Political Law (Constitutional Law 2) Cases I
Political Law (Constitutional Law 2) Cases I
Political Law (Constitutional Law 2) Cases I
of Salta because both law and rule, in restricting to judges the authority to
G.R. No. L-34285 March 8, 1989 order arrest, recognize that function to be judicial in nature. 7
B. JOSE CASTILLO, petitioner, The proceedings at bar have reference to the law in 1971, at which time a
vs. preliminary investigation (now in question) was conducted by respondent
HON. ONOFRE A. VILLALUZ, Judge, Circuit Criminal Court, 7th Judicial Judge of the Circuit Criminal Court. 8 He did so with respect to a complaint
District, RENATO MONTES and JOSE DE SILVA, respondents. dated July 9, 1971 (and Joint Affidavit dated July 21, 1971) filed directly with
his Court by Renato Montes and Jose de Silva against Manuel Laconico The
complaint charged the latter with estafa in the amount of P1,000.00. The
Fidel Manalo and Juan C. Gatmaitan for petitioner.
investigation culminated in the issuance by respondent Judge of an Order on
July 28, 1971 9 containing the following dispositive portion:
NARVASA, J.:
WHEREFORE, there being a preliminary examination and
Judges of Regional Trial Courts (formerly Courts of First Instance) no longer investigation conducted by the Court and considering that the
have authority to conduct preliminary investigations. That authority, at one time respondent was given a chance to defend himself, let a warrant be
reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of Court issued for his apprehension. The respondent is hereby ordered to post
of 1964, 1 was removed from them by the 1985 Rules on Criminal Procedure, a bond in the amount of P3,000.00 for his provisional release.
effective on January 1, 1985, 2 which deleted all provisions granting that power
to said Judges. We had occasion to point this out in Salta v. Court of
Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, Pursuant to Section 6, Rule 135 of the New Rules of Court, in relation
to Section 13, Rule 112 thereto, the Provincial Fiscal of Rizal is hereby
namely: (1) that the conduct of a preliminary investigation is "not a judicial
ordered to file the corresponding information against the respondent
function ... (but) part of the prosecution's job, a function of the executive," (2)
that wherever "there are enough fiscals or prosecutors to conduct preliminary before the court of competent jurisdiction within TWENTY-FOUR (24)
investigations, courts are counseled to leave this job which is essentially hours from receipt hereof.
executive to them," and the fact "that a certain power is granted does not
necessarily mean that it should be indiscriminately exercised." SO ORDERED.
The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared Notice of the Order was served on the Provincial Fiscal of Rizal, herein
effective on October 1, 1988 3 did not restore that authority to Judges of petitioner, on July 29, 1971, but he failed to file the information required within
Regional Trial Courts; said amendments did not in fact deal at all with the the time appointed, or at any time thereafter. Consequently, on October 1,
officers or courts having authority to conduct preliminary investigations. 1971, he was directed by His Honor to explain within ten (10) days "why he
should not be punished for contempt of court for delaying the speedy
administration of justice for disobeying a lawful order of the Court." 10 The
This is not to say, however, that somewhere along the line RTC Judges also
Fiscal filed a motion for reconsideration, 11 but this was denied, by Order dated
lost the power to make a preliminary examination for the purpose of
October 19, 1971. 12 Hence, this petition forcertiorari and prohibition was
determining whether probable cause exists to justify the issuance of a warrant
of arrest (or search warrant). Such a power indeed, it is as much a duty as presented by petitioner Fiscal, seeking annulment of the aforesaid orders.
