EN BANC G.R. No. L-44640 October 12, 1976 PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner, vs.

HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, respondents. G.R. No. L-44684. October 12,1976 VICENTE M. GUZMAN, petitioner, vs. COMMISSION ELECTIONS, respondent. G.R. No. L-44714. October 12,1976 RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners, vs. HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL TREASURER, respondents.

Twenty days after or on September 22, 1976, the President issued another related decree, Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring the provisions of presidential Decree No. 229 providing for the manner of voting and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of Presidential Decree No. 991, the full text of which (Section 4) is quoted in the footnote below. 2 On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating the questions to be submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the convening of the National Assembly evinces their desire to have such body abolished and replaced thru a constitutional amendment, providing for a legislative body, which will be submitted directly to the people in the referendum-plebiscite of October 16. The questions ask, to wit: (1) Do you want martial law to be continued?

MARTIN, J,: The capital question raised in these prohibition suits with preliminary injunction relates to the power of the incumbent President of the Philippines to propose amendments to the present Constitution in the absence of the interim National Assembly which has not been convened. On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a national referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the issues of martial law, the I . assembly, its replacement, the powers of such replacement, the period of its existence, the length of the period for tile exercise by the President of his present powers.1

(2) Whether or not you want martial law to be continued, do you approve the following amendments to the Constitution? For the purpose of the second question, the referendum shall have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the Constitution. PROPOSED AMENDMENTS: 1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of the interim Batasang Pambansa which shall not be more than 120, unless otherwise provided by law, shall include the incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the members of the Cabinet. Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on
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the basis of a uniform and progressive ratio while the sectors shall be determined by law. The number of representatives from each region or sector and the, manner of their election shall be prescribed and regulated by law. 2. The interim Batasang Pambansa shall have the same powers and its members shall have the same functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the members thereof. However, it shall not exercise the power provided in Article VIII, Section 14(l) of the Constitution. 3. The incumbent President of the Philippines shall, within 30 days from the election and selection of the members, convene the interim Batasang Pambansa and preside over its sessions until the Speaker shall have been elected. The incumbent President of the Philippines shall be the Prime Minister and he shall continue to exercise all his powers even after the interim Batasang Pambansa is organized and ready to discharge its functions and likewise he shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty five. Constitution and the powers vested in the President and the Prime Minister under this Constitution. 4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be subject only to such disqualifications as the President (Prime Minister) may prescribe. The President (Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deem necessary. 5. The incumbent President shall continue to exercise legislative powers until martial law shall have been lifted. 6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary

decrees, orders or letters of instructions, which shall form part of the law of the land. 7. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and composition may be altered by law. Referenda conducted thru the barangays and under the Supervision of the Commission on Elections may be called at any time the government deems it necessary to ascertain the will of the people regarding any important matter whether of national or local interest. 8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force and effect. 9. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by I majority of the votes cast in the referendum-plebiscite." The Commission on Elections was vested with the exclusive supervision and control of the October 1976 National ReferendumPlebiscite. 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 Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L44640 (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 naturemay be contested by one who will sustain a direct injuries as a in result of its enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries all appropriation of Five Million Pesos for the effective implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. Moreover, as regards taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. 7 For the present case, We deem it sound to exercise that discretion affirmatively so that the authority upon which the disputed Decrees are predicated may be inquired into. 2. The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial question. 8 This is especially true in cases where the power of the Presidency to initiate the of normally exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments o the constitution resides in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After that period, and the regular National Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the National Assembly to constitute itself into a constituent assembly the incumbent President undertook the proposal of amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people in a ReferendumPlebiscite 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
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issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2 (2), Article X of the new Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall be heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. ..." The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authorities to determine whether that power has been discharged within its limits. Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the power of a constituent assembly. Whether the amending process confers on the President that power to propose amendments is therefore a downright justiciable question. Should the contrary be found, the actuation of the President would merely be a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not. 10 We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the President's authority to propose amendments and the regularity of the procedure adopted for submission of the proposal to the people ultimately lie in the judgment of the A clear Descartes fallacy of vicious circle. Is it not that the people themselves, by their sovereign act, provided for the authority and procedure for the amending process when they ratified the present Constitution in 1973? Whether, therefore, the constitutional provision has been followed or not is the proper subject of inquiry, not by the people themselves of course who exercise no power of judicial but by the
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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 nonpolitical 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 Cases 12 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.
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There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and period of transition. In times of normally, the amending process may be initiated by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the Members of the National Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in an election voted upon by a majority vote of all the members of the National Assembly. In times of transition, amendments may be proposed by a majority vote of all the Members of the National Assembly upon special call by the interim Prime Minister,. 2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested with that prerogative of discretion as to when he shall initially convene the interim National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The Constitutional Convention intended to leave to the President the determination of the time when he shall initially convene the interim National Assembly, consistent with the prevailing conditions of peace and order in the country." Concurring, Justice Fernandez, himself a member of that Constitutional Convention, revealed: "(W)hen the Delegates to the Constitutional Convention voted on the Transitory Provisions, they were aware of the fact that under the same, the incumbent President was given the discretion as to when he could convene the interim National Assembly; it was so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately', made by Delegate Pimentel (V) was rejected. The President's decision to defer the convening of the interim National Assembly soon found support from the people themselves. In the plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the people voted against the convening of the interim National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the convening of the interim National Assembly. Again, in the referendum of February 27, 1975, the proposed question of whether the interim National Assembly shall be initially convened was eliminated, because some of the members of Congress and delegates of the Constitutional Convention, who were deemed automatically members of the I interim National Assembly, were against its inclusion since in that referendum of January, 1973, the people had already resolved against it.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a Constitution, that body is not in the usual function of lawmaking. lt is not legislating when engaged in the amending process.16 Rather, it is exercising a peculiar power bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the National Assembly). While ordinarily it is the business of the legislating body to legislate for the nation by virtue of constitutional conferment amending of the Constitution is not legislative in character. In political science a distinction is made between constitutional content of an organic character and that of a legislative character'. The distinction, however, is one of policy, not of law. 17 Such being the case, approval of the President of any proposed amendment is a misnomer 18 The prerogative of the President to approve or disapprove applies only to the ordinary cases of legislation. The President has nothing to do with proposition or adoption of amendments to the Constitution. 19 III Concentration of Powers in the President during crisis government. 1. In general, the governmental powers in crisis government the Philippines is a crisis government today are more or less concentrated in the President. 20 According to Rossiter, "(t)he concentration of government power in a democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. In most free states it has generally been regarded as imperative that the total power of the government be parceled out among three mutually independent branches executive, legislature, and judiciary. It is believed to be destructive of constitutionalism if any one branch should exercise any two or more types of power, and certainly a total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf of the state and its independent existence. There are moments in the life of any government when all powers must work together in unanimity of purpose and action, even if this means the temporary
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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 allimportant harmony of legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is more easily established and more trustworthy than presidential dictatorship. The power of the state in crisis must not only be concentrated and expanded; it must also be freed from the normal system of constitutional and legal limitations. 21 John Locke, on the other hand, claims for the executive in its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of special exigencies for which the legislative power had not provided. 22 The rationale behind such broad emergency powers of the Executive is the release of the government from "the paralysis of constitutional restrains" so that the crisis may be ended and normal times restored. 2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23 The incumbent President of the Philippines shall initially convene the interim National Assembly and shall preside over its sessions until the interim Speaker shall have been elected. He shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty-five Constitution and the powers vested in the President and the Prime Minister under this Constitution until the calls upon the interim National Assembly to elect the interim President and the interim Prime Minister, who shall then exercise their respective powers vested by this Constitution. All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, binding, and effective

even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly. "It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional Convention, while giving to the President the discretion when to call the interim National Assembly to session, and knowing that it may not be convened soon, would create a vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking powers, there would be paralyzation of the entire governmental machinery."24 Paraphrasing Rossiter, this is an extremely important factor in any constitutional dictatorship which extends over a period of time. The separation of executive and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis government. The steady increase in executive power is not too much a cause for as the steady increase in the magnitude and complexity of the problems the President has been called upon by the Filipino people to solve in their behalf, which involve rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis greater than war. In short, while conventional constitutional law just confines the President's power as Commander-in-Chief to the direction of the operation of the national forces, yet the facts of our political, social, and economic disturbances had convincingly shown that in meeting the same, indefinite power should be attributed to tile President to take emergency measures 25 IV Authority of the incumbent President t to propose amendments to the Constitution. 1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly during the transition period. However, the initial convening of that Assembly is a matter fully addressed to the judgment of the incumbent President. And, in the exercise of that judgment, the President opted to defer convening of that body in utter recognition of the people's
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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 ReferendumPlebiscite 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
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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 referendumplebiscite expresses but the option of the people themselves implemented only by the authority of the President. Indeed, it may well be said that the amending process is a sovereign act, although the authority to initiate the same and the procedure to be followed reside somehow in a particular body. VI Referendum-Plebiscite not rendered nugatory by the participation of the 15-year olds. 1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be continued? - is a referendum question, wherein the 15-year olds may participate. This was prompted by the desire of the Government to reach the larger mas of the people so that their true pulse may be felt to guide the President in pursuing his program for a New Order. For the succeeding question on the proposed amendments, only those of voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new Constitution. 36 On this second question, it would only be the votes of those 18 years old and above which will have valid bearing on the results. The fact that the voting populace are simultaneously asked to answer the referendum question and the plebiscite question does not infirm the referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue, which is of current one and submitting to them for ratification of proposed constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots of voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen years of age and above. 37 The ballots in the ballot box for voters fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in

