THE CONSTITUTION OF THE PHILIPPINES

De Leon vs. Esguerra [G.R. No. 78059, August 31, 1987] p.2
Manila Prince Hotel vs. GSIS [G.R. No. 122156, Feb. 3, 1997] p.13
Francisco vs. House of Representatives [G.R. No. 160261, Nov 10,
2003] p.42
Gonzales vs. COMELEC [G.R. No. L-28196, November 9, 1967] p.68
Imbong vs. COMELEC [G.R. No. L-32432, September 11, 1970] p.80
Occena vs. COMELEC [G.R. No. 56350, April 2, 1981] p.91
Tolentino vs. COMELEC [G.R. No. L-34150, October 16, 1971] p.95
Sanidad vs. COMELEC [G.R. No. L-44640, October 12, 1976] p.109
Province of Cotabato vs. The Govt. of the RP Peace Panel on
Ancestral Domain [G.R. No. 183591, October 14, 2008] p.143
Santiago vs. COMELEC [G.R. No. 127325, March 19, 1997] p.167
Lambino vs. COMELEC [G.R. No. 174153, October 25, 2006] p.194

1

G.R. No. 78059 August 31, 1987
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO,
ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal,
HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal,
FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V.
MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.
MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners seeking to enjoin respondents
from replacing them from their respective positions as Barangay Captain and Barangay
Councilmen of Barangay Dolores, Municipality of Taytay, Province of Rizal.
As required by the Court, respondents submitted their Comment on the Petition, and
petitioner's their Reply to respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected
Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C.
Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of
Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the
Barangay Election Act of 1982.
On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated
December 1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on February
8, 1987 designating respondent Florentino G. Magno as Barangay Captain of Barangay
Dolores, Taytay, Rizal. The designation made by the OIC Governor was "by authority of the
Minister of Local Government."
Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated
December 1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro
V. Medina, Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of
the same Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC
Governor, the pertinent portions of which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986;
That as being OIC Governor of the Province of Rizal and in the performance of my duties
thereof, I among others, have signed as I did sign the unnumbered memorandum ordering
the replacement of all the barangay officials of all the barangay(s) in the Municipality of
Taytay, Rizal;
That the above cited memorandum dated December 1, 1986 was signed by me personally
on February 8,1987;
That said memorandum was further deciminated (sic) to all concerned the following day,
February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared
null and void and that respondents be prohibited from taking over their positions of
Barangay Captain and Barangay Councilmen, respectively. Petitioners maintain that
pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222), their terms of office
"shall be six (6) years which shall commence on June 7, 1982 and shall continue until their
successors shall have elected and shall have qualified," or up to June 7, 1988. It is also their
position that with the ratification of the 1987 Constitution, respondent OIC Governor no
longer has the authority to replace them and to designate their successors.
On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution,
promulgated on March 25, 1986, which provided:
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution
shall continue in office until otherwise provided by proclamation or executive order or upon
the designation or appointment and qualification of their successors, if such appointment is
made within a period of one year from February 25,1986.
By reason of the foregoing provision, respondents contend that the terms of office of
elective and appointive officials were abolished and that petitioners continued in office by
virtue of the aforequoted provision and not because their term of six years had not yet
expired; and that the provision in the Barangay Election Act fixing the term of office of
Barangay officials to six (6) years must be deemed to have been repealed for being
inconsistent with the aforequoted provision of the Provisional Constitution.
Examining the said provision, there should be no question that petitioners, as elective
officials under the 1973 Constitution, may continue in office but should vacate their positions
upon the occurrence of any of the events mentioned. 1
Since the promulgation of the Provisional Constitution, there has been no proclamation or
executive order terminating the term of elective Barangay officials. Thus, the issue for
resolution is whether or not the designation of respondents to replace petitioners was validly
made during the one-year period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977,
should be considered as the effective date of replacement and not December 1,1986 to
which it was ante dated, in keeping with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted
provision in the Provisional Constitution must be deemed to have been overtaken by Section
27, Article XVIII of the 1987 Constitution reading.
SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority
of the votes cast in a plebiscite held for the purpose and shall supersede all previous
Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date,
therefore, the Provisional Constitution must be deemed to have been superseded. Having
become inoperative, respondent OIC Governor could no longer rely on Section 2, Article III,
thereof to designate respondents to the elective positions occupied by petitioners.
Petitioners must now be held to have acquired security of tenure specially considering that
the Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote
2
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
3
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.
4
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
5
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.
6
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.
7

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
8
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
9
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
10
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:
11
[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the
plebiscite held, together with the election for local officials, on January 30, 1980, and that
said amendment is hereby declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed
amendment shall take effect on the date the incumbent President/Prime Minister shall
proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the
Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodied in Batas
Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The
Proclamation, in declaring the said amendments duly approved, further declared them
"[e]ffective and in full force and in effect as of the date of this Proclamation," It shall be
noted, in this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa,
Third Regular Session, Sitting as a Constituent Assembly, which parented these amendments,
the same:
... shall become valid as part of the Constitution when approved by a majority of the votes
cast in a plebiscite to be held pursuant to Section 2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for
Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed
by the Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered
Three, Two, and One, and to Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result
of the plebiscite using the certificates submitted to it, duly authenticated and certified by
the Board of Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of
January 27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa
Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments:
....are therefore effective and in full force and effect as of the date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section
9, Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the date the President of the Philippines shall
proclaim that they have been ratified by a majority of the votes cast in the plebiscite held for
the purpose, but not later than three months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a majority
of the votes cast in an election/plebiscite at which it is submitted to the people for their
ratification pursuant to Section 2 of Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their
ratification and not at the time of the plebiscite is a view that is not peculiar to the Marcos
era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite
called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress)
adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution
makes no mention of a retroactive application. Accordingly, when the incumbent President
(Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the Constitutional
Commission of 1986, including the Ordinance appended thereto, has been duly ratified by
the Filipino people and is therefore effective and in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect
at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the
new Charter was ratified on February 2, 1987, does not in any way weaken this dissent. As I
stated, the remark was said in passing-we did not resolve the case on account of a categorical
holding that the 1987 Constitution came to life on February 2, 1987. In any event, if we did,
I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the
challenged dismissals done on February 8, 1987 were valid, the 1987 Constitution not being
then as yet in force.
Footnotes
1. Topacio, Jr. vs. Pimentel G.R. No. 73770, April 10, 1986.
2. Section 2, BP Blg. 222.
3. Article 11, Section 25 and Article X, Sections 1, 2, 14, among others.
4. Article X, Section 4.
5. Section 3, BP Blg. 222.
Teehankee, C.J., concurring:
1. Volume Five, Record of the Constitutional Commission Proceedings and Debates,
pages 620-623; emphasis supplied.
2. The entire draft Constitution was approved on October 12, 1986 forty forty-five
votes in favor and two against.
3. The seven Court of Appeals Justices referred to are Justices Alfredo L. Benipayo,
Minerva G. Reyes, Magdangal B. Elma, Cecilio PE, Jesus Elbinias, Nicolas Lapena Jr.
and Justo P. Torres, Jr., and their appointments bear various dates from January 9,
1987 to January 31, 1987.
Sarmiento, J., dissenting:
1. Manila Bulletin, Feb. 3, 1987, p. 1, cols. 6-7 Philippine Daily Inquirer, Feb. 3,1987,
p. 1, cot 1; Malaya, Feb. 3, 1987, p. 1, col. 1.
2. Nos. 3720102 March 3, 1975, 63 SCRA 4 (1975).
3. Nos. L-36142, March 31, 1973, 50 SCRA 30 (1973).
4. Proclamation No. 58 (1987).
5. G.R. No. 72301.
12
G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE
ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights,
privileges, and concessions covering the national economy and patrimony, the State shall
give preference to qualified Filipinos,1 is in oked by petitioner in its bid to acquire 51% of the
shares of the Manila Hotel Corporation (MHC) which owns the historic Manila Hotel.
Opposing, respondents maintain that the provision is not self-executing but requires an
implementing legislation for its enforcement. Corollarily, they ask whether the 51% shares
form part of the national economy and patrimony covered by the protective mantle of the
Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS),
pursuant to the privatization program of the Philippine Government under Proclamation No.
50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of the issued
and outstanding shares of respondent MHC. The winning bidder, or the eventual "strategic
partner," is to provide management expertise and/or an international marketing/reservation
system, and financial support to strengthen the profitability and performance of the Manila
Hotel.2 In a close bidding held on 18 September 1995 only two (2) bidders participated:
petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51%
of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm,
with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00
per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state —
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC —
1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995
(reset to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block
of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management
Contract, International Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER —
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following
conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995
(reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/OGCC
(Office of the Government Corporate Counsel) are obtained.3
Pending the declaration of Renong 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
13
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
14
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 cites provisions on the promotion of general welfare, 30 the sanctity of
29
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
15
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
16
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
17
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:
18
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
19
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 are not confronted
in the case at bar with legal and constitutional issues — and yet I am driven so to speak on
the side of history. The reason perhaps is due to the belief that in the words of Justice Oliver
Wendell Holmes, Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical
and cultural aspect within the meaning of the constitution and thus, forming part of the
"patrimony of the nation".
Section 10, Article XII of the 1987 Constitution 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.
The State shall regulate and exercise authority over foreign investments within its national
goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same
Constitution pertaining to "Declaration of Principles and State Policies" which ordain —
20
The State shall develop a self-reliant and independent national economy effectively by
Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights
in the 1987 Constitution Commission proceedings thus:
xxx xxx xxx
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
fully controlled by Filipinos (Vol. III, Records of the Constitutional Commission, p. 608).
MR. MONSOD. We also wanted to add, as Commissioner Villegas said, this committee and
this body already approved what is known as the Filipino First policy which was suggested
by Commissioner de Castro. So that it is now in our Constitution (Vol. IV, Records of the
Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:
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 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 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 for sale was increased from a maximum of 30% to
51%. Also, the winning bidder, or the eventual "strategic partner" of the GSIS was required
to "provide management expertise and/or an international marketing/reservation system,
and financial support to strengthen the profitability and performance of the Manila
Hotel"1 The proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding rules
were furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation,
and Renong Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.2
The bidding rules and procedures entitled "Guidelines and Procedures: Second
Prequalification and Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First — Pass the prequalification process;
Second — Submit the highest bid on a price per share basis for the Block of Shares;
Third — Negotiate and execute the necessary contracts with GSIS/MHC not later than
October 23, 1995;
21
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
The Winning Bidder/Strategic Partner will be expected to provide management expertise
and/or an international marketing reservation system, and financial support to strengthen
the profitability and performance of The Manila Hotel. In this context, the GSIS is inviting to
the prequalification process any local and/or foreign corporation, consortium/joint venture
or juridical entity with at least one of the following qualifications:
a. Proven management .expertise in the hotel industry; or
b. Significant equity ownership (i.e. board representation) in another hotel company; or
c. Overall management and marketing expertise to successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide access to the requisite
management expertise and/or international marketing/reservation system for The Manila
Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
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
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference will be held at The Manila Hotel on the date
specified in Section III to allow the Applicant to seek clarifications and further information
regarding the guidelines and procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this conference is strongly
advised, although the Applicant will not be penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents (1 original set plus 4
copies) at the Registration Office 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.
3. The decision of the PBAC with respect to the results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the criteria set forth below:
a. Business management expertise, track record, and experience
b. Financial capability.
c. Feasibility and acceptability 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 prescribed Official Bid Form, a copy of which is attached as
Annex IV. The Official Bid Form must be properly accomplished in all details; improper
accomplishment may be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the Official Bid Form, which will
indicate the offered purchase price, in a sealed envelope marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS
22
During the Public Bidding, the following documents should be submitted along with the bid
in a separate envelop marked "SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).
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.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos (P33,000,00), in Philippine
currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft payable to the "Government Service
Insurance System" and issued by a reputable banking institution duly licensed to do business
in the Philippines and acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable banking institution acceptable to the GSIS.
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 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
23
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;
24
(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.
25
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
26
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.
27
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
28
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
29
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 are not confronted
in the case at bar with legal and constitutional issues — and yet I am driven so to speak on
the side of history. The reason perhaps is due to the belief that in the words of Justice Oliver
Wendell Holmes, Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical
and cultural aspect within the meaning of the constitution and thus, forming part of the
"patrimony of the nation".
Section 10, Article XII of the 1987 Constitution 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.
The State shall regulate and exercise authority over foreign investments within its national
goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same
Constitution pertaining to "Declaration of Principles and State Policies" which ordain —
The State shall develop a self-reliant and independent national economy effectively by
Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights
in the 1987 Constitution Commission proceedings thus:
xxx xxx xxx
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
fully controlled by Filipinos (Vol. III, Records of the Constitutional Commission, p. 608).
MR. MONSOD. We also wanted to add, as Commissioner Villegas said, this committee and
this body already approved what is known as the Filipino First policy which was suggested
by Commissioner de Castro. So that it is now in our Constitution (Vol. IV, Records of the
Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:
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 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
30
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 for sale was increased from a maximum of 30% to
51%. Also, the winning bidder, or the eventual "strategic partner" of the GSIS was required
to "provide management expertise and/or an international marketing/reservation system,
and financial support to strengthen the profitability and performance of the Manila
Hotel"1 The proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding rules
were furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation,
and Renong Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.2
The bidding rules and procedures entitled "Guidelines and Procedures: Second
Prequalification and Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First — Pass the prequalification process;
Second — Submit the highest bid on a price per share basis for the Block of Shares;
Third — Negotiate and execute the necessary contracts with GSIS/MHC not later than
October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
The Winning Bidder/Strategic Partner will be expected to provide management expertise
and/or an international marketing reservation system, and financial support to strengthen
the profitability and performance of The Manila Hotel. In this context, the GSIS is inviting to
the prequalification process any local and/or foreign corporation, consortium/joint venture
or juridical entity with at least one of the following qualifications:
a. Proven management .expertise in the hotel industry; or
b. Significant equity ownership (i.e. board representation) in another hotel company; or
c. Overall management and marketing expertise to successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide access to the requisite
management expertise and/or international marketing/reservation system for The Manila
Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
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
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference will be held at The Manila Hotel on the date
specified in Section III to allow the Applicant to seek clarifications and further information
regarding the guidelines and procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this conference is strongly
advised, although the Applicant will not be penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents (1 original set plus 4
copies) at the Registration Office 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.
3. The decision of the PBAC with respect to the results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the criteria set forth below:
a. Business management expertise, track record, and experience
31
b. Financial capability.
c. Feasibility and acceptability 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 prescribed Official Bid Form, a copy of which is attached as
Annex IV. The Official Bid Form must be properly accomplished in all details; improper
accomplishment may be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the Official Bid Form, which will
indicate the offered purchase price, in a sealed envelope marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be submitted along with the bid
in a separate envelop marked "SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).
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.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos (P33,000,00), in Philippine
currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft payable to the "Government Service
Insurance System" and issued by a reputable banking institution duly licensed to do business
in the Philippines and acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable banking institution acceptable to the GSIS.
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.
32
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
33
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
34
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
35
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
36
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.
Footnotes
1 See Sec. 10, par. 2, Art. XII, 1987 Constitution
2 Par I. Introduction and Highlights; Guidelines and Procedures: Second Prequailifications and
Public Bidding of the MHC Privatization; Annex "A," Consolidated Reply to Comments of
Respondents; Rollo, p. 142.
3 Par. V. Guidelines for the Public Bidding, id., pp. 153-154.
4 Annex "A," Petition for Prohibition and Mandamus with Temporary Restraining
Order; Rollo, pp. 13-14.
37
5 Annex "B," Petition for Prohibition and Mandamus with Temporary Restraining Order; id.,
p. 15.
6 Petition for Prohibition and Mandamus with Temporary Restraining Order, pp. 5-6; id., pp.
6-7.
7 Consolidated Reply to Comments of Respondents, p. 17; id., p. 133.
8 Par. V.J. 1, Guidelines for Public Bidding, Guidelines and Procedures: second
Prequalifications and Public Bidding of the MHC Privatization, Annex "A," Consolidated Reply
to Comments of Respondents; id., p. 154.
9 Respondents' Joint Comment with Urgent Motion to Lift 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
38
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
39
 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
40
 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.

