 SCRA 460 (1976).
20 Sec. 7, R.A. No. 6735.
38 Maceda v. Macaraig, 197 SCRA 771 (1991).
21 Sec. 9(b), R.A. No. 6735.
39 Osmena v. Orbos, 220 SCRA 703 (1993).
22 Sec. 8, R.A. No. 6735 in relation to Sec. 4, Art. XVII of
the Constitution. 40 Chiongbian v. Orbos, 245 SCRA 253 (1995).

23 Sec. 9(b), R.A. No. 6735. 41 Garcia v. COMELEC, et al., G.R. No. 111511, October
5, 1993.
24 Sec. 10, R.A. No. 6735.
42 Garcia, et al. v. COMELEC, et al., G.R. No. 111230,
September 30, 1994.
25 Cruz, Philippine Political Law, 1995 ed., p. 98.
43 Subic Bay Metropolitan Authority v. COMELEC, et al., requirements of this Act is hereby affirmed, recognized
G.R. No. 125416, September 26, 1996. and guaranteed.

44 Malonzo vs. COMELEC, et al., G.R. No. 127066, Sec. 3. Definition of Terms. — For purposes of this Act,
March 11, 1997. the following terms shall mean:

FRANCISCO, J., concurring and dissenting: (a) "Initiative" is the power of the people to
propose amendments to the
1 Article II, Section 1, 1987 Constitution. Constitution or to propose and enact
legislation's through an election called for
2 Article VI, Section 32, and Article XVII, Section 2, 1987 the purpose.
Constitution.
There are three (3) systems of initiative, namely:
3 Petition, p. 5.
a.1 Initiative on the Constitution which
4 Paras v. Commission on Elections, G.R. No. 123619, refers to a petition proposing amendments
December 4, 1996. to the Constitution;

5 Tamayo v. Gsell, 35 Phil. 953, 980. a.2 Initiative on statutes which refers to a
petition proposing to enact a national
legislation; and
6 Section 3 (a), Republic Act No 6735.
a.3 Initiative on local legislation which
7 Section 3(a) [a.1], Republic Act No 6735.
refers to a petition proposing to enact a
regional, provincial, city, municipal, or
8 Uytengsu v. Republic, 95 Phil. 890, 893 barangay law, resolution or ordinance.

9 Petition in Intervention filed by Sen. Raul Roco, pp. 15- xxx xxx xxx
16.
(e) "Plebiscite" is the electoral process by
PANGANIBAN, J., concurring and dissenting: which an initiative on the Constitution is
approved or rejected by the people
1 Apart from its text on "national initiative" which could be
used by analogy, RA 6735 contains sufficient provisions (f) "Petition" is the written instrument
covering initiative on the Constitution, which are clear containing the proposition and the
enough and speak for themselves, like: required number of signatories. It shall be
in a form to be determined by and
Sec. 2. Statement of Policy. — The power of the people submitted to the Commission on
under a system of initiative and referendum to directly Elections, hereinafter referred to as the
propose, enact, approve or reject, in whole or in part, the Commission
Constitution, laws, ordinances, or resolution passed by
any legislative body upon compliance with the 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
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.
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).
G.R. No. 174153 October 25, 2006 LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA
THERESA HONTIVEROS-BARAQUEL,Intervenors.
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH
6,327,952 REGISTERED VOTERS,Petitioners, x--------------------------------------------------------x
vs.
THE COMMISSION ON ELECTIONS, Respondent. ARTURO M. DE CASTRO, Intervenor.

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

ALTERNATIVE LAW GROUPS, INC., Intervenor. TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.

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

ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, LUWALHATI RICASA ANTONINO, Intervenor.
MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V.
OPLE, and CARLOS P. MEDINA, JR., Intervenors. x ------------------------------------------------------- x

x------------------------------------------------------ x PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),

CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON,
ATTY. PETE QUIRINO QUADRA, Intervenor. FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P.
AGUAS, and AMADO GAT INCIONG, Intervenors.
x--------------------------------------------------------x
x ------------------------------------------------------- x
BAYAN represented by its Chairperson Dr. Carolina Pagaduan-
Araullo, BAYAN MUNA represented by its Chairperson Dr. Reynaldo RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO
Lesaca, KILUSANG MAYO UNO represented by its Secretary BAYA, Intervenors.
General Joel Maglunsod, HEAD represented by its Secretary
General Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM x -------------------------------------------------------- x
represented by Fr. Dionito Cabillas, MIGRANTE represented by its
Chairperson Concepcion Bragas-Regalado, GABRIELA represented
PHILIPPINE TRANSPORT AND GENERAL WORKERS
by its Secretary General Emerenciana de Jesus, GABRIELA
ORGANIZATION (PTGWO) and MR. VICTORINO F.
WOMEN'S PARTY represented by Sec. Gen. Cristina Palabay,
BALAIS, Intervenors.
ANAKBAYAN represented by Chairperson Eleanor de Guzman,
LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer
Crisostomo Palabay, JOJO PINEDA of the League of Concerned x -------------------------------------------------------- x
Professionals and Businessmen, DR. DARBY SANTIAGO of the
Solidarity of Health Against Charter Change, DR. REGINALD SENATE OF THE PHILIPPINES, represented by its President,
PAMUGAS of Health Action for Human Rights,Intervenors. MANUEL VILLAR, JR., Intervenor.

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

SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.

x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA
A. LAT, ANTONIO L. SALVADOR, and RANDALL
TABAYOYONG, Intervenors.
x -------------------------------------------------------- x
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU
PROVINCE CHAPTERS, Intervenors.
x --------------------------------------------------------x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and
SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL, JINGGOY
ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors.
x -----------------------------------------------------x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG
PILIPINO, Intervenors.
x -----------------------------------------------------x
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE
A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN
S. ABALOS, SR., and Commissioners RESURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V.
SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter
Doe,, Respondent.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006
of the Commission on Elections ("COMELEC") denying due course to an
initiative petition to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L.
Lambino and Erico B. Aumentado ("Lambino Group"), with other
groups1 and individuals, commenced gathering signatures for an initiative
petition to change the 1987 Constitution. On 25 August 2006, the
Lambino Group filed a petition with the COMELEC to hold a plebiscite
that will ratify their initiative petition under Section 5(b) and (c)2 and
Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act
("RA 6735").
The Lambino Group alleged that their petition had the support of
6,327,952 individuals constituting at least twelve per centum (12%) of all
registered voters, with each legislative district represented by at least
three per centum (3%) of its registered voters. The Lambino Group also
claimed that COMELEC election registrars had verified the signatures of
the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by
modifying Sections 1-7 of Article VI (Legislative Department)4 and
Sections 1-4 of Article VII (Executive Department)5 and by adding Article
XVIII entitled "Transitory Provisions."6 These proposed changes will shift
the present Bicameral-Presidential system to a Unicameral-Parliamentary
form of government. The Lambino Group prayed that after due
publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND
VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT FROM THE PRESENT BICAMERAL-
PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY
SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE
SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with
the COMELEC indicating modifications in the proposed Article XVIII
(Transitory Provisions) of their initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due
course to the Lambino Group's petition for lack of an enabling law
governing initiative petitions to amend the Constitution. The COMELEC
invoked this Court's ruling in Santiago v. Commission on
Elections8 declaring RA 6735 inadequate to implement the initiative
clause on proposals to amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the
writs of certiorari and mandamus to set aside the COMELEC Resolution
of 31 August 2006 and to compel the COMELEC to give due course to
their initiative petition. The Lambino Group contends that the COMELEC
committed grave abuse of discretion in denying due course to their
petition since Santiago is not a binding precedent. Alternatively, the
Lambino Group claims that Santiago binds only the parties to that case,
and their petition deserves cognizance as an expression of the "will of the
sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court
require respondent COMELEC Commissioners to show cause why they
should not be cited in contempt for the COMELEC's verification of
signatures and for "entertaining" the Lambino Group's petition despite the
permanent injunction in Santiago. The Court treated the Binay Group's
petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General
joined causes with the petitioners, urging the Court to grant the petition
despite the Santiago ruling. The Solicitor General proposed that the
Court treat RA 6735 and its implementing rules "as temporary devises to
implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings
supporting or opposing the Lambino Group's petition. The supporting
intervenors10 uniformly hold the view that the COMELEC committed grave
abuse of discretion in relying on Santiago. On the other hand, the
opposing intervenors11 hold the contrary view and maintain
that Santiago is a binding precedent. The opposing intervenors also
challenged (1) the Lambino Group's standing to file the petition; (2) the
validity of the signature gathering and verification process; (3) the
Lambino Group's compliance with the minimum requirement for the
percentage of voters supporting an initiative petition under Section 2,
Article XVII of the 1987 Constitution;12 (4) the nature of the proposed
changes as revisions and not mere amendments as provided under
Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino
Group's compliance with the requirement in Section 10(a) of RA 6735
limiting initiative petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26
September 2006. After receiving the parties' memoranda, the Court
considered the case submitted for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section
2, Article XVII of the Constitution on amendments to the Constitution
through a people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA
6735 "incomplete, inadequate or wanting in essential terms and
conditions" to implement the initiative clause on proposals to amend the
Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in
denying due course to the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic
requirements of the Constitution for conducting a people's initiative. Thus,
there is even no need to revisit Santiago, as the present petition
warrants dismissal based alone on the Lambino Group's glaring failure to
comply with the basic requirements of the Constitution. For following the
Court's ruling in Santiago, no grave abuse of discretion is attributable to
the Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article
XVII of the Constitution on Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional
provision that allows a people's initiative to propose amendments to the
Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of
at least twelve per centum of the total number of registered voters
of which every legislative district must be represented by at least
three per centum of the registered voters therein. x x x x
(Emphasis supplied)
The deliberations of the Constitutional Commission vividly explain the
meaning of an amendment "directly proposed by the people through
initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some
voters want to propose a constitutional amendment. Is the draft
of the proposed constitutional amendment ready to be
shown to the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam
President.
MR. RODRIGO: What does the sponsor mean? The draft is
ready and shown to them before they sign. Now, who
prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already
a draft shown to them and they are asked whether or not they
want to propose this constitutional amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that
proposal and pass it around for signature.13 (Emphasis
supplied)
Clearly, the framers of the Constitution intended that the "draft of the
proposed constitutional amendment" should be "ready and shown" to
the people "before" they sign such proposal. The framers plainly stated
that "before they sign there is already a draft shown to them." The
framers also "envisioned" that the people should sign on the proposal
itself because the proponents must "prepare that proposal and pass it
around for signature."
The essence of amendments "directly proposed by the people
through initiative upon a petition" is that the entire proposal on its
face is a petition by the people. This means two essential elements
must be present. First, the people must author and thus sign the entire
proposal. No agent or representative can sign on their behalf. Second, as
an initiative upon a petition, the proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed
amendments is first shown to the people who express their assent by
signing such complete proposal in a petition. Thus, an amendment is
"directly proposed by the people through initiative upon a petition"
only if the people sign on a petition that contains the full text of the
proposed amendments.
The full text of the proposed amendments may be either written on the
face of the petition, or attached to it. If so attached, the petition must state
the fact of such attachment. This is an assurance that every one of the
several millions of signatories to the petition had seen the full text of the
proposed amendments before signing. Otherwise, it is physically
impossible, given the time constraint, to prove that every one of the
millions of signatories had seen the full text of the proposed amendments
before signing.
The framers of the Constitution directly borrowed14 the concept of
people's initiative from the United States where various State
constitutions incorporate an initiative clause. In almost all States15 which
allow initiative petitions, the unbending requirement is that the people
must first see the full text of the proposed amendments before they
sign to signify their assent, and that the people must sign on an
initiative petition that contains the full text of the proposed
amendments.16
The rationale for this requirement has been repeatedly explained in
several decisions of various courts. Thus, in Capezzuto v. State Ballot
Commission, the Supreme Court of Massachusetts, affirmed by the
First Circuit Court of Appeals, declared:
[A] signature requirement would be meaningless if the
person supplying the signature has not first seen what it is
that he or she is signing. Further, and more importantly, loose
 interpretation of the subscription requirement can pose a
significant potential for fraud. A person permitted to describe
orally the contents of an initiative petition to a potential signer,
without the signer having actually examined the petition, could
easily mislead the signer by, for example, omitting, downplaying,
or even flatly misrepresenting, portions of the petition that might
not be to the signer's liking. This danger seems particularly
acute when, in this case, the person giving the description is
the drafter of the petition, who obviously has a vested
interest in seeing that it gets the requisite signatures to
qualify for the ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon
explained:
The purposes of "full text" provisions that apply to amendments
by initiative commonly are described in similar terms. x x x (The
purpose of the full text requirement is to provide sufficient
information so that registered voters can intelligently
evaluate whether to sign the initiative petition."); x x x
(publication of full text of amended constitutional provision
required because it is "essential for the elector to have x x x the
section which is proposed to be added to or subtracted from. If he
is to vote intelligently, he must have this knowledge. Otherwise in
many instances he would be required to vote in the dark.")
(Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of
the nature and effect of that which is proposed" and failure to do so is
"deceptive and misleading" which renders the initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that
the petition must set forth the full text of the proposed amendments.
However, the deliberations of the framers of our Constitution clearly show
that the framers intended to adopt the relevant American jurisprudence
on people's initiative. In particular, the deliberations of the Constitutional
Commission explicitly reveal that the framers intended that the people
must first see the full text of the proposed amendments before they
sign, and that the people must sign on a petition containing such
full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and
Referendum Act that the Lambino Group invokes as valid, requires that
the people must sign the "petition x x x as signatories."
The proponents of the initiative secure the signatures from the people.
The proponents secure the signatures in their private capacity and not as
public officials. The proponents are not disinterested parties who can
impartially explain the advantages and disadvantages of the proposed
amendments to the people. The proponents present favorably their
proposal to the people and do not present the arguments against their
proposal. The proponents, or their supporters, often pay those who
gather the signatures.
Thus, there is no presumption that the proponents observed the
constitutional requirements in gathering the signatures. The proponents
bear the burden of proving that they complied with the constitutional
requirements in gathering the signatures - that the petition contained,
or incorporated by attachment, the full text of the proposed
amendments.
The Lambino Group did not attach to their present petition with this Court
a copy of the paper that the people signed as their initiative petition. The
Lambino Group submitted to this Court a copy of a signature
sheet20 after the oral arguments of 26 September 2006 when they filed
their Memorandum on 11 October 2006. The signature sheet with this
Court during the oral arguments was the signature sheet attached21 to the
opposition in intervention filed on 7 September 2006 by intervenor Atty.
Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the
signature sheet attached to the Lambino Group's Memorandum are
the same. We reproduce below the signature sheet in full:
Province: City/Municipality: No. of
Legislative District: Barangay:
Verified
Signatures:
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF
ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE
FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-
PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF
GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY,
SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM ONE SYSTEM TO ANOTHER?"
I hereby APPROVE the proposed amendment to the 1987 Constitution. draft petition which they later filed on 25 August 2006 with the
My signature herein which shall form part of the petition for initiative to COMELEC. When asked if his group also circulated the draft of their
amend the Constitution signifies my support for the filing thereof. amended petition filed on 30 August 2006 with the COMELEC, Atty.
Lambino initially replied that they circulated both. However, Atty. Lambino
Precinct Name Address Birthdate changed his
Signature answer and stated that what his group circulated was the
Verification
Number draft of the 30 August 2006 amended petition, not the draft of the 25
Last Name, First MM/DD/YY August 2006 petition.
Name, M.I.
The Lambino Group would have this Court believe that they prepared the
1
draft of the 30 August 2006 amended petition almost seven months
2 earlier in February 2006 when they started gathering signatures.
3 Petitioner Erico B. Aumentado's "Verification/Certification" of the 25
4 August 2006 petition, as well as of the 30 August 2006 amended petition,
5 filed with the COMELEC, states as follows:
6
7 I have caused the preparation of the foregoing [Amended]
Petition in my personal capacity as a registered voter, for and on
8 behalf of the Union of Local Authorities of the Philippines, as
9 shown by ULAP Resolution No. 2006-02 hereto attached, and
10 as representative of the mass of signatories hereto. (Emphasis
supplied)
_________________ _________________ __________________
Barangay Official Witness Witness
(Print Name and Sign) (Print Name and Sign) The Lambino
(Print Name Group failed to attach a copy of ULAP Resolution No. 2006-
and Sign)
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
There is not a single word, phrase, or sentence of text of the Resolution No. 2006-02, which provides:
Lambino Group's proposed changes in the signature sheet. Neither
does the signature sheet state that the text of the proposed changes RESOLUTION NO. 2006-02
is attached to it. Petitioner Atty. Raul Lambino admitted this during the
oral arguments before this Court on 26 September 2006. RESOLUTION SUPPORTING THE PROPOSALS OF THE
PEOPLE'S CONSULTATIVE COMMISSION ON CHARTER
The signature sheet merely asks a question whether the people approve CHANGE THROUGH PEOPLE'S INITIATIVE AND
a shift from the Bicameral-Presidential to the Unicameral-Parliamentary REFERENDUM AS A MODE OF AMENDING THE 1987
system of government. The signature sheet does not show to the CONSTITUTION
people the draft of the proposed changes before they are asked to
sign the signature sheet. Clearly, the signature sheet is not the WHEREAS, there is a need for the Union of Local Authorities of
"petition" that the framers of the Constitution envisioned when they the Philippines (ULAP) to adopt a common stand on the approach
formulated the initiative clause in Section 2, Article XVII of the to support the proposals of the People's Consultative Commission
Constitution. on Charter Change;