it is a power has been and remains vested in every judge by the provision
in the Bill of Rights in the 1935, the 1973 and the present (1987) Constitutions Petitioner submits that-
securing the people against unreasonable searches and seizures, 4 thereby
placing it beyond the competence of mere Court rule or statute to revoke. The 1) His Honor had no jurisdiction to conduct preliminary investigations,
distinction must, therefore, be made clear while an RTC Judge may no longer because the law creating Circuit Criminal Courts, R.A. No. 5179,
conduct preliminary investigations to ascertain whether there is sufficient conferred on said courts only the power to try and decide, concurrently
ground for the filing of a criminal complaint or information, 5 he retains the with the regular courts of first instance, certain specific criminal cases,
authority, when such a pleading is filed with his court, to determine whether but not the power to conduct preliminary investigations;
there is probable cause justifying the issuance of a warrant of arrest. 6 It might
2) a preliminary investigation is not a part of a trial or the rendition of investigation finds probable cause against a defendant," ... be shall issue a
a decision; it is a function which may very well be left to the public warrant for his arrest, and thereafter refer the case to the fiscal for the filing of
prosecutors as its discharge would unduly burden judges; the corresponding information"-the effect of imposing upon the fiscal the
mandatory duty to file an information merely upon such reference being made;
3) even assuming power in the respondent to conduct preliminary and this, even without regard to the fact that in its ordinary sense, the word
investigations, the power does not include the compulsion of a "refer" conveys no such import nor connotes any compulsion. And it was no
provincial fiscal, under sanction of contempt, to file an information in doubt on account of these obvious considerations that, as Salta further
court without conducting his own preliminary investigation; the observes, Section 37 of Batas Pambansa Blg. 129 reiterated" the removal from
conduct thereof is a primary duty of his; as the official charged with the Judges of Metropolitan Trial Courts in the National Capital Region of the
responsibility of instituting and prosecuting criminal cases in court, the authority to conduct preliminary investigations" and "Section 2 of Rule 112 of
determination of the sufficiency of the evidence to warrant such the 1985 Rules on Criminal Procedure no longer authorizes Regional Trial
institution and prosecution is made to rest by law upon his sound Judges to conduct preliminary investigations." It may not be amiss to point out,
discretion. in this connection, that the 1988 Amendments to the 1985 Rules on Criminal
Procedure (Sec. 5, Rule 112) explicitly provide inter alia that "(s)hould the
During the time that it existed, 13 the Circuit Criminal Court had the same power provincial or city fiscal disagree with the findings of the investigating judge on
the existence of probable cause, the fiscal's ruling shall prevail." 19
as a Court of First Instance to conduct preliminary investigations of offenses
cognizable by it. So we have ruled in two (2) cases: Collector of Customs v.
Villaluz,71 SCRA 356, 14 and de Guzman v. Villaluz, 117 SCRA 182. 15 Be it noted, however, that once the fiscal files an information with the Court
and the Court thereby acquires jurisdiction over the case, the case may not be
Now, His Honor was evidently of the view that his determination of the dismissed at the fiscal's instance except only by consent of the Court, which
may grant or withhold it in its discretion. 20
existence of probable cause, founded on the results of his own preliminary
investigation, was the last word on the matter, and the Provincial Fiscal had
no option except to draw up and file the information on the basis of said It was therefore grave abuse of discretion amounting to lack of jurisdiction on
preliminary investigation. This is why respondent Judge gave petitioner Fiscal His Honor's part to seek to foreclose the petitioner fiscal's prerogative to
only twenty-four (24) hours "to file the corresponding information." conduct his own preliminary investigation to determine for himself the
existence or nonexistence of probable cause, and to require him to show
cause for not filing the information within twenty-four (24) hours, on the sole
The Judge is mistaken. It is the fiscal who is given by law "direction and control"
of all criminal actions. 16 It is he who initiates all prosecutions in the name of basis of the Judge's conclusions. The fiscal was not bound to a blind, uncritical
the People of the Philippines, by information or complaint, against all persons and unavoidable acceptance of those conclusions. He had the duty to satisfy
who appear to be responsible for the offense involved. 17 It is he (or other public himself of the existence of probable cause, and could not shirk or be made to
evade it by an unreasoning and indiscriminate reliance on the judge's
prosecutor), therefore, who is primarily responsible for ascertaining through a
investigation.
preliminary inquiry or proceeding "whether there is reasonable ground to
believe that an offense has been committed and the accused is probably guilty
thereof." 18 That function, to repeat, is not judicial but executive. When a Since the controversy at bar arose, many years have passed during which
preliminary investigation is conducted by a judge, the judge performs a non- Circuit Criminal Courts were abolished, as already stated, 21 the petitioner
judicial function, as an exception to his usual judicial duties. The assignment Fiscal's public service was ended by compulsory retirement, and the
of that function to judges of inferior courts and to a very limited extent to courts respondent's stint as Judge, ended by his promotion to a higher court. It is
of first instance was dictated by "necessity and practical considerations," and time, too, that this case is ended.
the consequent policy, as we said inSalta, was that "wherever there were
enough fiscals or prosecutors to conduct preliminary investigations, courts WHEREFORE, the challenged Orders are hereby annulled and set aside. This
were to leave that job which is essentially executive to them." It follows that resolution is immediately executory. No costs.
the conclusions derived by a judge from his own investigation cannot be
superior to and conclusively binding on the fiscal or public prosecutor, in whom Gancayco, Grio-Aquino and Medialdea, JJ., concur.
that function is principally and more logically lodged. These considerations
argue against giving the term "refer" used in Section 13 of the former Rule Separate Opinions
112-which provided that if the judge, after conducting a preliminary
CRUZ, J., concurring: firm, with ITT-Sheraton as its hotel operator, which bid for the same number of
shares at P44.00 per share, or P2.42 more than the bid of petitioner.