41
G.R. No. 160261 November 10, 2003 intervention,
ERNESTO B. FRANCISCO, JR., petitioner, vs.
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES,
INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in- OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO
intervention, LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU
vs. TALIÑO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA,
SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE ALFREDO MARAÑON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO
GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B. SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA,
FUENTEBELLA, respondents. ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL
JAIME N. SORIANO, respondent-in-Intervention, DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO
x---------------------------------------------------------x PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO
G.R. No. 160262 November 10, 2003 MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON- BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO
ABAD, petitioners, YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in- GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO
intervention, BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO, DARLENE
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in- ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG,
intervention, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI, BENASING
vs. MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO, MAURICIO DOMOGAN,
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents,
TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE JAIME N. SORIANO, respondent-in-intervention,
PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
DRILON, respondents, x---------------------------------------------------------x
JAIME N. SORIANO, respondent-in-intervention, G.R. No. 160292 November 10, 2003
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C.
x---------------------------------------------------------x REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
G.R. No. 160263 November 10, 2003 MALLARI, petitioners,
ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in- intervention,
intervention, vs.
vs. HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY AS
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents, REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention, JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003 G.R. No. 160295 November 10, 2003
FRANCISCO I. CHAVEZ, petitioner, SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in- WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-

42
intervention, THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF
THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.
vs. x---------------------------------------------------------x
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR G.R. No. 160343 November 10, 2003
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. INTEGRATED BAR OF THE PHILIPPINES, petitioner,
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE vs.
PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
DRILON, respondents, PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
JAIME N. SORIANO, respondent-in-intervention, TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
x---------------------------------------------------------x DRILON, respondents.
G.R. No. 160310 November 10, 2003 x---------------------------------------------------------x
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON G.R. No. 160360 November 10, 2003
MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO, CLARO B. FLORES, petitioner,
EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO vs.
TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE
TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.
BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA x---------------------------------------------------------x
LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE G.R. No. 160365 November 10, 2003
RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS, U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V.
ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S.
LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B.
VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN
EDILBERTO GALLOR, petitioners, BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in- vs.
intervention, THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE
vs. PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE VENECIA, FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES OF
JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE
FELIX FUENTEBELLA, ET AL., respondents. IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE,
x---------------------------------------------------------x JR. respondents.
G.R. No. 160318 November 10, 2003 x---------------------------------------------------------x
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, G.R. No. 160370 November 10, 2003
vs. FR. RANHILIO CALLANGAN AQUINO, petitioner,
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. vs.
SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE HOUSE
SENATE, respondents. OF REPRESENTATIVES, respondents.
x---------------------------------------------------------x x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003 G.R. No. 160376 November 10, 2003
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR NILO A. MALANYAON, petitioner,
OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS vs.
A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners, HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF THE
vs. 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G.

43
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.
44
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 11TH CONGRESS RULES 12TH CONGRESS NEW RULES
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 RULE II RULE V
public officers and employees may be removed from office as provided by law, but not by INITIATING IMPEACHMENT BAR AGAINST INITIATION OF
impeachment. Section 2. Mode of Initiating IMPEACHMENT PROCEEDINGS
Impeachment. – Impeachment shall be AGAINST THE SAME OFFICIAL
SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all initiated only by a verified complaint for Section 16. – Impeachment
cases of impeachment. impeachment filed by any Member of the Proceedings Deemed Initiated. – In
(2) A verified complaint for impeachment may be filed by any Member of the House of House of Representatives or by any citizen cases where a Member of the House
Representatives or by any citizen upon a resolution of endorsement by any Member thereof, upon a resolution of endorsement by any files a verified complaint of
which shall be included in the Order of Business within ten session days, and referred to the Member thereof or by a verified complaint impeachment or a citizen files a verified
proper Committee within three session days thereafter. The Committee, after hearing, and or resolution of impeachment filed by at complaint that is endorsed by a Member
by a majority vote of all its Members, shall submit its report to the House within sixty session least one-third (1/3) of all the Members of of the House through a resolution of
days from such referral, together with the corresponding resolution. The resolution shall be the House. endorsement against an impeachable
calendared for consideration by the House within ten session days from receipt thereof. officer, impeachment proceedings
(3) A vote of at least one-third of all the Members of the House shall be necessary either to against such official are deemed
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override initiated on the day the Committee on
its contrary resolution. The vote of each Member shall be recorded. Justice finds that the verified complaint
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third and/or resolution against such official,
of all the Members of the House, the same shall constitute the Articles of Impeachment, and as the case may be, is sufficient in
trial by the Senate shall forthwith proceed. substance, or on the date the House
(5) No impeachment proceedings shall be initiated against the same official more than once votes to overturn or affirm the finding of
within a period of one year. the said Committee that the verified
(6) The Senate shall have the sole power to try and decide all cases of impeachment. When complaint and/or resolution, as the case
sitting for that purpose, the Senators shall be on oath or affirmation. When the President of may be, is not sufficient in substance.
the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not In cases where a verified complaint or a
vote. No person shall be convicted without the concurrence of two-thirds of all the Members resolution of impeachment is filed or
of the Senate. endorsed, as the case may be, by at least
(7) Judgment in cases of impeachment shall not extend further than removal from office and one-third (1/3) of the Members of the
disqualification to hold any office under the Republic of the Philippines, but the party House, impeachment proceedings are
convicted shall nevertheless be liable and subject to prosecution, trial, and punishment deemed initiated at the time of the
according to law. filing of such verified complaint or
(8) The Congress shall promulgate its rules on impeachment to effectively carry out the resolution of impeachment with the
purpose of this section. (Emphasis and underscoring supplied) Secretary General.

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 RULE V Section 17. Bar Against Initiation Of
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous BAR AGAINST IMPEACHMENT Impeachment Proceedings. – Within a
House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions Section 14. Scope of Bar. – No period of one (1) year from the date
between these two Congresses' House Impeachment Rules are shown in the following impeachment proceedings shall be impeachment proceedings are deemed
tabulation: initiated against the same official more initiated as provided in Section 16
than once within the period of one (1) year. hereof, no impeachment proceedings,

45

as such, can be initiated against the
same official. (Italics in the original;
emphasis and underscoring supplied)
On July 22, 2002, the House of Representatives adopted a Resolution, 2 sponsored by
Representative Felix William D. Fuentebella, which directed the Committee on Justice "to
conduct an investigation, in aid of legislation, on the manner of disbursements and
expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund
(JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint 4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust
and other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico,
Ronaldo B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House
Committee on Justice on August 5, 20038 in accordance with Section 3(2) of Article XI of the
Constitution which reads:
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.
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,
46
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
47
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.
48
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.
49
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:
50
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
51
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
52
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
53
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
54
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.
55
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.
56
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
57
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.
58
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
59
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.
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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.
61
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
62
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.
63
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,149 this Court held that it is within the province of 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
64
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
65
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
66
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.

67
G.R. No. L-28196 November 9, 1967 Subsequently, Congress passed a bill, which, upon approval by the President, on June 17,
RAMON A. GONZALES, petitioner, 1967, became Republic Act No. 4913, providing that the amendments to the Constitution
vs. proposed in the aforementioned Resolutions No. 1 and 3 be submitted, for approval by the
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR people, at the general elections which shall be held on November 14, 1967.
GENERAL, respondents. The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October
G.R. No. L-28224 November 9, 1967 28, 1967, the Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T.
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner, David and counsel for the Philippine Constitution Association — hereinafter referred to as
vs. the PHILCONSA — were allowed to argue as amici curiae. Said counsel for the PHILCONSA,
COMMISSION ON ELECTIONS, respondent. Dr. Salvador Araneta, likewise prayed that the decision in this case be deferred until after a
No. 28196: substantially identical case brought by said organization before the Commission on
Ramon A. Gonzales for and in his own behalf as petitioner. Elections,1 which was expected to decide it any time, and whose decision would, in all
Juan T. David as amicus curiae probability, be appealed to this Court — had been submitted thereto for final determination,
Office of the Solicitor General for respondents. for a joint decision on the identical issues raised in both cases. In fact, on October 31, 1967,
No. 28224: the PHILCONSA filed with this Court the petition in G. R. No. L-28224, for review
Salvador Araneta for petitioner. by certiorari of the resolution of the Commission on Elections2 dismissing the petition
Office of the Solicitor General for respondent. therein. The two (2) cases were deemed submitted for decision on November 8, 1967, upon
CONCEPCION, C.J.: the filing of the answer of respondent, the memorandum of the petitioner and the reply
G. R. No. L-28196 is an original action for prohibition, with preliminary injunction. memorandum of respondent in L-28224.
Petitioner therein prays for judgment: Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and
1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or a voter. He claims to have instituted case L-28196 as a class unit, for and in behalf of all
from performing any act that will result in the holding of the plebiscite for the ratification of citizens, taxpayers, and voters similarly situated. Although respondents and the Solicitor
the constitutional amendments proposed in Joint Resolutions Nos. 1 and 3 of the two Houses General have filed an answer denying the truth of this allegation, upon the ground that they
of Congress of the Philippines, approved on March 16, 1967; (b) the Director of Printing from have no knowledge or information to form a belief as to the truth thereof, such denial would
printing ballots, pursuant to said Act and Resolutions; and (c) the Auditor General from appear to be a perfunctory one. In fact, at the hearing of case L-28196, the Solicitor General
passing in audit any disbursement from the appropriation of funds made in said Republic Act expressed himself in favor of a judicial determination of the merits of the issued raised in
No. 4913; and said case.
2) declaring said Act unconstitutional and void. The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and
The main facts are not disputed. On March 16, 1967, the Senate and the House of existing under the laws of the Philippines, and a civic, non-profit and non-partisan
Representatives passed the following resolutions: organization the objective of which is to uphold the rule of law in the Philippines and to
1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the defend its Constitution against erosions or onslaughts from whatever source. Despite his
Constitution of the Philippines, be amended so as to increase the membership of the House aforementioned statement in L-28196, in his answer in L-28224 the Solicitor General
of Representatives from a maximum of 120, as provided in the present Constitution, to a maintains that this Court has no jurisdiction over the subject-matter of L-28224, upon the
maximum of 180, to be apportioned among the several provinces as nearly as may be ground that the same is "merely political" as held in Mabanag vs. Lopez Vito.3 Senator Arturo
according to the number of their respective inhabitants, although each province shall have, M. Tolentino, who appeared before the Commission on Elections and filed an opposition to
at least, one (1) member; the PHILCONSA petition therein, was allowed to appear before this Court and objected to
2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the said petition upon the ground: a) that the Court has no jurisdiction either to grant the relief
convention to be composed of two (2) elective delegates from each representative district, sought in the petition, or to pass upon the legality of the composition of the House of
to be "elected in the general elections to be held on the second Tuesday of November, Representatives; b) that the petition, if granted, would, in effect, render in operational the
1971;" and legislative department; and c) that "the failure of Congress to enact a valid reapportionment
3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended law . . . does not have the legal effect of rendering illegal the House of Representatives
so as to authorize Senators and members of the House of Representatives to become elected thereafter, nor of rendering its acts null and void."
delegates to the aforementioned constitutional convention, without forfeiting their JURISDICTION
respective seats in Congress.