Petitioner Atty. Lambino, however, explained that during the signature- WHEREAS, ULAP maintains its unqualified support to the
gathering from February to August 2006, the Lambino Group circulated, agenda of Her Excellency President Gloria Macapagal-Arroyo for
together with the signature sheets, printed copies of the Lambino Group's constitutional reforms as embodied in the ULAP Joint Declaration
 for Constitutional Reforms signed by the members of the ULAP
and the majority coalition of the House of Representatives in
Manila Hotel sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter
Change created by Her Excellency to recommend amendments
to the 1987 Constitution has submitted its final report sometime in
December 2005;
WHEREAS, the ULAP is mindful of the current political
developments in Congress which militates against the use of the
expeditious form of amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members
and the failure of Congress to amend the Constitution as a
constituent assembly, ULAP has unanimously agreed to pursue
the constitutional reform agenda through People's Initiative and
Referendum without prejudice to other pragmatic means to
pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY
RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE
UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES
(ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S
CONSULATATIVE (SIC) COMMISSION ON CHARTER
CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987
CONSTITUTION;
DONE, during the ULAP National Executive Board special
meeting held on 14 January 2006 at the Century Park Hotel,
Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado
to prepare the 25 August 2006 petition, or the 30 August 2006 amended
petition, filed with the COMELEC. ULAP Resolution No. 2006-02
"support(s) the porposals (sic) of the Consulatative (sic)
Commission on Charter Change through people's initiative and
referendum as a mode of amending the 1987 Constitution." The
proposals of the Consultative Commission24 are vastly different from the
proposed changes of the Lambino Group in the 25 August 2006 petition
or 30 August 2006 amended petition filed with the COMELEC.
For example, the proposed revisions of the Consultative Commission
affect all provisions of the existing Constitution, from the Preamble to
the Transitory Provisions. The proposed revisions have profound
impact on the Judiciary and the National Patrimony provisions of the
existing Constitution, provisions that the Lambino Group's proposed
changes do not touch. The Lambino Group's proposed changes purport
to affect only Articles VI and VII of the existing Constitution, including the
introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more
than six months before the filing of the 25 August 2006 petition or the 30
August 2006 amended petition with the COMELEC. However, ULAP
Resolution No. 2006-02 does not establish that ULAP or the Lambino
Group caused the circulation of the draft petition, together with the
signature sheets, six months before the filing with the COMELEC. On the
contrary, ULAP Resolution No. 2006-02 casts grave doubt on the
Lambino Group's claim that they circulated the draft petition
together with the signature sheets. ULAP Resolution No. 2006-02
does not refer at all to the draft petition or to the Lambino Group's
proposed changes.
In their Manifestation explaining their amended petition before the
COMELEC, the Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the
proposed amendments alleged in the Petition, more specifically,
paragraph 3 of Section 4 and paragraph 2 of Section 5 of the
Transitory Provisions were inaccurately stated and failed to
correctly reflect their proposed amendments.
The Lambino Group did not allege that they were amending the petition
because the amended petition was what they had shown to the people
during the February to August 2006 signature-gathering. Instead, the
Lambino Group alleged that the petition of 25 August 2006 "inaccurately
stated and failed to correctly reflect their proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the
30 August 2006 amended petition with the COMELEC that they circulated
printed copies of the draft petition together with the signature sheets.
Likewise, the Lambino Group did not allege in their present petition
before this Court that they circulated printed copies of the draft petition
together with the signature sheets. The signature sheets do not also
contain any indication that the draft petition is attached to, or circulated
with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions
that the Lambino Group first claimed that they circulated the "petition for
initiative filed with the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is
not (sic) fraud, a signer who did not read the measure
attached to a referendum petition cannot question his
signature on the ground that he did not understand the
nature of the act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224,
S.W. 327, 283 Mo. 546.] Thus, the registered voters who
signed the signature sheets circulated together with the
petition for initiative filed with the COMELEC below, are
presumed to have understood the proposition contained in the
petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the
petition for initiative filed with the COMELEC" appears an
afterthought, made after the intervenors Integrated Bar of the Philippines
(Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had
pointed out that the signature sheets did not contain the text of the
proposed changes. In their Consolidated Reply, the Lambino Group
alleged that they circulated "the petition for initiative" but failed to
mention the amended petition. This contradicts what Atty. Lambino
finally stated during the oral arguments that what they circulated was the
draft of the amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating
that "a signer who did not read the measure attached to a referendum
petition cannot question his signature on the ground that he did not
understand the nature of the act." The Lambino Group quotes an
authority that cites a proposed change attached to the petition signed
by the people. Even the authority the Lambino Group quotes requires
that the proposed change must be attached to the petition. The same
authority the Lambino Group quotes requires the people to sign on the
petition itself.
Indeed, it is basic in American jurisprudence that the proposed
amendment must be incorporated with, or attached to, the initiative
petition signed by the people. In the present initiative, the Lambino
Group's proposed changes were not incorporated with, or attached to, the
signature sheets. The Lambino Group's citation of Corpus Juris
Secundumpulls 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,32the 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.40Qualitatively, the proposed changes
alter substantially the basic plan of government, from presidential to
parliamentary, and from a bicameral to a unicameral legislature.
A change in the structure of government is a revision of the Constitution,
as when the three great co-equal branches of government in the present
Constitution are reduced into two. This alters the separation of powers
in the Constitution. A shift from the present Bicameral-Presidential
system to a Unicameral-Parliamentary system is a revision of the
Constitution. Merging the legislative and executive branches is a radical
change in the structure of government.
The abolition alone of the Office of the President as the locus of
Executive Power alters the separation of powers and thus constitutes a
revision of the Constitution. Likewise, the abolition alone of one chamber
of Congress alters the system of checks-and-balances within the
legislature and constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-
Presidential to a Unicameral-Parliamentary system, involving the abolition
of the Office of the President and the abolition of one chamber of
Congress, is beyond doubt a revision, not a mere amendment. On the
face alone of the Lambino Group's proposed changes, it is readily
apparent that the changes will radically alter the framework of
government as set forth in the Constitution. Father Joaquin Bernas,
S.J., a leading member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and
separable provisions. The guiding original intention of an amendment is
to improve specific parts or to add new provisions deemed necessary to
meet new conditions or to suppress specific portions that may have
become obsolete or that are judged to be dangerous. In revision,
however, the guiding original intention and plan contemplates a re-
examination of the entire document, or of provisions of the document
which have over-all implications for the entire document, to determine
how and to what extent they should be altered. Thus, for instance a
switch from the presidential system to a parliamentary system
would be a revision because of its over-all impact on the entire
constitutional structure. So would a switch from a bicameral system
to a unicameral system be because of its effect on other important
provisions of the Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of
the Florida State constitution to shift from a bicameral to a unicameral
legislature. The issue turned on whether the initiative "was defective and
unauthorized where [the] proposed amendment would x x x affect several
other provisions of [the] Constitution." The Supreme Court of Florida,
striking down the initiative as outside the scope of the initiative clause,
ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968
Constitution to provide for a Unicameral Legislature affects not
only many other provisions of the Constitution but provides
for a change in the form of the legislative branch of
government, which has been in existence in the United States
Congress and in all of the states of the nation, except one, since
the earliest days. It would be difficult to visualize a more
revolutionary change. The concept of a House and a Senate is
basic in the American form of government. It would not only
radically change the whole pattern of government in this
state and tear apart the whole fabric of the Constitution, but
would even affect the physical facilities necessary to carry
on government.
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.8An
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
G.R. NO. 174153
RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH
6,327,952 REGISTERED VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-
intervenors,
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO
BAYA, petitioners-intervenors,
SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-
intervenor,
PHILIPPINE TRANSPORT AND GENERAL WORKERS
ORGANIZATION (PTGWO) AND VICTORINO F. BALAIS,petitioners-
intervenors,
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN,
MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V.
OPLE AND CARLOS P. MEDINA, JR., oppositors-intervenors,
ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor,
ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor,
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD,
ECUMENICAL BISHOPS FROUM, MIGRANTE, GABRIELA,
GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO
STUDENTS,LEONARDO SAN JOSE, JOJO PINEDA, DR. DARBY
SANTIAGO, AND DR. REGINALD PAMUGAS, 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
G.R. No. 174153
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with
6,327,952 REGISTERED VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
G.R. No. 174299
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE
A.Q. SAGUISAG, petitioners,
vs.
THE COMMISSION ON ELECTIONS, represented by Chairman
BENJAMIN S. ABALOS, SR., and Commissioners RESURRECCION
Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER,
RENE V. SARMIENTO, and JOHN DOE and PETER DOE, respondents.
x ---------------------------------------------------------------------------------------- x
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) 6735,1are 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 x4
The Court has invariably defined "grave abuse of discretion," thus:
By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction, and it must be shown that the discretion was
exercised arbitrarily or despotically. For certiorari to lie, there
must be a capricious, arbitrary and whimsical exercise of power,
the very antithesis of the judicial prerogative in accordance with
centuries of both civil law and common law traditions.5
There is thus grave abuse of discretion on the part of the COMELEC
when it acts in a capricious, whimsical, arbitrary or despotic manner in
the exercise of its judgment amounting to lack of jurisdiction. Mere abuse
of discretion is not enough.6 The only question involved is jurisdiction,
either the lack or excess thereof, and abuse of discretion warrants the
issuance of the extraordinary remedy of certiorari only when the same is
grave, as when the power is exercised in an arbitrary or despotic manner
by reason of passion, prejudice or personal hostility. A writ of certiorari is
a remedy designed for the correction of errors of jurisdiction and not
errors of judgment.7 An error of judgment is one in which the court may
commit in the exercise of its jurisdiction, which error is reversible only by
an appeal.8
In the present case, it appears from the assailed Resolution of the
COMELEC that it denied the petition for initiative solely in obedience to
the mandate of this Court in Santiago v. Commission on Elections.9 In
said case, the Court En Banc permanently enjoined the COMELEC from
entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been
validly enacted to provide for the implementation of the system. When the
COMELEC denied the petition for initiative, there was as yet no valid law
enacted by Congress to provide for the implementation of the system.
It is a travesty for the Court to declare the act of the COMELEC in
denying due course to the petition for initiative as "capricious, despotic,
oppressive or whimsical exercise of judgment as is equivalent to lack of
jurisdiction." In fact, in so doing, the COMELEC merely followed or
applied, as it ought to do, the Court's ruling in Santiago to the effect that
Section 2, Article XVII of the Constitution on the system of initiative is a
non self-executory provision and requires an enabling law for its
implementation. In relation thereto, RA 6735 was found by the Court to
be "incomplete, inadequate, or wanting in essential terms and conditions"
to implement the constitutional provision on initiative. Consequently, the
COMELEC was "permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted to
provide for the implementation of the system." The decision of the Court
En Banc interpreting RA 6735 forms part of the legal system of the
Philippines.10 And no doctrine or principle laid down by the Court En Banc
may be modified or reversed except by the Court En Banc,11 certainly not
by the COMELEC. Until the Court En Banc modifies or reverses its
decision, the COMELEC is bound to follow the same.12 As succinctly held
in Fulkerson v. Thompson:13
Whatever was before the Court, and is disposed of, is considered
as finally settled. The inferior court is bound by the judgment or
decree as the law of the case, and must carry it into execution
according to the mandate. The inferior court cannot vary it, or
judicially examine it for any other purpose than execution. It can
give no other or further relief as to any matter decided by the
Supreme Court even where there is error apparent; or in any
manner intermeddle with it further than to execute the mandate
and settle such matters as have been remanded, not adjudicated
by the Supreme Court….
 The principles above stated are, we think, conclusively
established by the authority of adjudged cases. And any further
departure from them would inevitably mar the harmony of the
whole judiciary system, bring its parts into conflict, and produce
therein disorganization, disorder, and incalculable mischief and
confusion. Besides, any rule allowing the inferior courts to
disregard the adjudications of the Supreme Court, or to refuse or
omit to carry them into execution would be repugnant to the
principles established by the constitution, and therefore void.14
At this point, it is well to recall the factual context of Santiago as well as
the pronouncement made by the Court therein. Like petitioners in the
instant case, in Santiago, Atty. Jesus Delfin, the People's Initiative for
Reforms, Modernization and Action (PIRMA), et al., invoked Section 2,
Article XVII of the Constitution as they filed with the COMELEC a
"Petition to Amend the Constitution, to Lift Term Limits of Elective
Officials, By People's Initiative" (the Delfin petition). They asked the
COMELEC to issue an order fixing the time and date for signature
gathering all over the country; causing the necessary publications of said
order and their petition in newspapers of general and local circulation and
instructing municipal election registrars in all regions all over the country
and to assist petitioners in establishing signing stations. Acting thereon,
the COMELEC issued the order prayed for.
Senator Miriam Santiago, et al. forthwith filed with this Court a petition for
prohibition to enjoin the COMELEC from implementing its order. The
Court, speaking through Justice Hilario G. Davide, Jr. (later Chief
Justice), granted the petition as it declared:
1. RA 6735 "incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is
concerned";
2. COMELEC Resolution No. 230015 invalid insofar as it prescribed rules
and regulations on the conduct of initiative on amendments to the
Constitution because the COMELEC is without authority to promulgate
the rules and regulations to implement the exercise of the right of the
people to directly propose amendments to the Constitution through the
system of initiative; and
3. The Delfin petition insufficient as it did not contain the required number
of signatures of registered voters.
The Court concluded in Santiago that "the COMELEC should be
permanently enjoined from entertaining or taking cognizance
of any petition for initiative on amendments to the Constitution until a
sufficient law shall have been validly enacted to provide for the
implementation of the system." The dispositive portion of the decision
reads:
WHEREFORE, judgment is hereby rendered:
a) GRANTING the instant petition;
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 (2) The incumbent Vice President shall automatically be a
President and Vice President, with the exception of Sections 1, 2, Member of Parliament until noon of the thirtieth day of June 2010.
3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall He shall also be a member of the cabinet and shall head a
hereby be amended and Sections 18 and 24 which shall be ministry. He shall initially convene the interim Parliament and
deleted, all other Sections of Article VI are hereby retained and shall preside over its session for the election of the interim Prime
renumbered sequentially as Section 2, ad seriatim up to 26, Minister and until the Speaker shall have been elected by a
unless they are inconsistent with the Parliamentary system of majority vote of all the members of the interim Parliament from
government, in which case, they shall be amended to conform among themselves.
with a unicameral parliamentary form of government; provided,
however, that any and all references therein to "Congress," (3) Senators whose term of office ends in 2010 shall be Members
"Senate," "House of Representatives" and "House of Congress," of Parliament until noon of the thirtieth day of June 2010.
"Senator[s] or "Member[s] of the House of Representatives" and
"House of Congress" shall be changed to read "Parliament"; that (4) Within forty-five days from ratification of these amendments,
any and all references therein to "Member[s] of the House of the interim Parliament shall convene to propose amendments to,
Representatives" shall be changed to read as "Member[s] of or revisions of, this Constitution consistent with the principles of
Parliament" and any and all references to the "President" and or local autonomy, decentralization and a strong bureaucracy.
"Acting President" shall be changed to read "Prime Minister."
"Section 5. (1) The incumbent President, who is the Chief
Section 3. "Upon the expiration of the term of the incumbent Executive, shall nominate, from among the members of the
President and Vice President, with the exception of Sections 1, 2, interim Parliament, an interim Prime Minister, who shall be
3 and 4 of Article VII of the 1987 Constitution which are hereby elected by a majority vote of the members thereof. The interim
amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby Prime Minister shall oversee the various ministries and shall
deleted, all other Sections of Article VII shall be retained and perform such powers and responsibilities as may be delegated to
renumbered sequentially as Section 2, ad seriatim up to 14, him by the incumbent President."
unless they shall be inconsistent with Section 1 hereof, in which
case they shall be deemed amended so as to conform to a
(2) The interim Parliament shall provide for the election of the
unicameral Parliamentary System of government; provided,
members of Parliament, which shall be synchronized and held
however, that any and all references therein to "Congress,"
simultaneously with the election of all local government
"Senate," "House of Representatives" and "Houses of Congress"
officials. [Thereafter, the Vice-President, as Member of
shall be changed to read "Parliament"; that any and all references
Parliament, shall immediately convene the Parliament and shall
therein to "Member[s] of Congress," "Senator[s]" or "Member[s] of
initially preside over its session for the purpose of electing the
the House of Parliament" and any and all references to the
Prime Minister, who shall be elected by a majority vote of all its
"President" and of "Acting President" shall be changed to read
members, from among themselves.] The duly-elected Prime
"Prime Minister."
Minister shall continue to exercise and perform the powers, duties
and responsibilities of the interim Prime Minister until the
Section 4. (1) There shall exist, upon the ratification of these expiration of the term of the incumbent President and Vice
amendments, an interim Parliament which shall continue until the President.28
Members of the regular Parliament shall have been elected and
shall have qualified. It shall be composed of the incumbent
Petitioners claim that the required number of signatures of registered
Members of the Senate and the House of Representatives and
voters have been complied with, i.e., the signatories to the petition
the incumbent Members of the Cabinet who are heads of
constitute twelve percent (12%) of all the registered voters in the country,
executive departments.
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."51Petitioners' 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;72Talayan, 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;83Maimbung, 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
(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.
EN BANC
Sec. 3. The Congress may, by a vote of two-thirds of all its
G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON Members, call a constitutional convention, or by a majority vote of
ELECTIONS, ET AL.) and all its Members, submit to the electorate the question of calling
such a convention.
G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs.
COMMISSION ON ELECTIONS, ET AL.). Sec. 4. Any amendment to, or revision of, this Constitution under
Section 1 hereof shall be valid when ratified by a majority of the
x ---------------------------------------------------------------------------------------- x votes cast in a plebiscite which shall be held not earlier than sixty
days nor later than ninety days after the approval of such
SEPARATE OPINION amendment or revision.