another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the age groupings, i.e., ballots contained in each of the two boxes. 38 2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely consultative in character. It is simply a means of assessing public reaction to the given issues submitted to the people foe their consideration, the calling of which is derived from or within the totality of the executive power of the President. 39 It is participated in by all citizens from the age of fifteen, regardless of whether or not they are illiterates, feebleminded, 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 referendumplebiscite 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
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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 TydingsKocialskowski was published in only three consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments providing for the bicameral Congress, the reelection of the President and Vice President, and the creation of the Commission on Elections, 20 days of publication in three consecutive issues of the Official Gazette was fixed (Com Act No. 517). And the Parity Amendment, an involved constitutional amendment affecting the economy as well as the independence of the Republic was publicized in three consecutive issues of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45 2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the plebiscite shall be held, but simply states that it "shall be held not later than three months after the approval of such amendment or revision." In Coleman v. Miller, 46 the United States Supreme court held that this matter of submission involves "an appraisal of a great variety of relevant conditions, political, social and economic," which "are essentially political and not justiciable." The constituent body or in the instant cases, the President, may fix the time within which the people may act. This is because proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time; second, it is only when there is deemed to be a necessity

therefor that amendments are to be proposed, the reasonable implication being that when proposed, they are to be considered and disposed of presently, and third, ratification is but the expression of the approbation of the people, hence, it must be done contemporaneously. 47 In the words of Jameson, "(a)n alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by proper body IN RESUME The three issues are 1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable? 2. During the present stage of the transition period, and under, the environmental circumstances now obtaining, does the President possess power to propose amendments to the Constitution as well as set up the required machinery and prescribe the procedure for the ratification of his proposals by the people? 3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper submission? Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political. Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and Munoz Palma voted in the negative. Associate Justice Fernando, conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that
10

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.

SPECIAL MILITARY COMMISSION NO. 1, and TRIAL COUNSEL OF SAID SPECIAL MILITARY COMMISSION NO. 1, respondents.

BARREDO, J.: Petition in G. R. No. L-49473, denominated and defined by petitioners themselves as for: Nature of Petition And Issues 2.01. Habeas Corpus.Insofar as petitioners named in paragraph 1.01. above as being under detention at Camp Bagong Diwa (formerly Bicutan Rehabilitation Center), Taguig, Rizal, and at MSU Fort Bonifacio, Rizal, are concerned, this is petition for Habeas Corpus based upon two grounds:
EN BANC G.R. No. L-49473 January 16, 1981 JOSE LUNETA, PETER MUTUC, ROBERT AZARCON, MANUEL CHIONGSON, FERNANDO TAYAG, HERMINIGILDO GARCIA IV, EDGAR PILAPIL, WINIFREDO HILAO, TEODORICO RAMIREZ, ROMEO ENRIQUEZ, ACHILLES SIMON, JOVITA VALIENTE, DOMINGO LUNETA, ZENAIDA DELICA-LUNETA, DELFIN DELICA-AMARYLLIS HILAO, VIOLETA SEVANDAL, EDGARDO MARANAN, AIDA SANTOSMARANAN, AIDA SANTOS-MARANAN, AIDA SANTOS-OCAMPO, SATURNINO OCAMPO, FRANCISCO LUNETA, JULIUS FORTUNA, ERNESTO LUNETA, BENILDO CARLOS, MILAGROS ASTORGA-GARCIA, JEAN CACAYORIN-TAYAG, FIDEL AGCAOILI, ROSARIO AGCAOILI, TENARDIO RIVERA, BONIFACIO ILIGAN, and ARTURO AGANA, petitioners, vs. SPECIAL MILITARY COMMISSION NO. 1, THE TRIAL COUNSEL OF SPECIAL MILITARY COMMISSION NO. 1; and THE MINISTRY OF NATIONAL DEFENSE, respondents. G.R. L-49571 January 16, 1981 JOSE E. LUNETA, PETER MUTUC, HERMINIGILDO GARCIA IV, FERNANDO TAYAG, and JULIUS FORTUNA,petitioners, vs. 11

(a) That their right to a speedy trial has been violated, since most of them were arrested in 1974, brought to trial only on July 7, 1977, before Military Commission No. I as Case No. MC-1-92, and the proceedings were thereafter abruptly suspended on or about November 17, 1977: then the case was refiled before Military Commission No. 24 as Case No. MC-24-9; but no hearings whatsoever were held before said Military Commission No. 24, all being postponed motu propio until on or about October 28, 1978, when the case was once more refiled in respondent Special Military Commission No. 1 as Case No. SMC-1-1 and the first hearing was held on November 9, 1978-four (4) years after petitioners had been arrested, three years after the preliminary investigation had open, and more than one (1) year after the case against them had been filed with Military Commission No. 1. (b) The President of the Philippines on January 7. 1977, ordered the release of persons against whom no charges had been filed. he reiterated the order on June 3, 1977; and, on October 22. 1977 amended the order to include persons who had not been tried.

2.02. Prohibition(a) Insofar as petitioners who have been granted temporary release are concerned, this is a petition for pro-exhibition on the ground of violation of their right to a speedy trial. (b) Insofar as an petitioners are concerned, this is also a petitioner petition for prohibition on the following grounds: that respondent Special Military Commission No. I has no jurisdiction to try this case, since it exercises judicial functions petitions and judicial power without possessing the qualifications or the tenure prescribed by the Constitution for courts of justice. that fetter of Instruction No. 772, the continued cognizance by respondent Commission of the case against petitioner petitioners denies them the equal protection of the laws. 2.03. Mandamus. In the alternative, this is a petition for mandamus for all petitioners to require the respondent Commission: (a) To strike out, or in the alternative to quash, on the ground of duplicity the allegations in the charge sheet that petitioners are 'officers leaders of the Communist Party of the Philippines (CPP) and/or its military arm, the New Peoples Army (NPA) and that they committed the acts charged in furtherance of the aims of said party and army since these allegations are not material to the offense of rebellion and their presence, may render petitioners liable to conviction of either rebellion or subversion or both. (b) To grant petitioners' Motion for a Bill of Particular , especially the demand for particulars on the specific acts attributed to each petitioners, since they are purportedly charged with rebellion and in rebellion, by
12

virtue of Article 35 of the Revised Penal Code, the acts of one are not the acts of all. (c) To order the prosecution to make discovery, as required by petitioners, in particular, to produce all statements or confessions attributed to petitioners and all the fruits thereof. (d) Most important of all, to allow petitioners to present evidence in support of their Motion to Quash on the ground of violation of their right to due process, because the case against them has been built on confessions obtained by torture or in the graphic language of Amnesty International, "the so called evidence" has literally been tortured into existence which evidence was used in the preliminary investigation petition against petitioners and was the basis of charge filed against them; and thereafter, depending on the evidence presented, either to dismiss the charge against them, or in the alternative, to declare that neither the confessions nor any of the fruits thereof may be received in evidence against them. In short, petitioners seek mandamus to compel the respondent Special Military Commission No. 1 to hold a preliminary hearing on the voluntariness of their confessions and to rule appropriately thereafter. 2.04. Restraining Order And Preliminary Injunction. Respondents Trial Counsel and Special Military Commission No. 1 have announced that, unless a restraining order is issued by this Honorable Court, they will proceed to receive the prosecutions evidence on December 15, and 16, 1978. Such acts would work injustice to petitioners. and would violate the rights invoked in this petition and tend to render the judgment of this Honorable Court ineffectual thus justifying the issuance of a preliminary injunction under Rule 58, See. 3, Rules of Court; and pending the issuance of such injunction, a restraining order should issue against respondents Special Military Commission No. 1 and Trial Counsel to cease and desist from proceeding

with the case below until further order of this Honorable Court. (Pp. 3-7, Record, L-49473.) together with two supplemental petitions subsequently filed on December 29, 1978, the first complaining against failure to afford petitioner Romeo Enriquez, (not detained) any preliminary investigation and the second charging that said petitioner had not been furnished copy of the transcript of the stenographic notes of the proceedings of December 1, 1978; and petition in GR No. L49571 for certiorari and prohibition on the basic grounds of duplicity and double jeopardy, petitioners theorizing principally that being charged in one case with rebellion, they may no longer be prosecuted for subversion under Republic Act 1700. The Court promptly issued the corresponding writs and summons, and after the return and answer of respondents was filed, set the cases jointly for hearing on January 23, 1979. The minutes of the proceedings of that day shows that: L-49473 (Jose Luneta, et al. vs. Special Military Commission No. 1, et al and L-49571 (Jose Luneta, et al. vs. Special Military Commission No. 1, et al.). When these cases were called for joint hearing this morning, the respective counsel for petitioners and respondents appeared. Atty. Jose W. Diokno, Joker Arroyo and Mariano Marcos, assisted by Attys. Rodolfo U. Jimenez, Mariano Sarmiento and Evener Villasanta, argued for the petitioners for two and a half (2-1/2) hours and answered the questions propounded by the Court. The Court thereafter Resolved to RECESS at noon and to resume the hearing at 3:30 o'clock in the afternoon. When the hearing resumed in the afternoon the Solicitor General, Vicente Mendoza and Solicitor Roberto Abad, argued for the respondents for two and a half (2-1/2) hours and answered the questions propounded by the Court, after which counsel for petitioner petitioners argued in rebuttal and in summation for one and a half (1-1/2) hours.