68
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
69
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.
70
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:
71
(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:
72
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
73
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
74
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
75
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
76
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
77
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.
78
Voters will soon go to the polls to say "yes" or "no". But even the official sample ballot I concur in the result with the opinion penned by Mr. Justice Sanchez. To approve a mere
submitted to this Court would show that only the amendments are printed at the back. And proposal to amend the Constitution requires (Art. XV) a three-fourths (3/4) vote of all the
this, in pursuance to Republic Act 4913 itself. members of each legislative chamber, the highest majority ever demanded by the
Surely enough, the voters do not have the benefit of proper notice of the proposed fundamental charter, one higher even than that required in order to declare war (Sec. 24,
amendments thru dissemination by publication in extenso. People do not have at hand the Article VI), with all its dire consequences. If such an overwhelming majority, that was
necessary data on which to base their stand on the merits and demerits of said amendments. evidently exacted in order to impress upon all and sundry the seriousness of every
We, therefore, hold that there is no proper submission of the proposed constitutional constitutional amendment, is asked for a proposal to amend the Constitution, I find it
amendments within the meaning and intendment of Section 1, Article XV of the Constitution. impossible to believe that it was ever intended by its framers that such amendment should
4. Contemporary history is witness to the fact that during the present election campaign the be submitted and ratified by just "a majority of the votes cast at an election at which the
focus is on the election of candidates. The constitutional amendments are crowded out. amendments are submitted to the people for their ratification", if the concentration of the
Candidates on the homestretch, and their leaders as well as the voters, gear their undivided people's attention thereon to be diverted by other extraneous issues, such as the choice of
efforts to the election of officials; the constitutional amendments cut no ice with them. The local and national officials. The framers of the Constitution, aware of the fundamental
truth is that even in the ballot itself, the space accorded to the casting of "yes" or "no" vote character thereof, and of the need of giving it as much stability as is practicable, could have
would give one the impression that the constitutional amendments are but a bootstrap to only meant that any amendments thereto should be debated, considered and voted upon at
the electoral ballot. Worse still, the fortunes of many elective officials, on the national and an election wherein the people could devote undivided attention to the subject. That this was
local levels, are inextricably intertwined with the results of the votes on the plebiscite. In a the intention and the spirit of the provision is corroborated in the case of all other
clash between votes for a candidate and conscience on the merits and demerits of the constitutional amendments in the past, that were submitted to and approved in special
constitutional amendments, we are quite certain that it is the latter that will be dented. elections exclusively devoted to the issue whether the legislature's amendatory proposals
5. That proper submission of amendments to the people to enable them to equally ratify should be ratified or not.
them properly is the meat of the constitutional requirement, is reflected in the sequence of Dizon, Angeles, Zaldivar and Castro, JJ., concur.
uniform past practices. The Constitution had been amended thrice — in 1939, 1940 and
1947. In each case, the amendments were embodied in resolutions adopted by the
Legislature, which thereafter fixed the dates at which the proposed amendments were to be
ratified or rejected. These plebiscites have been referred to either as an "election" or
"general election". At no time, however, was the vote for the amendments of the
Constitution held simultaneously with the election officials, national or local. Even with
regard to the 1947 parity amendment; the record shows that the sole issue was the 1947
parity amendment; and the special elections simultaneously held in only three provinces,
Iloilo, Pangasinan and Bukidnon, were merely incidental thereto.
In the end we say that the people are the last ramparts that guard against indiscriminate
changes in the Constitution that is theirs. Is it too much to ask that reasonable guarantee be
made that in the matter of the alterations of the law of the land, their true voice be heard?
The answer perhaps is best expressed in the following thoughts: "It must be remembered
that the Constitution is the people's enactment. No proposed change can become effective
unless they will it so through the compelling force of need of it and desire for it."4
For the reasons given, our vote is that Republic Act 4913 must be stricken down as in
violation of the Constitution.
Zaldivar and Castro, JJ., concur.
Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.

REYES, J.B.L., J., concurring:

79
G.R. No. L-32432 September 11, 1970
MANUEL B. IMBONG, petitioner,
vs.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR MILAFLOR, as
members thereof, respondents.
G.R. No. L-32443 September 11, 1970
IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE VALIDITY
OF R.A. No. 6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL CONVENTION ACT OF
1970. RAUL M. GONZALES, petitioner,
vs.
COMELEC, respondent.
Manuel B. Imbong in his own behalf.
Raul M. Gonzales in his own behalf.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L.
Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de Leon, Vicente A.
Torres and Guillermo C. Nakar for respondents.
Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici curiae.
MAKASIAR, J.:
These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19
of R.A. No. 6132 by petitioners Manuel B. Imbong and Raul M. Gonzales, both members of
the Bar, taxpayers and interested in running as candidates for delegates to the Constitutional
Convention. Both impugn the constitutionality of R.A. No. 6132, claiming during the oral
argument that it prejudices their rights as such candidates. 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.
It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly
pursuant to Art. XV of the Constitution, passed Resolution No. 2 which among others called
for a Constitutional Convention to propose constitutional amendments to be composed of
two delegates from each representative district who shall have the same qualifications as
those of Congressmen, to be elected on the second Tuesday of November, 1970 in
accordance with the Revised Election Code.
After the adoption of said Res. No. 2 in 1967 but before the November elections of that year,
Congress, acting as a legislative body, enacted Republic Act No. 4914 implementing the
aforesaid Resolution No. 2 and practically restating in toto the provisions of said Resolution
No. 2.
On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4
amending the aforesaid Resolution No. 2 of March 16, 1967 by providing that the convention
"shall be composed of 320 delegates apportioned among the existing representative districts
according to the number of their respective inhabitants: Provided, that a representative
district shall be entitled to at least two delegates, who shall have the same qualifications as
those required of members of the House of Representatives,"1 "and that any other details
relating to the specific apportionment of delegates, election of delegates to, and the holding
of, the Constitutional Convention shall be embodied in an implementing legislation:
Provided, that it shall not be inconsistent with the provisions of this Resolution."2
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.
4914.3
Petitioner Raul M. Gonzales assails the validity of the entire law as well 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
80
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."
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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
82
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:
83
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,
84
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
85
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
86
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,
87
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
88
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
89
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.
90
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
91
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
92
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
93
deparcing from the fundamental law is anachronistic in the realm of constitutionalism and steadiness; it must yield to the thought of the people; not to the whim of the people, or the
repugnant to the essence of the rule of law." The proposed amendments at bar having been thought evolved in excitement, or hot blood, but the sober second thought, which alone if
adopted by the Interim Batasang Pambansa as the fruit of the invalid October, 1976 the government is to be safe, can be allowed efficacy ... Changes in government are to be
amendments must necessarily suffer from the same Congenital infirmity. feard unless benefit is certain.' As Montaign says: 'All great mutation shake and disorder a
3. Prescinding from the foregoing and assuming the validity of the proposed amendments, I state. Good does not necessarily succeed evil; another evil may succeed and a worse."'
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

94
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
95
write, and who shall have resided in the Philippines for one year and in the municipality
wherein they propose to vote for at least six months preceding the election.
Section 2. This amendment shall be valid as part of the Constitution of the Philippines when
approved by a majority of the votes cast in a plebiscite to coincide with the local elections in
November 1971.
Section 3. This partial amendment, which refers only to the age qualification for the exercise
of suffrage shall be without prejudice to other amendments that will be proposed in the
future by the 1971 Constitutional Convention on other portions of the amended Section or
on other portions of the entire Constitution.
Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from its
savings or from its unexpended funds for the expense of the advanced plebiscite; provided,
however that should there be no savings or unexpended sums, the Delegates waive P250.00
each or the equivalent of 2-1/2 days per diem.
By a letter dated September 28, 1971, President Diosdado Macapagal, called upon
respondent Comelec "to help the Convention implement (the above) resolution." The said
letter reads:
September 28, 1971
The Commission on Elections Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as the
Constitutional Convention Act of 1971, may we call upon you to help the Convention
implement this resolution:
Sincerely,
(Sgd.) DIOSDADO P. MACAPAGAL
DIOSDADO P. MACAPAGAL
President
On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that
it will hold the plebiscite on condition that:
(a) The Constitutional Convention will undertake the printing of separate official ballots,
election returns and tally sheets for the use of said plebiscite at its expense;
(b) The Constitutional Convention will adopt its own security measures for the printing and
shipment of said ballots and election forms; and
(c) Said official ballots and election forms will be delivered to the Commission in time so that
they could be distributed at the same time that the Commission will distribute its official and
sample ballots to be used in the elections on November 8, 1971.
What happened afterwards may best be stated by quoting from intervenors' Governors'
statement of the genesis of the above proposal:
The President of the Convention also issued an order forming an Ad Hoc Committee to
implement the Resolution.
This Committee issued implementing guidelines which were approved by the President who
then transmitted them to the Commission on Elections.
The Committee on Plebiscite and Ratification filed a report on the progress of the
implementation of the plebiscite in the afternoon of October 7,1971, enclosing copies of the
order, resolution and letters of transmittal above referred to (Copy of the report is hereto
attached as Annex 8-Memorandum).
RECESS RESOLUTION
In its plenary session in the evening of October 7, 1971, the Convention approved a
resolution authored by Delegate Antonio Olmedo of Davao Oriental, calling for a recess of
the Convention from November 1, 1971 to November 9, 1971 to permit the delegates to
campaign for the ratification of Organic Resolution No. 1. (Copies of the resolution and the
transcript of debate thereon are hereto attached as Annexes 9 and 9-A Memorandum,
respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed Resolution No. 24 submitted by Delegate Jose
Ozamiz confirming the authority of the President of the Convention to implement Organic
Resolution No. 1, including the creation of the Ad Hoc Committee ratifying all acts performed
in connection with said implementation.
Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the
other implementing resolutions thereof subsequently approved by the Convention have no
force and effect as laws in so far as they provide for the holding of a plebiscite co-incident
with the elections of eight senators and all city, provincial and municipal officials to be held
on November 8, 1971, hence all of Comelec's acts in obedience thereof and tending to carry
out the holding of the plebiscite directed by said resolutions are null and void, on the ground
that the calling and holding of such a plebiscite is, by the Constitution, a power lodged
exclusively in Congress, as a legislative body, and may not be exercised by the Convention,
and that, under Section 1, Article XV of the Constitution, the proposed amendment in
question cannot be presented to the people for ratification separately from each and all of
the other amendments to be drafted and proposed by the Convention. On the other hand,
respondents and intervenors posit that the power to provide for, fix the date and lay down
the details of the plebiscite for the ratification of any amendment the Convention may deem
proper to propose is within the authority of the Convention as a necessary consequence and
part of its power to propose amendments and that this power includes that of submitting
such amendments either individually or jointly at such time and manner as the Convention
may direct in discretion. The Court's delicate task now is to decide which of these two poses
is really in accord with the letter and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction.
They contend that the issue before Us is a political question and that the Convention being
legislative body of the highest order is sovereign, and as such, its acts impugned by petitioner
are beyond the control of the Congress and the courts. In this connection, it is to be noted
that none of the respondent has joined intervenors in this posture. In fact, respondents Chief
Accountant and Auditor of the convention expressly concede the jurisdiction of this Court in
their answer acknowledging that the issue herein is a justifiable one.
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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
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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
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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?
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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
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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
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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.
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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
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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
104
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
105
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,
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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
107
an unfolding future. That is to facilitate its being responsive to the challenge that time Article X of the Constitution.5 It is not precluded from assisting the Constitutional Convention
inevitably brings in its wake. if pursuant to its competence to amend the fundamental law it seeks, as in this case, to
From such an approach then, I am irresistibly led to the conclusion that the challenged submit a proposal, even if admittedly tentative, to the electorate to ascertain its verdict. At
resolution was well within the power of the convention. That would be to brush aside the any rate, it may be implied that under the 1971 Constitutional Convention Act, it is not to
web of unreality spun from a too-restrictive mode of appraising the legitimate scope of its turn a deaf ear to a summons from the Convention to aid it in the legitimate discharge of its
competence. That would be, for me, to give added vigor and life to the conferment of functions.6
authority vested in it, attended by such grave and awesome responsibility. The aforesaid considerations, such as they are, but which for me have a force that I mind
3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that myself unable to overcome, leave me no alternative but to dissent from my brethren, with
such amendment shall be valid when submitted and thereafter approved by the majority of due acknowledgement of course that from their basic premises, the conclusion arrived at by
the votes cast by the people at an election is a bar to the proposed submission. It is the them cannot be characterized as in any wise bereft of a persuasive quality of a high order.
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

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G.R. No. L-44640 October 12, 1976 PROPOSED AMENDMENTS:
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner, 1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa.
vs. Members of the interim Batasang Pambansa which shall not be more than 120, unless
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL otherwise provided by law, shall include the incumbent President of the Philippines,
TREASURER, respondents. representatives elected from the different regions of the nation, those who shall not be less
G.R. No. L-44684. October 12,1976 than eighteen years of age elected by their respective sectors, and those chosen by the
VICENTE M. GUZMAN, petitioner, incumbent President from the members of the Cabinet. Regional representatives shall be
vs. apportioned among the regions in accordance with the number of their respective
COMMISSION ELECTIONS, respondent. inhabitants and on the basis of a uniform and progressive ratio while the sectors shall be
G.R. No. L-44714. October 12,1976 determined by law. The number of representatives from each region or sector and the,
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners, manner of their election shall be prescribed and regulated by law.
vs. 2. The interim Batasang Pambansa shall have the same powers and its members shall have
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL the same functions, responsibilities, rights, privileges, and disqualifications as the interim
TREASURER, respondents. National Assembly and the regular National Assembly and the members thereof. However,
MARTIN, J,: it shall not exercise the power provided in Article VIII, Section 14(l) of the Constitution.
The capital question raised in these prohibition suits with preliminary injunction relates to 3. The incumbent President of the Philippines shall, within 30 days from the election and
the power of the incumbent President of the Philippines to propose amendments to the selection of the members, convene the interim Batasang Pambansa and preside over its
present Constitution in the absence of the interim National Assembly which has not been sessions until the Speaker shall have been elected. The incumbent President of the
convened. Philippines shall be the Prime Minister and he shall continue to exercise all his powers even
On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 after the interim Batasang Pambansa is organized and ready to discharge its functions and
calling for a national referendum on October 16, 1976 for the Citizens Assemblies likewise he shall continue to exercise his powers and prerogatives under the nineteen
("barangays") to resolve, among other things, the issues of martial law, the I . assembly, its hundred and thirty five. Constitution and the powers vested in the President and the Prime
replacement, the powers of such replacement, the period of its existence, the length of the Minister under this Constitution.
period for tile exercise by the President of his present powers.1 4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions,
Twenty days after or on September 22, 1976, the President issued another related decree, and discharge the responsibilities of the regular President (Prime Minister) and his Cabinet,
Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by and shall be subject only to such disqualifications as the President (Prime Minister) may
declaring the provisions of presidential Decree No. 229 providing for the manner of voting prescribe. The President (Prime Minister) if he so desires may appoint a Deputy Prime
and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national Minister or as many Deputy Prime Ministers as he may deem necessary.
referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No. 1031 5. The incumbent President shall continue to exercise legislative powers until martial law
repealed Section 4, of Presidential Decree No. 991, the full text of which (Section 4) is quoted shall have been lifted.
in the footnote below.2 6. Whenever in the judgment of the President (Prime Minister), there exists a grave
On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa
stating the questions to be submitted to the people in the referendum-plebiscite on October or the regular National Assembly fails or is unable to act adequately on any matter for any
16, 1976. The Decree recites in its "whereas" clauses that the people's continued opposition reason that in his judgment requires immediate action, he may, in order to meet the
to the convening of the National Assembly evinces their desire to have such body abolished exigency, issue the necessary decrees, orders or letters of instructions, which shall form part
and replaced thru a constitutional amendment, providing for a legislative body, which will of the law of the land.
be submitted directly to the people in the referendum-plebiscite of October 16. 7. The barangays and sanggunians shall continue as presently constituted but their functions,
The questions ask, to wit: powers, and composition may be altered by law.
(1) Do you want martial law to be continued? Referenda conducted thru the barangays and under the Supervision of the Commission on
(2) Whether or not you want martial law to be continued, do you approve the following Elections may be called at any time the government deems it necessary to ascertain the will
amendments to the Constitution? For the purpose of the second question, the referendum of the people regarding any important matter whether of national or local interest.
shall have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of 8. All provisions of this Constitution not inconsistent with any of these amendments shall
the Constitution. continue in full force and effect.