AZCUNA, J.: 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
"Why, friends, you go to do you know not what."
the certification by the Commission on Elections of the sufficiency
of the petition.
-- Shakespeare, Julius Caesar, Act III, Sc. 2.
This Article states the procedure for changing the Constitution.
Article XVII of the Constitution states:
Constitutions have three parts – the Constitution of Liberty, which states
AMENDMENTS OR REVISIONS the fundamental rights of the people; the Constitution of Government,
which establishes the structure of government, its branches and their
Section 1. Any amendment to, or revision of, this Constitution operation; and the Constitution of Sovereignty, which provides how the
may be proposed by: 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
____________________ 2006, denying due course to the Petition for Initiative filed by petitioners
Raul L. Lambino and Erico B. Aumentado in their own behalf and
EN BANC together with some 6.3 million registered voters who have affixed their
signatures thereon, and praying for the issuance of a writ of mandamus
G. R. No. 174153 October 25, 2006 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.
RAUL L. LAMBINO and ERICO B. AUMENTADO together with
6,327,952 REGISTERED VOTERS
vs. First, a flashback of the proceedings of yesteryears. In 1996, the
THE COMMISSION ON ELECTIONS 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
G.R. No. 174299 October 25, 2006
founding member, Atty. Jesus S. Delfin, filed with the COMELEC on
December 6, 1996, a "Petition to Amend the Constitution, to Lift Term
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Limits of Elective Officials, by People's Initiative" (Delfin Petition). It
Q. SAGUISAG proposed to amend Sections 4 and 7 of Article VI, Section 4 of Article VII,
vs. and Section 8 of Article X of the 1987 Constitution by deleting the
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN provisions on the term limits for all elective officials.
S. ABALOS, SR., and Commissioners RESSURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V.
The Delfin Petition stated that the Petition for Initiative would first be
SARMIENTO, and NICODEMO T. FERRER, and John Doe and Peter
submitted to the people and would be formally filed with the COMELEC
Doe
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
x ---------------------------------------------------------------------------------------- x COMELEC in gathering the required signatures by fixing the dates
and time therefor and setting up signature stations on the assigned
"It is a Constitution we are expounding…"1 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;
– Chief Justice John Marshall (2) causing the publication of said Order and the petition for initiative in
newspapers of general and local circulation; and, (3) instructing the
DISSENTING OPINION municipal election registrars in all the regions of the Philippines to assist
petitioner and the volunteers in establishing signing stations on the dates
PUNO, J.: and time designated for the purpose.