After the arguments and summation which ended at 7:20 p.m., the Court Resolved to grant the prayers of counsel for both petitioner petitioners and respondents to be allowed to submit simultaneously their respective memoranda within thirty (30) days; to amplify their arguments; discuss the salient points brought up by the questions propounded by the Court and to submit the Presidential Decrees, Letters of Instructions and other relevant papers in support of their respective stands; and to submit their corresponding replies thereto within fifteen (15) days from receipt of the memorandum of the opposing party, after which the Court shall consider the case submitted for decision. The Court Resolved further to NOTE: (a) the return to the writ and answer to the petition for habeas corpus and prohibition or mandamus with preliminary injunction or restraining order and to the supplemental petitions and (b) the answer to the petition for certiorari / prohibition both filed by the Solicitor General in compliance with the resolutions of December 15, 1978 and January 9, 1979. (Page 92, Record, L-49571). As promised, after an extension of three (3) days of the original given period, the respondents filed their memorandum of 86 pages, for both cases, on March 7, 1979. Petitioners asked for no less than eighteen extensions of time to file their own memorandum, all of which were granted, the last two notwithstanding that in the resolution of November 13, 1979, they were warned that no further extension would be granted; still, up to the present, the Court has not been favored with any. The last resolution on such extensions was on January 17, 1980, more than ten (10) months after respondents had submitted their own memorandum and almost a year ago. The important issues raised by petitioners are succinctly stated in the memorandum of the respondents thus: QUESTIONS PRESENTED
13

Petitioners' several actions raise the following questions: In L-49473 Habeas corpus (to obtain the release of some of the petitioners): 1. whether the petitioners concerned have been denied speedy trial and should thus be ordered released from detention via a writ of habeas corpus; 2. whether petitioners are entitled to be released on the basis of certain statements made by the President of the Philippines in speeches delivered by him; Prohibition (to enjoin further proceedings in SMC-1-1): 3. whether respondent special Military Commission No. 1 has jurisdiction to hear the case of rebellion against petitioner petitioners; 4. whether the petitioners who are not under detention have been denied the right to speedy trial; 5. whether petitioners have been denied the equal protection of the law by the non-application in their case of Letter of Instruction No. 772 dated November 27, 1978; Mandamus (to compel respondent Commission to grant their various motions): 6. whether the reference in the charge sheet to petitioners as being officers and leaders of the CPP/NPA at the time of the commission of the rebellion makes the charge sheet invalid for duplicity; 7. whether petitioners are entitled to a bill of particulars;

8. whether discovery;

petitioners

are

entitled

to

make

9. whether petitioners are entitled to a pre-hearing on the voluntariness of their sworn statements; 10. as an incidental issue raised during the oral argument, whether the right to counsel in a custodial investigation imposes a duty on the part of the state to provide counsel where the person under investigation could not obtain one. (Petitioners raise in their supplemental petitions the matters of their challenge against the Law Member of respondent Commission, Lt. Col. Igualdad Cunanan, as well as the alleged absence of a preliminary investigation in the case of petitioner Romeo Enriquez. But in view of respondents' manifestation that, in the interest of aiding the resolution of the cases at bar, Lt. Col. Cunanan was willing to withdraw from the respondent Commission, as in fact he has been relieved, at his request, of his duties in the Commission per respondents' manifestation dated February 14, 1979, and that respondents were willing to conduct another preliminary investigation of the case of petitioner Enriquez, the two issues in question may be deemed moot and academic.) In L-49571 Certiorari and Prohibition (to enjoin further proceedings against the petitioners 11. whether the filing of Criminal Case SMC-1-1 for rebellion placed the petitioners concerned in jeopardy of conviction for the same offense a second time. (Pp. 20-23, Respondents' Memorandum.) At this stage of our jurisprudence governing the issues thus presented by petitioners, a lengthy disquisition demonstrating the implausibility of their contentions seem superfluous. The matters
14

discussed and vigorously, insisted upon by counsel are already settled ones, not only in Aquino vs. Enrile, L-35546, September 17, 1974, 59 SCRA 183 but also in a number of subsequent cases of the same nature. Suffice it to say here that with the proclamation of martial law and the concomitant suspension of the privilege of the writ of habeas corpus, at least as a rule, claims of denial of speedy trial are unavailing, what with the recognized authority of the government or the administrator of the martial law to detain persons even only for preventive purposes. As to how long such preventive detention can last would necessarily depend on the circumstances and the sound discretion of the administrator, even if there are members of the Court who hold the view that the Supreme Court may in cases of demonstrated grave and palpable abuse of discretion intervene. The petitioners who are detained (some of them are not) have been apprehended on suspicion, if not charges of rebellion and subversion by virtue of arrest, search and seizure orders issued by the Minister of National Defense under authority of the President, and it is, therefore, with more reason that they cannot invoke habeas corpus. Whatever, We have carefully gone over the respective claims of the parties relative to the causes for the delay or protraction of the proceedings against petitioners, and We are satisfied that under existing rulings of this Court, the circumstances revealed in the recorded proceedings before and after their cases reached respondent Military Commission do not warrant their release on habeas corpus on the ground of denial of speedy trial, if only because in practically all instances of postponement or transfer deplored by petitioners, the reasons were either unavoidable or demanded by the nature of the proceedings, and in some instances done upon direct or indirect request of petitioners themselves. While perhaps there might be ground to hold that official and formal pronouncements of the President on public occasions of importance such as those referred to in the petition, might come. Within the contemplation of the word "acts" in Section 3 (2), Article XVII of the Philippine Constitution of 1973, albeit it must be noted that the same provision refers to those "promulgated" and not merely delivered orally, the point is that, as contended and explained by the Solicitor General, (Pp. 33-43, Respondents' Memo) the statements of the President before the U.P. Law Alumni Association on January 7, 1977, the Foreign Correspondence
15

Association of the Philippines on June 3, 1977 and the 8th World Law Conference on August 21, 1977 do not include the situation in which the petitioners find themselves. It is to think too much bad faith on the part of the President to maintain that were his intention in those statements invoked by petitioners was to have them released, actually he had in mind not to do so. Those statements of the President must not be taken out of context to give them a meaning farthest from the truth. They were uttered to reassure all and sundry of the deep regard and respect the President has for individual rights and liberties, and to accuse him practically of duplicity and of offering false hopes for political purposes is certainly incompatible with intelligent and conventional knowledge. The jurisdiction of military commissions to hear and determine the cases of rebellion and subversion of petitioners is now indubitable, in the light of the existing rulings of this Court. The mere fact that civil courts are open and are functioning normally is of no consequence in this respect, as We shall explain later. For in addition to the foregoing, the Court reserves the preparation of a more extended opinion. Time constraint related to the steps needed for the earliest lifting of martial law require that this decision be released soonest. There are indeed other considerations related to the points above-discussed that render the plea of petitioners for the granting of the relief they pray for unavailing, and We propose to dwell on them soon enough in such more extended opinion, which would necessarily include the disposition of the remaining points in the petitions, namely, (1) duplicity in the charges, (2) need for a bill of particulars, (3) entitlement of petitioners to discovery and most important of all, (4) their claim to a right to a pre-hearing on the voluntariness of their supposed confessions as well as their other right to counsel during custodial investigation petition. All of these issues are worthy of further elaborate disquisition. We shall do so in due time, but Our conclusion in regard to them is that petitioners have not successfully shown any substantial breach of the fundamental law of the land nor of their inherent right and liberties, when measured alongside the imperatives of national security and survival Incidentally, it is a matter of common knowledge that after the martial law cases pending before this Court shall have been disposed of, martial law in our beloved country will be lifted. In my

first opinion written after it was imposed, I exhorted "God bless the Philippines!" As January 17, 1981 the date commonly known as set for its lifting approaches, with a heart full of joy and gratefulness to the Lord, the President and the First Lady, who have jointly worked so hard to improve the quality of life of the Filipinos, to revive our valued nature virtues and traditions and to enhance the dignity of the Philippines as worthy member of the society of respected nations the world over, and all others concerned, I should shout as I do ALLELUIA! WHEREFORE, the herein petitions are DISMISSED. No costs. Makasiar, Fernandez, Guerrero, Abad Santos and De Castro, JJ., concur. Concepcion Jr., is on leave. Melencio-Herrera J., concurs in the result. Aquino, J., I concur in the result in the dismissal of the petition. The petitioners and others, 114 in all were charged with rebellion and conspiracy and proposal to commit rebellion in connection with the smuggling of firearms by means of the Karagatan Fishing Corporation. SECOND DIVISION

G.R. No. 128448

February 1, 2001

SPOUSES ALEJANDRO MlRASOL and LILIA E. MIRASOL, petitioners, vs. THE COURT OF APPEALS, PHILIPPINE NATIONAL and PHILIPPINE EXCHANGE CO., INC., respondent.