109
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 hence a limited power, so that the Supreme Court is vested with that authorities to
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
determine whether that power has been discharged within its limits.
Political questions are neatly associated with the wisdom, of the legality of a particular act.
Where the vortex of the controversy refers to the legality or validity of the contested act,
that matter is definitely justiciable or non-political. What is in the heels of the Court is not
110
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
111
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
112
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
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
113
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial
law to be continued? - is a referendum question, wherein the 15-year olds may participate.
This was prompted by the desire of the Government to reach the larger mas of the people
so that their true pulse may be felt to guide the President in pursuing his program for a New
Order. For the succeeding question on the proposed amendments, only those of voting age
of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2, Article
XVI of the new Constitution. 36 On this second question, it would only be the votes of those
18 years old and above which will have valid bearing on the results. The fact that the voting
populace are simultaneously asked to answer the referendum question and the plebiscite
question does not infirm the referendum-plebiscite. There is nothing objectionable in
consulting the people on a given issue, which is of current one and submitting to them for
ratification of proposed constitutional amendments. The fear of commingled votes (15-year
olds and 18-year olds above) is readily dispelled by the provision of two ballot boxes for every
barangay center, one containing the ballots of voters fifteen years of age and under
eighteen, and another containing the ballots of voters eighteen years of age and
above. 37 The ballots in the ballot box for voters fifteen years of age and under eighteen shall
be counted ahead of the ballots of voters eighteen years and above contained in another
ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the
age groupings, i.e., ballots contained in each of the two boxes.38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is
merely consultative in character. It is simply a means of assessing public reaction to the given
issues submitted to the people foe their consideration, the calling of which is derived from
or within the totality of the executive power of the President. 39 It is participated in by all
citizens from the age of fifteen, regardless of whether or not they are illiterates, feeble-
minded, or ex- convicts .40 A "plebiscite," on the other hand, involves the constituent act of
those "citizens of the Philippines not otherwise disqualified by law, who are eighteen years
of age or over, and who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months preceding the election Literacy,
property or any other substantive requirement is not imposed. It is generally associated with
the amending process of the Constitution, more particularly, the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in
main the freedom to dissent. That speaks of a bygone fear. The martial law regime which, in
the observation of Justice Fernando, 41 is impressed with a mild character recorded no State
imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but
on certain grounds no total suppression of that liberty is aimed at. The for the referendum-
plebiscite on October 16 recognizes all the embracing freedoms of expression and assembly
The President himself had announced that he would not countenance any suppression of
dissenting views on the issues, as he is not interested in winning a "yes" or "no" vote, but on
the genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters soon
found their way to the public forums, voicing out loud and clear their adverse views on the
proposed amendments and even (in the valid ratification of the 1973 Constitution, which is
already a settled matter.43 Even government employees have been held by the Civil Service
Commission free to participate in public discussion and even campaign for their stand on the
referendum-plebiscite issues.44
VIII
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too short for
free debates or discussions on the referendum-plebiscite issues. The questions are not new.
They are the issues of the day. The people have been living with them since the proclamation
of martial law four years ago. The referendums of 1973 and 1975 carried the same issue of
martial law. That notwithstanding, the contested brief period for discussion is not without
counterparts in previous plebiscites for constitutional amendments. Justice Makasiar, in the
Referendum Case, recalls: "Under the old Society, 15 days were allotted for the publication
in three consecutive issues of the Official Gazette of the women's suffrage amendment to
the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The
constitutional amendment to append as ordinance the complicated Tydings-Kocialskowski
was published in only three consecutive issues of the Official Gazette for 10 days prior to the
scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments providing for
the bicameral Congress, the reelection of the President and Vice President, and the creation
of the Commission on Elections, 20 days of publication in three consecutive issues of the
Official Gazette was fixed (Com Act No. 517). And the Parity Amendment, an involved
constitutional amendment affecting the economy as well as the independence of the
Republic was publicized in three consecutive issues of the Official Gazette for 20 days prior
to the plebiscite (Rep. Act No. 73)."45
2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific
date when the plebiscite shall be held, but simply states that it "shall be held not later than
three months after the approval of such amendment or revision." In Coleman v. Miller, 46 the
United States Supreme court held that this matter of submission involves "an appraisal of a
great variety of relevant conditions, political, social and economic," which "are essentially
political and not justiciable." The constituent body or in the instant cases, the President, may
fix the time within which the people may act. This is because proposal and ratification are
not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural
inference being that they are not to be widely separated in time; second, it is only when
there is deemed to be a necessity therefor that amendments are to be proposed, the
reasonable implication being that when proposed, they are to be considered and disposed
of presently, and third, ratification is but the expression of the approbation of the people,
hence, it must be done contemporaneously. 47 In the words of Jameson, "(a)n alteration of
the Constitution proposed today has relation to the sentiment and the felt needs of today,
and that, if not ratified early while that sentiment may fairly be supposed to exist. it ought
to be regarded as waived, and not again to be voted upon, unless a second time proposed
by proper body
114
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.
115
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.
116
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
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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
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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
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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
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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
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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
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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
123
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
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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
125
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
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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
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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;
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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,
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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.
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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
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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
132
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
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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 -
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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
135
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
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At the threshold, it is necessary to clarify what is a "political question". It must be noted that
this device has been utilized by the judiciary "to avoid determining questions it is ill equipped
to determine or that could be settled in any event only with the effective support of the
political branches."1 According to Weston, judges, whether "personal representatives of a
truly sovereign king, or taking their seats as the creatures of a largely popular sovereignty
speaking through a written constitution, derive their power by a delegation, which clearly or
obscurely as the case may be, deliminates and delimits their delegated jurisdiction.* * *
Judicial questions * * * are those which the sovereign has set to be decided in the courts.
Political questions, similarly, are those which the sovereign has entrusted to the so-called
political departments of government or has reserved to be settled by its own extra-
government or has reserved to be settled by its own extra-governmental action."2 Reflecting
a similar concept, this Court has defined a "political question" as a "matter which is to be
exercised by the people in their primary political capacity or that has been specifically
delegated to some other department or particular officer of the government, with
discretionary power to act."3 In other words, it refers to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative or executive branch
of government.4
In determining whether an issue falls within the political question category, the absence of
satisfactory creterion for a judicial determination or the appropriateness of attributing
finality to the action of the political departments of government is a dominant consideration.
This was explained by Justice Brennan in Baker v. Carr,5 thus :
Prominent on the surface of any case held to involve political question is found a textually
demonstrable constitutional lack of judicially discoverrable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of government;
or an unusual need for unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from from multifarious pronouncements by various
departments on one question. . . .
To decide whether a matter has in a measure been committed by the Constitution to another
branch of government or retained be the people to be decided by them in their sovereign
capacity, or whether that branch exceeds whatever authority has been committed, is indeed
a delicate exercise in constitutional interpretation.
In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy of the
ratification by state legislatures of a constitutional amendment is a political question. On the
question of whether the State Legislature could constitutionally relative an amendment,
after the same had been previously rejected by it, it was held that the ultimate authority
over the question was in Congress in the exercise of its control over the promulgation of the
adoption of the amendment. And in connection with the second question of whether the
amendment has lost its, vitality through the lapse of time, the Court held that the question
was likewise political, involving "as it does ... an appraisal of a great variety of relevant
conditions, political, social and economic, which can hardly be said to be within the
appropriate range of evidence receivable in a court of justice and as to which it would be an
extravagant extension of juridical authority to assert judicial notice as the basis of deciding
a controversy with respect to the validity of an amendment actually ratified. On the other
hand, these conditions are appropriate for the consideration of the political departments of
the Government. The questions they involve are essentially political and not justiciable." '
In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed that:
The Constitution grants Congress exclusive power to control submission off constitutional
amendments. Final determination by Congress their ratification by three-fourths of the
States has taken place 'is conclusive upon the courts.' In the exercise of that power, Congress,
of course, is governed by the Constitution. However, A whether submission, intervening
procedure for Congressional determination of ratification conforms to the commands of the
Constitution, call for decisions by apolitical department of questions of a t@ which this Court
has frequently designated 'political.' And decision of a 'political question' by the political
department' to which the Constitution has committed it 'conclusively binds the judges, as
well as all other officers, citizens and subjects of ... government. Proclamation under
authority of Congress that an amendment has been ratified will carry with it a solemn
assurance by the Congress that ratification has taken place as the Constitution commands.
Upon this assurance a proclaimed amendment must be accepted as a part of the
Constitution, learning to the judiciary its traditional authority of interpretation. To the extent
that the Court's opinion in the present case even by implieding assumes a power to make
judicial interpretation of the exclusive constitutional authority of Congress over submission
and by ratification of amendments, we are unable to agree.
Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in Mabanag v.
Lopez Vitol, 7 speaking through Mr. Justice Pedro Tuason, ruled that the process of
constitutional amendment, involving proposal and ratification, is a political question. In the
Mabang case, the petitioners sought to prevent the enforcement of a resolution of Congress
proposing the "Parity Amendment" to the Philippine Constitution on the ground that it had
not been approved by the three-fourths vote of all the members of each house as required
be Article XV of the 1935 Constitution. It was claimed that three (3) Senators and eight (8)
members of the House of Representatives had been suspended and that their membership
was not considered in the determination of the three- fourths %- ore In dismissing the
petition on the ground that the question of the validity of the proposal was political, the
Court stated:
"If ratification of an amendment is a political question, a proposal which leads to ratification
has to be a political question. The question to steps complement each other in a scheme
intended to achieve a single objective. It is to be noted that amendatory process as provided
in Section I of Article XV of the Philippine Constitution 'consists of (only) two distinct parts:
proposal and ratification.' There is no logic in attaching political character to one and
withholding that character from the other. Proposal to amend the Constitution is a highly
political function performed by the Congress in its sovereign legislative capacity and
committed to its charge by the Constitution itself. ..." (At pages 4-5, Italics supplied.)
It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether or not a
Resolution of Congress, acting as a constituent assembly - violates the Constitution is
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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
138
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
139
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.
140
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
141
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.
142
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.:
143
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
144
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.
145
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
146
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.
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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 requirement of ripeness.
A question is ripe for adjudication when the act 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 prerequisite that something had then been accomplished or performed by either branch
before a court may come into the picture,60 and the petitioner must allege the existence of
an immediate or threatened injury to itself as a result of the challenged action. 61 He must
show that he has sustained or is immediately in danger of sustaining some direct injury as a
result of the act complained of.62
The Solicitor General argues that there is no justiciable controversy that is ripe for judicial
review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and
legislative enactments as well as constitutional processes aimed at attaining a final peaceful
agreement. Simply put, the MOA-AD remains to be a proposal that does not automatically
create legally demandable rights and obligations until the list of operative acts required have
been duly complied with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to
pass upon issues based on hypothetical or feigned constitutional problems or interests
with no concrete bases. Considering the preliminary character of the MOA-AD, there are no
concrete acts that could possibly violate petitioners' and intervenors' rights since the acts
complained of are mere contemplated steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors' perceived injury, if at all, is merely imaginary
and illusory apart from being unfounded and based on mere conjectures. (Underscoring
supplied)
The Solicitor General cites63 the following provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements, the Government
stipulates to conduct and deliver, using all possible legal measures, within twelve (12)
months following the signing of the MOA-AD, a plebiscite covering the areas as enumerated
in the list and depicted in the map as Category A attached herein (the "Annex"). The Annex
constitutes an integral part of this framework agreement. Toward this end, the Parties shall
endeavor to complete the negotiations and resolve all outstanding issues on the
Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that 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 the 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.64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present controversy ripe.
In Pimentel, Jr. v. Aguirre,65 this Court held:
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
148
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.
149
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
150
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 nation 112 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
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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
152
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
153
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
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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
155
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
156
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 QUEBEC 160 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
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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.
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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.
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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
160
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
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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 Amnesty 180 (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
162
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.
163
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
164
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
165
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 amendments to the Constitution and the laws will eventually be put in place.
Neither the GRP Peace Panel nor the President herself is authorized to make such a
guarantee. 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.
While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a constitutional violation that renders the
MOA-AD fatally defective.
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.