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,
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
deliberation6 agreed that the Delfin Petition should be dismissed for lack
of the required signatures, five (5) members, namely, Associate Justices
Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J.
Francisco and Artemio V. Panganiban, held that R.A. 6735 was sufficient
and adequate to implement the people's right to amend the Constitution
through initiative, and that COMELEC Resolution No. 2300 validly
provided the details for the actual exercise of such right. Justice Jose C.
Vitug, on the other hand, opined that the Court should confine itself to
resolving the issue of whether the Delfin Petition sufficiently complied
with the requirements of the law on initiative, and there was no need to
rule on the adequacy of R.A. 6735.
The COMELEC, Delfin and the Pedrosas filed separate motions for
reconsideration of the Court's decision.
After deliberating on the motions for reconsideration, six (6)7 of the
eight (8) majority members maintained their position that R.A. 6735 was
inadequate to implement the provision on the initiative on amendments to
the Constitution. Justice Torres filed an inhibition, while Justice
Hermosisima submitted a Separate Opinion adopting the position of the
minority that R.A. 6735 sufficiently covers the initiative to amend the
Constitution. Hence, of the thirteen (13) members of the Court who
participated in the deliberation, six (6) members, namely, Chief Justice
Narvasa and Associate Justices Regalado, Davide, Romero, Bellosillo
and Kapunan voted to deny the motions for lack of merit; and six (6)
members, namely, Associate Justices Melo, Puno, Mendoza, Francisco,
Hermosisima and Panganiban voted to grant the same. Justice Vitug
maintained his opinion that the matter was not ripe for judicial
adjudication. The motions for reconsideration were therefore denied for
lack of sufficient votes to modify or reverse the decision of March 19,
1997.8
On June 23, 1997, PIRMA filed with the COMELEC a Petition for
Initiative to Propose Amendments to the Constitution (PIRMA Petition).
The PIRMA Petition was supported by around five (5) million signatures
in compliance with R.A. 6735 and COMELEC Resolution No. 2300, and
prayed that the COMELEC, among others: (1) cause the publication of
the petition in Filipino and English at least twice in newspapers of general
and local circulation; (2) order all election officers to verify the signatures
collected in support of the petition and submit these to the Commission;
and (3) set the holding of a plebiscite where the following proposition
would be submitted to the people for ratification:
Do you approve amendments to the 1987 Constitution giving the
President the chance to be reelected for another term, similarly
with the Vice-President, so that both the highest officials of the
land can serve for two consecutive terms of six years each, and
also to lift the term limits for all other elective government officials,
thus giving Filipino voters the freedom of choice, amending for
that purpose, Section 4 of Article VII, Sections 4 and 7 of Article
VI and Section 8 of Article X, respectively?
The COMELEC dismissed the PIRMA Petition in view of the permanent
restraining order issued by the Court in Santiago v. COMELEC.
PIRMA filed with this Court a Petition for Mandamus and Certiorari
seeking to set aside the COMELEC Resolution dismissing its petition for
initiative. PIRMA argued that the Court's decision on the Delfin Petition
did not bar the COMELEC from acting on the PIRMA Petition as said
ruling was not definitive based on the deadlocked voting on the motions
for reconsideration, and because there was no identity of parties and
subject matter between the two petitions. PIRMA also urged the Court to
reexamine its ruling in Santiago v. COMELEC.
The Court dismissed the petition for mandamus and certiorari in its
resolution dated September 23, 1997. It explained:
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:
I
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 decisisdeveloped 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 Provisions), and even XVII (Amendments or Revisions). In fine, we stand
Constitution by initiative but merely by amendments. on unsafe ground if we use simple arithmetic to determine whether
the proposed changes are "simple" or "substantial."
MR. BENGZON. Only by amendments.
Nor can this Court be surefooted if it applies the qualitative test to
MR. AZCUNA. I remember that was taken on the floor. determine whether the said changes are "simple" or "substantial" as to
amount to a revision of the Constitution. The well-regarded political
MR. RODRIGO. Yes, just amendments. 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 oppositors-intervenors then point out that by their proposals,
the powers of the government as a means of securing the enjoyment of
petitioners will "change the very system of government from presidential
these rights; the constitution of government which deals with the
to parliamentary, and the form of the legislature from bicameral to
framework of government and its powers, laying down certain rules for its
unicameral," among others. They allegedly seek other major revisions
administration and defining the electorate; and, the constitution of
like the inclusion of a minimum number of inhabitants per district, a
sovereignty which prescribes the mode or procedure for amending or
change in the period for a term of a Member of Parliament, the removal of
revising the constitution.49 It is plain that the proposed changes will
the limits on the number of terms, the election of a Prime Minister who
basically affect only the constitution of government. The
shall exercise the executive power, and so on and so forth.47 In sum,
constitutions of liberty and sovereignty remain unaffected. Indeed, the
oppositors-intervenors submit that "the proposed changes to the
proposed changes will not change the fundamental nature of our
Constitution effect major changes in the political structure and system,
state as "x x x a democratic and republican state."50 It is self-evident
the fundamental powers and duties of the branches of the government,
that a unicameral-parliamentary form of government will not make our
the political rights of the people, and the modes by which political rights
State any less democratic or any less republican in character. Hence,
may be exercised."48 They conclude that they are substantial
neither will the use of the qualitative test resolve the issue of whether
amendments which cannot be done through people's initiative. In other
the proposed changes are "simple" or "substantial."
words, they posit the thesis that only simple but not substantial
amendments can be done through people's initiative.
For this reason and more, our Constitutions did not adopt any
quantitative or qualitative test to determine whether an
With due respect, I disagree. To start with, the words "simple" and
"amendment" is "simple" or "substantial." Nor did they provide that
"substantial" are not subject to any accurate quantitative or qualitative
"substantial" amendments are beyond the power of the people to
test. Obviously, relying on the quantitative test, oppositors-intervenors
propose to change the Constitution. Instead, our Constitutions
assert that the amendments will result in some one hundred (100)
carried the traditional distinction between "amendment" and
changes in the Constitution. Using the same test, however, it is also
"revision," i.e., "amendment" means change, including complex
arguable that petitioners seek to change basically only two (2) out of the
changes while "revision" means complete change, including the
eighteen (18) articles of the 1987 Constitution, i.e. Article VI (Legislative
adoption of an entirely new covenant. The legal dictionaries express
Department) and Article VII (Executive Department), together with the
this traditional difference between "amendment" and "revision." Black's
complementary provisions for a smooth transition from a presidential
Law Dictionary defines "amendment" as "[a] formal revision or addition
bicameral system to a parliamentary unicameral structure. The big bulk
proposed or made to a statute, constitution, pleading, order, or other
of the 1987 Constitution will not be affected including Articles I
instrument; specifically, a change made by addition, deletion, or
(National Territory), II (Declaration of Principles and State Policies), III
correction."51 Black's also refers to "amendment" as "the process of
(Bill of Rights), IV (Citizenship), V (Suffrage), VIII (Judicial Department),
making such a revision."52 Revision, on the other hand, is defined as "[a]
IX (Constitutional Commissions), X (Local Government), XI
reexamination or careful review for correction or improvement."53 In
(Accountability of Public Officers), XII (National Economy and Patrimony),
parliamentary law, it is described as "[a] general and thorough rewriting of
XIII (Social Justice and Human Rights), XIV (Education, Science and
a governing document, in which the entire document is open to
Technology, Arts, Culture, and Sports), XV (The Family), XVI (General
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 x73
MR. OPLE. x x x x The Committee added the word "democratic"
to "republican," and, therefore, the first sentence states: "The
Philippines is a republican and democratic state x x x x
 May I know from the committee the reason for adding the word
"democratic" to "republican"? The constitutional framers of the
1935 and 1973 Constitutions were content with "republican." Was
this done merely for the sake of emphasis?
MR. NOLLEDO. x x x x "democratic" was added because of
the need to emphasize people power and the many
provisions in the Constitution that we have approved related
to recall, people's organizations, initiative and the like, which
recognize the participation of the people in policy-making in
certain circumstances x x x x
MR. OPLE. I thank the Commissioner. That is a very clear
answer and I think it does meet a need x x x x
MR. NOLLEDO. According to Commissioner Rosario Braid,
"democracy" here is understood as participatory
democracy. 74 (emphasis supplied)
The following exchange between Commissioners Rene V. Sarmiento
and Adolfo S. Azcuna is of the same import:75
MR. SARMIENTO. When we speak of republican democratic
state, are we referring to representative democracy?
MR. AZCUNA. That is right.
MR. SARMIENTO. So, why do we not retain the old formulation
under the 1973 and 1935 Constitutions which used the words
"republican state" because "republican state" would refer to a
democratic state where people choose their representatives?
MR. AZCUNA. We wanted to emphasize the participation of the
people in government.
MR. SARMIENTO. But even in the concept "republican state," we
are stressing the participation of the people x x x x So the word
"republican" will suffice to cover popular representation.
MR. AZCUNA. Yes, the Commissioner is right. However, the
committee felt that in view of the introduction of the aspects
of direct democracy such as initiative, referendum or recall, it
was necessary to emphasize the democratic portion of
republicanism, of representative democracy as well. So, we want
to add the word "democratic" to emphasize that in this new
Constitution there are instances where the people would act
directly, and not through their representatives. (emphasis
supplied)
Consistent with the stress on direct democracy, the systems of
initiative, referendum, and recall were enthroned as polestars in the
1987 Constitution. Thus, Commissioner Blas F. Ople who introduced
the provision on people's initiative said:76
MR. OPLE. x x x x I think this is just the correct time in history
when we should introduce an innovative mode of proposing
amendments to the Constitution, vesting in the people and their
organizations the right to formulate and propose their own
amendments and revisions of the Constitution in a manner
that will be binding upon the government. It is not that I believe
this kind of direct action by the people for amending a constitution
will be needed frequently in the future, but it is good to know
that the ultimate reserves of sovereign power still rest upon
the people and that in the exercise of that power, they can
propose amendments or revision to the
Constitution. (emphasis supplied)
Commissioner Jose E. Suarez also explained the people's initiative as
a safety valve, as a peaceful way for the people to change their
Constitution, by citing our experiences under the Marcos
government, viz:77
MR. SUAREZ. We agree to the difficulty in implementing this
particular provision, but we are providing a channel for the
expression of the sovereign will of the people through this
initiative system.
MR. BENGZON. Is Section 1, paragraphs (a) and (b), not
sufficient channel for expression of the will of the people,
particularly in the amendment or revision of the Constitution?
MR. SUAREZ. Under normal circumstances, yes. But we know
what happened during the 20 years under the Marcos
administration. So, if the National Assembly, in a manner of
speaking, is operating under the thumb of the Prime Minister or
the President as the case may be, and the required number of
 votes could not be obtained, we would have to provide for
a safety valve in order that the people could ventilate in a very
peaceful way their desire for amendment to the Constitution.
It is very possible that although the people may be
pressuring the National Assembly to constitute itself as a
constituent assembly or to call a constitutional convention,
the members thereof would not heed the people's desire and
clamor. So this is a third avenue that we are providing for the
implementation of what is now popularly known as people's
power. (emphasis supplied)
Commissioner Regalado E. Maambong opined that the people's
initiative could avert a revolution, viz:78
MR. MAAMBONG. x x x x the amending process of the
Constitution could actually avert a revolution by providing a
safety valve in bringing about changes in the Constitution through
pacific means. This, in effect, operationalizes what political law
authors call the "prescription of sovereignty." (emphasis supplied)
The end result is Section 2, Article XVII of the 1987 Constitution which
expressed the right of the sovereign people to propose amendments to
the Constitution by direct action or through initiative. To that extent, the
delegated power of Congress to amend or revise the Constitution
has to be adjusted downward. Thus, Section 1, Article VI of the 1987
Constitution has to be reminted and now provides: "The legislative
power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives, except to the
extent reserved to the people by the provision on initiative and
referendum."
Prescinding from these baseline premises, the argument that the
people through initiative cannot propose substantial amendments
to change the Constitution turns sovereignty on its head. At the very
least, the submission constricts the democratic space for the exercise
of the direct sovereignty of the people. It also denigrates the sovereign
people who they claim can only be trusted with the power to
propose "simple" but not "substantial" amendments to the
Constitution. According to Sinco, the concept of sovereignty should be
strictly understood in its legal meaning as it was originally developed in
law.79 Legal sovereignty, he explained, is "the possession of unlimited
power to make laws. Its possessor is the legal sovereign. It implies the
absence of any other party endowed with legally superior powers and
privileges. It is not subject to law 'for it is the author and source of
law.' Legal sovereignty is thus the equivalent of legal omnipotence."80
To be sure, sovereignty or popular sovereignty, emphasizes the
supremacy of the people's will over the state which they themselves have
created. The state is created by and subject to the will of the people, who
are the source of all political power. Rightly, we have ruled that "the
sovereignty of our people is not a kabalistic principle whose dimensions
are buried in mysticism. Its metes and bounds are familiar to the framers
of our Constitutions. They knew that in its broadest sense, sovereignty is
meant to be supreme, the jus summi imperu, the absolute right to
govern."81
James Wilson, regarded by many as the most brilliant, scholarly, and
visionary lawyer in the United States in the 1780s, laid down the first
principles of popular sovereignty during the Pennsylvania ratifying
convention of the 1787 Constitution of the United States:82
There necessarily exists, in every government, a power from
which there is no appeal, and which, for that reason, may be
termed supreme, absolute, and uncontrollable.
x x x x Perhaps some politician, who has not considered with
sufficient accuracy our political systems, would answer that, in
our governments, the supreme power was vested in the
constitutions x x x x This opinion approaches a step nearer to the
truth, but does not reach it. The truth is, that in our
governments, the supreme, absolute, and uncontrollable
power remains in the people. As our constitutions are superior
to our legislatures, so the people are superior to our constitutions.
Indeed the superiority, in this last instance, is much greater; for
the people possess over our constitution, control in act, as well as
right. (emphasis supplied)
I wish to reiterate that in a democratic and republican state, only the
people is sovereign - - - not the elected President, not the elected
Congress, not this unelected Court. Indeed, the sovereignty of the people
which is indivisible cannot be reposed in any organ of government. Only
its exercise may be delegated to any of them. In our case, the
people delegated to Congress the exercise of the sovereign power
to amend or revise the Constitution. If Congress, as delegate, can
exercise this power to amend or revise the Constitution, can it be argued
that the sovereign people who delegated the power has no power to
substantially amend the Constitution by direct action? If the sovereign
people do not have this power to make substantial amendments to the
Constitution, what did it delegate to Congress? How can the people lack
this fraction of a power to substantially amend the Constitution when by
their sovereignty, all power emanates from them? It will take
some mumbo jumbo to argue that the whole is lesser than its part. Let
Sinco clinch the point:83
But although possession may not be delegated, the exercise of
sovereignty often is. It is delegated to the organs and agents of
the state which constitute its government, for it is only through
this instrumentality that the state ordinarily functions. However
ample and complete this delegation may be, it is
nevertheless subject to withdrawal at any time by the
state. On this point Willoughby says:
Thus, States may concede to colonies almost complete
autonomy of government and reserve to themselves a
right to control of so slight and so negative a character as
to make its exercise a rare and improbable occurrence;
yet so long as such right of control is recognized to exist,
and the autonomy of the colonies is conceded to be
founded upon a grant and continuing consent of the
mother countries the sovereignty of those mother
countries over them is complete and they are to be
considered as possessing only administrative autonomy
and not political independence.
At the very least, the power to propose substantial amendments to
the Constitution is shared with the people. We should accord the
most benign treatment to the sovereign power of the people to
propose substantial amendments to the Constitution especially
when the proposed amendments will adversely affect the interest of
some members of Congress. A contrary approach will suborn the
public weal to private interest and worse, will enable Congress (the
delegate) to frustrate the power of the people to determine their
destiny (the principal).
All told, the teaching of the ages is that constitutional clauses
acknowledging the right of the people to exercise initiative and
referendum are liberally and generously construed in favor of the
people.84 Initiative and referendum powers must be broadly construed to
maintain maximum power in the people.85 We followed this orientation
in Subic Bay Metropolitan Authority v. Commission on Elections.86 There
is not an iota of reason to depart from it.
V
The issues at bar are not political questions.
Petitioners submit that "[t]he validity of the exercise of the right of the
sovereign people to amend the Constitution and their will, as expressed
by the fact that over six million registered voters indicated their support of
the Petition for Initiative, is a purely political question which is beyond
even the very long arm of this Honorable Court's power of judicial review.
Whether or not the 1987 Constitution should be amended is a matter
which the people and the people alone must resolve in their sovereign
capacity."87 They argue that "[t]he power to propose amendments to the
Constitution is a right explicitly bestowed upon the sovereign people.
Hence, the determination by the people to exercise their right to propose
amendments under the system of initiative is a sovereign act and falls
squarely within the ambit of a 'political question.'"88
The petitioners cannot be sustained. This issue has long been interred
by Sanidad v. Commission on Elections, viz:89
Political questions are neatly associated with the wisdom, not the
legality of a particular act. Where the vortex of the controversy
refers to the legality or validity of the contested act, that matter is
definitely justiciable or non-political. What is in the heels of the
Court is not the wisdom of the act of the incumbent President in
proposing amendments to the Constitution, but his constitutional
authority to perform such act or to assume the power of a
constituent assembly. Whether the amending process confers on
the President that power to propose amendments is therefore a
downright justiciable question. Should the contrary be found, the
actuation of the President would merely be a brutum fulmen. If
the Constitution provides how it may be amended, the judiciary as
the interpreter of that Constitution, can declare whether the
procedure followed or the authority assumed was valid or not.
We cannot accept the view of the Solicitor General, in pursuing
his theory of non-justiciability, that the question of the President's
authority to propose amendments and the regularity of the
procedure adopted for submission of the proposals to the people
ultimately lie in the judgment of the latter. A clear Descartes
 fallacy of vicious cycle. Is it not that the people themselves, by
their sovereign act, provided for the authority and procedure for
the amending process when they ratified the present Constitution
in 1973? Whether, therefore, that constitutional provision has
been followed or not is indisputably a proper subject of inquiry,
not by the people themselves – of course – who exercise no
power of judicial review, but by the Supreme Court in whom the
people themselves vested that power, a power which includes the
competence to determine whether the constitutional norms for
amendments have been observed or not. And, this inquiry must
be done a priori not a posteriori, i.e., before the submission to and
ratification by the people.
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."90Compliance 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 SUPERIORSused as basis for such verification of
signatures.91
Senate Minority Leader Aquilino Pimentel, Jr., among others, further
clarified that although Atty. Casquejo and Reynne Joy B. Bullecer, Acting
Election Officer IV, First District, Davao City, later issued certifications
stating that the Office of the City Election Officer has examined the list of
individuals appearing in the signature sheets,92 the certifications reveal
that the office had verified only the names of the signatories, but not their
signatures. Oppositors-intervenors submit that not only the names of the
signatories should be verified, but also their signatures to ensure the
identities of the persons affixing their signatures on the signature sheets.
Oppositor-intervenor Luwalhati Antonino also alleged that petitioners
failed to obtain the signatures of at least three per cent (3%) of the total
number of registered voters in the First Legislative District of South
Cotabato. For the First District of South Cotabato, petitioners submitted
3,182 signatures for General Santos City, 2,186 signatures for Tupi,
3,308 signatures for Tampakan and 10,301 signatures for Polomolok, or
18,977 signatures out of 359,488 registered voters of said district.
Antonino, however, submitted to this Court a copy of the certification by
Glory D. Rubio, Election Officer III, Polomolok, dated May 8, 2006,
showing that the signatures from Polomolok were not verified because
the Book of Voters for the whole municipality was in the custody of the
Clerk of Court of the Regional Trial Court, Branch 38, Polomolok, South
Cotabato.93 Excluding the signatures from Polomolok from the total
number of signatures from the First District of South Cotabato would yield
only a total of 8,676 signatures which falls short of the three per cent
(3%) requirement for the district.
Former President Joseph Ejercito Estrada and Pwersa ng Masang
Pilipino likewise submitted to this Court a certification issued by Atty.
Stalin A. Baguio, City Election Officer IV, Cagayan de Oro City, stating
that the list of names appearing on the signature sheets corresponds to
the names of registered voters in the city, thereby implying that they have
not actually verified the signatures.94
The argument against the sufficiency of the signatures is further bolstered
by Alternative Law Groups, Inc., which submitted copies of similarly
worded certifications from the election officers from Zamboanga del
Sur95 and from Compostela Valley.96 Alternative Law Groups, Inc., further
assails the regularity of the verification process as it alleged that
verification in some areas were conducted by Barangay officials and not
by COMELEC election officers. It filed with this Court copies of
certifications from Sulu and Sultan Kudarat showing that the verification
was conducted by local officials instead of COMELEC personnel.97
Petitioners, on the other hand, maintain that the verification conducted
by the election officers sufficiently complied with the requirements of the
Constitution and the law on initiative.
Contravening the allegations of oppositors-intervenors on the lack of
verification in Davao City and in Polomolok, South Cotabato, petitioner
Aumentado claimed that the same election officers cited by the
oppositors-intervenors also issued certifications showing that they have
verified the signatures submitted by the proponents of the people's
initiative. He presented copies of the certifications issued by Atty. Marlon
S. Casquejo for the Second and Third Legislative Districts of Davao City
stating that he verified the signatures of the proponents of the people's
initiative. His certification for the Second District states:
This is to CERTIFY that this Office has examined the list of
individuals as appearing in the Signature Sheets of the
Registered Voters of District II, Davao City, submitted on April 7,
2006 by MR. NONATO BOLOS, Punong Barangay, Centro,
Davao City for verification which consists of THIRTY THOUSAND
SIX HUNDRED SIXTY-TWO (30,662) signatures.
Anent thereto, it appears that of the THIRTY THOUSAND SIX
HUNDRED SIXTY-TWO (30,662) individuals, only TWENTY-
TWO THOUSAND SIX HUNDRED SIXTY-EIGHT (22,668)
individuals were found to be REGISTERED VOTERS, in the
Computerized List of Voters of SECOND CONGRESSIONAL
DISTRICT, DAVAO CITY.98
It was also shown that Atty. Casquejo had issued a clarificatory
certification regarding the verification process conducted in Davao City. It
reads:
Regarding the verification of the signatures of registered voters,
this Office has previously issued two (2) separate certifications for
the 2nd and 3rd Districts of Davao City on April 20, 2006 and April
26, 2006, respectively, specifically relating to the voters who
supported the people's initiative. It was stated therein that the
names submitted, comprising 22,668 individual voters in the
2nd District and 18,469 individual voters in the 3rd District, were
found [to] be registered voters of the respective districts
mentioned as verified by this Office based on the Computerized
List of Voters.
It must be clarified that the August 23, 2006 Certification was
issued in error and by mistake for the reason that the signature
verification has not been fully completed as of that date.
I hereby CERTIFY that this Office has examined the signatures of
the voters as appearing in the signature sheets and has
compared these with the signatures appearing in the book of
voters and computerized list of voters x x x 99
Petitioner Aumentado also submitted a copy of the certification dated
May 8, 2006 issued by Polomolok Election Officer Glory D. Rubio to
support their claim that said officer had conducted a verification of
signatures in said area. The certification states:
This is to certify further, that the total 68,359 registered voters of
this municipality, as of the May 10, 2004 elections, 10,804 names
with signatures were submitted for verification and out of which
10,301 were found to be legitimate voters as per official list of
registered voters, which is equivalent to 15.07% of the total
number of registered voters of this Municipality.100
In addition to the lack of proper verification of the signatures in numerous
legislative districts, allegations of fraud and irregularities in the collection
of signatures in Makati City were cited by Senator Pimentel, among
others, to wit:
(1) No notice was given to the public, for the benefit of those who
may be concerned, by the Makati COMELEC Office that
signature sheets have already been submitted to it for
"verification." The camp of Mayor Binay was able to witness the
"verification process" only because of their pro-active stance;
(2) In District 1, the proponents of charter change submitted
43,405 signatures for verification. 36,219 alleged voters'
signatures (83% of the number of signatures submitted) were
rejected outright. 7,186 signatures allegedly "passed"
COMELEC's initial scrutiny. However, upon examination of the
signature sheets by Atty. Mar-len Abigail Binay, the said 7,186
signatures could not be accounted for. Atty. Binay manually
counted 2,793 signatures marked with the word "OK" and 3,443
signatures marked with a check, giving only 6,236 "apparently
verified signatures." Before the COMELEC officer issued the
Certification, Atty. Binay already submitted to the said office not
less than 55 letters of "signature withdrawal," but no action was
ever taken thereon;
(3) In District 2, 29,411 signatures were submitted for verification.
23,521 alleged voters' signatures (80% of those submitted) were
rejected outright. Of the 5,890 signatures which allegedly passed
the COMELEC's initial scrutiny, some more will surely fail upon
closer examination;
(4) In the absence of clear, transparent, and uniform rules the
COMELEC personnel did not know how to treat the objections
and other observations coming from the camp of Mayor Binay.
The oppositors too did not know where to go for their remedy
when the COMELEC personnel merely "listened" to their
objections and other observations. As mentioned earlier, the
COMELEC personnel did not even know what to do with the
many "letters of signature withdrawal" submitted to it;
(5) Signatures of people long dead, in prison, abroad, and other
forgeries appear on the Sigaw ng Bayan Signature Sheets. There
is even a 15-year old alleged signatory;
(6) There are Signature Sheets obviously signed by one person;
(7) A Calara M. Roberto and a Roberto M. Calara both allegedly
signed the Signature Sheets.101
Also, there are allegations that many of the signatories did not
understand what they have signed as they were merely misled into
signing the signature sheets. Opposed to these allegations are rulings
that a person who affixes his signature on a document raises the
presumption that the person so signing has knowledge of what the
document contains. Courts have recognized that there is great value in
the stability of records, so to speak, that no one should commit herself or
himself to something in writing unless she or he is fully aware and
cognizant of the effect it may have upon her on him.102 In the same vein,
we have held that a person is presumed to have knowledge of the
contents of a document he has signed.103 But as this Court is not a trier of
facts, it cannot resolve the issue.
In sum, the issue of whether the petitioners have complied with the
constitutional requirement that the petition for initiative be signed by at
least twelve per cent (12%) of the total number of registered voters, of
which every legislative district must be represented by at least three per
cent (3%) of the registered voters therein, involves contentious
facts. Its resolution will require presentation of evidence and their
calibration by the COMELEC according to its rules. During the oral
argument on this case, the COMELEC, through Director Alioden Dalaig
of its Law Department, admitted that it has not examined the documents
submitted by the petitioners in support of the petition for initiative, as well
as the documents filed by the oppositors to buttress their claim that the
required number of signatures has not been met. The exchanges during
the oral argument likewise clearly show the need for further clarification
and presentation of evidence to prove certain material facts.104
The only basis used by the COMELEC to dismiss the petition for
initiative was this Court's ruling in Santiago v. COMELEC that R.A. 6735
was insufficient. It has yet to rule on the sufficiency of the form and
substance of the petition. I respectfully submit that this issue should
be properly litigated before the COMELEC where both parties will be
given full opportunity to prove their allegations.
For the same reasons, the sufficiency of the Petition for Initiative
and its compliance with the requirements of R.A. 6735 on initiative
and its implementing rules is a question that should be resolved by the
COMELEC at the first instance, as it is the body that is mandated by the
Constitution to administer all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum and recall.105
VII
 COMELEC gravely abused its discretion when it denied due
course to the Lambino and Aumentado petition.
In denying due course to the Lambino and Aumentado petition,
COMELEC relied on this Court's ruling in Santiagopermanently enjoining
it from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been
validly enacted to provide for the implementation of the system.
Again, I respectfully submit that COMELEC's reliance
on Santiago constitutes grave abuse of discretion amounting to lack of
jurisdiction. The Santiago case did not establish the firm doctrine that
R.A. 6735 is not a sufficient law to implement the constitutional provision
allowing people's initiative to amend the Constitution. To recapitulate, the
records show that in the original decision, eight (8) justices106 voted
that R.A. 6735 was not a sufficient law; five (5) justices107 voted that said
law was sufficient; and one (1) justice108 abstained from voting on the
issue holding that unless and until a proper initiatory pleading is filed, the
said issue is not ripe for adjudication.109
Within the reglementary period, the respondents filed their motion for
reconsideration. On June 10, 1997, the Court denied the motion. Only
thirteen (13) justices resolved the motion for Justice Torres inhibited
himself.110 Of the original majority of eight (8) justices, only six (6)
reiterated their ruling that R.A. 6735 was an insufficient law. Justice
Hermosisima, originally part of the majority of eight (8) justices, changed
his vote and joined the minority of five (5) justices. He opined without any
equivocation that R.A. 6735 was a sufficient law, thus:
It is one thing to utter a happy phrase from a protected cluster;
another to think under fire – to think for action upon which great
interests depend." So said Justice Oliver Wendell Holmes, and so
I am guided as I reconsider my concurrence to the holding of the
majority that "R.A. No. 6735 is inadequate to cover the system of
initiative on amendments to the Constitution and to have failed to
provide sufficient standard for subordinate legislation" and now to
interpose my dissent thereto.
xxx
WHEREFORE, I vote to dismiss the Delfin petition.
I vote, however, to declare R.A. No. 6735 as adequately
providing the legal basis for the exercise by the people of
their right to amend the Constitution through initiative
proceedings and to uphold the validity of COMELEC Resolution
No. 2300 insofar as it does not sanction the filing of the initiatory
petition for initiative proceedings to amend the Constitution
without the required names and/or signatures of at least 12% of
all the registered voters, of which every legislative district must be
represented by at least 3% of the registered voters therein.
(emphasis supplied)
Justice Vitug remained steadfast in refusing to rule on the sufficiency of
R.A. 6735. In fine, the final vote on whether R.A. 6735 is a sufficient law
was 6-6 with one (1) justice inhibiting himself and another justice refusing
to rule on the ground that the issue was not ripe for adjudication.
It ought to be beyond debate that the six (6) justices who voted that R.A.
6735 is an insufficient law failed to establish a doctrine that could serve
as a precedent. Under any alchemy of law, a deadlocked vote of six (6) is
not a majority and a 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
corpusstate 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. Sabido128-
A party may not evade the application of the rule of res
judicata by simply including additional parties in the
subsequent case or by not including as parties in the later
case persons who were parties in the previous suit. The
joining of new parties does not remove the case from the
operation of the rule on res judicata if the party against
whom the judgment is offered in evidence was a party in
the first action; otherwise, the parties might renew the
litigation by simply joining new parties.
The fact that some persons or entities joined as parties in the
PIRMA petition but were not parties in Santiago v. COMELEC
does not affect the operation of the prior judgment against those
parties to the PIRMA Petition who were likewise parties in
Santiago v. COMELEC, as they are bound by such prior
judgment.
Needless to state, the dismissal of the PIRMA petition which was based
on res judicata binds only PIRMA but not the petitioners.
VIII
Finally, let the people speak.
"It is a Constitution we are expounding" solemnly intoned the
great Chief Justice John Marshall of the United States in the 1819 case
of M'cCulloch v. Maryland.129 Our Constitution is not a mere collection of
slogans. Every syllable of our Constitution is suffused with significance
and requires our full fealty. Indeed, the rule of law will wither if we allow
the commands of our Constitution to underrule us.
The first principle enthroned by blood in our Constitution is
the sovereignty of the people. We ought to be concerned with this first
principle, i.e., the inherent right of the sovereign people to decide whether
to amend the Constitution. Stripped of its abstractions, democracy is all
about who has the sovereign right to make decisions for the people and
our Constitution clearly and categorically says it is no other than the
people themselves from whom all government authority emanates. This
right of the people to make decisions is the essence of sovereignty,
and it cannot receive any minimalist interpretation from this Court. If
there is any principle in the Constitution that cannot be diluted and is non-
negotiable, it is this sovereign right of the people to decide.
This Court should always be in lockstep with the people in the
exercise of their sovereignty. Let them who will diminish or destroy the
sovereign right of the people to decide be warned. Let not their
sovereignty be diminished by those who belittle their brains to
comprehend changes in the Constitution as if the people themselves are
not the source and author of our Constitution. Let not their sovereignty be
destroyed by the masters of manipulation who misrepresent themselves
as the spokesmen of the people.
Be it remembered that a petition for people's initiative that complies with
the requirement that it "must be signed by at least 12% of the total
number of registered voters of which every legislative district is
represented by at least 3% of the registered voters therein" is but the
first step in a long journey towards the amendment of the Constitution.
Lest it be missed, the case at bar involves but a proposal to amend the
Constitution. The proposal will still be debated by the people and at
this time, there is yet no fail-safe method of telling what will be the result
of the debate. There will still be a last step to the process of amendment
which is the ratification of the proposal by a majority of the people in a
plebiscite called for the purpose. Only when the proposal is approved
by a majority of the people in the plebiscite will it become an
amendment to the Constitution. All the way, we cannot tie the
tongues of the people. It is the people who decide for the people are
not an obscure footnote in our Constitution.
The people's voice is sovereign in a democracy. Let us hear them.
Let us heed them. Let us not only sing paens to the people's
sovereignty. Yes, it is neither too soon nor too late to let the people
speak.
IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the resolution
of the Commission on Elections dated August 31, 2006, denying due
course to the Petition for Initiative filed by Raul L. Lambino and Erico B.
Aumentado in their own behalf and together with some 6.3 million
registered voters who affixed their signatures thereon and
to REMAND the petition at bar to the Commission on Elections for further
proceedings.
REYNATO S. PUNO
Associate Justice
____________________
EN BANC
G. R. No. 174153 October 25, 2006
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."4As 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.8The 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,1expressly 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.
I DISMISS the DELFIN petition (UND-96-037).
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
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
opinion12 in the Santiago case, that reads –
R.A. No. 6735 sufficiently states the policy and the standards to
guide the COMELEC in promulgating the law's implementing
rules and regulations of the law. As aforestated, Section 2 spells
out the policy of the law; viz: "The power of the people under a
system of initiative and referendum to directly propose, enact,
approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed." Spread out all over R.A. No. 6735
are the standards to canalize the delegated power to the
COMELEC to promulgate rules and regulations from overflowing.
Thus, the law states the number of signatures necessary to start
a people's initiative, directs how initiative proceeding is
commenced, what the COMELEC should do upon filing of the
petition for initiative, how a proposition is approved, when a
plebiscite may be held, when the amendment takes effect, and
what matters may not be the subject of any initiative. By any
measure, these standards are adequate.
III
The dissent of Justice Puno has already a well-presented discourse on
the difference between an "amendment" and a "revision" of the
Constitution. Allow me also to articulate my additional thoughts on the
matter.
Oppositors to Lambino and Aumentado's petition for initiative argue that
the proposed changes therein to the provisions of the Constitution
already amount to a revision thereof, which is not allowed to be done
through people's initiative; Article XVII, Section 2 of the Constitution on
people's initiative refers only to proposals for amendments to the
Constitution. They assert the traditional distinction between an
amendment and a revision, with amendment referring to isolated or
piecemeal change only, while revision as a revamp or rewriting of the
whole instrument.13
However, as pointed out by Justice Puno in his dissent, there is no
quantitative or qualitative test that can establish with definiteness the
distinction between an amendment and a revision, or between a
substantial and simple change of the Constitution.
The changes proposed to the Constitution by Lambino and Aumentado's
petition for initiative basically affect only Article VI on the Legislative
Department and Article VII on the Executive Department. While the
proposed changes will drastically alter the constitution of our government
by vesting both legislative and executive powers in a unicameral
Parliament, with the President as the Head of State and the Prime
Minister exercising the executive power; they would not essentially affect
the other 16 Articles of the Constitution. The 100 or so changes counted
by the oppositors to the other provisions of the Constitution are
constituted mostly of the nominal substitution of one word for the other,
such as Parliament for Congress, or Prime Minister for President. As
eloquently pointed out in the dissent of Justice Puno, the changes
proposed to transform our form of government from bicameral-
presidential to unicameral-parliamentary, would not affect the
fundamental nature of our state as a democratic and republican state. It
will still be a representative government where officials continue to be
accountable to the people and the people maintain control over the
government through the election of members of the Parliament.
Furthermore, should the people themselves wish to change a substantial
portion or even the whole of the Constitution, what or who is to stop
them? Article XVII, Section 2 of the Constitution which, by the way it is
worded, refers only to their right to initiative on amendments of the
Constitution? The 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 In this thorny matter of the people's initiative, I concur with the erudite and
Aumentado. highly persuasive opinion of Justice Reynato S. Puno upholding the
people's initiative and raise some points of my own.
MINITA V. CHICO-NAZARIO
The issue of the people's power to propose amendments to the
Associate Justice
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.
EN BANC
The issue of Charter Change is one that has sharply divided the nation,
G.R. No. 174153 October 25, 2006 and its proponents and opponents will understandably take all measures
to advance their position and defeat that of their opponents. The wisdom
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with or folly of Charter Change does not concern the Court. The only thing that
6,327,952 REGISTERED VOTERS, petitioners, vs. The COMMISSION the Court must review is the validity of the present step taken by the
ON ELECTIONS, respondent. proponents of Charter Change, which is the People's Initiative, as set
down in Article XVII, Sec. 2 of the 1987 Constitution:
G.R. No. 174299 October 25, 2006
Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.
least twelve per centum of the total number of registered voters,
Q. SAGUISAG, petitioners vs. COMMISSION ON ELECTIONS,
of which every legislative district must be represented by at least
Represented by Chairman BENJAMIN S. ABALOS, JR., and
three per centum of the registered voters therein. No amendment
Commissioners RESURRECCION Z. BORRA, FLORENTINO A.
under this section shall be authorized within five years following
TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and
the ratification of this Constitution nor oftener than once every five
John Doe and Peter Doe, respondents.
years thereafter.
x ---------------------------------------------------------------------------------------- x
The Congress shall provide for the implementation of the exercise
of this right.
SEPARATE OPINION
In the Santiago case, the Court discussed whether the second paragraph
VELASCO, JR., J.: of that section had been fulfilled. It determined that Congress had not
provided for the implementation of the exercise of the people's initiative,
Introduction when it held that Republic Act No. 6735, or "The Initiative and
Referendum Act," was "inadequate to cover the system of initiative on
The fate of every democracy, of every amendments to the Constitution, and to have failed to provide sufficient
government based on the Sovereignty of the standard for subordinate legislation."2
people, depends on the choices it makes between
these opposite principles: absolute power on the With all due respect to those Justices who made that declaration, I must
one hand, and on the other the restraints of disagree.
legality and the authority of tradition.
—John Acton 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 Elections8confirmed 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
1Including 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."
3This 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.
7As 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 centumof 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.
10Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo
Baya; Philippine Transport and General Workers Organization (PTGWO);
Trade Union Congress of the Philippines; Sulong Bayan Movement
Foundation, Inc.
11 Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon
III, Benjamin T. Tolosa, Jr., Susan V. Ople and Carlos P. Medina, Jr.;
Alternative Law Groups, Inc.; Atty. Pete Quirino Quadra; Bayan, Bayan
Muna, Kilusang Mayo Uno, Head, Ecumenical Bishops Forum, Migrante,
Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino
Students, Jojo Pineda, Dr. Darby Santiago, Dr. Reginald Pamugas;
Loretta Ann P. Rosales, and Mario Joyo Aguja, Ana Theresa Hontiveros-
Baraquel, Luwalhati Ricasa Antonino; Philippine Constitution Association
(PHILCONSA), Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon,
Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and
Amado Gat Inciong; Senate of the Philippines; Jose Anselmo I. Cadiz,
Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador and
Randall C. Tabayoyong, Integrated Bar of the Philippines, Cebu City and
Cebu Province Chapters; Senate Minority Leader Aquilino Q. Pimentel,
Jr., and Senators Sergio R. Osmeňa III, Jamby Madrigal, Jinggoy
Estrada, Alfredo S. Lim and Panfilo Lacson; Joseph Ejercito Estrada and
Pwersa ng Masang Pilipino.
12This 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.
14During the deliberations of the Constitutional Commission,
Commissioner Rene V. Sarmiento made the following report (I RECORD
389):
MR. SARMIENTO: Madam President, I am happy that the
Committee on Amendments and Transitory Provisions decided to
retain the system of initiative as a mode of amending the
 Constitution. I made a survey of American constitutions and I 19 Stumpf v. Law, 839 P. 2d 120, 124 (1992).
discovered that 13 States provide for a system of initiative as a
mode of amending the Constitution — Arizona, Arkansas, 20Exhibit "B" of the Lambino Group's Memorandum filed on 11 October
California, Colorado, Massachusetts, Michigan, Missouri, 2006.
Nebraska, Nevada, North Dakota, Ohio, Oklahoma and Oregon.
The initiative for ordinary laws only is used in Idaho, Maine, Annex "B" of the Comment/Opposition in Intervention of Atty. Pete
21
Montana and South Dakota. So, I am happy that this was Quirino-Quadra filed on 7 September 2006.
accepted or retained by the Committee.
22 www.ulap.gov.ph.
xxxx
23 www.ulap.gov.ph/reso2006-02.html.
The Americans in turn copied the concept of initiatives from the
Swiss beginning in 1898 when South Dakota adopted the
The full text of the proposals of the Consultative Commission on
24
initiative in its constitution. The Swiss cantons experimented with
Charter Change can be downloaded at its official website at
initiatives in the 1830s. In 1891, the Swiss incorporated the
www.concom.ph.
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
25 The Lambino Group's Memorandum, p. 5.
traditional mode of changing the constitution is known as "indirect
democracy" because the amendments are referred to the voters
26 Under the proposed Section 1(2), Article VI of the Constitution,
by the legislature or the constitutional convention. members of Parliament shall be elected for a term of five years "without
limitation as to the number thereof."
Florida requires only that the title and summary of the proposed
15