I concur as long it is understood that the fiscal prevails over the judge only in
the determination of the existence of a prima facie case to justify the filing of a Pertinent provisions of the bidding rules prepared by respondent GSIS state
complaint or information. This task is concededly executive. But the
determination of probable cause to justify the issuance of a search warrant or
a warrant of arrest is the constitutional prerogative of the judge and may not I. EXECUTION OF THE NECESSARY CONTRACTS WITH
be withdrawn from him or even only limited by statute or the Rules of Court. GSIS/MHC
This task is undoubtedly judicial. The findings of the fiscal in the preliminary
investigation do not control or foreclose the exercise of the power conferred
1. The Highest Bidder must comply with the conditions set
personally on the judge under Section 2 of the Bill of Rights. That power is his
forth below by October 23, 1995 (reset to November 3, 1995)
alone.
or the Highest Bidder will lose the right to purchase the Block
of Shares and GSIS will instead offer the Block of Shares to
G.R. No. 122156 February 3, 1997 the other Qualified Bidders:
MANILA PRINCE HOTEL petitioner, a. The Highest Bidder must negotiate and execute with the
vs. GSIS/MHC the Management Contract, International
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL Marketing/Reservation System Contract or other type of contract
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE specified by the Highest Bidder in its strategic plan for the Manila
GOVERNMENT CORPORATE COUNSEL, respondents. Hotel. . . .
BELLOSILLO, J.: b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of
rights, privileges, and concessions covering the national economy and K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
patrimony, the State shall give preference to qualified Filipinos, 1 is in oked by PARTNER
petitioner in its bid to acquire 51% of the shares of the Manila Hotel
Corporation (MHC) which owns the historic Manila Hotel. Opposing,
The Highest Bidder will be declared the Winning Bidder/Strategic
respondents maintain that the provision is not self-executing but requires an
Partner after the following conditions are met:
implementing legislation for its enforcement. Corollarily, they ask whether the
51% shares form part of the national economy and patrimony covered by the
protective mantle of the Constitution. a. Execution of the necessary contracts with GSIS/MHC not
later than October 23, 1995 (reset to November 3, 1995); and
The controversy arose when respondent Government Service Insurance
System (GSIS), pursuant to the privatization program of the Philippine b. Requisite approvals from the GSIS/MHC and COP
Government under Proclamation No. 50 dated 8 December 1986, decided to (Committee on Privatization)/OGCC (Office of the
sell through public bidding 30% to 51% of the issued and outstanding shares Government Corporate Counsel) are obtained. 3
of respondent MHC. The winning bidder, or the eventual "strategic partner," is
to provide management expertise and/or an international Pending the declaration of Renong Berhad as the winning bidder/strategic
marketing/reservation system, and financial support to strengthen the partner and the execution of the necessary contracts, petitioner in a letter to
profitability and performance of the Manila Hotel. 2 In a close bidding held on respondent GSIS dated 28 September 1995 matched the bid price of P44.00
18 September 1995 only two (2) bidders participated: petitioner Manila Prince per share tendered by Renong Berhad. 4 In a subsequent letter dated 10
Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC October 1995 petitioner sent a manager's check issued by Philtrust Bank for
or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian Thirty-three Million Pesos (P33.000.000.00) as Bid Security to match the bid
of the Malaysian Group, Messrs. Renong Berhad . . . 5 which respondent GSIS Second, granting that this provision is self-executing, Manila Hotel does not
refused to accept. fall under the term national patrimony which only refers to lands of the public
domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
On 17 October 1995, perhaps apprehensive that respondent GSIS has potential energy, fisheries, forests or timber, wildlife, flora and fauna and all
disregarded the tender of the matching bid and that the sale of 51% of the marine wealth in its territorial sea, and exclusive marine zone as cited in the
MHC may be hastened by respondent GSIS and consummated with Renong first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According
Berhad, petitioner came to this Court on prohibition and mandamus. On 18 to respondents, while petitioner speaks of the guests who have slept in the
October 1995 the Court issued a temporary restraining order enjoining hotel and the events that have transpired therein which make the hotel historic,
respondents from perfecting and consummating the sale to the Malaysian firm. these alone do not make the hotel fall under the patrimonyof the nation. What
is more, the mandate of the Constitution is addressed to the State, not to
On 10 September 1996 the instant case was accepted by the Court En respondent GSIS which possesses a personality of its own separate and
Banc after it was referred to it by the First Division. The case was then set for distinct from the Philippines as a State.
oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin
G. Bernas, S.J., as amici curiae. Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is
only 51% of the outstanding shares of the corporation, not the hotel building
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the nor the land upon which the building stands. Certainly, 51% of the equity of
the MHC cannot be considered part of the national patrimony. Moreover, if the
Filipino nation and has practically become a historical monument which
reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of disposition of the shares of the MHC is really contrary to the Constitution,
an earlier generation of Filipinos who believed in the nobility and sacredness petitioner should have questioned it right from the beginning and not after it
of independence and its power and capacity to release the full potential of the had lost in the bidding.
Filipino people. To all intents and purposes, it has become a part of the
national patrimony. 6 Petitioner also argues that since 51% of the shares of the Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules
MHC carries with it the ownership of the business of the hotel which is owned which provides that if for any reason, the Highest Bidder cannot be awarded
by respondent GSIS, a government-owned and controlled corporation, the the Block of Shares, GSIS may offer this to the other Qualified Bidders that
hotel business of respondent GSIS being a part of the tourism industry is have validly submitted bids provided that these Qualified Bidders are willing to
unquestionably a part of the national economy. Thus, any transaction involving match the highest bid in terms of price per share, is misplaced. Respondents
51% of the shares of stock of the MHC is clearly covered by the term national postulate that the privilege of submitting a matching bid has not yet arisen
economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. 7 since it only takes place if for any reason, the Highest Bidder cannot be
awarded the Block of Shares. Thus the submission by petitioner of a matching
bid is premature since Renong Berhad could still very well be awarded the
It is also the thesis of petitioner that since Manila Hotel is part of the national
block of shares and the condition giving rise to the exercise of the privilege to
patrimony and its business also unquestionably part of the national economy
submit a matching bid had not yet taken place.
petitioner should be preferred after it has matched the bid offer of the
Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this Finally, the prayer for prohibition grounded on grave abuse of discretion should
to the other Qualified Bidders that have validly submitted bids provided that fail since respondent GSIS did not exercise its discretion in a capricious,
these Qualified Bidders are willing to match the highest bid in terms of price whimsical manner, and if ever it did abuse its discretion it was not so patent
per share. 8 and gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law. Similarly, the petition for mandamus should
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, fail as petitioner has no clear legal right to what it demands and respondents
of the 1987 Constitution is merely a statement of principle and policy since it do not have an imperative duty to perform the act required of them by
is not a self-executing provision and requires implementing legislation(s) . . . petitioner.
Thus, for the said provision to Operate, there must be existing laws "to lay
down conditions under which business may be done." 9 We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious, absolute
and unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation. 10 It prescribes These provisions would be subordinated to the will of the lawmaking
the permanent framework of a system of government, assigns to the different body, which could make them entirely meaningless by simply refusing
departments their respective powers and duties, and establishes certain fixed to pass the needed implementing statute. 15
principles on which government is founded. The fundamental conception in
other words is that it is a supreme law to which all other laws must conform Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution
and in accordance with which all private rights must be determined and all is clearly not self-executing, as they quote from discussions on the floor of the
public authority administered.11 Under the doctrine of constitutional 1986 Constitutional Commission
supremacy, if a law or contract violates any norm of the constitution that law
or contract whether promulgated by the legislative or by the executive branch MR. RODRIGO. Madam President, I am asking this question as the
or entered into by private persons for private purposes is null and void and
Chairman of the Committee on Style. If the wording of
without any force and effect. Thus, since the Constitution is the fundamental,
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it be
paramount and supreme law of the nation, it is deemed written in every statute
understood as a preference to qualified Filipinos vis-a-vis Filipinos
and contract.