166
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.
167
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on
the Constitution, on statutes, and on local legislation. However, it failed to provide any
subtitle on initiative on the Constitution, unlike in the other modes of initiative, which are
specifically provided for in Subtitle II and Subtitle III. This deliberate omission indicates that
the matter of people's initiative to amend the Constitution was left to some future law.
Former Senator Arturo Tolentino stressed this deficiency in the law in his privilege speech
delivered before the Senate in 1994: "There is not a single word in that law which can be
considered as implementing [the provision on constitutional initiative]. Such implementing
provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. This indicates that the Act covers only laws and not constitutional amendments
because the latter take effect only upon ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct of
initiative on the Constitution and initiative and referendum on national and local laws,
is ultra vires insofar as initiative on amendments to the Constitution is concerned, since the
COMELEC has no power to provide rules and regulations for the exercise of the right of
initiative to amend the Constitution. Only Congress is authorized by the Constitution to pass
the implementing law.
(5) The people's initiative is limited to amendments to the Constitution, not
to revision thereof. Extending or lifting of term limits constitutes a revision and is, therefore,
outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's initiative; neither the
COMELEC nor any other government department, agency, or office has realigned funds for
the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners allege
that in the event the COMELEC grants the Delfin Petition, the people's initiative spearheaded
by PIRMA would entail expenses to the national treasury for general re-registration of voters
amounting to at least P180 million, not to mention the millions of additional pesos in
expenses which would be incurred in the conduct of the initiative itself. Hence, the
transcendental importance to the public and the nation of the issues raised demands that
this petition for prohibition be settled promptly and definitely, brushing aside technicalities
of procedure and calling for the admission of a taxpayer's and legislator's suit. 14 Besides,
there is no other plain, speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the petition
within a non-extendible period of ten days from notice; and (b) issued a temporary
restraining order, effective immediately and continuing until further orders, enjoining public
respondent COMELEC from proceeding with the Delfin Petition, and private respondents
Alberto and Carmen Pedrosa from conducting a signature drive for people's initiative to
amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on the
petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR
GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED
EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY
RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE
COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE
GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER
THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC. THE
ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE
SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS
IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERING
WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY" PURSUANT TO ITS
"INITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER
26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET
AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING
THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION.
SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE
ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO
REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26,
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL.
G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS
CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND
RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A PROVISION
DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC. 12,
S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS
PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION. IT
IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW
SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A RE-
EXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT
SHOULD BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN
G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which
starts off with an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition
for Initiative on the 1987 Constitution'. . . which is not formally filed yet." What he filed on 6
December 1996 was an "Initiatory Pleading" or "Initiatory Petition," which was legally
necessary to start the signature campaign to amend the Constitution or to put the
movement to gather signatures under COMELEC power and function. On the substantive
allegations of the petitioners, Delfin maintains as follows:
168
(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
169
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
170
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:
171
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
172
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
173
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:
174
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
175
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.
176
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 of at least 12 percent of the total number of registered voters.
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
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.
177
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
178
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
179
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?
180
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
181
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
182
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
183
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
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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.
185
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
186
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

187
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
188
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
189
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
190
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.
191
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.
192
Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution say, but I will defend to the death your right to say it." After all, freedom is not really for the
2300 Are Sufficient to Implement Constitutional Initiatives thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we
While RA 6735 may not be a perfect law, it was — as the majority openly concedes — hate."5
intended by the legislature to cover and, I respectfully submit, it contains enough provisions Epilogue
to effectuate an initiative on the Constitution.1 I completely agree with the inspired and By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like
inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA referendum and recall, is a new and treasured feature of the Filipino constitutional system.
6735, the Roco law on initiative, sufficiently implements the right of the people to initiate All three are institutionalized legacies of the world-admired EDSA people power. Like
amendments to the Constitution. Such views, which I shall no longer repeat nor elaborate elections and plebiscites, they are hallowed expressions of popular sovereignty. They are
on, are thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay sacred democratic rights of our people to be used as their final weapons against political
Metropolitan Authority vs. Commission on Elections, 2 that "provisions for initiative . . . are excesses, opportunism, inaction, oppression and misgovernance; as well as their reserved
(to be) liberally construed to effectuate their purposes, to facilitate and not hamper the instruments to exact transparency, accountability and faithfulness from their chosen
exercise by the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on
"effort to trivialize the effectiveness of people's initiatives ought to be rejected." the other, their legitimate exercise should be carefully nurtured and zealously protected.
No law can completely and absolutely cover all administrative details. In recognition of this, WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT
RA 6735 wisely empowered 4 the Commission on Election "to promulgate such rules and Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of
regulations as may be necessary to carry out the purposes of this Act." And pursuant thereto, prematurity, but not on the other grounds relied upon by the majority. I also vote to LIFT the
the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very temporary restraining order issued on 18 December 1996 insofar as it prohibits Jesus Delfin,
words, was promulgated "to govern the conduct of initiative on the Constitution and Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in proposing
initiative and referendum on national and local laws," not by the incumbent Commission on amendments to the Constitution.
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

193
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED
VOTERS,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
x--------------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x ------------------------------------------------------ x
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.
x------------------------------------------------------ x
ATTY. PETE QUIRINO QUADRA, Intervenor.
x--------------------------------------------------------x
BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA
represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented
by its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr.
Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas,
MIGRANTE represented by its Chairperson Concepcion Bragas-Regalado, GABRIELA
represented by its Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY
represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson
Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer
Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and
Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health Against Charter Change,
DR. REGINALD PAMUGAS of Health Action for Human Rights,Intervenors.
x--------------------------------------------------------x
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-
BARAQUEL,Intervenors.
x--------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor.
x ------------------------------------------------------- x
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
x---------------------------------------------------------x
LUWALHATI RICASA ANTONINO, Intervenor.
x ------------------------------------------------------- x
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C.
TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.
x ------------------------------------------------------- x
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.
x -------------------------------------------------------- x
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR.
VICTORINO F. BALAIS, Intervenors.
x -------------------------------------------------------- x
SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR,
JR., Intervenor.
x ------------------------------------------------------- x
SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.
x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L.
SALVADOR, and RANDALL TABAYOYONG, Intervenors.
x -------------------------------------------------------- x
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE
CHAPTERS, Intervenors.
x --------------------------------------------------------x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R. OSMENA
III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
LACSON, Intervenors.
x -----------------------------------------------------x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.
x -----------------------------------------------------x
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter
Doe,, Respondent.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission
on Elections ("COMELEC") denying due course to an initiative petition to amend the 1987
Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B.
Aumentado ("Lambino Group"), with other 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
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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?
195
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
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 Legislative District: Barangay: with the COMELEC. When asked if his group also circulated the draft of their amended
Verified
petition filed on 30 August 2006 with the COMELEC, Atty. Lambino initially replied that they
Signatures:
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE circulated both. However, Atty. Lambino changed his answer and stated that what his group
1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT circulated was the draft of the 30 August 2006 amended petition, not the draft of the 25
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF GOVERNMENT, August 2006 petition.
IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN GOVERNMENT; The Lambino Group would have this Court believe that they prepared the draft of the 30
AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT August 2006 amended petition almost seven months earlier in February 2006 when they
FROM ONE SYSTEM TO ANOTHER?" started gathering signatures. Petitioner Erico B. Aumentado's "Verification/Certification" of
I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein the 25 August 2006 petition, as well as of the 30 August 2006 amended petition, filed with
which shall form part of the petition for initiative to amend the Constitution signifies my the COMELEC, states as follows:
support for the filing thereof. I have caused the preparation of the foregoing [Amended] Petition in my personal capacity
as a registered voter, for and on behalf of the Union of Local Authorities of the Philippines,
Precinct Name Address Birthdate Signature Verification
as shown by ULAP Resolution No. 2006-02 hereto attached, and as representative of the
Number Last Name, First Name, M.I. MM/DD/YY
mass of signatories hereto. (Emphasis supplied)
1 The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present
2 petition. However, the "Official Website of the Union of Local Authorities of the
3 Philippines"22 has posted the full text of Resolution No. 2006-02, which provides:
4 RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE
5
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM
6 AS A MODE OF AMENDING THE 1987 CONSTITUTION
7 WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to
8 adopt a common stand on the approach to support the proposals of the People's
Consultative Commission on Charter Change;
9
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President
10 Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint
Declaration for Constitutional Reforms signed by the members of the ULAP and the majority
_________________ _________________ __________________
coalition of the House of Representatives in Manila Hotel sometime in October 2005;
Barangay Official Witness Witness
WHEREAS, the People's Consultative Commission on Charter Change created by Her
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)
Excellency to recommend amendments to the 1987 Constitution has submitted its final
There is not a single word, phrase, or sentence of text of the Lambino Group's proposed report sometime in December 2005;
changes in the signature sheet. Neither does the signature sheet state that the text of the WHEREAS, the ULAP is mindful of the current political developments in Congress which
proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the militates against the use of the expeditious form of amending the 1987 Constitution;
oral arguments before this Court on 26 September 2006. WHEREAS, subject to the ratification of its institutional members and the failure of Congress
The signature sheet merely asks a question whether the people approve a shift from the to amend the Constitution as a constituent assembly, ULAP has unanimously agreed to
Bicameral-Presidential to the Unicameral-Parliamentary system of government. The pursue the constitutional reform agenda through People's Initiative and Referendum
signature sheet does not show to the people the draft of the proposed changes before they without prejudice to other pragmatic means to pursue the same;
are asked to sign the signature sheet. Clearly, the signature sheet is not the "petition" that WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-
the framers of the Constitution envisioned when they formulated the initiative clause in LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE
Section 2, Article XVII of the Constitution. PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC) COMMISSION ON CHARTER
Petitioner Atty. Lambino, however, explained that during the signature-gathering from CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING
February to August 2006, the Lambino Group circulated, together with the signature sheets, THE 1987 CONSTITUTION;
printed copies of the Lambino Group's draft petition which they later filed on 25 August 2006

197
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
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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.
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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.
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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
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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
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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
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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.
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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
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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 Without the rule of law,
full expression there
of the
people's
sovereign will. That approval included the prescribed modes for amending or revising the
Constitution. Beverley
No amount of signatures, not even the 6,327,952 millionChief Justicegathered
signatures of Canadaby 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.:
can be no lasting prosperity and certainly no liberty.
McLachlin 1
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
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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
207
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:
__________________
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"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
209
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
210
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.
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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 ARTEMIO
out of our
world-admired and often-imitated People Power, but its misuse and abuse Chiefmust
Justice
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.
V. PANGANIBAN
____________________
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
212
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.
213
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.
214
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.
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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
216
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.
217
Otherwise, if the people choose to defy their self-imposed constitutional restraints, we will INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER, oppositors-
be faced with a revolutionary situation.26 intervenors,
It has repeatedly been emphasized that ours is a democratic and republican state.27 Even as JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA A. LAT, ANTONIO L.
we affirm, however, that aspect of direct democracy, we should not forget that, first and SALVADOR AND RANDALL C. TABAYOYONG, oppostors-intervenors,
foremost, we are a constitutional democracy. To uphold direct democracy at the expense of SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT, MANUEL VILLAR,
the fundamental law is to sanction, not a constitutional, but an extra-constitutional recourse. JR., oppositor-intervenor;
This is clearly beyond the powers of the Court who, by sovereign mandate, is the guardian G.R. NO. 174299
and keeper of the Constitution. MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND RENE A. Q.
IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in G.R. No. 174153. SAGUISAG, petitioners,
vs.
CONSUELO YNARES-SANTIAGO COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN BENJAMIN S. ABALOS, SR.
Associate Justice AND COMMISSIONERS RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR. ROMEO
____________________ A. BRAWNER, RENE V. SARMIENTO AND JOHN DOE AND PETER DOE, respondents.
EN BANC x ---------------------------------------------------------------------------------------- x
G.R. NO. 174153 CONCURRING OPINION
RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH 6,327,952 REGISTERED SANDOVAL–GUTIERREZ, J.:
VOTERS, petitioners, Vox populi vox Dei -- the voice of the people is the voice of God. Caution should be exercised
vs. in choosing one's battlecry, lest it does more harm than good to one's cause. In its original
THE COMMISSION ON ELECTIONS, respondent. context, the complete version of this Latin phrase means exactly the opposite of what it is
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-intervenors, frequently taken to mean. It originated from a holy man, the monk Alcuin, who advised
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, petitioners-intervenors, Charlemagne, "nec audiendi qui solent dicere vox populi vox Dei quum tumultuositas vulgi
SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-intervenor, semper insaniae proxima sit," meaning, "And those people should not be listened to who
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) AND keep on saying, 'The voice of the people is the voice of God,' since the riotousness of the
VICTORINO F. BALAIS,petitioners-intervenors, crowd is always very close to madness."1 Perhaps, it is by providence that the true meaning
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, of the Latin phrase is revealed upon petitioners and their allies – that they may reflect upon
BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE AND CARLOS P. MEDINA, JR., oppositors- the sincerity and authenticity of their "people's initiative."
intervenors, History has been a witness to countless iniquities committed in the name of God. Wars were
ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor, waged, despotism tolerated and oppressions justified – all these transpired as man boasted
ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor, of God's imprimatur. Today, petitioners and their allies hum the same rallying call, convincing
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FROUM, this Court that the people's initiative is the "voice of the people" and, therefore, the "voice
MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO of God." After a thorough consideration of the petitions, I have come to realize that man,
STUDENTS,LEONARDO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, AND DR. REGINALD with his ingenuity and arrogance, has perfected the craft of imitating the voice of God. It is
PAMUGAS, oppositors-intervenors, against this kind of genius that the Court must guard itself.
LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA HONTIVEROS- The facts of the case are undisputed.
BARAQUEL, oppositors-intervenors, In 1996, the Movement for People's Initiative sought to exercise the power of initiative under
LUWALHATI ANTONINO, oppositor-intervenor, Section 2, Article XVII of the Constitution which reads:
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.ESTRELLA, TOMAS C. Section 2. Amendments to this Constitution may likewise be directly proposed by the people
TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., through initiative upon a petition of at least twelve per centum of the total number of
FORTUNATO P. AGUAS AND AMADO GAT INCION, oppositors-intervenors, registered voters, of which every legislative district must be represented by at least three per
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR. AND SENATORS SERGIO R. centum of the registered voters therein. No amendment under this section shall be
OSMENA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCIRO-ESTRADA, JINGGOY ESTRADA, authorized within five years following the ratification of this Constitution nor oftener than
ALFREDO S. LIM, AND PANFILO M. LACSON, oppositors-intervenors, once every five years thereafter,
JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG PILIPINO, oppositors-intervenors, The Congress shall provide for the implementation of the exercise of this right.