amendment are "printed in clear and unambiguous language." Advisory

Opinion to the Attorney General RE Right of Citizens to Choose Health
Care Providers, No. 90160, 22 January 1998, Supreme Court of Florida.
16 State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933);
Whitman v. Moore, 59 Ariz. 211, 125 P.2d 445 (1942); Heidtman v. City
of Shaker Heights, 99 Ohio App. 415, 119 N.E. 2d 644 (1954); Christen v.
Baker, 138 Colo. 27, 328 P.2d 951 (1958); Stop the Pay Hike Committee
v. Town Council of Town of Irvington, 166 N.J. Super. 197, 399 A.2d 336
(1979); State ex rel Evans v. Blackwell, Slip copy, 2006 WL 1102804
(Ohio App. 10 Dist.), 2006-Ohio-2076.
27
Under the proposed Section 4(1), Article XVIII, Transitory Provisions of
the Constitution, the interim Parliament "shall continue until the Members
of the regular Parliament shall have been elected and shall have
qualified." Also, under the proposed Section 5(2), Article XVIII, of the
same Transitory Provisions, the interim Parliament "shall provide for the
election of the members of Parliament."
28Under the proposed Section 4(3), Article XVIII, Transitory Provisions of
the Constitution, the interim Parliament, within 45 days from ratification of
the proposed changes, "shall convene to propose amendments to, or
revisions of, this Constitution."

17407 Mass. 949, 955 (1990). Affirmed by the District Court of

29 448 So.2d 984, 994 (1984), internal citations omitted.
Massachusetts in Henry v. Conolly, 743 F. Supp. 922 (1990) and by the
Court of Appeals, First Circuit, in Henry v. Conolly, 9109 F. 2d. 1000 30 698 P.2d 1173, 1184 (1985).
(1990), and cited in Marino v. Town Council of Southbridge, 13
Mass.L.Rptr. 14 (2001). 31 I RECORD 386, 392, 402-403.

18 89 P.3d 1227, 1235 (2004). 32196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App. 1,
882 P.2d 91 (1994).
33 392 P.2d 636, 638 (1964). 50This section provides: "The Philippines is a democratic and republican
State. Sovereignty resides in the people and all government authority
34 930 P.2d 186, 196 (1996), internal citations omitted. emanates from them."

35 Livermore v. Waite, 102 Cal. 113, 118-119 (1894). Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v.
51

COA, 366 Phil. 273 (1999).

Amador Valley Joint Union High School District v. State Board of
36

Equalization, 583 P.2d 1281, 1286 (1978). 52 G.R. No. 129754, Resolution dated 23 September 1997.

37 Id. 53Presidential Proclamation No. 58 dated February 11, 1987, entitled

"Proclaiming the Ratification of the Constitution of the Republic of the
38 Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991). Philippines Adopted by the Constitutional Commission of 1986, including
the Ordinance Appended thereto."
California Association of Retail Tobacconists v. State, 109
39

Cal.App.4th 792, 836 (2003). PANGANIBAN, CJ.:

40 See note 44, infra.

1 Chief Justice McLachlin spoke on "Liberty, Prosperity and the Rule of
Law" in her speech before the Global Forum on Liberty and Prosperity
held on October 18-20, 2006 in Manila. She further stated: "Without the
Joaquin Bernas, The 1987 Constitution of the Republic of the
41
rule of law, government officials are not bound by standards of conduct.
Philippines: A Commentary, p. 1294 (2003).
Without the rule of law, the dignity and equality of all people is not
affirmed and their ability to seek redress for grievances and societal
42 238 So.2d 824 (1970). commitments is limited. Without the rule of law, we have no means of
ensuring meaningful participation by people in formulating and enacting
43 Id. at 830-832. the norms and standards which organize the kinds of societies in which
we want to live."
As stated by Associate Justice Romeo J. Callejo, Sr. during the 26
44

September 2006 oral arguments. 2GR No. 127325, March 19, 1997, 336 Phil. 848. For ease of reference,
my Separate Opinion is reproduced in full:
Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10
45

November 2003, 415 SCRA 44; J.M. Tuason & Co., Inc. v. Land Tenure "Our distinguished colleague, Mr. Justice Hilario G. Davide Jr.,
Administration, 142 Phil. 393 (1970); Gold Creek Mining Corporation v. writing for the majority, holds that:
Rodriguez, 66 Phil. 259 (1938).
'(1) The Comelec acted without jurisdiction or with grave abuse of
46882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v. Keisling discretion in entertaining the 'initiatory' Delfin Petition.
found the amendment in question was not a revision.
'(2) While the Constitution allows amendments to 'be directly
47 Section 1, Article V of the Constitution. proposed by the people through initiative,' there is no
implementing law for the purpose. RA 6735 is 'incomplete,
48 Section 11(1), Article XVI of the Constitution. inadequate, or wanting in essential terms and conditions insofar
as initiative on amendments to the Constitution is concerned.'
49 Section 2, Article VII of the Constitution.
'(3) Comelec Resolution No. 2300, 'insofar as it prescribes rules
and regulations on the conduct of initiative on amendments to the
Constitution, is void.'
"I concur with the first item above. Until and unless an initiatory
petition can show the required number of signatures — in this
case, 12% of all the registered voters in the Philippines with at
least 3% in every legislative district — no public funds may be
spent and no government resources may be used in an initiative
to amend the Constitution. Verily, the Comelec cannot even
entertain any petition absent such signatures. However, I dissent
most respectfully from the majority's two other rulings. Let me
explain.
"Under the above restrictive holdings espoused by the Court's
majority, the Constitution cannot be amended at all through a
people's initiative. Not by Delfin, not by PIRMA, not by anyone,
not even by all the voters of the country acting together. This
decision will effectively but unnecessarily curtail, nullify, abrogate
and render inutile the people's right to change the basic law. At
the very least, the majority holds the right hostage to
congressional discretion on whether to pass a new law to
implement it, when there is already one existing at present. This
right to amend through initiative, it bears stressing, is guaranteed
by Section 2, Article XVII of the Constitution, as follows:
their final weapons against political excesses, opportunism,
inaction, oppression and misgovernance; as well as their
reserved instruments to exact transparency, accountability and
faithfulness from their chosen leaders. While on the one hand,
their misuse and abuse must be resolutely struck down, on the
other, their legitimate exercise should be carefully nurtured and
zealously protected.
"WHEREFORE, I vote to GRANT the petition of Sen. Miriam D.
Santiago et al. and to DIRECT Respondent Commission on
Elections to DISMISS the Delfin Petition on the ground of
prematurity, but not on the other grounds relied upon by the
majority. I also vote to LIFT the temporary restraining order
issued on 18 December 1996 insofar as it prohibits Jesus Delfin,
Alberto Pedrosa and Carmen Pedrosa from exercising their right
to free speech in proposing amendments to the Constitution."
3GR No. 129754, September 23, 1997 (still unpublished in the Philippine
Reports or in the Supreme Court Reports Annotated). Again, for ease of
reference, I reproduce my Separate Opinion in full:
"Petitioners assail the July 8, 1997 Resolution of Respondent
Commission dismissing their petition for a people's initiative to
amend the Constitution. Said petition before the Comelec
(henceforth, PIRMA petition) was backed up by nearly six (6)
million signatures constituting about 16% of the registered voters
of the country with at least 3% in each legislative district. The
petition now before us presents two grounds:
"1. In refusing to act on the PIRMA petition, the Comelec
allegedly acted with grave abuse of discretion amounting to lack
or excess of jurisdiction; and
"2. In declaring R.A. 6735 "inadequate to cover its system of
initiative on amendments to the Constitution" and "declaring void
those parts of Resolution 2300 of the Commission on Elections
prescribing rules and regulations on the conduct of [an] initiative
[on] amendments to the Constitution," the Supreme Court's
Decision in G.R. No. 127325 entitled Miriam Defensor Santiago
vs. Commission on Elections (hereafter referred to as Santiago)
should be reexamined because said Decision is allegedly
"unconstitutional," and because, in any event, the Supreme Court
itself, in reconsidering the said issue per its June 10, 1997
Resolution, was deadlocked at six votes one each side.
"The following in my position on each of these two issues:
First Issue:
No Grave Abuse of Discretion in Comelec's Refusal to Act
"The Respondent Commission's refusal to act on the "prayers" of
the PIRMA petition cannot in any wise be branded as "grave
abuse of discretion." Be it remembered that the Court's Decision
in Santiago permanently enjoined the Comelec "from entertaining
or taking cognizance of any petition for initiative on amendments
to the
4 Republic v. COCOFED, 423 Phil. 735, December 14, 2001.
5Well-entrenched is this definition of grave abuse of discretion. Id.;
Benito v. Comelec, 349 SCRA 705, January 19, 2001; Defensor-Santiago
v. Guingona Jr., 359 Phil. 276, November 18, 1998; and Philippine
Airlines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994.
6 In PIRMA, I submitted as follows: "I believed, and still do, that the
majority gravely erred in rendering such a sweeping injunction [that
covered ANY petition, not just the Delfin petition], but I cannot fault the
Comelec for complying with the ruling even if it, too, disagreed with said
decision's ratio decidendi. Respondent Comelec was directly enjoined by
the highest Court of the land. It had no choice but to obey. Its obedience
cannot constitute grave abuse of discretion. Regusal to act on the PIRMA
petition was the only recourse open to the Comelec. Any other mode of
action would have constituted defiance of the Court and would have been
struck down as grave abuse of discretion and contumacious disregard of
this Court's supremacy as the final arbiter of justiciable controversies."
742 Am. Jr. 2d, §26, citing Birmingham Gas Co. v. Bessemer; 250 Ala
137, 33 So 2d 475, 250 Ala 137; Tacker v. Board of Comrs., 127 Fla 248,
170 So 458; Hoxie V. Scott, 45 Neb 199, 63 NW 387; Gill v. Board of
Comrs., 160 NC 176, 76, SE 204.
8 Partido ng Manggagawa v. Comelec, GR No. 164702, March 15, 2006.
9 Article XVII (AMENDMENTS OR REVISIONS)
"SEC. 1. Any amendment to, or revision of, this Constitution may
be proposed by:
(1) The Congress, upon the vote of three-fourths of all its
Members; or
(2) A constitutional convention.
"SEC. 2. Amendments to this Constitution may likewise be
directly proposed by the people though initiative upon a petition of
at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by
at least three per centum of the registered voters therein. No
amendment under this section shall be authorized within five
years following the ratification of this Constitution nor oftener than
once every five years thereafter.
"SEC. 3. The Congress may, by a vote of two-thirds of all its
Members, call a constitutional convention, or by a majority vote of
all its Members, submit to the electorate the question of calling
such a convention.
"SEC. 4. Any amendment to, or revision of, this Constitution
under Section 1 hereof shall be valid when ratified by a majority
of the votes cast in a plebiscite which shall be held not earlier
than sixty days nor later than ninety days after the approval of
such amendment or revision.
"Any amendment under Section 2 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall
be held not earlier than sixty days nor later than ninety days after
the certification by the Commission on Elections of the sufficiency
of the petition."
10 Republic Act 6735, Sec. 10, provides:
"SEC. 10. Prohibited Measures. – The following cannot be the
subject of an initiative or referendum petition:
(a) No petition embracing more than one subject shall be
submitted to the electorate; and
(b) Statutes involving emergency measures, the
enactment of which are specifically vested in Congress by
the Constitution, cannot be subject to referendum until
ninety (90) days after its effectivity."
11The principle of separation of powers operates at the core of a
presidential form of government. Thus, legislative power is given to the
legislature; executive power, to a separate executive (from whose
prominent position in the system, the presidential nomenclature is
derived); and judicial power, to an independent judiciary. This system
embodies interdependence by separation.
On the other hand, a parliamentary system personifies interdependence
by integration, its essential features being the following: "(1) The
members of the government or cabinet or the executive arm are, as a
rule, simultaneously members of the legislature. (2) The government or
cabinet, consisting of the political leaders of the majority party or of a
coalition who are also members of the legislative, is in effect a committee
of the legislature. (3) The government or cabinet has a pyramidal 16See, for instance, the front page Malaya report entitled "Lobbyists soil
structure, at the apex of which is the Prime Minister or his equivalent. (4) dignity of Supreme Court" (October 23, 2006).
The government or cabinet remains in power only for as long as it enjoys
the support of the majority of the legislature. (5) Both government and 17 Lk 8:17.
legislature are possessed of control devices with which each can demand
of the other immediate political responsibility." These control devices are YNARES-SANTIAGO, J.:
a vote of no-confidence (censure), whereby the government may be
ousted by the legislature; and the power of the government to dissolve 1 G.R. No. 127325, March 19, 1997, 270 SCRA 106.
the legislature and call for new elections. (J. BERNAS, THE
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A
COMMENTARY, Vol. II, 17-18 (1988 ed.).
2 SEC. 5. Requirements.— x x x

With respect to the transformation from a bicameral to a unicameral
legislature, the change involves the form of representation and the
lawmaking process.
12Attached to the Opposition-in-Intervention of Intervenors OneVoice Inc.,
etc., is a photocopy of the Certification dated August 23, 2006, issued by
Atty. Marlon S. Casquejo, the election officer for the 3rd District and the
officer-in-charge for the 1st and the 2nd Districts of Davao City. The
Certification states that "this office (First, Second and Third District,
Davao City) has not verified the signatures of registered voters x x x."
(c) The petition shall state the following:
c.1. contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be;
c.2. the proposition;
c.3. the reason or reasons therefore;
c.4. that it is not one of the exceptions provided herein;

13In People v. Veneracion, the Court held: "Obedience to the rule of law
forms the bedrock of our system of justice. If judges, under the guide of
religious or political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to exercise the duties of
their office, then law becomes meaningless. A government of laws, not of
men, excludes the exercise of broad discretionary powers by those acting
under its authority. Under this system, judges are guided by the Rule of
Law, and ought 'to protect and enforce it without fear or favor,' resist
encroachments by governments, political parties, or even the interference
of their own personal beliefs." (249 SCRA 244, October 13, 1995, per
Kapunan, J.)
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.
3 SEC. 3. Definition of Terms.— For purposes of this Act, the following
terms shall mean: x x x
(d) "Proposition" is the measure proposed by the voters.