who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and carry
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is
out the purposes of the framers who merely establish an outline of government
it to remove the word "QUALIFIED?".
providing for the different departments of the governmental machinery and
securing certain fundamental and inalienable rights of citizens. 12 A provision
which lays down a general principle, such as those found in Art. II of the 1987 MR. RODRIGO. No, no, but say definitely "TO QUALIFIED
Constitution, is usually not self-executing. But a provision which is complete in FILIPINOS" as against whom? As against aliens or over aliens?
itself and becomes operative without the aid of supplementary or enabling
legislation, or that which supplies sufficient rule by means of which the right it MR. NOLLEDO. Madam President, I think that is understood. We use
grants may be enjoyed or protected, is self-executing. Thus a constitutional the word "QUALIFIED" because the existing laws or prospective laws
provision is self-executing if the nature and extent of the right conferred and will always lay down conditions under which business may be
the liability imposed are fixed by the constitution itself, so that they can be done. For example, qualifications on the setting up of other financial
determined by an examination and construction of its terms, and there is no structures, et cetera (emphasis supplied by respondents)
language indicating that the subject is referred to the legislature for action. 13
MR. RODRIGO. It is just a matter of style.
As against constitutions of the past, modern constitutions have been generally
drafted upon a different principle and have often become in effect extensive MR. NOLLEDO Yes, 16
codes of laws intended to operate directly upon the people in a manner similar
to that of statutory enactments, and the function of constitutional conventions Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as
has evolved into one more like that of a legislative body. Hence, unless it is not to make it appear that it is non-self-executing but simply for purposes of
expressly provided that a legislative act is necessary to enforce a constitutional style. But, certainly, the legislature is not precluded from enacting other further
mandate, the presumption now is that all provisions of the constitution are self- laws to enforce the constitutional provision so long as the contemplated statute
executing If the constitutional provisions are treated as requiring legislation squares with the Constitution. Minor details may be left to the legislature
instead of self-executing, the legislature would have the power to ignore and without impairing the self-executing nature of constitutional provisions.
practically nullify the mandate of the fundamental law. 14 This can be
cataclysmic. That is why the prevailing view is, as it has always been, that
In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the
. . . in case of doubt, the Constitution should be considered self- constitution, further the operation of such a provision, prescribe a practice to
executing rather than non-self-executing . . . . Unless the contrary is be used for its enforcement, provide a convenient remedy for the protection of
clearly intended, the provisions of the Constitution should be the rights secured or the determination thereof, or place reasonable
considered self-executing, as a contrary rule would give the legislature safeguards around the exercise of the right. The mere fact that legislation may
discretion to determine when, or whether, they shall be effective. supplement and add to or prescribe a penalty for the violation of a self-
executing constitutional provision does not render such a provision ineffective that [i]n the grant of rights, privileges, and concessions covering national
in the absence of such legislation. The omission from a constitution of any economy and patrimony, the State shall give preference to qualified Filipinos,
express provision for a remedy for enforcing a right or liability is not necessarily it means just that qualified Filipinos shall be preferred. And when our
an indication that it was not intended to be self-executing. The rule is that a Constitution declares that a right exists in certain specified circumstances an
self-executing provision of the constitution does not necessarily exhaust action may be maintained to enforce such right notwithstanding the absence
legislative power on the subject, but any legislation must be in harmony with of any legislation on the subject; consequently, if there is no statute especially
the constitution, further the exercise of constitutional right and make it more enacted to enforce such constitutional right, such right enforces itself by its
available. 17 Subsequent legislation however does not necessarily mean that own inherent potency and puissance, and from which all legislations must take
the subject constitutional provision is not, by itself, fully enforceable. their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.
Respondents also argue that the non-self-executing nature of Sec. 10, second As regards our national patrimony, a member of the 1986 Constitutional
par., of Art. XII is implied from the tenor of the first and third paragraphs of the Commission 34 explains
same section which undoubtedly are not self-executing. 18 The argument is
flawed. If the first and third paragraphs are not self-executing because The patrimony of the Nation that should be conserved and developed
Congress is still to enact measures to encourage the formation and operation refers not only to out rich natural resources but also to the cultural
of enterprises fully owned by Filipinos, as in the first paragraph, and the State heritage of out race. It also refers to our intelligence in arts, sciences
still needs legislation to regulate and exercise authority over foreign and letters. Therefore, we should develop not only our lands, forests,
investments within its national jurisdiction, as in the third paragraph, then mines and other natural resources but also the mental ability or faculty
a fortiori, by the same logic, the second paragraph can only be self-executing of our people.