218
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."
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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
220
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.
221
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
222
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
223
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;
224
· 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 Constitution shall be "directly proposed by the people through initiative upon a petition of
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
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.
225
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.
226
 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.
SANDOVAL-GUTIERREZ
ustice
____________________
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;
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c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly
written or printed at the top of every page of the petition.
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.
228
THE FRAMERS OF THE CONSTITUTION INTENDED TO GIVE THE PEOPLE THE POWER TO A writ for certiorari may issue only when the following requirements are set out in the
PROPOSE AMENDMENTS AND THE PEOPLE THEMSELVES ARE NOW GIVING VIBRANT LIFE TO petition and established:
THIS CONSTITUTIONAL PROVISION (1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-
2. judicial functions;
PRIOR TO THE QUESTIONED SANTIAGO RULING OF 19 MARCH 1997, THE RIGHT OF THE (2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave
PEOPLE TO EXERCISE THE SOVEREIGN POWER OF INITIATIVE AND RECALL HAS BEEN abuse of discretion amounting to lack or excess of jurisdiction; and
INVARIABLY UPHELD (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of
3. law. x x x4
THE EXERCISE OF THE INITIATIVE TO PROPOSE AMENDMENTS IS A POLITICAL QUESTION The Court has invariably defined "grave abuse of discretion," thus:
WHICH SHALL BE DETERMINED SOLELY BY THE SOVEREIGN PEOPLE. By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as
4. is equivalent to lack of jurisdiction, and it must be shown that the discretion was exercised
BY SIGNING THE SIGNATURE SHEETS ATTACHED TO THE PETITION FOR INITIATIVE DULY arbitrarily or despotically. For certiorari to lie, there must be a capricious, arbitrary and
VERIFIED BY THE ELECTION OFFICERS, THE PEOPLE HAVE CHOSEN TO PERFORM THIS SACRED whimsical exercise of power, the very antithesis of the judicial prerogative in accordance
EXERCISE OF THEIR SOVEREIGN POWER. with centuries of both civil law and common law traditions.5
B. There is thus grave abuse of discretion on the part of the COMELEC when it acts in a
THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT PETITION capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment
FOR INITIATIVE FILED BY THE PETITIONERS amounting to lack of jurisdiction. Mere abuse of discretion is not enough.6 The only question
C. involved is jurisdiction, either the lack or excess thereof, and abuse of discretion warrants
THE PERMANENT INJUNCTION ISSUED IN SANTIAGO V. COMELEC ONLY APPLIES TO THE the issuance of the extraordinary remedy of certiorari only when the same is grave, as when
DELFIN PETITION. the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or
1. personal hostility. A writ of certiorari is a remedy designed for the correction of errors of
IT IS THE DISPOSITIVE PORTION OF THE DECISION AND NOT OTHER STATEMENTS IN THE jurisdiction and not errors of judgment.7 An error of judgment is one in which the court may
BODY OF THE DECISION THAT GOVERNS THE RIGHTS IN CONTROVERSY. commit in the exercise of its jurisdiction, which error is reversible only by an appeal.8
IV. In the present case, it appears from the assailed Resolution of the COMELEC that it denied
THE HONORABLE PUBLIC RESPONDENT FAILED OR NEGLECTED TO ACT OR PERFORM A DUTY the petition for initiative solely in obedience to the mandate of this Court in Santiago v.
MANDATED BY LAW. Commission on Elections.9 In said case, the Court En Banc permanently enjoined the
A. COMELEC from entertaining or taking cognizance of any petition for initiative on
THE MINISTERIAL DUTY OF THE COMELEC IS TO SET THE INITIATIVE FOR PLEBISCITE.3 amendments to the Constitution until a sufficient law shall have been validly enacted to
Petitioners Failed to Allege and Demonstrate All the Essential provide for the implementation of the system. When the COMELEC denied the petition for
Facts To Establish the Right to a Writ of Certiorari initiative, there was as yet no valid law enacted by Congress to provide for the
Section 1, Rule 65 of the Rules of Court reads: implementation of the system.
Sec. 1. Petition for certiorari. – When any tribunal, board or officer exercising judicial or It is a travesty for the Court to declare the act of the COMELEC in denying due course to the
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave petition for initiative as "capricious, despotic, oppressive or whimsical exercise of judgment
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any as is equivalent to lack of jurisdiction." In fact, in so doing, the COMELEC merely followed or
plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved applied, as it ought to do, the Court's ruling in Santiago to the effect that Section 2, Article
thereby may file a verified petition in the proper court, alleging the facts with certainty and XVII of the Constitution on the system of initiative is a non self-executory provision and
praying that judgment be rendered annulling or modifying the proceedings of such tribunal, requires an enabling law for its implementation. In relation thereto, RA 6735 was found by
board or officer, and granting such incidental reliefs as law and justice may require. the Court to be "incomplete, inadequate, or wanting in essential terms and conditions" to
The petition shall be accompanied by a certified true copy of the judgment, order or implement the constitutional provision on initiative. Consequently, the COMELEC was
resolution subject thereof, copies of all pleadings and documents relevant and pertinent "permanently enjoined from entertaining or taking cognizance of any petition for initiative
thereto, and a sworn certification of non-forum shopping as provided in the third paragraph on amendments to the Constitution until a sufficient law shall have been validly enacted to
of Section 3, Rule 46. 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