14An American professor on legal philosophy, A. Altman, puts it thus: "By

4 I Record, Constitutional Commission 387-389 (July 9, 1986).
ratifying the constitution that included an explicit amendment process, the
sovereign people committed themselves to following the rule of law, even
5Community Gas and Service Company, Inc. v. Walbaum, 404 P.2d
when they wished to make changes in the basic system of government." 1014, 1965 OK 118 (1965).
A. ALTMAN, ARGUING ABOUT LAW 94 (2001).
6Section 26. (1) Every bill passed by the Congress shall embrace only
15
See my Separate Opinion in Francisco Jr. v. House of Representatives, one subject which shall be expressed in the title thereof.
415 SCRA 45, November 10, 2003.
7The late Senator (then Congressman) Raul S. Roco stated this fact in 15 801 P. 2d 1077 (Cal. 1990).
his sponsorship presentation of H.B. No. 21505, thus:
16 583 P. 2d 1281 (Cal. 1982).
xxxx
17Raven v. Deukmeijan, supra, citing Brosnahan v. Brown, 651 P. 2d 274
D. Prohibited Subjects. (Cal. 1982).

The bill provides for two kinds of measures which cannot be the
subject of an initiative or referendum petition. A petition that
embraces more than one subject cannot be submitted to the
electorate as it would be violative of the constitutional proscription
on passing bills containing more than one subject, and statutes
involving emergency measures cannot be subject to referendum
until 90 days after its effectivity. [Journal and record of the house
18 Supra note 13. It may well be pointed out that in making the distinction
between amendment and revision, Justice Antonio relied not only in the
analogy presented in Wheeler v. Board of Trustees, 37 S.E. 2d 322, but
cited also the seminal ruling of the California Supreme Court
in McFadden v. Jordan, supra.
Philippine Political Law, 1995 ed., Justice Isagani A. Cruz, p. 71, citing
19

of representatives, Second Regular Session, Vol. 6, p. 975 Pangasinan Transportation Co. v. PSC, 40 O.G., 8th Supp. 57.
(February 14, 1989).]
20The 1987 Constitution of the Philippines: A Commentary, 1996 ed., Fr.
8 Memorandum of petitioner Aumentado, p. 117. Joaquin G. Bernas, S.J., p. 1161.

9The proposed Section 4(3) of Article XVIII of the Constitution states that 21 Id.
Senators whose term of office ends in 2010 shall be members of
parliament until noon of the thirtieth day of June 2010. No counterpart 22 Supra note 14.
provision was provided for members of the House of Representatives
who, as members of the interim parliament under the proposed changes, 23The Constitution of the Republic of the Philippines, Vol. II, 1st ed., Fr.
shall schedule the elections for the regular parliament in its discretion.
Joaquin G. Bernas, S.J., p. 567, citing B. Schwartz, I The Powers of
Government (1963).
10The proposed Section 4(3), Article XVIII of the Constitution states that
the interim parliament shall convene to propose amendments to, or 24 16 C.J.S. §3 at 24.
revisions of, the Constitution within 45 days from ratification of the
proposed changes. 25 14 T.M. Cooley, II Constitutional Limitations, 8th ed. (1927), p. 1349.
The United Kingdom, for instance, has a two-house parliament, the
11

House of Lords and the House of Commons.

26A bogus revolution, Philippine Daily Inquirer, September 11, 2006, Fr.
Joaquin Bernas, S.J., p. A15.
12Philippine Political Law [1954 ed.], Vicente G. Sinco, pp. 43-44, quoted
in Separate Opinion of J. Hilario G. Davide, Jr. in PIRMA v. COMELEC,
27 Article II, Section 1 of the 1987 Constitution.
G.R. No. 129754, September 23, 1997, p. 7.
SANDOVAL-GUTIERREZ, J.:
13 151-A Phil. 35 (1973).
1 Works, Letter 164.
14 196 P. 2d 787 (Cal. 1948), cert. denied, 336 U.S. 918 (1949).
2 G.R. No. 127325, March 19, 1997, 270 SCRA 106.
3 Resolution dated June 10, 1997, G.R. No. 127325.
4G.R. No. 129754, September 23, 1997. Joining PIRMA as petitioners
were its founding members, spouses Alberto Pedrosa and Carmen
Pedrosa.
5Entitled "In the Matter of Proposing Amendments to the 1987
Constitution through a People's Initiative: A Shift from a Bicameral
Presidential to a Unicameral Parliamentary Government by Amending
Articles VI and VII; and Providing Transitory Provisions for the Orderly
Shift from the Presidential to the Parliamentary System."
6
Among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin,
Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos
P. Medina, Jr., Alternative Law Groups, Inc., Senate Minority Leader
Aquilino Q. Pimentel, Jr., and Senators Sergio 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, and
Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma.
Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong.
7 "Grounds for contempt
3. From the time the so-called People's Initiative (hereafter PI)
now subject of Lambino v. Comelec, was initiated, respondents
did nothing to stop what was clearly lawless, and even
arguably winked at, as it were, if not condoned and allowed,
the waste and misuse of its personnel, time, facilities and
resources on an enterprise that had no legal basis and in
fact was permanently enjoined by this Honorable Court in
1997. Seemingly mesmerized, it is time to disenthrall them.
3.1. For instance, undersigned counsel happened to be in the
Senate on August 29, 2006 (on other business) when respondent
Chair sought to be stopped by the body from commenting on PI
out of prudential considerations, could not be restrained. On
contentious issues, he volunteered that Sigaw ng Bayan
would not cheat in Makati as it was the opposition territory
and that the fact that out of 43,405 signatures, only 7,186
were found authentic in one Makati District, to him, showed
the "efficiency" of Comelec personnel. He could not
appreciate 1) that Sigaw had no choice but to get the
constitutionality-required 3% in every district, [Const., Art.
VII, Sec. 2] friendly or otherwise, including administration
critics' turfs, and 2) that falsus in 36,319 (93.30%) falsus in
omnibus, in an exercise that could never be free, orderly,
honest and credible, another constitutional
requirement. [Nothing has been heard about probing and
prosecuting the falsifiers.]
xxxxxxxxx
3.2. It was excessively obvious to undersigned and other
observers that respondent Chairman, straining at the
leash, was lawyering for Sigaw ng Bayan in the Senate! It
was discomfiting that he would gloss over the seeming
wholesale falsification of 96.30% of the signatures in an
exercise with no credibility! Even had he been asked, he
should have pled to be excused from answering as the
matter could come up before the Comelec for an official
collegial position (different from conceding that it is enjoined).
xxxxxxxxx
4. Respondents Commissioners Borra and Romeo A.
Brawner, for their part, even issued widely-publicized written
directives to the field, [Annex C, as to Commissioner
Brawner; that as to Commissioner Borra will follow.] while
the Commission itself was trying to be careful not to be
explicit in what it was abetting implicitly, in hypocritical
defiance of the injunction of 1997.
8
Intestate Estate of Carmen de Luna v. Intermediate Appellate Court,
G.R. No. 72424, February 13, 1989, 170 SCRA 246.
9 Supra.
10Development Bank of the Philippines v. NLRC, March 1, 1995, 242
SCRA 59; Albert v. Court of First Instance of Manila (Branch VI), L-
26364, May 29, 1968, 23 SCRA 948.
1156 O.G. 3546 cited in Albert v. Court of First Instance of Manila (Branch 27 Adams v. Gunter Fla. 238 So.2d 824.
VI), id.
28 Mc Fadden v. Jordan, supra.
12 Supra.
29 Rivera-Cruz v. Gray, 104 So.2d 501, p. 505 (Fla. 1958).
Separate Opinion of Justice Ricardo J. Francisco, G.R. No. 129754,
13

September 23, 1997. Joaquin Bernas, Sounding Board: AMENDMENT OR

30

REVISION, Philippine Daily Inquirer, September 25, 2006.

14 G.R. No. 109645, March 4, 1996, 254 SCRA 234.
15Philippine National Bank v. Palma, G.R. No. 157279, August 9, 2005,
466 CSRA 307, citing Moreno, Philippine Law Dictionary (1988), 3rd ed.
(citing Santiago v. Valenzuela, 78 Phil. 397, [1947]).
16Id., citing Dela Cruz v. Court of Appeals, G.R. No. 126183, March 25,
1999, 305 SCRA 303, citing Government v. Jalandoni, No. 837-R, August
30, 1947, 44 O.G. 1840.
31See Sections 8-12 for national initiative and referendum, and sections
13-19 for local initiative and referendum.
32Section 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.

17Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven 33 Section 3. Definition of terms.-
and London: Yale University Press, 1921), pp. 33-34.
xxx
William K. Frankena, Ethics, 2nd ed. (Englewood Cliffs, N.J.: Prentice
18

Hall Inc.,) 1973, p. 49. a.1. Initiative on the Constitution which refers to a petition
proposing amendments to the Constitution;
19Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287,
296. xxx

20 July 9, 1986. Records of the Constitutional Commission, No. 26. 34 See Section 3(e).

Bernas, THE 1987 CONSTITUTION OF THE PHILIPPINES: A

21 35 Section 5 (b) – A petition for an initiative on the 1987 Constitution must
COMMENTARY, 1996 Ed., p. 1161. have at least twelve per centum (12%) of the total number of registered
voters as signatories, of which every legislative district must be
22 242 N. W. 891 259 Mich 212. represented by at least three per centum (3%) of the registered voters
therein. Initiative on the Constitution may be exercised only after five (5)
State v. Orange [Tex. x. Civ. App.] 300 SW 2d 705, People v.
23 years from the ratification of the 1987 Constitution and only once every
Perkins 137, p. 55. five (5) years thereafter.

18 City of Midland v. Arbury 38 Mich. App. 771, 197 N.W. 2d 134. xxx

25 Adams v. Gunter Fla, 238 So. 2d 824. 36Section 9 (b) – The proposition in an initiative on the Constitution
approved by a majority of the votes cast in the plebiscite shall become
26 196 P.2d 787. effective as to the day of the plebiscite.
37 7 How (48 US) 1 (1849). 9 G.R. No. 127325, March 19, 1997, 270 SCRA 106.

38 328 US 549 (1946). 10Article 8, New Civil Code provides that "[j]udicial decisions applying or
interpreting the laws or the Constitution shall form part of the legal system
39 77 Phil. 192 (1946). of the Philippines."

40 103 Phi. 1051 (1957). Suson v. Court of Appeals, G.R. No. 126749, August 27, 1997, 278
11

SCRA 284.
41 G.R. No. 35546, September 17, 1974, 50 SCRA 559.
12 Calderon v. Carale, G.R. No. 91636, April 23, 1992, 208 SCRA 254.
42 369 US 186 (1962).
13 974 S.W.2d 451 (1998).
43 G.R. No. 85344, December 21, 1989, 180 SCRA 496.
14 Id. at 453.
44 G.R. No. 88211, September 15, 1989, 177 SCRA 668.
15Entitled In Re: Rules and Regulations Governing the Conduct of
45Nos. L-36142, L-36164, L-36165, L-36236, and L-36283, March 31, Initiative in the Constitution, and Initiative and Referendum on National
1973, 50 SCRA 30. and Local Laws.

CALLEJO, SR., J.:

16 Supra note 10, p. 157.

1Entitled An Act Providing for a System of Initiative and Referendum and

17 G.R. No. 129754.
Appropriating Funds Therefor.
18 Minute Resolution, September 23, 1997, pp. 1-2.
2
Section 2(1), Article IX-C, 1987 Constitution.
19Republic v. De los Angeles, No. L-26112, October 4, 1971, 41 SCRA
3 Petition, pp. 12-14. 422.

4Land Bank of the Philippines v. Court of Appeals, G.R. No. 129368,

20Albert v. Court of First Instance of Manila, No. L-26364, May 29, 1968,
August 25, 2003, 409 SCRA 455, 480. 23 SCRA 948.

5Rodson Philippines, Inc. v. Court of Appears, G.R. No. 141857, June 9, Philippine Constitution Association v. Enriquez, G.R. No. 113105,
21

2004, 431 SCRA 469, 480. August 19, 1994, 235 SCRA 506.

6People v. Court of Appeals, G.R. No. 144332, June 10, 2004, 431
22Then Chief Justice Andres R. Narvasa, Justices Florenz D. Regalado,
SCRA 610. Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan and
Justo P. Torres, Jr. fully concurred in the ponencia of Justice Davide.
7Philippine Rabbit Bus Lines, Inc. v. Galauran & Pilares Construction
Co., G.R. No. L-35630, November 25, 1982, 118 SCRA 664.
23Justices Jose A.R. Melo, Vicente V. Mendoza, Reynato S. Puno,
Ricardo J. Francisco, Jr. and Artemio V. Panganiban (now Chief Justice).
8 People v. Court of Appeals, supra.
24 The voting on the motion for reconsideration was as follows: Six 40 Id.
Justices, namely, Chief Justice Narvasa, and Justices Regalado, Davide,
Jr., Romero, Bellosillo and Kapunan, voted to deny the motions for lack of 41 Sounding Board, Philippine Daily Inquirer, April 3, 2006.
merit; and six Justices, namely, Justices Melo, Puno, Mendoza,
Francisco, Jr., Regino C. Hermosisima and Panganiban voted to grant 42 Introduction to the Journal of the Constitutional Commission.
the same. Justice Vitug maintained his opinion that the matter was not
ripe for judicial adjudication. Justices Teodoro R. Padilla and Torres 43 BLACK, Constitutional Law 1-2, citing 1 BOUV. INST. 9.
inhibited from participation in the deliberations.
44 SCHWARTZ, CONSTITUTIONAL LAW 1.
House Bill No. 457 filed by then Rep. Nachura during the Twelfth
25

Congress. 45 Proclamation No. 58, 83 O.G. No. 23, pp. 2703-2704, June 8, 1987.
26
See Pagdayawon v. Secretary of Justice, G.R. No. 154569, September
23, 2002, 389 SCRA 480.
46 See McBee v. Brady, 15 Idaho 761, 100 P. 97 (1909).

27London Street Tramways Co., Ltd. v. London County Council, [1898]

47 Id.
A.C. 375, cited in COOLEY, A Treatise on the Constitutional Limitations
117-118.
48 196 P.2d 787 (1948).

28 Amended Petition for Initiative, pp. 4-7.

49 Id. at 798.

29 Id. at 7.
50 Ellingham v. Dye, 99 N.E. 1 (1912).

30 I Records of the Constitutional Commission 373.

51 Dissenting Opinion of Justice Puno, p. 36.

31 Id. at 371.
52 Id. at 39.

32 Id. at 386.
53 Supra note 38.

33 Id. at 392.
54 McFadden v. Jordan, supra note 48.

34 Id. at 402-403.
55 Id. at 799.

35 No. L-36142, March 31, 1973, 50 SCRA 30.

56 Supra note 41.

36 Id. at 367.
57 Annex "1363."

37 SINCO, Philippine Political Law 43-44.

58 Annex "1368."

38 37 S.E.2d 322 (1946).

59 Annex "1369."

39 Id. at 330.
60 Annex "1370."
61 Annex "1371." 82 Annex "1397."

62 Annex "1372." 83 Annex "1398."

63 Annex "1374." 84 Annex "1399."

64 Annex "1375." 85 Annex "1400."

65 Annex "1376." 86 Annex "1401."

66 Annex "1377." 87 Annex "1402."

67 Annex "1378." 88 Annex "1404."

68 Annex "1379." 89 Annex "1405."

69 Annex "1380." 90 Annex "1406."

70 Annex "1381." 91 Annex "1407."

71 Annex "1382." 92 Annex "1408."

72 Annex "1383." 93 Annex "1409."

73 Annex "1385." 94 Annex "1410."

74 Annex "1387." 95 Annex "1411."

75 Annex "1388." 96 Annex "1412."

76 Annex "1389." 97Arroyo, Jr. v. Taduran, G.R. No. 147012, January 29, 2004, 421 SCRA
423.
77 Annex "1391."
98See, for example, Mendoza v. Court of Appeals, No. L-62089, March 9,
78 Annex "1392." 1988, 158 SCRA 508.