QUISUMBING, J.: This is a petition for review on certiorari of the decision of the Court of Appeals dated July 22, 1996, in CA-G.R. CY No. 38607, as
16

well as of its resolution of January 23, 1997, denying petitioners' motion for reconsideration. The challenged decision reversed the judgment of the Regional Trial Court of Bacolod City, Branch 42 in Civil Case No. 14725. The factual background of this case, as gleaned from the records, is as follows: The Mirasols are sugarland owners and planters. In 1973-1974, they produced 70,501.08 piculs1 of sugar, 25,662.36 of which were assigned for export. The following crop year, their acreage planted to the same crop was lower, yielding 65,100 piculs of sugar, with 23,696.40 piculs marked for export. Private respondent Philippine National Bank (PNB) financed the Mirasols' sugar production venture for crop years, 1973-1974 and 1974-1975 under a crop loan financing scheme. Under said scheme, the Mirasols signed Credit Agreements, a Chattel Mortgage on Standing Crops, and a Real Estate Mortgage in favor of PNB. The Chattel Mortgage empowered PNB as the petitioners' attorney-in-fact to negotiate and to sell the latter's sugar in both domestic and export markets and to apply the proceeds to the payment of their obligations to it. Exercising his law-making powers under Martial Law, then President Ferdinand Marcos issued Presidential Decree (P.D.) No. 5792 in November, 1974. The decree authorized private respondent Philippine Exchange Co., Inc. (PHILEX) to purchase sugar allocated for export to the United States and to other foreign markets. The price and quantity was determined by the Sugar Quota Administration, PNB, the Department of Trade and Industry, and finally, by the Office of the President. The decree further authorized PNB to finance PHILEX's purchases. Finally, the decree directed that whatever profit PHILEX might realize from sales of sugar abroad was to be remitted to a special fund of the national government, after commissions, overhead expenses and liabilities had been deducted. The government offices and entities tasked by existing laws and administrative regulations to oversee the sugar export pegged the purchase price of export sugar in crop years 1973-1974 and 1974-1975 at P180.00 per picul.

PNB continued to finance the sugar production of the Mirasols for crop years 1975-1976 and 1976-1977. These crop loans and similar obligations were secured by real estate mortgages over several properties of the Mirasols and chattel mortgages over standing crops. Believing that the proceeds of their sugar sales to PNB, if properly accounted for, were more than enough to pay their obligations, petitioners asked PNB for an accounting of the proceeds of the sale of their export sugar. PNB ignored the request. Meanwhile, petitioners continued to avail of other loans from PNB and to make unfunded withdrawals from their current accounts with said bank. PNB then asked petitioners to settle their due and demandable accounts. As a result of these demands for payment, petitioners on August 4, 1977, conveyed to PNB real properties valued at P1,410,466.00 by way of dacion en pago, leaving an unpaid overdrawn account of P1,513,347.78. On August 10, 1982, the balance of outstanding sugar crop and other loans owed by petitioners to PNB stood at P15,964,252.93. Despite demands, the Mirasols failed to settle said due anti demandable accounts. PNB then proceeded to extrajudicially for close the mortgaged properties. After applying the proceeds of the auction sale of the mortgaged realties, PNB still had a deficiency claim of P12,551,252.93. Petitioners continued to ask PNB to account for the proceeds of the sale of their export sugar for crop years 1973-1974 and 19741975, insisting that said proceeds, if properly liquidated, could offset their outstanding obligations with the batik. PNB remained adamant in its stance that under P.D. No. 579, there was nothing to account since under said law, all earnings from the export sales of sugar pertained to the National Government and were subject to the disposition of the President of the Philippines for public purposes.1wphi1.nt On August 9, 1979, the Mirasols filed a suit for accounting, specific performance, and damages against PNB with the Regional Trial Court of Bacolod City, docketed as Civil Case No. 14725. On June 16, 1987, the complaint was amended to implead PHILEX as party-defendant. The parties agreed at pre-trial to limit the issues to the following:
17

"1. The constitutionality and/or legality of Presidential Decrees numbered 338, 579, and 1192; "2. The determination of the total amount allegedly due the plaintiffs from the defendants corresponding to the allege(d) unliquidated cost price of export sugar during crop years 1973-1974 and 1974-1975."3 After trial on the merits, the trial court decided as follows: "WHEREFORE, the foregoing premises considered, judgment is hereby rendered in favor of the plaintiffs and against the defendants Philippine National Bank (PNB) and Philippine Exchange Co., Inc. (PHILEX): (1) Declaring Presidential Decree 579 enacted on November 12, 1974 and all circulars, as well as policies, orders and other issuances issued in furtherance thereof, unconstitutional and therefore, NULL and VOID being in gross violation of the Bill of Rights; (2) Ordering defendants PNB and PHILEX to pay, jointly and severally, plaintiffs the whole amount corresponding to the residue of the unliquidated actual cost price of 25,662 piculs in export sugar for crop year 1973-1974 at an average price of P300.00 per picul, deducting therefrom however, the amount of P180.00 already paid in advance plus the allowable deductions in service fees and other charges; (3) And also, for the same defendants to pay, jointly and severally, same plaintiffs the whole amount corresponding to the unpaid actual price of 14,596 piculs of export sugar for crop year 1974-1975 at an average rate of P214.14 per picul minus however, the sum of P180.00 per picul already paid by the defendants in advance and the allowable deducting (sic) in service fees and other charges. "The unliquidated amount of money due the plaintiffs but withheld by the defendants, shall earn the legal rate of interest at 12% per annum computed from the date this action was instituted until fully paid; and, finally 18

(4) Directing the defendants PNB and PHILEX to pay, jointly and severally, plaintiffs the sum of P50,000.00 in moral damages and the amount of P50,000.00 as attorney's fees, plus the costs of this litigation. "SO ORDERED."4 The same was, however, modified by a Resolution of the trial court dated May 14, 1992, which added the following paragraph: "This however whatever benefits that may have accrued in favor of the plaintiffs with the massage and approval of Republic Act. 7202 otherwise known as the 'Sugar Restitution Law,' authorizing the restitution of losses suffered by the plaintiffs from Crop year 1974-1975 to Crop year 1984-1985 occasioned by the actuations of government-owned and controlled agencies. (Underscoring in the original). "SO ORDERED."5 The Mirasols then filed an appeal with the respondent court, docketed as CA-G.R. CY No. 38607, faulting the trial court for not nullifying the dacion en pago and the mortgage contracts, as well as the foreclosure of their mortgaged properties. Also faulted was the trial court's failure to award them the full money claims and damages sought from both PNB and PHILEX. On July 22, 1996, the Court of Appeals reversed the trial court as follows: "WHEREFORE, this Court renders judgment REVERSING appealed Decision and entering the following verdict: the

"1. Declaring the dacion en pago and the foreclosure of the mortgaged properties valid; "2. Ordering the PNB to render an accounting of the sugar account of the Mirasol[s] specifically stating the indebtedness of the latter to the former and the proceeds of Mirasols' 1973-1974 and 1974-1975 sugar production

sold pursuant to and in accordance with P.D. 579 and the issuances therefrom; "3. Ordering the PNB to recompute in accordance with RA 7202 Mirasols' indebtedness to it crediting to the latter payments already made as well as the auction price of their foreclosed real estate and stipulated value of their properties ceded to PNB in the dacon (sic) en pago; "4. Whatever the result of the recomputation of Mirasols' account, the outstanding balance or the excess payment shall be governed by the pertinent provisions of RA 7202. "SO ORDERED."6 On August 28, 1996, petitioners moved for reconsideration, which the appellate court denied on January 23, 1997. Hence, the instant petition, with petitioners submitting the following issues for our resolution: "1. Whether the Trial Court has jurisdiction to declare a statute unconstitutional without notice to the Solicitor General where the parties have agreed to submit such issue for the resolution of the Trial Court. "2. Whether PD 579 and subsequent issuances7 thereof are unconstitutional. "3. Whether the Honorable Court of Appeals committed manifest error in not applying the doctrine of piercing the corporate veil between respondents PNB and PHILEX. "4. Whether the Honorable Court of Appeals committed manifest error in upholding the validity of the foreclosure on petitioners property and in upholding the validity of the dacion en pago in this case. "5. Whether the Honorable Court of Appeals committed manifest error in not awarding damages to
19

petitioners grounds relied upon the allowance of the petition. (Underscored in the original)"8 On the first issue. It is settled that Regional Trial Courts have the authority and jurisdiction to consider the constitutionality of a statute, presidential decree, or executive order.9 The Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation not. only in this Court, but in all Regional Trial Courts.10 In J.M. Tuason and Co. v. Court of Appeals, 3 SCRA 696 (1961) we held: "Plainly, the Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue."11 Furthermore, B.P. BIg. 129 grants Regional Trial Courts the authority to rule on the conformity of laws or treaties with the Constitution, thus: "SECTION 19. Jurisdiction in civil cases. - Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in which the subject of the litigations is incapable of pecuniary estimation;" The pivotal issue, which we must address, is whether it was proper for the trial court to have exercised judicial review. Petitioners argue that the Court of Appeals erred in finding that it was improper for the trial court to have declared P.D. No. 57912 unconstitutional, since petitioners had not complied with Rule 64, Section 3, of the Rules of Court. Petitioners contend that said Rule specifically refers only to actions for declaratory relief and not to an ordinary action for accounting, specific performance, and damages.