as it does not by its language require any legislation in order to give preference
to qualified Filipinos in the grant of rights, privileges and concessions covering
We agree. In its plain and ordinary meaning, the term patrimony pertains to
the national economy and patrimony. A constitutional provision may be self- heritage. 35 When the Constitution speaks of national patrimony, it refers not
executing in one part and non-self-executing in another. 19
only to the natural resources of the Philippines, as the Constitution could have
very well used the term natural resources, but also to the cultural heritage of
Even the cases cited by respondents holding that certain constitutional the Filipinos.
provisions are merely statements of principles and policies, which are basically
not self-executing and only placed in the Constitution as moral incentives to
Manila Hotel has become a landmark a living testimonial of Philippine
legislation, not as judicially enforceable rights are simply not in point. Basco
heritage. While it was restrictively an American hotel when it first opened in
v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional
1912, it immediately evolved to be truly Filipino, Formerly a concourse for the
provisions on personal dignity, 21 the sanctity of family life, 22 the vital role of
elite, it has since then become the venue of various significant events which
the youth in nation-building 23 the promotion of social justice, 24 and the values
have shaped Philippine history. It was called the Cultural Center of the 1930's.
of education.25 Tolentino v. Secretary of Finance 26 refers to the constitutional
It was the site of the festivities during the inauguration of the Philippine
provisions on social justice and human rights 27 and on
Commonwealth. Dubbed as the Official Guest House of the Philippine
education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the
Government. it plays host to dignitaries and official visitors who are accorded
promotion of general welfare, 30 the sanctity of family life, 31 the vital role of the the traditional Philippine hospitality. 36
youth in nation-building 32 and the promotion of total human liberation and
development.33 A reading of these provisions indeed clearly shows that they
are not judicially enforceable constitutional rights but merely guidelines for The history of the hotel has been chronicled in the book The Manila Hotel: The
legislation. The very terms of the provisions manifest that they are only Heart and Memory of a City. 37During World War II the hotel was converted by
principles upon which the legislations must be based. Res ipsa loquitur. the Japanese Military Administration into a military headquarters. When the
American forces returned to recapture Manila the hotel was selected by the
Japanese together with Intramuros as the two (2) places fro their final stand.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution
Thereafter, in the 1950's and 1960's, the hotel became the center of political
is a mandatory, positive command which is complete in itself and which needs
activities, playing host to almost every political convention. In 1970 the hotel
no further guidelines or implementing laws or rules for its enforcement. From
reopened after a renovation and reaped numerous international recognitions,
its very words the provision does not require any legislation to put it in
an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was
operation. It is per sejudicially enforceable When our Constitution mandates
the site of a failedcoup d' etat where an aspirant for vice-president was MR. MONSOD. Yes, because, in fact, we would be limiting it if we say
"proclaimed" President of the Philippine Republic. that the preference should only be 100-percent Filipino.
For more than eight (8) decades Manila Hotel has bore mute witness to the MR: DAVIDE. I want to get that meaning clear because "QUALIFIED
triumphs and failures, loves and frustrations of the Filipinos; its existence is FILIPINOS" may refer only to individuals and not to juridical
impressed with public interest; its own historicity associated with our struggle personalities or entities.
for sovereignty, independence and nationhood. Verily, Manila Hotel has
become part of our national economy and patrimony. For sure, 51% of the MR. MONSOD. We agree, Madam President. 39
equity of the MHC comes within the purview of the constitutional shelter for it
comprises the majority and controlling stock, so that anyone who acquires or
xxx xxx xxx
owns the 51% will have actual control and management of the hotel. In this
instance, 51% of the MHC cannot be disassociated from the hotel and the land
on which the hotel edifice stands. Consequently, we cannot sustain MR. RODRIGO. Before we vote, may I request that the amendment
respondents' claim that theFilipino First Policy provision is not applicable since be read again.
what is being sold is only 51% of the outstanding shares of the corporation,
not the Hotel building nor the land upon which the building stands. 38 MR. NOLLEDO. The amendment will read: "IN THE GRANT OF
RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
The argument is pure sophistry. The term qualified Filipinos as used in Our NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
Constitution also includes corporations at least 60% of which is owned by GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
Filipinos. This is very clear from the proceedings of the 1986 Constitutional "Filipinos" here, as intended by the proponents, will include not only
Commission individual Filipinos but also Filipino-controlled entities or entities fully-
controlled by Filipinos. 40
THE PRESIDENT. Commissioner Davide is recognized.