229
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
230
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
231
entitled An Act Providing for a System of People's Initiative to Propose Amendments to the
Constitution introduced by Senator Richard Gordon.
In the House of Representatives, there are at least four (4) pending bills: House Bill No. 05281
filed by Representative Carmen Cari, House Bill No. 05017 filed by Representative Imee
Marcos, House Bill No. 05025 filed by Representative Roberto Cajes, and House Bill No.
05026 filed by Representative Edgardo Chatto. These House bills are similarly entitled An Act
Providing for People's Initiative to Amend the Constitution.
The respective explanatory notes of the said Senate and House bills uniformly recognize that
there is, to date, no law to govern the process by which constitutional amendments are
introduced by the people directly through the system of initiative. Ten (10) years after
Santiago and absent the occurrence of any compelling supervening event, i.e., passage of a
law to implement the system of initiative under Section 2, Article XVII of the Constitution,
that would warrant the re-examination of the ruling therein, it behooves the Court to apply
to the present case the salutary and well-recognized doctrine of stare decisis. As earlier
shown, Congress and other government agencies have, in fact, abided by Santiago. The
Court can do no less with respect to its own ruling.
Contrary to the stance taken by petitioners, the validity or constitutionality of a law cannot
be made to depend on the individual opinions of the members who compose it – the
Supreme Court, as an institution, has already determined RA 6735 to be "incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on amendments
to the Constitution is concerned" and therefore the same remains to be so regardless of any
change in the Court's composition.26 Indeed, it is vital that there be stability in the courts in
adhering to decisions deliberately made after ample consideration. Parties should not be
encouraged to seek re-examination of determined principles and speculate on fluctuation of
the law with every change in the expounders of it.27
Proposals to Revise the Constitution, As in the Case of the Petitioners' Proposal to Change
the Form of Government, Cannot be Effected Through the System of Initiative, Which by
Express Provision of Section 2, Article XVII of the Constitution, is Limited to Amendments
Even granting arguendo the Court, in the present case, abandons its pronouncement
in Santiago and declares RA 6735, taken together with other extant laws, sufficient to
implement the system of initiative, still, the amended petition for initiative cannot prosper.
Despite the denomination of their petition, the proposals of petitioners to change the form
of government from the present bicameral-presidential to a unicameral-parliamentary
system of government are actually for the revision of the Constitution.
Petitioners propose to "amend" Articles VI and VII of the Constitution in this manner:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:
"Section 1. (1) The legislative and executive powers shall be vested in a unicameral
Parliament which shall be composed of as many members as may be provided by law, to be
apportioned among the provinces, representative districts, and cities in accordance with the
number of their respective inhabitants, with at least three hundred thousand inhabitants per
district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as
far as practicable, contiguous, compact and adjacent territory, and each province must have
at least one member.
"(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least
twenty-five years old on the day of the election, a resident of his district for at least one year
prior thereto, and shall be elected by the qualified voters of his district for a term of five
years without limitation as to the number thereof, except those under the party-list system
which shall be provided for by law and whose number shall be equal to twenty per centum
of the total membership coming from the parliamentary districts."
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read,
as follows:
"Section 1. There shall be a President who shall be the Head of State. The executive power
shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister
shall be elected by a majority of all the Members of Parliament from among themselves. He
shall be responsible to the Parliament for the program of government.
C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a
unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled
"Transitory Provisions," which shall read as follows:
Section 1. (1) The incumbent President and Vice President shall serve until the expiration of
their term at noon on the thirtieth day of June 2010 and shall continue to exercise their
powers under the 1987 Constitution unless impeached by a vote of two thirds of all the
members of the interim parliament.,
(2) In case of death, permanent disability, resignation or removal from office of the
incumbent President, the incumbent Vice President shall succeed as President. In case of
death, permanent disability, resignation or removal from office of both the incumbent
President and Vice President, the interim Prime Minister shall assume all the powers and
responsibilities of Prime Minister under Article VII as amended.
Section 2. "Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution
which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other
Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad
seriatim up to 26, unless they are inconsistent with the Parliamentary system of government,
in which case, they shall be amended to conform with a unicameral parliamentary form of
government; provided, however, that any and all references therein to "Congress," "Senate,"
"House of Representatives" and "House of Congress," "Senator[s] or "Member[s] of the
House of Representatives" and "House of Congress" shall be changed to read "Parliament";
that any and all references therein to "Member[s] of the House of Representatives" shall be
changed to read as "Member[s] of Parliament" and any and all references to the "President"
and or "Acting President" shall be changed to read "Prime Minister."
Section 3. "Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are
hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other
Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad seriatim
up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be
deemed amended so as to conform to a unicameral Parliamentary System of government;
provided, however, that any and all references therein to "Congress," "Senate," "House of
232
Representatives" and "Houses of Congress" shall be changed to read "Parliament"; that any
and all references therein to "Member[s] of Congress," "Senator[s]" or "Member[s] of the
House of Parliament" and any and all references to the "President" and of "Acting President"
shall be changed to read "Prime Minister."
Section 4. (1) There shall exist, upon the ratification of these amendments, an interim
Parliament which shall continue until the Members of the regular Parliament shall have been
elected and shall have qualified. It shall be composed of the incumbent Members of the
Senate and the House of Representatives and the incumbent Members of the Cabinet who
are heads of executive departments.
(2) The incumbent Vice President shall automatically be a Member of Parliament until noon
of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a
ministry. He shall initially convene the interim Parliament and shall preside over its session
for the election of the interim Prime Minister and until the Speaker shall have been elected
by a majority vote of all the members of the interim Parliament from among themselves.
(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon
of the thirtieth day of June 2010.
(4) Within forty-five days from ratification of these amendments, the interim Parliament
shall convene to propose amendments to, or revisions of, this Constitution consistent with
the principles of local autonomy, decentralization and a strong bureaucracy.
"Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from
among the members of the interim Parliament, an interim Prime Minister, who shall be
elected by a majority vote of the members thereof. The interim Prime Minister shall oversee
the various ministries and shall perform such powers and responsibilities as may be
delegated to him by the incumbent President."
(2) The interim Parliament shall provide for the election of the members of Parliament, which
shall be synchronized and held simultaneously with the election of all local government
officials. [Thereafter, the Vice-President, as Member of Parliament, shall immediately
convene the Parliament and shall initially preside over its session for the purpose of electing
the Prime Minister, who shall be elected by a majority vote of all its members, from among
themselves.] The duly-elected Prime Minister shall continue to exercise and perform the
powers, duties and responsibilities of the interim Prime Minister until the expiration of the
term of the incumbent President and Vice President.28
Petitioners claim that the required number of signatures of registered voters have been
complied with, i.e., the signatories to the petition constitute twelve percent (12%) of all the
registered voters in the country, wherein each legislative district is represented by at least
three percent (3%) of all the registered voters therein. Certifications allegedly executed by
the respective COMELEC Election Registrars of each municipality and city verifying these
signatures were attached to the petition for initiative. The verification was allegedly done on
the basis of the list of registered voters contained in the official COMELEC list used in the
immediately preceding election.
The proposition, as formulated by petitioners, to be submitted to the Filipino people in a
plebiscite to be called for the said purpose reads:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION,
CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO
A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER? 29
According to petitioners, the proposed amendment of Articles VI and VII would effect a more
efficient, more economical and more responsive government. The parliamentary system
would allegedly ensure harmony between the legislative and executive branches of
government, promote greater consensus, and provide faster and more decisive
governmental action.
Sections 1 and 2 of Article XVII pertinently read:
Article XVII
SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members; or
(2) A constitutional convention.
SECTION 2. Amendments to this Constitution may likewise be directly proposed by the
people through initiative upon a petition of at least twelve per centum of the total number
of registered voters, of which every legislative district must be represented by at least three
per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than
once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
It can be readily gleaned that the above provisions set forth different modes and procedures
for proposals for the amendment and revision of the Constitution:
1. Under Section 1, Article XVII, any amendment to, or revision of, the Constitution may be
proposed by –
a. Congress, upon a vote of three-fourths of all its members; or
b. A constitutional convention.
2. Under Section 2, Article XVII, amendments to the Constitution may be likewise directly
proposed by the people through initiative.
The framers of the Constitution deliberately adopted the terms "amendment" and "revision"
and provided for their respective modes and procedures for effecting changes of the
Constitution fully cognizant of the distinction between the two concepts. Commissioner Jose
E. Suarez, the Chairman of the Committee on Amendments and Transitory Provisions,
explained:
MR. SUAREZ. One more point, and we will be through.
We mentioned the possible use of only one term and that is, "amendment." However, the
Committee finally agreed to use the terms – "amendment" or "revision" when our attention
was called by the honorable Vice-President to the substantial difference in the connotation
and significance between the said terms. As a result of our research, we came up with the
observations made in the famous – or notorious – Javellana doctrine, particularly the
decision rendered by Honorable Justice Makasiar, wherein he made the following distinction
between "amendment" and "revision" of an existing Constitution: "Revision" may involve a
rewriting of the whole Constitution. On the other hand, the act of amending a constitution
233
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.
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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
235
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;
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- 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.):
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- 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
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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; Pagagawan, Maguindanao; Rajah Buayan, Maguindanao;81 Indanan,
79 80
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
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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
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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
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 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.
J. CALLEJO, SR.
ustice
____________________
EN BANC
G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.) and
G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.).
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
AZCUNA, J.:
"Why, friends, you go to do you know not what."
-- Shakespeare, Julius Caesar, Act III, Sc. 2.
Article XVII of the Constitution states:
AMENDMENTS OR REVISIONS
Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its members; or
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three
per centum of the registered votes therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than
once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
Sec. 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional
convention, or by a majority vote of all its Members, submit to the electorate the question
of calling such a convention.
Sec. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be
valid when ratified by a majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the approval of such amendment or
revision.
Any amendment under Section 2 hereof shall be valid when ratified by a majority of the
votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety
days after the certification by the Commission on Elections of the sufficiency of the petition.
This Article states the procedure for changing the Constitution.
Constitutions have three parts – the Constitution of Liberty, which states the fundamental
rights of the people; the Constitution of Government, which establishes the structure of
government, its branches and their operation; and the Constitution of Sovereignty, which
provides how the Constitution may be changed.
Article XVII is the Constitution of Sovereignty.
As a result, the powers therein provided are called constituent powers. So when Congress
acts under this provision, it acts not as a legislature exercising legislative powers. It acts as a
constituent body exercising constituent powers.
The rules, therefore, governing the exercise of legislative powers do not apply, or do not
apply strictly, to the actions taken under Article XVII.
Accordingly, since Article XVII states that Congress shall provide for the implementation of
the exercise of the people's right directly to propose amendments to the Constitution
through initiative, the act of Congress pursuant thereto is not strictly a legislative action but
partakes of a constituent act.
As a result, Republic Act No. 6735, the act that provides for the exercise of the people of the
right to propose a law or amendments to the Constitution is, with respect to the right to
propose amendments to the Constitution, a constituent measure, not a mere legislative one.
The consequence of this special character of the enactment, insofar as it relates to proposing
amendments to the Constitution, is that the requirements for statutory enactments, such as
sufficiency of standards and the like, do not and should not strictly apply. As long as there is
a sufficient and clear intent to provide for the implementation of the exercise of the right, it
242
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.
243
 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.
S. AZCUNA
ustice
____________________
EN BANC
G. R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED
VOTERS
vs.
THE COMMISSION ON ELECTIONS
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and NICODEMO T. FERRER, and John Doe and Peter Doe
x ---------------------------------------------------------------------------------------- x
"It is a Constitution we are expounding…"1
– Chief Justice John Marshall
DISSENTING OPINION
PUNO, J.:
The petition at bar is not a fight over molehills. At the crux of the controversy is the critical
understanding of the first and foremost of our constitutional principles — "the Philippines
is a democratic and republican State. Sovereignty resides in the people and all government
authority emanates from them."2 Constitutionalism dictates that this creed must be
respected with deeds; our belief in its validity must be backed by behavior.
This is a Petition for Certiorari and Mandamus to set aside the resolution of respondent
Commission on Elections (COMELEC) dated August 31, 2006, denying due course to the
Petition for Initiative filed by petitioners Raul L. Lambino and Erico B. Aumentado in their
own behalf and together with some 6.3 million registered voters who have affixed their
signatures thereon, and praying for the issuance of a writ of mandamus to compel
respondent COMELEC to set the date of the plebiscite for the ratification of the proposed
amendments to the Constitution in accordance with Section 2, Article XVII of the 1987
Constitution.
First, a flashback of the proceedings of yesteryears. In 1996, the Movement for People's
Initiative sought to exercise the sovereign people's power to directly propose amendments
to the Constitution through initiative under Section 2, Article XVII of the 1987 Constitution.
Its founding member, Atty. Jesus S. Delfin, filed with the COMELEC on December 6, 1996, a
"Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's
Initiative" (Delfin Petition). It proposed to amend Sections 4 and 7 of Article VI, Section 4 of
Article VII, and Section 8 of Article X of the 1987 Constitution by deleting the provisions on
the term limits for all elective officials.
The Delfin Petition stated that the Petition for Initiative would first be submitted to the
people and would be formally filed with the COMELEC after it is signed by at least twelve per
cent (12%) of the total number of registered voters in the country. It thus sought the
assistance of the COMELEC in gathering the required signatures by fixing the dates and
time therefor and setting up signature stations on the assigned dates and time. The
petition prayed that the COMELEC issue an Order (1) fixing the dates and time for signature
gathering all over the country; (2) causing the publication of said Order and the petition for
initiative in newspapers of general and local circulation; and, (3) instructing the municipal
election registrars in all the regions of the Philippines to assist petitioner and the volunteers
in establishing signing stations on the dates and time designated for the purpose.
The COMELEC conducted a hearing on the Delfin Petition.
On December 18, 1996, Senator Miriam Defensor Santiago, Alexander Padilla and Maria
Isabel Ongpin filed a special civil action for prohibition before this Court, seeking to restrain
the COMELEC from further considering the Delfin Petition. They impleaded as respondents
the COMELEC, Delfin, and Alberto and Carmen Pedrosa (Pedrosas) in their capacities as
founding members of the People's Initiative for Reforms, Modernization and Action (PIRMA)
which was likewise engaged in signature gathering to support an initiative to amend the
Constitution. They argued that the constitutional provision on people's initiative may only
be implemented by a law passed by Congress; that no such law has yet been enacted by
Congress; that Republic Act No. 6735 relied upon by Delfin does not cover the initiative to
amend the Constitution; and that COMELEC Resolution No. 2300, the implementing rules
adopted by the COMELEC on the conduct of initiative, was ultra vires insofar as the initiative
to amend the Constitution was concerned. The case was docketed as G.R. No. 127325,
entitled Santiago v. Commission on Elections.3
Pending resolution of the case, the Court issued a temporary restraining order enjoining the
COMELEC from proceeding with the Delfin Petition and the Pedrosas from conducting a
signature drive for people's initiative to amend the Constitution.
On March 19, 1997, the Court rendered its decision on the petition for prohibition. The
Court ruled that the constitutional provision granting the people the power to directly
amend the Constitution through initiative is not self-executory. An enabling law is necessary
to implement the exercise of the people's right. Examining the provisions of R.A. 6735, a
majority of eight (8) members of the Court held that said law was "incomplete, inadequate,
or wanting in essential terms and conditions insofar as initiative on amendments to the
244
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
245
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.
246
(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.
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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.
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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 (2) where courts of equal authority developed conflicting decisions; and, (3) the binding force
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;"
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
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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
250
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:
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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.
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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
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pursuit of each side's competitive goals can still take place in an atmosphere of reason and
moderation.
Mr. Speaker and my dear colleagues, when the distinguished Gentleman from Camarines Sur
and this Representation filed our respective versions of the bill in 1987, we were hoping that
the bill would be approved early enough so that our people could immediately use the
agrarian reform bill as an initial subject matter or as a take-off point.
However, in view of the very heavy agenda of the Committee on Local Government, it took
sometime before the committee could act on these. But as they say in Tagalog, huli man daw
at magaling ay naihahabol din. The passage of this bill therefore, my dear colleagues, could
be one of our finest hours when we can set aside our personal and political consideration for
the greater good of our people. I therefore respectfully urge and plead that this bill be
immediately approved.
Thank you, Mr. Speaker.
We cannot dodge the duty to give effect to this intent for the "[c]ourts have the duty to
interpret the law as legislated and when possible, to honor the clear meaning of statutes as
revealed by its language, purpose and history."43
The tragedy is that while conceding this intent, the six (6) justices, nevertheless, ruled that
"x x x R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned" for the following
reasons: (1) Section 2 of the Act does not suggest an initiative on amendments to the
Constitution; (2) the Act does not provide for the contents of the petition for initiative on
the Constitution; and (3) while the Act provides subtitles for National Initiative and
Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is
provided for initiative on the Constitution.
To say the least, these alleged omissions are too weak a reason to throttle the right of the
sovereign people to amend the Constitution through initiative. R.A. 6735 clearly expressed
the legislative policy for the people to propose amendments to the Constitution by direct
action. The fact that the legislature may have omitted certain details in implementing the
people's initiative in R.A. 6735, does not justify the conclusion that, ergo, the law is
insufficient. What were omitted were mere details and not fundamental policies which
Congress alone can and has determined. Implementing details of a law can be delegated to
the COMELEC and can be the subject of its rule-making power. Under Section 2(1), Article IX-
C of the Constitution, the COMELEC has the power to enforce and administer all laws and
regulations relative to the conduct of initiatives. Its rule-making power has long been
recognized by this Court. In ruling R.A. 6735 insufficient but without striking it down as
unconstitutional, the six (6) justices failed to give due recognition to the indefeasible right of
the sovereign people to amend the Constitution.
IV
The proposed constitutional changes, albeit substantial, are mere amendments and can be
undertaken through people's initiative.