Petitioners' contentions are bereft of merit. Rule 64, Section 3 of the Rules of Court provides: "SEC. 3. Notice to Solicitor General. - In any action which involves the validity of a statute, or executive order or regulation, the Solicitor General shall be notified by the party attacking the statute, executive order, or regulation, and shall be entitled to be heard upon such question." This should be read in relation to Section 1 [c] of P.D. No. 478,13 which states in part: "SECTION 1. Functions and Organizations - (1) The Office of the Solicitor General shall...have the following specific powers and functions: xxx "[c] Appear in any court in any action involving the validity of any treaty, law, executive order or proclamation, rule or regulation when in his judgment his intervention is necessary or when requested by the court." It is basic legal construction that where words of command such as "shall," "must," or "ought" are employed, they are generally and ordinarily regarded as mandatory.14 Thus, where, as in Rule 64, Section 3 of the Rules of Court, the word "shall" is used, a mandatory duty is imposed, which the courts ought to enforce. The purpose of the mandatory Notice in Rule 64, Section 3 is to enable the Solicitor General to decide whether or not his intervention in the action assailing the validity of a law or treaty is necessary. To deny the Solicitor General such notice would be tantamount to depriving him of his day in court. We must stress that, contrary to petitioners' stand, the mandatory notice requirement is not limited to actions involving declaratory relief and similar remedies. The rule itself provides that such notice is required in "any action" and not just actions involving declaratory relief. Where there is no ambiguity in the words used in the true, there is no room for constnlction.15 In all actions assailing the validity of a statute, treaty, presidential decree, order, or proclamation, notice to the Solicitor General is mandatory.
20

In this case, the Solicitor General was never notified about Civil Case No. 14725. Nor did the trial court ever require him to appear in person or by a representative or to file any pleading or memorandum on the constitutionality of the assailed decree. Hence, the Court of Appeals did not err in holding that lack of the required notice made it improper for the trial court to pass upon the constitutional validity of the questioned presidential decrees. As regards the second issue, petitioners contend that P.D. No. 579 and its implementing issuances are void for violating the due process clause and the prohibition against the taking of private property without just compensation. Petitioners now ask this Court to exercise its power of judicial review. Jurisprudence has laid down the following requisites for the exercise of this power: First, there must be before the Court an actual case calling for the exercise of judicial review. Second, the question before the Court must be ripe for adjudication. Third, the person challenging the validity of the act must have standing to challenge. Fourth, the question of constitutionality must have been raised at the earliest opportunity, and lastly, the issue of constitutionality must be the very lis mota of the case.16 As a rule, the courts will not resolve the constitutionality of a law, if the controversy can be settled on other grounds. 17 The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid, absent a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers. This means that the measure had first been carefully studied by the legislative and executive departments and found to be in accord with the Constitution before it was finally enacted and approved.18 The present case was instituted primarily for accounting and specific performance. The Court of Appeals correctly ruled that PNB's obligation to render an accounting is an issue, which can be determined, without having to rule on the constitutionality of P.D. No. 579. In fact there is nothing in P.D. No. 579, which is applicable to PNB's intransigence in refusing to give an accounting. The governing law should be the law on agency, it being undisputed that PNB acted as petitioners' agent. In other words, the requisite that the constitutionality of the law in question be the very lis

mota of the case is absent. Thus we cannot rule on the constitutionality of P.D. No. 579. Petitioners further contend that the passage of R.A. No. 720219 rendered P.D. No. 579 unconstitutional, since R.A. No. 7202 affirms that under P.D. 579, the due process clause of the Constitution and the right of the sugar planters not to be deprived of their property without just compensation were violated. A perusal of the text of R.A. No. 7202 shows that the repealing clause of said law merely reads: "SEC. 10. All laws, acts, executive orders and circulars in conflict herewith are hereby repealed or modified accordingly." The settled rule of statutory construction is that repeals by implication are not favored.20 R.A. No. 7202 cannot be deemed to have repealed P.D. No. 579. In addition, the power to declare a law unconstitutional does not lie with the legislature, but with the courts.21 Assuming arguendo that R.A. No. 7202 did indeed repeal P.D. No. 579, said repeal is not a legislative declaration finding the earlier law unconstitutional. To resolve the third issue, petitioners ask us to apply the doctrine of piercing the veil of corporate fiction with respect to PNB and PHILEX. Petitioners submit that PHILEX was a wholly-owned subsidiary of PNB prior to the latter's privatization. We note, however, that the appellate court made the following finding of fact: "1. PNB and PHILEX are separate juridical persons and there is no reason to pierce the veil of corporate personality. Both existed by virtue of separate organic acts. They had separate operations and different purposes and powers."22 Findings of fact by the Court of Appeals are conclusive and binding upon this Court unless said findings are not supported by the evidence.23 Our jurisdiction in a petition for review under Rule 45 of
21

the Rules of Court is limited only to reviewing questions of law and factual issues are not within its province. 24 In view of the aforequoted finding of fact, no manifest error is chargeable to the respondent court for refusing to pierce the veil of corporate fiction. On the fourth issue, the appellate court found that there were two sets of accounts between petitioners and PNB, namely: "1. The accounts relative to the loan financing scheme entered into by the Mirasols with PNB (PNB's Brief, p. 16) On the question of haw much the PNB lent the Mirasols for crop years 1973-1974 and 1974-1975, the evidence recited by the lower court in its decision was deficient. We are offered (sic) PNB the amount of FIFTEEN MILLION NINE HUNDRED SIXTY FOUR THOUSAND TWO HUNDRED FIFTY TWO PESOS and NINETY THREE Centavos (Ps15,964,252.93) but this is the alleged balance the Mirasols owe PNB covering the years 1975 to 1982. "2. The account relative to the Mirasol's current account Numbers 5186 and 5177 involving the amount of THREE MILLION FOUR HUNDRED THOUSAND Pesos (P3,400,000.00). PNB claims against the Mirasols. (PNB's Brief, p. 17) "In regard to the first set of accounts, besides the proceeds from PNB's sale of sugar (involving the defendant PHILEX in relation to the export portion of tile stock), the PNB foreclosed the Mirasols' mortgaged properties realizing therefrom in 1981 THREE MILLION FOUR HUNDRED THIRTEEN THOUSAND pesos (P3,413,000.00), the PNB itself having acquired the properties as the highest bidder. "As to the second set of accounts, PNB proposed, and the Mirasols accepted, a dacion en pago scheme by which the Mirasols conveyed to PNB pieces of property valued at ONE MILLION FOUR HUNDRED TEN THOUSAND FOUR HUNDRED SIXTY-SIX Pesos (Ps1,410,466.00) (PNB's Brief, pp. 1617)."25 Petitioners now claim that the dacion en pago and the foreclosure of their mortgaged properties were void for want of consideration.

Petitioners insist that the loans granted them by PNB from 1975 to 1982 had been fully paid by virtue of legal compensation. Hence, the foreclosure was invalid and of no effect, since the mortgages were already fully discharged. It is also averred that they agreed to the dacion only by virtue of a martial law Arrest, Search, and Seizure Order (ASSO). We find petitioners' arguments unpersuasive. Both the lower court and the appellate court found that the Mirasols admitted that they were indebted to PNB in the sum stated in the latter's counterclaim.26 Petitioners nonetheless insist that the same can be offset by the unliquidated amounts owed them by PNB for crop years 1973-74 and 1974-75. Petitioners' argument has no basis in law. For legal compensation to take place, the requirements set forth in Articles 1278 and 1279 of the Civil Code must be present. Said articles read as follows: "Art. 1278. Compensation shall take place when two persons, in their own right, are creditors and debtors of each other. Art. 1279. In order that compensation may be proper, it is necessary: (1) That each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other; (2) That both debts consist in a sum of money, or if the things due are consumable, they be of the same kind, and also of the same quality if the latter has been stated; (3) That the two debts are due; (4) That they be liquidated and demandable; (5) That over neither of them there be any retention or controversy, commenced by third persons and communicated in due time to the debtor."