The phrase preference to qualified Filipinos was explained thus
MR. DAVIDE. I would like to introduce an amendment to the Nolledo
amendment. And the amendment would consist in substituting the MR. FOZ. Madam President, I would like to request Commissioner
words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF Nolledo to please restate his amendment so that I can ask a question.
THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS
WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND
BY SUCH CITIZENS. CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
xxx xxx xxx QUALIFIED FILIPINOS."
MR. MONSOD. Madam President, apparently the proponent is MR FOZ. In connection with that amendment, if a foreign enterprise is
agreeable, but we have to raise a question. Suppose it is a corporation qualified and a Filipino enterprise is also qualified, will the Filipino
that is 80-percent Filipino, do we not give it preference? enterprise still be given a preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual MR. NOLLEDO. Obviously.
Filipino. What about a corporation wholly owned by Filipino citizens?
MR. FOZ. If the foreigner is more qualified in some aspects than the
MR. MONSOD. At least 60 percent, Madam President. Filipino enterprise, will the Filipino still be preferred?
MR. DAVIDE. Is that the intention? MR. NOLLEDO. The answer is "yes."
xxx xxx xxx Now, a word on preference. In my view "preference to qualified Filipinos", to
be meaningful, must refer not only to things that are peripheral, collateral, or
In the grant of rights, privileges, and concessions covering the national tangential. It must touch and affect the very "heart of the existing order." In the
economy and patrimony, the State shall Give preference to qualified field of public bidding in the acquisition of things that pertain to the national
Filipinos. 1 patrimony, preference to qualified Filipinos must allow a qualified Filipino to
match or equal the higher bid of a non-Filipino; the preference shall not operate
only when the bids of the qualified Filipino and the non-Filipino are equal in
Petitioner's argument, I believe, is well taken. Under the 1987 Constitution,
which case, the award should undisputedly be made to the qualified Filipino.
"national patrimony" consists of the natural resources provided by Almighty
God (Preamble) in our territory (Article I) consisting of land, sea, and air. 2study The Constitutional preference should give the qualified Filipino an opportunity
of the 1935 Constitution, where the concept of "national patrimony" originated, to match or equal the higher bid of the non-Filipino bidder if the preference of
the qualified Filipino bidder is to be significant at all.
would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a
concept embracing not only their natural resources of the country but It is true that in this present age of globalization of attitude towards foreign
practically everything that belongs to the Filipino people, the tangible and the investments in our country, stress is on the elimination of barriers to foreign
material as well as the intangible and the spiritual assets and possessions of trade and investment in the country. While government agencies, including the
the people. It is to be noted that the framers did not stop with conservation. courts should re-condition their thinking to such a trend, and make it easy and
They knew that conservation alone does not spell progress; and that this may even attractive for foreign investors to come to our shores, yet we should not
be achieved only through development as a correlative factor to assure to the preclude ourselves from reserving to us Filipinos certain areas where our
people not only the exclusive ownership, but also the exclusive benefits of their national identity, culture and heritage are involved. In the hotel industry, for
national patrimony). 3 instance, foreign investors have established themselves creditably, such as in
the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels. This should
not stop us from retaining 51% of the capital stock of the Manila Hotel
Moreover, the concept of national patrimony has been viewed as referring not
only to our rich natural resources but also to the cultural heritage of our race. 4 Corporation in the hands of Filipinos. This would be in keeping with the intent
of the Filipino people to preserve our national patrimony, including our
historical and cultural heritage in the hands of Filipinos.