79 Annex "1393." Licaros v. Sandiganbayan, G.R. No. 145851, November 22, 2001, 370
99

SCRA 394.
80 Annex "1395."
Codilla, Sr. v. De Venecia, G.R. No. 150605, December 10, 2002, 393
100

81 Annex "1396." SCRA 639.

101 Teope v. People, G.R. No. 149687, April 14, 2004, 427 SCRA 540. 120 Id. at 630.

102 Tañada v. Cuenco, 103 Phil. 1051 (1957). AZCUNA, J.:

103 Id. 1 G.R. No. 127325, March 19, 1997 and June 10, 1997.

104 G.R. No. 127255, August 14, 1997, 277 SCRA 268, 311-312. 2 100 Phil. 501 (1956).

Dissenting Opinion of Justice Fernando in Javellana v. Executive

105 PUNO, J.:
Secretary, supra note 36.
1 M'cCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 407 (1819).
106 119 N.W. 408 (1909).
2 Section 1, Article II, 1987 Constitution.
107 22 Minn. 400 (1876).
3 270 SCRA 106, March 19, 1997.
108 96 S.W. 396 (1906).
4 Id. at 153.
109 63 N.J. Law 289.
5 Id. at 157.
110 77 Miss. 543 (1900).
6Justice Teodoro R. Padilla did not take part in the deliberation as he
111 Section 1, Article II, 1987 Constitution. was related to a co-petitioner and co-counsel of petitioners.

112 Dissenting Opinion of Justice Puno, p. 49. 7Justice Davide (ponente), Chief Justice Narvasa, and Justices
Regalado, Romero, Bellosillo, and Kapunan.
113 COOLEY, A Treatise on the Constitutional Limitations 56, cited in
Ellingham v. Dye, supra. 8 Resolution dated June 10, 1997, G.R. No. 127325.

114 Hunter v. Colfax Consol. Coal. Co., 154 N.W. 1037 (1915). 9People's Initiative for Reforms, Modernization and Action (PIRMA) v.
Commission on Elections, G.R. No. 129754, September 23, 1997.
ALTMAN, ARGUING ABOUT THE LAW 94 (2001), citing AGRESTO,
115

THE SUPREME COURT AND CONSTITUTIONAL DEMOCRACY (1984) 10 Amended Petition for Initiative, pp. 4-7.

116 McBee v. Brady, 100 P. 97 (1909). 11 G.R. No. 127325, March 19, 1997, 270 SCRA 106.

117 McFadden v. Jordan, supra note 48. 12 Petition, pp. 12-14.

118 Cooley, Am.Law.Rev. 1889, p. 311, cited in Ellingham v. Dye, supra. 13 Advisory issued by Court, dated September 22, 2006.

119 15 N.W. 609 (1883). 14 Exhibit "B," Memorandum of Petitioner Lambino.

15Barnhart, Principled Pragmatic Stare Decisis in Constitutional Cases, 32 347 U.S. 483 (1954).
80 Notre Dame Law Rev., 1911-1912, (May 2005).
33 163 U.S. 537 (1896).
16 Ibid.
34 G.R. No. 127882, December 1, 2004, 445 SCRA 1.
17 Id. at 1913.
35 G.R. No. 139465, October 17, 2000, 343 SCRA 377.
Consovoy, The Rehnquist Court and the End of Constitutional Stare
18

Decisis: Casey, Dickerson and the Consequences of Pragmatic 36 Barnhart, supra note 15, at 1915.
Adjudication, 53 Utah Law Rev. 53, 67 (2002).
37 112 S.Ct. 2791 (1992).
19 Id. at 68.
38 Section 5(b).
20 Id. at 69.
39 Ibid.
21 Id. at 67.
40 Santiago v. Commission on Elections, supra note 11, at 145.
22 Id. at 69.
4185 Record of the House of Representatives 140-142 (February 14,
23 Consovoy, supra note 18, at 57. 1989).

24 Id. at 58. 4285 Record of the house of representatives 142-143 (February 14,
1989).
25 Id. at 64.
43
Zeringue v. State Dept. of Public Safety, 467 So. 2d 1358.
26Burnet v. Coronado Oil & Gas Co., 285 U.S. 405-06 (1932) (Justice
Brandeis, dissenting). 44I RECORD, CONSTITUTIONAL COMMISSION 386, 392 (July 9,
1986).
27Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491-492 (Justice
Frankfurter, concurring). 45 Id. at 400, 402-403.
28Commissioner of Internal Revenue v. Fink, 483 U.S. 89 (1987) (Justice 46 v record, constitutional commission 806 (October 10, 1986).
Stevens, dissenting).
47 Opposition-in-Intervention filed by ONEVOICE, p. 39.
29 Barnhart, supra note 15, at 1922.
48 Opposition-in-Intervention filed by Alternative Law Groups, Inc., p. 30.
30 Id. at 1921.
49 Introduction to Political Science, pp. 397-398.
31Filippatos, The Doctrine of Stare Decisis and the Protection of Civil
Rights and Liberties in the Rehnquist Court, 11 Boston College Third 50 Section 1, Art. II of the 1987 Constitution.
World Law Journal, 335, 343 (Summer 1991).
51 Eighth Edition, p. 89 (2004). 69H.C. Black, Handbook of American Constitutional Law S. 47, p. 67
(2nd ed. 1897).
52 Ibid.
70 V. Sinco, supra note 58.
53 Id. at 1346.
71 Ibid.
54 Ibid.
72 No. L-1232, 79 Phil. 819, 826 (1948).
55 Third Edition, p. 67 (1969).
73IV RECORD, CONSTITUTIONAL COMMISSION 735 (September 17,
56 Id. at 68. 1986).

57 Id. at 1115. 74 Id. at 752.

58 Vicente G. Sinco, Philippine Political Law, 2nd ed., p. 46. 75 Id. at 769.

59Concurring Opinion of Mr. Justice Felix Q. Antonio in Javellana v. The 76 Id. at 767-769.
Executive Secretary, No. L-361432, March 31, 1973, 50 SCRA 30, 367-
368. 77 Id. at 377.

60 J. M. Aruego, The New Philippine Constitution Explained, iii-iv (1973). 78 Id. at 395.

61E. Quisumbing-Fernando, Philippine Constitutional Law, pp. 422-425 79 Sinco, supra note 58, at 22.
(1984).
80
Id. at 20-21.
62 N. Gonzales, Philippine Political Law 30 (1969 ed.).
81Frivaldo v. Commission on Elections, G.R. No. 120295, June 28, 1996,
63Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 257 SCRA 727.
22, 1991, 194 SCRA 317, 337 quoting Commonwealth v. Ralph, 111 Pa.
365, 3 Alt. 220 (1886). 82 G. Wood, The Creation of the American Republic, 530.

64 L-36142, March 31, 1973, 50 SCRA 30, 367. 83 Sinco, supra note 58, at 29.

65 i record, constitutional commission 373 (July 8, 1986). 84State v. Moore, 103 Ark 48, 145 SW 199 (1912); Whittemore v. Seydel,
74 Cal App 2d 109 (1946).
66 The opinion was actually made by Justice Felix Antonio.
85 Town of Whitehall v. Preece, 1998 MT 53 (1998).
Javellana v. Executive Secretary, supra note 64, citing Wheeler v.
67

Board of Trustees, 37 S.E.2d 322, 327 (1946). 86G.R. No. 125416, September 26, 1996, 262 SCRA 492, 516-
517, citing 42 Am. Jur. 2d, p. 653.
68T. M. Cooley, I A Treatise on Constitutional Limitations 143-144 (8th ed.
1927).
87 Memorandum for petitioner Aumentado, pp. 151-152. 104 ASSOCIATE JUSTICE CARPIO:

88 Id. at 153-154. How many copies of the petition, that you mention(ed), did you
print?
89 L-44640, October 12, 1976, 73 SCRA 333, 360-361.
ATTY. LAMBINO:
90 Section 2, Article XVII, 1987 Constitution.
We printed 100 thousand of this petition last February and we
Annex "3," Opposition-In-Intervention of Oppositors-Intervenors
91

ONEVOICE, INC., et al. distributed to the different organizations that were volunteering to
support us.
Certification dated April 21, 2006 issued by Reynne Joy B. Bullecer,
92

Annex "B," Memorandum of Oppositor-Intervenor Pimentel, et al.; ASSOCIATE JUSTICE CARPIO:

Certification dated April 20, 2006 issued by Atty. Marlon S. Casquejo,
Annex "C," Memorandum of Oppositor-Intervenor Pimentel, et al.; So, you are sure that you personally can say to us that 100
Certification dated April 26, 2006 issued by Atty. Marlon S. Cascuejo, thousand of
Annex "D," Memorandum of Oppositor-Intervenor Pimentel, et al.
these were printed?
93 Annex "1," Memorandum of Oppositor-Intevenor Antonino.
ATTY. LAMBINO:
Annex "10-A," Memorandum of Oppositor-Intevenor Joseph Ejercito
94

Estrada, et al. It could be more than that, Your Honor.

Annexes 1-29, Memorandum of Oppositor-Intevenor Alternative Law

95
xxxxxxxxxxxx
Groups, Inc.
ASSOCIATE JUSTICE CARPIO:
96 Annexes 30-31, Id.
But you asked your friends or your associates to re-print, if they
97 Annexes 44-64, Id. can(?)
98 Consolidated Reply of Petitioner Aumentado, p. 54. ATTY. LAMBINO:
99
Exhibit "E," Memorandum of Petitioner Lambino. Yes, Your Honor.
100 Annex "A," Consolidated Response of Petitioner Aumentado. ASSOCIATE JUSTICE CARPIO:
101 Memorandum of Oppositor-Intevenor Pimentel, et al., pp. 12-13. Okay, so you got 6.3 Million signatures, but you only printed 100
102 Helvey v. Wiseman, 199 F. Supp. 200, 8 A.F.T.2d 5576 (1961). thousand. So you're saying, how many did your friends print of
the petition?
103 BNO Leasing Corp. v. Hollins & Hollins, Inc., 448 So.2d 1329 (1984).
ATTY. LAMBINO: So, you circulated the petition of August 30, but what you filed in
the
I can no longer give a specific answer to that, Your Honor. I relied
COMELEC on August 25 was a different petition, that's why you
only to the assurances of the people who are volunteering that have to amend it?
they are going to
ATTY. LAMBINO:
reproduce the signature sheets as well as the draft petition that
we have given them, Your Honor. We have to amend it, because there was an oversight, Your
Honor, that
xxxxxxxxxxxx
we have omitted one very important paragraph in Section 4 of our
ASSOCIATE JUSTICE CARPIO: proposition.

Did you also show this amended petition to the people? xxxxxxxxxxxx

ATTY. LAMBINO: ASSOCIATE JUSTICE CARPIO:

Your Honor, the amended petition reflects the copy of the original Okay, let's be clear. What did you circulate when you gathered
the
petition that we circulated, because in the original petition that we
filed before the COMELEC, we omitted a certain paragraph that signatures, the August 25 which you said you circulated or the
is, Section 4 paragraph 3 which were part of the original petition August 30?
that we circulated and so we have to correct that oversight
because that is what we have circulated to the people and we ATTY. LAMBINO:
have to correct that…
Both the August 25 petition that included all the provisions, Your
ASSOCIATE JUSTICE CARPIO:
Honor, and as amended on August 30. Because we have to
But you just stated now that what you circulated was the petition include the one that
of
we have inadvertently omitted in the August 25 petition, Your
August 25, now you are changing your mind, you're saying what Honor.
you circulated was the petition of August 30, is that correct?
xxxxxxxxxxxx
ATTY. LAMBINO:
ASSOCIATE JUSTICE CARPIO:
In effect, yes, Your Honor.
And (you cannot tell that) you can only say for certain that you
ASSOCIATE JUSTICE CARPIO: printed

100 thousand copies?

 ATTY. LAMBINO: 112Trans World Airlines, Inc. v. Hardison, 97 S. Ct. 2264 (1977); Arkansas
Writers' Project, Inc. v. Ragland, 107 S. Ct. 1722, 1730 n. 7, 95 L. Ed. 2d
That was the original printed matter that we have circulated by (1987); France v. Nelson, 292 Ark. 219, 729 S.W. 2d 161 (1987).
the
113 40 P. 3d 886 (2006).
month of February, Your Honor, until some parts of March, Your
Honor. 114 781 P. 2d 973 (Alaska, 1989).

ASSOCIATE JUSTICE CARPIO: 115 Id. at 982-84 (Compton, J., concurring).

That is all you can assure us? 116 Id. at 975-78.

ATTY. LAMBINO: 117 Negri v. Slotkin, 244 N.W. 2d 98 (1976).

That is all I can assure you, Your Honor, except that I have asked 118 112 Fla. 734, 151 So. 284 (1933).
some
119Penned by Justice Whitfield, and concurred in by Chief Justice Davis
friends, like for example (like) Mr. Liberato Laos to help me print and Justice Terrell; Justices Ellis, Brown and Buford are of the opinion
out some more of this petition… (TSN, September 26, 2006, pp. that chapter 15938, Acts of 1933, is a special or local law not duly
7-17) advertised before its passage, as required by sections 20 and 21 of
article 3 of the state Constitution, and therefore invalid. This evenly
105 Section 2 (1), Article IX – C, 1987 Constitution. divided vote resulted in the affirmance of the validity of the statute but did
not constitute a binding precedent on the Court.
106Chief Justice Andres R. Narvasa and Justices Hilario G. Davide, Jr.,
Florenz D. Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, 120 62 S. Ct. 552 (1942).
Santiago M. Kapunan, Regino C. Hermosisima, Jr. and Justo P. Torres.
121 329 F. 2d 541 (1964).
107Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza,
Ricardo J. Francisco and Artemio V. Panganiban. 122 239 F. 2d 532 (9th Cir. 1956).

108 Justice Jose C. Vitug. 123 Citing Hertz v. Woodman, 218 U.S. 205, 30 S. Ct. 621 (1910).

109
Only fourteen (14) justices participated in the deliberations as Justice 124
331 N.E. 2d 65 (1975).
Teodoro R. Padilla took no part on account of his relationship with the
lawyer of one of the parties. 125 Neil v. Biggers, supra note 108.

110 Citing conscience as ground. 126Catherwood v. Caslon, 13 Mees. & W. 261; Beamish v. Beamish, 9 H.
L. Cas. 274.
111 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
Maglalang v. Court of Appeals, G.R. No. 85692, July 31, 1989, 175
127