Oppositors-intervenors contend that Sections 1 and 2, Article XVII of the 1987 Constitution,
only allow the use of people's initiative to amend and not to revise the Constitution. They
theorize that the changes proposed by petitioners are substantial and thus constitute a
revision which cannot be done through people's initiative.
In support of the thesis that the Constitution bars the people from proposing substantial
amendments amounting to revision, the oppositors-intervenors cite the following
deliberations during the Constitutional Commission, viz:44
MR. SUAREZ: x x x x This proposal was suggested on the theory that this matter of initiative,
which came about because of the extraordinary developments this year, has to be separated
from the traditional modes of amending the Constitution as embodied in Section 1. The
Committee members felt that this system of initiative should not extend to the revision of
the entire Constitution, so we removed it from the operation of Section 1 of the proposed
Article on Amendment or Revision.
xxxxxxxxxxxx
MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as
a separate section in the Article on Amendment. Would the sponsor be amenable to
accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of
Section 1, instead of setting it up as another separate section as if it were a self-executing
provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of
initiative is limited to the matter of amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense that was conveyed by
the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of
modes (a) and (b) in Section 1 to include the process of revision; whereas the process of
initiation to amend, which is given to the public, would only apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in the Committee.
Commissioner (later Chief Justice) Hilario G. Davide, Jr., espoused the same view:45
MR. DAVIDE. x x x x We are limiting the right of the people, by initiative, to submit a proposal
for amendment only, not for revision, only once every five years x x x x
MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line
1 refers to "amendment." Does it cover the word "revision" as defined by Commissioner
Padilla when he made the distinction between the words "amendments" and "revision?"
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by
Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not
"revision."
Commissioner (now a distinguished Associate Justice of this Court) Adolfo S. Azcuna also
clarified this point46 -
MR. OPLE. To more closely reflect the intent of Section 2, may I suggest that we add to
"Amendments" "OR REVISIONS OF" to read: "Amendments OR REVISION OF this
Constitution."
MR. AZCUNA. I think it was not allowed to revise the Constitution by initiative.
MR. OPLE. How is that again?
MR. AZCUNA. It was not our intention to allow a revision of the Constitution by initiative but
merely by amendments.
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MR. BENGZON. Only by amendments.
MR. AZCUNA. I remember that was taken on the floor.
MR. RODRIGO. Yes, just amendments.
The oppositors-intervenors then point out that by their proposals, petitioners will "change
the very system of government from presidential to parliamentary, and the form of the
legislature from bicameral to unicameral," among others. They allegedly seek other major
revisions like the inclusion of a minimum number of inhabitants per district, a change in the
period for a term of a Member of Parliament, the removal of the limits on the number of
terms, the election of a Prime Minister who shall exercise the executive power, and so on
and so forth.47 In sum, oppositors-intervenors submit that "the proposed changes to the
Constitution effect major changes in the political structure and system, the fundamental
powers and duties of the branches of the government, the political rights of the people, and
the modes by which political rights may be exercised."48 They conclude that they are
substantial amendments which cannot be done through people's initiative. In other
words, they posit the thesis that only simple but not substantial amendments can be done
through people's initiative.
With due respect, I disagree. To start with, the words "simple" and "substantial" are not
subject to any accurate quantitative or qualitative test. Obviously, relying on
the quantitative test, oppositors-intervenors assert that the amendments will result in some
one hundred (100) changes in the Constitution. Using the same test, however, it is also
arguable that petitioners seek to change basically only two (2) out of the eighteen (18)
articles of the 1987 Constitution, i.e. Article VI (Legislative Department) and Article VII
(Executive Department), together with the complementary provisions for a smooth
transition from a presidential bicameral system to a parliamentary unicameral structure. The
big bulk of the 1987 Constitution will not be affected including Articles I (National Territory),
II (Declaration of Principles and State Policies), III (Bill of Rights), IV (Citizenship), V (Suffrage),
VIII (Judicial Department), IX (Constitutional Commissions), X (Local Government), XI
(Accountability of Public Officers), XII (National Economy and Patrimony), XIII (Social Justice
and Human Rights), XIV (Education, Science and Technology, Arts, Culture, and Sports), XV
(The Family), XVI (General Provisions), and even XVII (Amendments or Revisions). In fine, we
stand on unsafe ground if we use simple arithmetic to determine whether the proposed
changes are "simple" or "substantial."
Nor can this Court be surefooted if it applies the qualitative test to determine whether the
said changes are "simple" or "substantial" as to amount to a revision of the Constitution.
The well-regarded political scientist, Garner, says that a good constitution should contain at
least three (3) sets of provisions: the constitution of liberty which sets forth the
fundamental rights of the people and imposes certain limitations on the powers of the
government as a means of securing the enjoyment of these rights; the constitution of
government which deals with the framework of government and its powers, laying down
certain rules for its administration and defining the electorate; and, the constitution of
sovereignty which prescribes the mode or procedure for amending or revising the
constitution.49 It is plain that the proposed changes will basically affect only the
constitution of government. The constitutions of liberty and sovereignty remain
unaffected. Indeed, the proposed changes will not change the fundamental nature of our
state as "x x x a democratic and republican state."50 It is self-evident that a unicameral-
parliamentary form of government will not make our State any less democratic or any less
republican in character. Hence, neither will the use of the qualitative test resolve the issue
of whether the proposed changes are "simple" or "substantial."
For this reason and more, our Constitutions did not adopt any quantitative or qualitative
test to determine whether an "amendment" is "simple" or "substantial." Nor did they
provide that "substantial" amendments are beyond the power of the people to propose
to change the Constitution. Instead, our Constitutions carried the traditional
distinction between "amendment" and "revision," i.e., "amendment" means
change, including complex changes while "revision" means complete change, including the
adoption of an entirely new covenant. The legal dictionaries express this traditional
difference between "amendment" and "revision." Black's Law Dictionary defines
"amendment" as "[a] formal revision or addition proposed or made to a statute,
constitution, pleading, order, or other instrument; specifically, a change made by addition,
deletion, or correction."51 Black's also refers to "amendment" as "the process of making such
a revision."52 Revision, on the other hand, is defined as "[a] reexamination or careful review
for correction or improvement."53 In parliamentary law, it is described as "[a] general and
thorough rewriting of a governing document, in which the entire document is open to
amendment."54 Similarly, Ballentine's Law Dictionary defines "amendment" – as "[a]
correction or revision of a writing to correct errors or better to state its intended
purpose"55 and "amendment of constitution" as "[a] process of proposing, passing, and
ratifying amendments to the x x x constitution."56 In contrast, "revision," when applied to a
statute (or constitution), "contemplates the re-examination of the same subject matter
contained in the statute (or constitution), and the substitution of a new, and what is believed
to be, a still more perfect rule."57
One of the most authoritative constitutionalists of his time to whom we owe a lot of
intellectual debt, Dean Vicente G. Sinco, of the University of the Philippines College of Law,
(later President of the U.P. and delegate to the Constitutional Convention of 1971) similarly
spelled out the difference between "amendment" and "revision." He opined: "the revision
of a constitution, in its strict sense, refers to a consideration of the entire constitution and
the procedure for effecting such change; while amendment refers only to particular
provisions to be added to or to be altered in a constitution." 58
Our people were guided by this traditional distinction when they effected changes in our
1935 and 1973 Constitutions. In 1940, the changes to the 1935 Constitution which included
the conversion from a unicameral system to a bicameral structure, the shortening of the
tenure of the President and Vice-President from a six-year term without reelection to a four-
year term with one reelection, and the establishment of the COMELEC, together with the
complementary constitutional provisions to effect the changes, were considered
amendments only, not a revision.
The replacement of the 1935 Constitution by the 1973 Constitution was,
however, considered a revision since the 1973 Constitution was "a completely
new fundamental charter embodying new political, social and economic concepts."59 Among
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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
256
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
xx
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
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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
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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.
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In the instant case, the Constitution sets in black and white the requirements for the exercise
of the people's initiative to amend the Constitution. The amendments must be proposed by
the people "upon a petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per centum
of the registered voters therein. No amendment under this section shall be authorized within
five years following the ratification of this Constitution nor oftener than once every five years
thereafter."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
260
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.
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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"
262
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
263
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
264
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.
____________________
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
265
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.
____________________
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
266
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;
267
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
268
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
269
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
270
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.
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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
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.
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Congress should not tarry any longer in complying with the constitutional mandate to
provide for the implementation of the right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to
the Constitution, and to have failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections
prescribing rules and regulations on the conduct of initiative or amendments to the
Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-
96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent as
against the Commission on Elections, but is LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
It is clear from the fallo, as it is reproduced above, that the Court made permanent the
Temporary Restraining Order (TRO) it issued on 18 December 1996 against the COMELEC.
The said TRO enjoined the COMELEC from proceeding with the Delfin Petition, and Alberto
and Carmen Pedrosa from conducting a signature drive for people's initiative.5 It was this
restraining order, more particularly the portion thereof referring to the Delfin Petition, which
was expressly made permanent by the Court. It would seem to me that the COMELEC and all
other oppositors to Lambino and Aumentado's petition for initiative gave unwarranted
significance and weight to the first paragraph of the Conclusion in the Santiago case. The
first and second paragraphs of the Conclusion, preceding the dispositive portion, merely
express the opinion of the ponente; while the definite orders of the Court for
implementation are found in the dispositive portion.
We have previously held that –
The dispositive portion or the fallo is what actually constitutes the resolution of the court
and which is the subject of execution, although the other parts of the decision may be
resorted to in order to determine the ratio decidendi for such a resolution. Where there is
conflict between the dispositive part and the opinion of the court contained in the text of
the decision, the former must prevail over the latter on the theory that the dispositive
portion is the final order while the opinion is merely a statement ordering nothing. Hence
execution must conform more particularly to that ordained or decreed in the dispositive
portion of the decision.6
Is there a conflict between the first paragraph of the Conclusion and the dispositive portion
of the Santiago case? Apparently, there is. The first paragraph of the Conclusion states that
the COMELEC should be permanently enjoined from entertaining or taking cognizance
of any petition for initiative on amendments to the Constitution until the enactment of a
valid law. On the other hand, the fallo only makes permanent the TRO7 against COMELEC
enjoining it from proceeding with the Delfin Petition. While the permanent injunction
contemplated in the Conclusion encompasses all petitions for initiative on amendments to
the Constitution, the fallo is expressly limited to the Delfin Petition. To resolve the conflict,
the final order of the Court as it is stated in the dispositive portion or the fallo should be
controlling.
Neither can the COMELEC dismiss Lambino and Aumentado's petition for initiative on the
basis of this Court's Resolution, dated 23 September 1997, in the case of People's Initiative
for Reform, Modernization and Action (PIRMA) v. The Commission on Elections, et al.8 The
Court therein found that the COMELEC did not commit grave abuse of discretion in
dismissing the PIRMA Petition for initiative to amend the Constitution for it only complied
with the Decision in the Santiago case.
It is only proper that the Santiago case should also bar the PIRMA Petition on the basis of res
judicata because PIRMA participated in the proceedings of the said case, and had knowledge
of and, thus, must be bound by the judgment of the Court therein. As explained by former
Chief Justice Hilario G. Davide, Jr. in his separate opinion to the Resolution in the PIRMA case
–
First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v.
COMELEC (G.R. No. 127325, 19 March 1997) may plead ignorance of the fact that the former
is substantially identical to the latter, except for the reversal of the roles played by the
principal parties and inclusion of additional, yet not indispensable, parties in the present
petition. But plainly, the same issues and reliefs are raised and prayed for in both cases.
The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM, MODERNIZATION,
AND ACTION (PIRMA) and Spouses ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is
self-described as "a non-stock, non-profit organization duly organized and existing under
Philippine laws with office address at Suite 403, Fedman Suites, 199 Salcedo Street, Legaspi
Village, Makati City," with "ALBERTO PEDROSA and CARMEN PEDROSA" as among its
"officers." In Santiago, the PEDROSAS were made respondents as founding members of
PIRMA which, as alleged in the body of the petition therein, "proposes to undertake the
signature drive for a people's initiative to amend the Constitution." In Santiago then, the
PEDROSAS were sued in their capacity as founding members of PIRMA.
The decision in Santiago specifically declared that PIRMA was duly represented at the
hearing of the Delfin petition in the COMELEC. In short, PIRMA was intervenor-petitioner
therein. Delfin alleged in his petition that he was a founding member of the Movement for
People's Initiative, and under footnote no. 6 of the decision, it was noted that said movement
was "[l]ater identified as the People's Initiative for Reforms, Modernization and Action, or
PIRMA for brevity." In their Comment to the petition in Santiago, the PEDROSA'S did not
deny that they were founding members of PIRMA, and by their arguments, demonstrated
beyond a shadow of a doubt that they had joined Delfin or his cause.
No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as
well as the others joining them, from the operation of the principle of res judicata, which
needs no further elaboration.9
While the Santiago case bars the PIRMA case because of res judicata, the same cannot be
said to the Petition at bar. Res judicata is an absolute bar to a subsequent action for the same
cause; and its requisites are: (a) the former judgment or order must be final; (b) the judgment
or order must be one on the merits; (c) it must have been rendered by a court having
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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
– initiative filed by Lambino and Aumentado, when such petition is supported by 6.3 million
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
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
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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
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 Lastly, I fail to see the injustice in allowing the COMELEC to give due course to and take
cognizance of Lambino and Aumentado's petition for initiative to amend the Constitution. I
reiterate that it would be a greater evil if one such petition which is ostensibly supported by
the required number of registered voters all over the country, be summarily dismissed.
Giving due course and taking cognizance of the petition would not necessarily mean that the
same would be found sufficient and set for plebiscite. The COMELEC still faces the task of
reviewing the petition to determine whether it complies with the requirements for a valid
exercise of the right to initiative. Questions raised by the oppositors to the petition, such as
those on the authenticity of the registered voters' signatures or compliance with the
requisite number of registered voters for every legislative district, are already factual in
nature and require the reception and evaluation of evidence of the parties. Such questions
are best presented and resolved before the COMELEC since this Court is not a trier of facts.
In view of the foregoing, I am of the position that the Resolution of the COMELEC dated 31
August 2006 denying due course to the Petition for Initiative filed by Lambino and
Aumentado be reversed and set aside for having been issued in grave abuse of discretion,
amounting to lack of jurisdiction, and that the Petition be remanded to the COMELEC for
further proceedings.
In short, I vote to GRANT the petition for Initiative of Lambino and Aumentado.
MINITA V. CHICO-NAZARIOexercise of the people's initiative, when it held that Republic Act No. 6735, or "The Initiative
Associate Justice
____________________
EN BANC
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED
VOTERS, petitioners, vs. The COMMISSION ON ELECTIONS, respondent.
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, petitioners
vs. COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, JR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
VELASCO, JR., J.:
Introduction
The fate of every democracy, of every government based on the Sovereignty of the people,
depends on the choices it makes between these opposite principles: absolute power on the
one hand, and on the other the restraints of legality and the authority of tradition.
—John Acton
In this thorny matter of the people's initiative, I concur with the erudite and highly persuasive
opinion of Justice Reynato S. Puno upholding the people's initiative and raise some points of
my own.
The issue of the people's power to propose amendments to the Constitution was once
discussed in the landmark case of Santiago v. COMELEC.1 Almost a decade later, the issue is
once again before the Court, and I firmly believe it is time to reevaluate the pronouncements
made in that case.
The issue of Charter Change is one that has sharply divided the nation, and its proponents
and opponents will understandably take all measures to advance their position and defeat
that of their opponents. The wisdom or folly of Charter Change does not concern the Court.
The only thing that the Court must review is the validity of the present step taken by the
proponents of Charter Change, which is the People's Initiative, as set down in Article XVII,
Sec. 2 of the 1987 Constitution:
Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per centum of
the registered voters therein. No amendment under this section shall be authorized within
five years following the ratification of this Constitution nor oftener than once every five years
thereafter.
The Congress shall provide for the implementation of the exercise of this right.
In the Santiago case, the Court discussed whether the second paragraph of that section had
been fulfilled. It determined that Congress had not provided for the implementation of the
and Referendum Act," was "inadequate to cover the system of initiative on amendments to
the Constitution, and to have failed to provide sufficient standard for subordinate
legislation."2
With all due respect to those Justices who made that declaration, I must disagree.
Republic Act No. 6735 is the proper law for proposing constitutional amendments and it
should not have been considered inadequate.
The decision in Santiago focused on what it perceived to be fatal flaws in the drafting of the
law, in the failings of the way the law was structured, to come to the conclusion that the law
was inadequate. The Court itself recognized the legislators' intent, but disregarded this
intent. The law was found wanting. The Court then saw the inclusion of the Constitution in
RA 6735 as an afterthought. However, it was included, and it should not be excluded by the
Court via a strained analysis of the law. The difficult construction of the law should not serve
to frustrate the intent of the framers of the 1987 Constitution: to give the people the power
to propose amendments as they saw fit. It is a basic precept in statutory construction that
the intent of the legislature is the controlling factor in the interpretation of a statute. 3 The
intent of the legislature was clear, and yet RA 6735 was declared inadequate. It was not
specifically struck down or declared unconstitutional, merely incomplete. The Court focused
on what RA 6735 was not, and lost sight of what RA 6735 was.
It is my view that the reading of RA 6735 in Santiago should have been more flexible. It is
also a basic precept of statutory construction that statutes should be construed not so much
according to the letter that killeth but in line with the purpose for which they have been
enacted.4 The reading of the law should not have been with the view of its defeat, but with
the goal of upholding it, especially with its avowed noble purpose.
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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
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December 18, 1996 TRO being made permanent against the COMELEC but do not pertain to sufficient under RA 6735, and if the petition is sufficient, to schedule and hold the necessary
a permanent injunction against any other petition for initiative on amendment. Thus, what plebiscite as required by RA 6735.
was confirmed or even affirmed in the Minute Resolution in the PIRMA case pertains solely It is time to let the people's voice be heard once again as it was twenty years ago. And should
to the December 18, 1996 TRO which became permanent, the declaration of the inadequacy this voice demand a change in the Constitution, the Supreme Court should not be one to
of RA 6735, and the annulment of certain parts of Resolution No. 2300 but certainly not the stand in its way.
alleged perpetual injunction against the initiative petition. Thus, the resolution in the PIRMA
case cannot be considered res judicata to the Lambino petition. PRESBITERO J. VELASCO, JR.
Amendment or Revision Associate Justice
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

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