In the present case, set-off or compensation cannot take place between the parties because: First, neither of the parties are mutually creditors and debtors of each other. Under P.D. No. 579, neither PNB nor PHILEX could retain any difference claimed by the Mirasols in the price of sugar sold by the two firms. P.D. No. 579 prescribed where the profits from the sales are to be paid, to wit: "SECTION 7. x x x After deducting its commission of two and one-half (2-1/2%) percent of gross sales, the balance of the proceeds of sugar trading operations for every crop year shall be set aside by the Philippine Exchange Company, Inc,. as profits which shall be paid to a special fund of the National Government subject to the disposition of the President for public purposes." Thus, as correctly found by the Court of Appeals, "there was nothing with which PNB was supposed to have off-set Mirasols' admitted indebtedness."27 Second, compensation cannot take place where one claim, as in the instant case, is still the subject of litigation, as the same cannot be deemed liquidated.28 With respect to the duress allegedly employed by PNB, which impugned petitioners' consent to the dacion en pago, both the trial court and the Court of Appeals found that there was no evidence to support said claim. Factual findings of the trial court, affirmed by the appellate court, are conclusive upon this Court.29 On the fifth issue, the trial court awarded petitioners P50,000.00 in moral damages and P50,000.00 in attorney's fees. Petitioners now theorize that it was error for the Court of Appeals to have deleted these awards, considering that the appellate court found PNB breached its duty as an agent to render an accounting to petitioners. An agent's failure to render an accounting to his principal is contrary to Article 1891 of the Civil Code.30 The erring agent is liable for damages under Article 1170 of the Civil Code, which states:

22

"Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages." Article 1170 of the Civil Code, however, must be construed in relation to Article 2217 of said Code which reads: "Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury .Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act or omission." Moral damages are explicitly authorized in breaches of contract where the defendant acted fraudulently or in bad faith.31 Good faith, however, is always presumed and any person who seeks to be awarded damages due to the acts of another has the burden of proving that the latter acted in bad faith, with malice, or with ill motive. In the instant case, petitioners have failed to show malice or bad faith32 on the part of PNB in failing to render an accounting. Absent such showing, moral damages cannot be awarded. Nor can we restore the award of attorney's fees and costs of suit in favor of petitioners. Under Article 2208 (5) of the Civil Code, attorney's fees are allowed in the absence of stipulation only if "the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff s plainly valid, just, and demandable claim." As earlier stated, petitioners have not proven bad faith on the part of PNB and PHILEX. 1wphi1.nt WHEREFORE, the instant petition is DENIED and the assailed decision of the respondent court in CA-G.R. CY 38607 AFFIRMED. Costs against petitioners. SO ORDERED.
EN BANC G.R. No. 74457 March 20, 1987 23

RESTITUTO YNOT, petitioner, vs. INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents. Ramon A. Gonzales for petitioner.

CRUZ, J.: The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive Order No. 626-A. The said executive order reads in full as follows: WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the slaughtering of carabaos not complying with the requirements of Executive Order No. 626 particularly with respect to age; WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the prohibition against inter-provincial movement of carabaos by transporting carabeef instead; and WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the prohibition against interprovincial movement of carabaos, it is necessary to strengthen the said Executive Order and provide for the disposition of the carabaos and carabeef subject of the violation; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby promulgate the following:

SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the government, to be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos. SECTION 2. This Executive Order shall take effect immediately. The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984, when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of the case, the court sustained the confiscation of the carabaos and, since they could no longer be produced, ordered the confiscation of the bond. The court also declined to rule on the constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its presumed validity. 2 The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial court, ** and he has now come before us in this petition for review on certiorari. The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is that the penalty is invalid because it is imposed without according the owner a right to be heard before a competent and impartial court as guaranteed by due process. He complains that the measure should not have been presumed, and so sustained, as constitutional. There is also a challenge to the
24

improper exercise of the legislative power by the former President under Amendment No. 6 of the 1973 Constitution. 4 While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here. The question raised there was the necessity of the previous publication of the measure in the Official Gazette before it could be considered enforceable. We imposed the requirement then on the basis of due process of law. In doing so, however, this Court did not, as contended by the Solicitor General, impliedly affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter. This Court has declared that while lower courts should observe a becoming modesty in examining constitutional questions, they are nonetheless not prevented from resolving the same whenever warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the Constitution to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide," final judgments and orders of lower courts in, among others, all cases involving the constitutionality of certain measures. 7 This simply means that the resolution of such cases may be made in the first instance by these lower courts. And while it is true that laws are presumed to be constitutional, that presumption is not by any means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to recall Justice Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least resistance by simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and so heal the wound or excise the affliction. Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this Court. The challenged measure is denominated an executive order but it is really presidential decree, promulgating a new rule instead of

merely implementing an existing law. It was issued by President Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of his legislative authority under Amendment No. 6. It was provided thereunder that whenever in his judgment there existed a grave emergency or a threat or imminence thereof or whenever the legislature failed or was unable to act adequately on any matter that in his judgment required immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and effect of law. As there is no showing of any exigency to justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question the validity of the executive order. Nevertheless, since the determination of the grounds was supposed to have been made by the President "in his judgment, " a phrase that will lead to protracted discussion not really necessary at this time, we reserve resolution of this matter until a more appropriate occasion. For the nonce, we confine ourselves to the more fundamental question of due process. It is part of the art of constitution-making that the provisions of the charter be cast in precise and unmistakable language to avoid controversies that might arise on their correct interpretation. That is the Ideal. In the case of the due process clause, however, this rule was deliberately not followed and the wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was submitted in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained by the body. 10 The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require. Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they
25

may need to vary the meaning of the clause whenever indicated. Instead, they have preferred to leave the import of the protection open-ended, as it were, to be "gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to define due process and in so doing sums it all up as nothing more and nothing less than "the embodiment of the sporting Idea of fair play." 12 When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won for themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every person, when confronted by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause. The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear "the other side" before an opinion is formed or a decision is made by those who sit in judgment. Obviously, one side is only one-half of the question; the other half must also be considered if an impartial verdict is to be reached based on an informed appreciation of the issues in contention. It is indispensable that the two sides complement each other, as unto the bow the arrow, in leading to the correct ruling after examination of the problem not from one or the other perspective only but in its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of power. The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair play. We have consistently declared that

every person, faced by the awesome power of the State, is entitled to "the law of the land," which Daniel Webster described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and empty catchword. This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number of admitted exceptions. The conclusive presumption, for example, bars the admission of contrary evidence as long as such presumption is based on human experience or there is a rational connection between the fact proved and the fact ultimately presumed therefrom. 15 There are instances when the need for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to protect the general welfare from a clear and present danger. The protection of the general welfare is the particular function of the police power which both restraints and is restrained by due process. The police power is simply defined as the power inherent in the State to regulate liberty and property for the promotion of the general welfare. 18 By reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society, is hemmed in by the police power, which affects him even before he is born and follows him still after he is dead from the womb to beyond the tomb in
26

practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not only proper but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which call for the subordination of individual interests to the benefit of the greater number. It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except under certain conditions. The original measure was issued for the reason, as expressed in one of its Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the small farmers who rely on them for energy needs." We affirm at the outset the need for such a measure. In the face of the worsening energy crisis and the increased dependence of our farms on these traditional beasts of burden, the government would have been remiss, indeed, if it had not taken steps to protect and preserve them. A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The conviction was affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then badly needed by farmers. An epidemic had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural output, which in turn had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals. The Court held that the questioned statute was a valid exercise of the police power and declared in part as follows: To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as

distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. ... From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration was required by "the interests of the public generally, as distinguished from those of a particular class" and that the prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community from the loss of the services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be measurably and dangerously affected. In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The method chosen in the basic measure is also reasonably necessary for the purpose sought to be achieved and not unduly oppressive upon individuals, again following the above-cited doctrine. There is no doubt that by banning the slaughter of these animals except where they are at least seven years old if male and eleven years old if female upon issuance of the necessary permit, the executive order will be conserving those still fit for farm work or breeding and preventing their improvident depletion. But while conceding that the amendatory measure has the same lawful subject as the original executive order, we cannot say with equal certainty that it complies with the second requirement, viz., that there be a lawful method. We note that to strengthen the original measure, Executive Order No. 626-A imposes an absolute ban not on theslaughter of the carabaos but on their movement, providing that "no carabao regardless of age,
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sex, physical condition or purpose (sic) and no carabeef shall be transported from one province to another." The object of the prohibition escapes us. The reasonable connection between the means employed and the purpose sought to be achieved by the questioned measure is missing We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one province than in another. Obviously, retaining the carabaos in one province will not prevent their slaughter there, any more than moving them to another province will make it easier to kill them there. As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it could be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there is no reason either to prohibit their transfer as, not to be flippant dead meat. Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon with the sanction that the measure applies for violation of the prohibition. The penalty is outright confiscation of the carabao or carabeef being transported, to be meted out by the executive authorities, usually the police only. In the Toribio Case, the statute was sustained because the penalty prescribed was fine and imprisonment, to be imposed by the court after trial and conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed, and the property being transported is immediately impounded by the police and declared, by the measure itself, as forfeited to the government. In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce the carabaos when ordered by the trial court. The executive order defined the prohibition, convicted the petitioner and immediately imposed punishment, which was carried out forthright. The measure struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him the centuries-old guaranty of elementary fair play.