SCRA 808, 811, 812; Development Bank of the Philippines v. Pundogar,

G.R. No. 96921, January 29, 1993, 218 SCRA 118.
 No. L-35440, August 19, 1982, 115 SCRA 839, citing Anticamara v.
128
Ong, No. L-29689, April 14, 1978, 82 SCRA 337.
129 Supra note 1.
QUISUMBING, J.:
1Political questions have been defined as "Questions of which the courts
of justice will refuse to take cognizance, or to decide, on account of their
purely political character, or because their determination would involve an
encroachment upon the executive or legislative powers; e.g., what sort of
government exists in a state…." Black's Law Dictionary, p. 1319 citing
Kenneth v. Chambers, 14 How. 38, 14 L.Ed. 316.
2 See 1987 Const., Art. XVII, Sec. 2.
3 G.R. No. 127325, March 19, 1997, 270 SCRA 106.
4 G.R. No. 129754, September 23, 1997.
CORONA, J.:
1
Abrams v. United States, 250 U.S. 616.
2 336 Phil. 848 (1997).
3Santos v. Court of Appeals, G.R. No. 134787, 15 November 2005, 475
SCRA 1.
4 Feria and Noche, Civil Procedure Annotated, vol. I, 2001 edition, p. 419.
5Sec. 30, Petitions and initiatives by the people, 16 Am Jur 2d 380,
citing State ex rel. Stenberg v. Beermann, 240 Neb. 754, 485 N.W. 2d
151 (1992).
6 Id. citing Coalition for Political Honesty v. State Board of Elections, 83
Ill. 2d 236, 47 Ill. Dec. 363, 415 N.E. 2d 368 (1980).
7 Balitzer, Alfred, The Initiative and Referendum: A Study and Evaluation
of Direct Legislation, The California Roundtable 13 (1981). The American
Founding Fathers recognized that direct democracy posed a profound
threat to individual rights and liberty. The U.S. Constitution was "designed
to provide a system of government that would prevent either a tyranny of
the majority or a tyranny of the few." James Madison "warned against the
power of a majority or a minority of the population 'united and actuated by
some common impulse of passion, or of interest, adverse to the rights of
other citizens, or to the permanent and aggregate interest of the
community.'
8Gilbert Hahn & Steven C. Morton, Initiative and Referendum – Do They
Encourage or Impair Better State Government? 5 FLA. ST. U. L. REV.
925, 927 (1977).
9Florida Advisory Council on Intergovernmental Relations, Initiatives and
Referenda: Issues in Citizen Lawmaking (1986).
10 Sec. 1, Article II, Constitution.
11In re Initiative Petition No. 362 State Question 669, 899 P.2d 1145
(Okla. 1995).
TINGA, J.:
1 G.R. No. 127325, 19 March 1997, 270 SCRA 106.
2 G.R. No. 129754, 23 September 1997.
3 Petitioner Aumentado aptly refers to the comment of the late Senator
Raul Roco that the Santiago ruling "created a third specie of invalid laws,
a mongrel type of constitutional but inadequate and, therefore, invalid
law." Memorandum for Aumentado, p. 54.
4 See Civil Code, Art. 9.
5 456 Phil. 1 (2003).
6Id., at 10; citing I Arturo M. Tolentino, Civil Code of the Philippines 43
(1990) and Justice Benjamin N. Cardozo, The Nature of the Judicial
Process 113 (1921).
7 See Dissenting Opinion, Manila International Airport Authority v. City of
Parañaque, G.R. No. 155650, 20 July 2006. In my ponencia in Globe
Telecom v. NTC, G.R. No. 143964, 26 July 2004, 435 SCRA 110, I
further observed that while an administrative agency was not enslaved to
obey its own precedent, it was "essential, for the sake of clarity and
intellectual honesty, that if an administrative agency decides
inconsistently with previous action, that it explain thoroughly why a
different result is warranted, or if need be, why the previous standards
should no longer apply or should be overturned." Id., at 144. Happily,
Justice Puno's present opinion expressly elucidates why Santiago should
be reversed.
8As Justice Frankfurter once wrote: "We recognize that stare
decisis embodies an important social policy. It represents an element of
continuity in law, and is rooted in the psychologic need to satisfy
reasonable expectations. But stare decisis is a principle of policy and not
a mechanical formula of adherence to the latest decision, however recent
and questionable, when such adherence involves collision with a prior
doctrine more embracing in its scope, intrinsically sounder, and verified
by experience… This Court, unlike the House of Lords, has from the
beginning rejected a doctrine of disability at self-correction." Helvering v.
Hallock, 309 U.S. 106, 119-121 (1940).
9 351 Phil. 692 (1998).
10As Chief Justice Panganiban then cited: "For instance, Ebralinag vs.
Davision Superintendent of Schools of Cebu, 219 SCRA 256, March 1,
1993, reversed the Court's 34-year-old doctrine laid down in Gerona vs.
Secretary of Education, 106 Phil 2, August 12, 1959, and upheld the right
of Jehovah's Witnesses "to refuse to salute the Philippine flag on account
of their religious beliefs." Similarly, Olaguer vs. Military Commission, 150
SCRA 144, May 22, 1987, abandoned the 12-year-old ruling in Aquino Jr.
vs. Military Commission, 63 SCRA 546, May 9, 1975, which recognized
the jurisdiction of military tribunals to try civilians for offenses allegedly
committed during martial law. The Court likewise reversed itself in EPZA
vs. Dulay, 149 SCRA 305, April 29, 1987, when it vacated its earlier
ruling in National Housing Authority vs. Reyes, 123 SCRA 245, June 29,
1983, on the validity of certain presidential decrees regarding the
determination of just compensation. In the much earlier case of Philippine
Trust Co. vs. Mitchell, 59 Phil. 30, December 8, 1933, the Court revoked
its holding in Involuntary Insolvency of Mariano Velasco & Co., 55 Phil
353, November 29, 1930, regarding the relation of the insolvency law with
the then Code of Civil Procedure and with the Civil Code. Just recently,
the Court, in Kilosbayan vs. Morato, 246 SCRA 540, July 17, 1995, also
abandoned the earlier grant of standing to petitioner-organization in
Kilosbayan vs. Guingona, 232 SCRA 110, May 5, 1994." Id., at 780.
11 Ibid.
12 129 Phil. 507, 516 (1967).
13G.R. Nos. L-78461, L-79146, & L-79212, 12 August 1987, 153 SCRA
67, 75.
14 G.R. No. 160427, 15 September 2004, 438 SCRA 319, 326.
15 Ibid.
16 G.R. No. 155855, 26 January 2004, 421 SCRA 92.
17Id., at 104. Relatedly, the Court held that "[c] ontests which do not
involve the election, returns and qualifications of elected officials are not
subjected to the exercise of the judicial or quasi-judicial powers of courts
or administrative agencies". Ibid.
18See e.g., Memorandum of Oppositors-Intervenors Senators Pimentel,
Jr., et. al., pp. 19-22; Memorandum for Intervenor Senate of the
Philippines, pp. 34-35.
See 1987 Const., Art. VI, Sec. 26(1). See also Section 19[1]. 1987
19
Const, Art. VIII.
See e.g., Sumulong v. COMELEC, 73 Phil. 288, 291 (1941); Cordero v.
20
Hon. Jose Cabatuando, et al., 116 Phil. 736, 741 (1962).
21See Tio v. VRB, G.R. No. L-75697, 18 June 1987, 151 SCRA 208, 214-
215; citing Public Service Co., Recktenwald, 290 Ill. 314, 8 A.L.R. 466,
470. See also Fariñas v. Executive Secretary, G.R. Nos. 147387 &
152161, 10 December 2003, 417 SCRA 503, 519.
22 "As a policy, this Court has adopted a liberal construction of the one
title - one subject rule." Tatad v. Secretary of Department of Energy, 346
Phil. 321, 359 (1997).
23Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896 & 83815;
22 February 1991, 194 SCRA 317.
24Id. at 337. I have previously expressed my own doubts in relying on the
constitutional or legislative deliberations as a definitive source of
construction. "It is easy to selectively cite passages, sometimes out of
their proper context, in order to assert a misleading interpretation. The
effect can be dangerous. Minority or solitary views, anecdotal of truth, justice, freedom, love, equality, and peace, do ordain and
ruminations, or even the occasional crude witticisms, may improperly promulgate this Constitution.
acquire the mantle of legislative intent by the sole virtue of their
publication in the authoritative congressional record. Hence, resort to 2 Article XVII, Constitution.
legislative deliberations is allowable when the statute is crafted in such a
manner as to leave room for doubt on the real intent of the legislature." 3 G.R. No. 127325, 19 March 1997, 270 SCRA 106.
Southern Cross Cement Corporation v. Phil. Cement Manufacturers, G.R.
No. G.R. No. 158540, 8 July 2004, 434 SCRA 65, 95. 4 Id. at 157.
25 77 Phil. 192 (1946). 5 Id. at 124.
26 Id. at 215. 6Olac v. Rivera, G.R. No. 84256, 2 September 1992, 213 SCRA 321,
328-329; See also the more recent cases of Republic v. Nolasco, G.R.
27 Civil Liberties Union v. Executive Secretary, supra note 23, at 338; No. 155108, 27 April 2005, 457 SCRA 400; and PH Credit Corporation v.
citing Household Finance Corporation v. Shaffner, 203 S.W. 2d 734, 356 Court of Appeals, 421 Phil. 821 (2001).
Mo. 808.
7 Supra note 2 at 124.
28See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const., Sec.
2, Art. XVI. 8 G.R. No. 129754.
29 G.R. No. 151944, January 20, 2004, 420 SCRA 365. 9Separate Opinion of former Chief Justice Hilario G. Davide, Jr. to the
Resolution, dated 23 September 1997, in G.R. No. 129754, PIRMA v.
30 Id., at 377. Emphasis supplied. COMELEC, pp. 2-3.
31See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const., Sec. 10 Mirpuri v. Court of Appeals, 376 Phil. 628, 650 (1999).
2, Art. XVI.
Pioneer Texturizing Corporation v. NLRC, G.R. No. 118651, 16
11
32From the "Funeral Oration" by Pericles, as recorded by Thucydides in October 1997.
the History of the Peloponnesian War.
12 Santiago v. Comelec, supra note 2 at 170-171.
33 H. Zinn, A People's History of the United States (1980 ed.), at 95.
13 Isagani A. Cruz, Philippine Political Law, 1996 ed., p. 352.
CHICO-NAZARIO, J.:
VELASCO, JR., J.:
1 The full text of the Preamble reads:
1 G.R. No. 127535, March 19, 1997, 270 SCRA 106.
We, the sovereign Filipino people, imploring the aid of Almighty
God, in order to build a just and humane society and establish a 2 Id.
Government that shall embody our ideals and aspirations,
promote the common good, conserve and develop our patrimony,
and secure to ourselves and our posterity the blessings of
3Commission on Audit of the Province of Cebu v. Province of Cebu, G.R.
independence and democracy under the rule of law and a regime No. 141386, November 29, 2001, 371 SCRA 196, 202.
4United Harbor Pilots' Association of the Philippines, Inc. v. Association
of International Shipping Lines, Inc., G.R. No. 133763, November 13,
2002, 391 SCRA 522, 533.

5PH Credit Corporation v. Court of Appeals and Carlos M. Farrales, G. R.

No. 109648, November 22, 2001, 370 SCRA 155, 166-167.

6 Id.

7Florentino v. Rivera, et al., G. R. No. 167968, January 23, 2006, 479

SCRA 522, 529.

8 G.R. No. 129754, September 23, 1997.

9 V. Sinco, Philippine Political Law, Principles and Concept 46 (1962).

 Republic of the Philippines a.3. Initiative on local legislation which refers to a petition
Congress of the Philippines proposing to enact a regional, provincial, city, municipal,
Metro Manila or barangay law, resolution or ordinance.

Eighth Congress (b) "Indirect initiative" is exercise of initiative by the people

through a proposition sent to Congress or the local legislative
body for action.

(c) "Referendum" is the power of the electorate to approve or

Republic Act No. 6735 August 4, 1989 reject a legislation through an election called for the purpose. It
may be of two classes, namely:
AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND
REFERENDUM AND APPROPRIATING FUNDS THEREFOR c.1. Referendum on statutes which refers to a petition to
approve or reject an act or law, or part thereof, passed by
Congress; and
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled::
c.2. Referendum on local law which refers to a petition to
approve or reject a law, resolution or ordinance enacted
I. — General Provisions
by regional assemblies and local legislative bodies.
Section 1. Title. — This Act shall be known as "The Initiative and
(d) "Proposition" is the measure proposed by the voters.
Referendum Act."
(e) "Plebiscite" is the electoral process by which an initiative on
Section 2. Statement of Policy. — The power of the people under a
the Constitution is approved or rejected by the people.
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 (f) "Petition" is the written instrument containing the proposition
requirements of this Act is hereby affirmed, recognized and guaranteed. 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.
Section 3. Definition of Terms. — For purposes of this Act, the
following terms shall mean:
(g) "Local government units" refers to provinces, cities,
municipalities and barangays.
(a) "Initiative" is the power of the people to propose amendments
to the Constitution or to propose and enact legislations through
an election called for the purpose. (h) "Local legislative bodies" refers to the Sangguniang
Panlalawigan, Sangguniang Panlungsod, Sangguniang Bayan,
and Sangguniang Nayon.
There are three (3) systems of initiative, namely:
(i) "Local executives" refers to the Provincial Governors, City or
a.1 Initiative on the Constitution which refers to a petition
Municipal Mayors and Punong Barangay, as the case may be.
proposing amendments to the Constitution;

a.2. Initiative on statutes which refers to a petition

proposing to enact a national legislation; and
Section 4. Who may exercise. — The power of initiative and
referendum may be exercised by all registered voters of the country,
autonomous regions, provinces, cities, municipalities and barangays.
Section 5. Requirements. — (a) To exercise the power of initiative or
referendum, at least ten per centum (10%) of the total number of the
registered voters, of which every legislative district is represented by at
least three per centum (3%) of the registered voters thereof, shall sign a
petition for the purpose and register the same with the Commission.
(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.
(d) A referendum or initiative affecting a law, resolution or
ordinance passed by the legislative assembly of an autonomous
region, province or city is deemed validly initiated if the petition
thereof is signed by at least ten per centum (10%) of the
registered voters in the province or city, of which every legislative
district must be represented by at least three per centum (3%) of
the registered voters therein; Provided, however, That if the
province or city is composed only of one (1) legislative district,
then at least each municipality in a province or each barangay in
a city should be represented by at least three per centum (3%) of
the registered voters therein.
(e) A referendum of initiative on an ordinance passed in a
municipality shall be deemed validly initiated if the petition
therefor is signed by at least ten per centum (10%) of the
registered voters in the municipality, of which every barangay is
represented by at least three per centum (3%) of the registered
voters therein.
(f) A referendum or initiative on a barangay resolution or
ordinance is deemed validly initiated if signed by at least ten per
centum (10%) of the registered voters in said barangay.
Section 6. Special Registration. — The Commission on Election shall
set a special registration day at least three (3) weeks before a scheduled
initiative or referendum.
Section 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.
II. — National Initiative and Referendum
SECTION 8. Conduct and Date of Initiative or Referendum. — The
Commission shall call and supervise the conduct of initiative or
referendum.
Within a period of thirty (30) days from receipt of the petition, the
Commission shall, upon determining the sufficiency of the petition,
publish the same in Filipino and English at least twice in newspapers of
general and local circulation and set the date of the initiative or
referendum which shall not be earlier than forty-five (45) days but not
later than ninety (90) days from the determination by the Commission of
the sufficiency of the petition.
Section 9. Effectivity of Initiative or Referendum Proposition. — (a)
The Proposition of the enactment, approval, amendment or rejection of a
national law shall be submitted to and approved by a majority of the votes
cast by all the registered voters of the Philippines.
 If, as certified to by the Commission, the proposition is approved
by a majority of the votes cast, the national law proposed for
enactment, approval, or amendment shall become effective
fifteen (15) days following completion of its publication in the
Official Gazette or in a newspaper of general circulation in the
Philippines. If, as certified by the Commission, the proposition to
reject a national law is approved by a majority of the votes cast,
the said national law shall be deemed repealed and the repeal
shall become effective fifteen (15) days following the completion
of publication of the proposition and the certification by the
Commission in the Official Gazette or in a newspaper of general
circulation in the Philippines.
However, if the majority vote is not obtained, the national law
sought to be rejected or amended shall remain in full force and
effect.
(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.
(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 by
the Commission.
Section 10. Prohibited Measures. — The following cannot be the
subject of an initiative or referendum petition:
(a) No petition embracing more than one (1) subject shall be
submitted to the electorate; and
(b) Statutes involving emergency measures, the enactment of
which are specifically vested in Congress by the Constitution,
cannot be subject to referendum until ninety (90) days after its
effectivity.
Section 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. The
petition shall contain a summary of the chief purposes and contents of
the bill that the organization proposes to be enacted into law by the
legislature.
The procedure to be followed on the initiative bill shall be the same as the
enactment of any legislative measure before the House of
Representatives except that the said initiative bill shall have precedence
over the pending legislative measures on the committee.
Section 12. Appeal. — The decision of the Commission on the findings
of the sufficiency or insufficiency of the petition for initiative or referendum
may be appealed to the Supreme Court within thirty (30) days from notice
thereof.
III. — Local Initiative and Referendum
SECTION 13. Procedure in Local Initiative. — (a) Not less than two
thousand (2,000) registered voters in case of autonomous regions, one
thousand (1,000) in case of provinces and cities, one hundred (100) in
case of municipalities, and fifty (50) in case of barangays, may file a
petition with the Regional Assembly or local legislative body, respectively,
proposing the adoption, enactment, repeal, or amendment, of any law,
ordinance or resolution.
(b) If no favorable action thereon is made by local legislative body
within (30) days from its presentation, the proponents through
their duly authorized and registered representative may invoke
their power of initiative, giving notice thereof to the local
legislative body concerned.
(c) The proposition shall be numbered serially starting from one
(1). The Secretary of Local Government or his designated
representative shall extend assistance in the formulation of the
proposition.
(d) Two or more propositions may be submitted in an initiative.
(e) Proponents shall have one hundred twenty (120) days in case
of autonomous regions, ninety (90) days in case of provinces and
cities, sixty (60) days in case of municipalities, and thirty (30)
days in case of barangays, from notice mentioned in subsection
(b) hereof to collect the required number of signatures.
(f) The petition shall be signed before the Election Registrar, or
his designated representative, in the presence of a representative
of the proponent, and a representative of the regional assemblies
and local legislative bodies concerned in a public place in the
 autonomous region or local government unit, as the case may be.
Signature stations may be established in as many places as may
be warranted.
(g) Upon the lapse of the period herein provided, the Commission
on Elections, through its office in the local government unit
concerned shall certify as to whether or not the required number
of signatures has been obtained. Failure to obtain the required
number is a defeat of the proposition.
(h) If the required number of the signatures is obtained, the
Commission shall then set a date for the initiative at which the
proposition shall be submitted to the registered voters in the local
government unit concerned for their approval within ninety (90)
days from the date of certification by the Commission, as
provided in subsection (g) hereof, in case of autonomous regions,
sixty (60) days in case of the provinces and cities, forty-five (45)
days in case of municipalities, and thirty (30) days in case of
barangays. The initiative shall then be held on the date set, after
which the results thereof shall be certified and proclaimed by the
Commission on Elections.
Section 14. Effectivity of Local Propositions. — If the proposition is
approved by a majority of the votes cast, it shall take effect fifteen (15)
days after certification by the Commission as if affirmative action thereon
had been made by the local legislative body and local executive
concerned. If it fails to obtain said number of votes, the proposition is
considered defeated.
Section 15. Limitations on Local Initiatives. — (a) The power of local
initiative shall not be exercised more than once a year.
(b) Initiative shall extend only to subjects or matters which are
within the legal powers of the local legislative bodies to enact.
(c) If at any time before the initiative is held, the local legislative
body shall adopt in toto the proposition presented, the initiative
shall be cancelled. However, those against such action may, if
they so desire, apply for initiative in the manner herein provided.
Section 16. Limitations Upon Local Legislative Bodies. — Any
proposition or ordinance or resolution approved through the system of
initiative and referendum as herein provided shall not be repealed,
modified or amended, by the local legislative body concerned within six
(6) months from the date therefrom, and may be amended, modified or
repealed by the local legislative body within three (3) years thereafter by
a vote of three-fourths (3/4) of all its members: Provided, however, that in
case of barangays, the period shall be one (1) year after the expiration of
the first six (6) months.
Section 17. Local Referendum. — Notwithstanding the provisions of
Section 4 hereof, any local legislative body may submit to the registered
voters of autonomous region, provinces, cities, municipalities and
barangays for the approval or rejection, any ordinance or resolution duly
enacted or approved.
Said referendum shall be held under the control and direction of the
Commission within sixty (60) days in case of provinces and cities, forty-
five (45) days in case of municipalities and thirty (30) days in case of
barangays.
The Commission shall certify and proclaim the results of the said
referendum.
Section 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.
IV. — Final Provisions
SECTION 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.
Section 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.
Section 21. Appropriations. — The amount necessary to defray the
cost of the initial implementation of this Act shall be charged against the
Contingent Fund in the General Appropriations Act of the current year.
Thereafter, such sums as may be necessary for the full implementation of
this Act shall be included in the annual General Appropriations Act.
Section 22. Separability Clause. — If any part or provision of this Act is
held invalid or unconstitutional, the other parts or provisions thereof shall
remain valid and effective.

Section 23. Effectivity. — This Act shall take effect fifteen (15) days
after its publication in a newspaper of general circulation.

Approved: August 4, 1989