It has already been remarked that there are occasions when notice and hearing may be validly dispensed with notwithstanding the usual requirement for these minimum guarantees of due process. It is also conceded that summary action may be validly taken in administrative proceedings as procedural due process is not necessarily judicial only. 20 In the exceptional cases accepted, however. there is a justification for the omission of the right to a previous hearing, to wit, the immediacy of the problem sought to be corrected and the urgency of the need to correct it. In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory treatment. The properties involved were not even inimical per se as to require their instant destruction. There certainly was no reason why the offense prohibited by the executive order should not have been proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under the Constitution. Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been pronounced not by the police only but by a court of justice, which alone would have had the authority to impose the prescribed penalty, and only after trial and conviction of the accused. We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as prescribed in the questioned executive order. It is there authorized that the seized property shall "be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commissionmay see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industrymay see fit, in the case of carabaos." (Emphasis supplied.) The phrase "may see fit" is an extremely generous and dangerous condition, if condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual standard and the reasonable guidelines, or better still, the limitations that the said officers must observe when they make their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers named can supply the answer, they and they alone may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there is here a "roving commission," a wide and sweeping authority that is not "canalized within banks that
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keep it from overflowing," in short, a clearly profligate and therefore invalid delegation of legislative powers. To sum up then, we find that the challenged measure is an invalid exercise of the police power because the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his defense and is immediately condemned and punished. The conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A unconstitutional. We agree with the respondent court, however, that the police station commander who confiscated the petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President, to declare the executive order unconstitutional and, on his own responsibility alone, refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had the competence, for all their superior authority, to question the order we now annul. The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this case would never have reached us and the taking of his property under the challenged measure would have become afait accompli despite its invalidity. We commend him for his spirit. Without the present challenge, the matter would have ended in that pump boat in Masbate and another violation of the Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon forgotten in the limbo of relinquished rights. The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like

expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert them. WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount thereof is ordered restored to the petitioner. No costs. SO ORDERED.

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At the outset a word of clarification is in order. This is not the decision of the Court in the sense that a decision represents a consensus of the required majority of its members not only on the judgment itself but also on the rationalization of the issues and the conclusions arrived at. On the final result the vote is practically unanimous; this is a statement of my individual opinion as well as a summary of the voting on the major issues. Why no particular Justice has been designated to write just one opinion for the entire Court will presently be explained. At one point during our deliberations on these cases it was suggested that as Chief Justice I should write that opinion. The impracticability of the suggestion shortly became apparent for a number of reasons, only two of which need be mentioned. First, the discussions, as they began to touch on particular issues, revealed a lack of agreement among the Justices as to whether some of those issues should be taken up although it was not necessary to do so, they being merely convenient for the purpose of ventilating vexing questions of public interest, or whether the decision should be limited to those issues which are really material and decisive in these cases. Similarly, there was no agreement as to the manner the issues should be treated and developed. The same destination would be reached, so to speak, but through different routes and by means of different vehicles of approach. The writing of separate opinions by individual Justices was thus unavoidable, and understandably so for still another reason, namely, that although little overt reference to it was made at the time, the future verdict of history was very much a factor in the thinking of the members, no other case of such transcendental significance to the life of the nation having before confronted this Court. Second and this to me was the insuperable obstacle I was and am of the opinion, which was shared by six other Justices 1 at the time the question was voted upon, that petitioner Jose W. Diokno's motion of December 28, 1973 to withdraw his petition (G.R. No. L-35539) should be granted, and therefore I was in no position to set down the ruling of the Court on each of the arguments raised by him, except indirectly, insofar as they had been raised likewise in the other cases. It should be explained at this point that when the Court voted on Diokno's motion to withdraw his petition he was still under detention without charges, and continued to remain so up to the time the separate opinions of the individual Justices were put in
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G.R. No. L-35546 September 17, 1974 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENIGNO S. AQUINO, JR., RAMON MITRA, JR., FRANCISCO RODRIGO, AND NAPOLEON RAMA, petitioners, vs. HON JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY,respondents.

MAKALINTAL, C.J.:p These cases are all petitions for habeas corpus, the petitioners having been arrested and detained by the military by virtue of the President's Proclamation No. 1081, dated September 21, 1972.

final form preparatory to their promulgation on September 12, which was the last day of Justice Zaldivars tenure in the Court. 2 Before they could be promulgated, however, a major development supervened: petitioner Diokno was released by the President in the morning of September 11, 1974. In view thereof all the members of this Court except Justice Castro agreed to dismiss Diokno's petition on the ground that it had become moot, with those who originally voted to grant the motion for withdrawal citing said motion as an additional ground for such dismissal. The petitioners in the other cases, except Benigno Aquino, Jr. (G.R. No. L-35546), either have been permitted to withdraw their petitions or have been released from detention subject to certain restrictions. 3 In the case of Aquino, formal charges of murder, subversion and illegal possession of firearms were lodged against him with a Military Commission on August 11, 1973; and on the following August 23 he challenged the jurisdiction of said Commission as well as his continued detention by virtue of those charges in a petition for certiorari and prohibition filed in this Court (G.R. No. L-37364). The question came up as to whether or not Aquino's petition for habeas corpus should be dismissed on the ground that the case as to him should more appropriately be resolved in this new petition. Of the twelve Justices, however, eight voted against such dismissal and chose to consider the case on the merits. 4 On Diokno's motion to withdraw his petition I voted in favor of granting it for two reasons. In the first place such withdrawal would not emasculate the decisive and fundamental issues of public interest that demanded to be resolved, for they were also raised in the other cases which still remained pending. Secondly, since it was this petitioner's personal liberty that was at stake, I believed he had the right to renounce the application for habeas corpus he initiated. Even if that right were not absolute I still would respect his choice to remove the case from this Court's cognizance, regardless of the fact that I disagreed with many of his reasons for so doing. I could not escape a sense of irony in this Court's turning down the plea to withdraw on the ground, so he alleges among others, that this is no longer the Court to which he originally applied for relief because its members have taken new oaths of office under the 1973 Constitution, and then ruling adversely to him on the merits of his petition.

It is true that some of the statements in the motion are an affront to the dignity of this Court and therefore should not be allowed to pass unanswered. Any answer, however, would not be foreclosed by allowing the withdrawal. For my part, since most of those statements are of a subjective character, being matters of personal belief and opinion, I see no point in refuting them in these cases. Indeed my impression is that they were beamed less at this Court than at the world outside and designed to make political capital of his personal situation, as the publicity given to them by some segments of the foreign press and by local underground propaganda news sheets subsequently confirmed. It was in fact from that perspective that I deemed it proper to respond in kind, that is, from a non-judicial forum, in an address I delivered on February 19, 1974 before the LAWASIA, the Philippine Bar Association and the Philippine Lawyers' Association. Justice Teehankee, it may be stated, is of the opinion that a simple majority of seven votes out of twelve is legally sufficient to make the withdrawal of Diokno's petition effective, on the theory that the requirement of a majority of eight votes applies only to a decision on the merits. In any event, as it turned out, after petitioner Diokno was released by the President on September 11 all the members of this Court except Justice Castro were agreed that his petition had become moot and therefore should no longer be considered on the merits. This notwithstanding, some of the opinions of the individual members, particularly Justices Castro and Teehankee, should be taken in the time setting in which they were prepared, that is, before the order for the release of Diokno was issued. The Cases. The events which form the background of these nine petitions are related, either briefly or in great detail, in the separate opinions filed by the individual Justices. The petitioners were arrested and held pursuant to General Order No. 2 of the President (September 22, 1972), "for being participants or for having given aid and comfort in the conspiracy to seize political and state power in the country and to take over the Government by force ..." General Order No. 2 was issued by the President in the exercise of the powers he assumed by virtue of Proclamation No. 1081 (September 21, 1972) placing the entire country under martial law.
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The portions of the proclamation immediately in point read as follows: xxx xxx xxx NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article I, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction. In addition, I do hereby order that all persons presently detained, as well as all others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention until otherwise ordered released by me or by my duly designated representative. The provision of the 1935 Constitution referred to in the proclamation reads: "the President shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes
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necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law." 1. The first major issue raised by the parties is whether this Court may inquire into the validity of Proclamation No. 1081. Stated more concretely, is the existence of conditions claimed to justify the exercise of the power to declare martial law subject to judicial inquiry? Is the question political or justiciable in character? Justices Makasiar, Antonio, Esguerra, Fernandez and Aquino hold that the question is political and therefore its determination is beyond the jurisdiction of this Court. The reasons are given at length in the separate opinions they have respectively signed. Justice Fernandez adds that as a member of the Convention that drafted the 1973 Constitution he believes that "the Convention put an imprimatur on the proposition that the validity of a martial law proclamation and its continuation is political and non-justiciable in character." Justice Barredo, on the other hand, believes that political questions are not per se beyond the Court's jurisdiction, the judicial power vested in it by the Constitution being plenary and all-embracing, but that as a matter of policy implicit in the Constitution itself the Court should abstain from interfering with the Executive's Proclamation, dealing as it does with national security, for which the responsibility is vested by the charter in him alone. But the Court should act, Justice Barredo opines, when its abstention from acting would result in manifest and palpable transgression of the Constitution proven by facts of judicial notice, no reception of evidence being contemplated for purposes of such judicial action. It may be noted that the postulate of non-justiciability as discussed in those opinions involves disparate methods of approach. Justice Esguerra maintains that the findings of the President on the existence of the grounds for the declaration of martial law are final and conclusive upon the Courts. He disagrees vehemently with the ruling inLansang vs. Garcia, 42 SCRA 448, December 11, 1971, and advocates a return to Barcelon vs. Baker, 5 Phil. 87 (1905), and Montenegro vs. Castaeda, 91 Phil. 882 (1952). Justice

Barredo, for his part, holds that Lansang need not be overturned, indeed does not control in these cases. He draws a distinction between the power of the President to suspend the privilege of the writ of habeas corpus, which was the issue in Lansang, and his power to proclaim martial law, calling attention to the fact that while the Bill of Rights prohibits suspension of the privilege except in the instances specified therein, it places no such prohibition or qualification with respect to the declaration of martial law. Justice Antonio, with whom Justices Makasiar, Fernandez and Aquino concur, finds that there is no dispute as to the existence of a state of rebellion in the country, and on that premise emphasizes the factor of necessity for the exercise by the President of his power under the Constitution to declare martial law, holding that the decision as to whether or not there is such necessity is wholly confided to him and therefore is not subject to judicial inquiry, his responsibility being directly to the people. Arrayed on the side of justiciability are Justices Castro, Fernando, Teehankee and Muoz Palma. They hold that the constitutional sufficiency of the proclamation may be inquired into by the Court, and would thus apply the principle laid down in Lansang although that case refers to the power of the President to suspend the privilege of the writ of habeas corpus. The recognition of justiciability accorded to the question in Lansang, it should be emphasized, is there expressly distinguished from the power of judicial review in ordinary civil or criminal cases, and is limited to ascertaining "merely whether he (the President) has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act." The test is not whether the President's decision is correct but whether, in suspending the writ, he did or did not act arbitrarily. Applying this test, the finding by the Justices just mentioned is that there was no arbitrariness in the President's proclamation of martial law pursuant to the 1935 Constitution; and I concur with them in that finding. The factual bases for the suspension of the privilege of the writ of habeas corpus, particularly in regard to the existence of a state of rebellion in the country, had not disappeared, indeed had been exacerbated, as events shortly before said proclamation clearly demonstrated. On this Point the Court is practically unanimous; Justice Teehankee merely refrained from discussing it.

Insofar as my own opinion is concerned the cleavage in the Court on the issue of justiciability is of not much more than academic interest for purposes of arriving at a judgment. I am not unduly exercised by Americas decisions on the subject written in another age and political clime, or by theories of foreign authors in political science. The present state of martial law in the Philippines is peculiarly Filipino and fits into no traditional patterns or judicial precedents. In the first place I am convinced (as are the other Justices), without need of receiving evidence as in an ordinary adversary court proceeding, that a state of rebellion existed in the country when Proclamation No. 1081 was issued. It was a matter of contemporary history within the cognizance not only of the courts but of all observant people residing here at the time. Many of the facts and events recited in detail in the different "Whereases" of the proclamation are of common knowledge. The state of rebellion continues up to the present. The argument that while armed hostilities go on in several provinces in Mindanao there are none in other regions except in isolated pockets in Luzon, and that therefore there is no need to maintain martial law all over the country, ignores the sophisticated nature and ramifications of rebellion in a modern setting. It does not consist simply of armed clashes between organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind, necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through printed news sheets or rumors disseminated in whispers; recruitment of armed and ideological adherents, raising of funds, procurement of arms and material, fifth-column activities including sabotage and intelligence all these are part of the rebellion which by their nature are usually conducted far from the battle fronts. They cannot be counteracted effectively unless recognized and dealt with in that context. Secondly, my view, which coincides with that of other members of the Court as stated in their opinions, is that the question of validity of Proclamation No. 1081 has been foreclosed by the transitory provision of the 1973 Constitution [Art. XVII, Sec. 3(2)] that "all proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land and shall remain valid, legal, binding and effective even after ... the ratification of this Constitution ..."
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To be sure, there is an attempt in these cases to resuscitate the issue of the effectivity of the new Constitution. All that, however, is behind us now. The question has been laid to rest by our decision in Javellana vs. Executive Secretary (L-36142, 50 SCRA 30, March 31, 1973), and of course by the existing political realities both in the conduct of national affairs and in our relations with other countries. On the effect of the transitory provision Justice Muoz Palma withholds her assent to any sweeping statement that the same in effect validated, in the constitutional sense, all "such proclamations, decrees, instructions, and acts promulgated, issued, or done by the incumbent President." All that she concedes is that the transitory provision merely gives them "the imprimatur of a law but not of a constitutional mandate," and as such therefore "are subject to judicial review when proper under the Constitution. Finally, the political-or-justiciable question controversy indeed, any inquiry by this Court in the present cases into the constitutional sufficiency of the factual bases for the proclamation of martial law has become moot and purposeless as a consequence of the general referendum of July 27-28, 1973. The question propounded to the voters was: "Under the (1973) Constitution, the President, if he so desires, can continue in office beyond 1973. Do you want President Marcos to continue beyond 1973 and finish the reforms he initiated under Martial Law?" The overwhelming majority of those who cast their ballots, including citizens between 15 and 18 years, voted affirmatively on the proposal. The question was thereby removed from the area of presidential power under the Constitution and transferred to the seat of sovereignty itself. Whatever may be the nature of the exercise of that power by the President in the beginning whether or not purely political and therefore non-justiciable this Court is precluded from applying its judicial yardstick to the act of the sovereign. 2. With respect to the petitioners who have been released from detention but have not withdrawn their petitions because they are still subject to certain restrictions, 5 the ruling of the Court is that the petitions should be dismissed. The power to detain persons even without charges for acts related to the situation which justifies the proclamation of martial law, such as the existence of a state of rebellion, necessarily implies the power (subject, in the
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opinion of the Justices who consider Lansang applicable, to the same test of arbitrariness laid down therein), to impose upon the released detainees conditions or restrictions which are germane to and necessary to carry out the purposes of the proclamation. Justice Fernando, however, "is for easing the restrictions on the right to travel of petitioner Rodrigo" and others similarly situated and so to this extent dissents from the ruling of the majority; while Justice Teehankee believes that those restrictions do not constitute deprivation of physical liberty within the meaning of the constitutional provision on the privilege of the writ of habeas corpus. It need only be added that, to my mind, implicit in a state of martial law is the suspension of the said privilege with respect to persons arrested or detained for acts related to the basic objective of the proclamation, which is to suppress invasion, insurrection, or rebellion, or to safeguard public safety against imminent danger thereof. The preservation of society and national survival take precedence. On this particular point, that is, that the proclamation of martial law automatically suspends the privilege of the writ as to the persons referred to, the Court is practically unanimous. Justice Fernando, however, says that to him that is still an open question; and Justice Muoz Palma qualifiedly dissents from the majority in her separate opinion, but for the reasons she discusses therein votes for the dismissal of the petitions. IN VIEW OF ALL THE FOREGOING AND FOR THE REASONS STATED BY THE MEMBERS OF THE COURT IN THEIR SEPARATE OPINIONS, JUDGMENT IS HEREBY RENDERED DISMISSING ALL THE PETITIONS, EXCEPT THOSE WHICH HAVE BEEN PREVIOUSLY WITHDRAWN BY THE RESPECTIVE PETITIONERS WITH THE APPROVAL OF THIS COURT, AS HEREINABOVE MENTIONED. NO COSTS. Makasiar, Esguerra, Fernandez, Muoz Palma and Aquino, JJ., concur. Prefatory Note (written on September 12, 1974) My separate opinion below in the nine cases at bar was handed to Chief Justice Querube C. Makalintal on Monday, September 9,

1974, for promulgation (together with the individual opinions of the Chief Justice and the other Justices) on September 12 (today) as agreed upon by the Court. On September 11 the petitioner Jose W. Diokno was released from military custody. The implications of this supervening event were lengthily discussed by the Court in its deliberations in the afternoon. Eleven members thereafter voted to dismiss Diokno's petition as being "moot and academic;" I cast the lone dissenting vote. Although perhaps in the strictest technical sense that accords with conventional legal wisdom, the petition has become "moot" because Diokno has been freed from physical confinement, I am nonetheless persuaded that the grave issues of law he has posed and the highly insulting and derogatory imputations made by him against the Court and its members constitute an inescapable residue of questions of transcendental dimension to the entire nation and its destiny and to the future of the Court questions that cannot and should not be allowed to remain unresolved and unanswered. I have thus not found it needful nor even advisable to recast my separate opinion or change a word of it. I invite the reader to assess my 38-page separate opinion which immediately follows, in the light of the foregoing context and factual setting.

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