There is no doubt in my mind that the Manila Hotel is very much a part of our
national patrimony and, as such, deserves constitutional protection as to who
VITUG, J., concurring:
shall own it and benefit from its operation. This institution has played an
important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared
House for visiting foreign heads of state, dignitaries, celebrities, and others. 5 by Mr. Justice Reynato S. Puno in a well written separate (dissenting) opinion,
that:
It is therefore our duty to protect and preserve it for future generations of
Filipinos. As President Manuel L. Quezon once said, we must exploit the First, the provision in our fundamental law which provides that "(I)n the grant
natural resources of our country, but we should do so with. an eye to the of rights, privileges, and concessions covering the national economy and
welfare of the future generations. In other words, the leaders of today are the patrimony, the State shall give preference to qualified Filipinos" 1 is self-
trustees of the patrimony of our race. To preserve our national patrimony and executory. The provision verily does not need, although it can obviously be
reserve it for Filipinos was the intent of the distinguished gentlemen who first amplified or regulated by, an enabling law or a set of rules.
framed our Constitution. Thus, in debating the need for nationalization of our
lands and natural resources, one expounded that we should "put more teeth Second, the term "patrimony" does not merely refer to the country's natural
into our laws, and; not make the nationalization of our lands and natural resources but also to its cultural heritage. A "historical landmark," to use the
resources a subject of ordinary legislation but of constitutional enactment" 6 To
words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now indeed become alien corporation is the highest bidder, that preferential treatment of the
part of Philippine heritage. Philippine corporation is mandated not by declaring it winner but by allowing it
"to match the highest bid in terms of price per share" before it is awarded the
Third, the act of the Government Service Insurance System ("GSIS"), a shares of stocks. 3That, to me, is what "preference to qualified Filipinos" means
government entity which derives its authority from the State, in selling 51% of in the context of this case by favoring Filipinos whenever they are at a
its share in MHC should be considered an act of the State subject to the disadvantage vis-a-vis foreigners.
Constitutional mandate.
This was the meaning given in Co Chiong v. Cuaderno 4 to a 1947 statute
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it giving "preference to Filipino citizens in the lease of public market stalls." 5 This
somewhat difficult to take the same path traversed by the forceful reasoning Court upheld the cancellation of existing leases covering market stalls
of Justice Puno. In the particular case before us, the only meaningful occupied by persons who were not Filipinos and the award thereafter of the
preference, it seems, would really be to allow the qualified Filipino to match stalls to qualified Filipino vendors as ordered by the Department of Finance.
the foreign bid for, as a particular matter, I cannot see any bid that literally calls Similarly, in Vda. de Salgado v. De la Fuente, 6 this Court sustained the validity
for millions of dollars to be at par (to the last cent) with another. The magnitude of a municipal ordinance passed pursuant to the statute (R.A. No. 37),
of the magnitude of the bids is such that it becomes hardly possible for the terminating existing leases of public market stalls and granting preference to
competing bids to stand exactly "equal" which alone, under the dissenting Filipino citizens in the issuance of new licenses for the occupancy of the stalls.
view, could trigger the right of preference. In Chua Lao v. Raymundo, 7the preference granted under the statute was held
to apply to cases in which Filipino vendors sought the same stalls occupied by
It is most unfortunate that Renong Berhad has not been spared this great alien vendors in the public markets even if there were available other stalls as
disappointment, a letdown that it did not deserve, by a simple and timely advise good as those occupied by aliens. "The law, apparently, is applicable
whenever there is a conflict of interest between Filipino applicants and aliens
of the proper rules of bidding along with the peculiar constitutional implications
for lease of stalls in public markets, in which situation the right to preference
of the proposed transaction. It is also regrettable that the Court at time is seen,
immediately arises." 8
to instead, be the refuge for bureaucratic inadequate which create the
perception that it even takes on non-justiciable controversies.
Our legislation on the matter thus antedated by a quarter of a century efforts
began only in the 1970s in America to realize the promise of equality, through
All told, I am constrained to vote for granting the petition.
affirmative action and reverse discrimination programs designed to remedy
past discrimination against colored people in such areas as employment,
MENDOZA, J., concurring in the judgment: contracting and licensing. 9Indeed, in vital areas of our national economy, there
are situations in which the only way to place Filipinos in control of the national
I take the view that in the context of the present controversy the only way to economy as contemplated in the Constitution 10 is to give them preferential
enforce the constitutional mandate that "[i]n the grant of rights, privileges and treatment where they can at least stand on equal footing with aliens.
concessions covering the national patrimony the State shall give preference to
qualified Filipinos" 1 is to allow petitioner Philippine corporation to equal the bid There need be no fear that thus preferring Filipinos would either invite foreign
of the Malaysian firm Renong Berhad for the purchase of the controlling shares retaliation or deprive the country of the benefit of foreign capital or know-how.
of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified We are dealing here not with common trades of common means of livelihood
Filipino of Philippine corporation can be given preference in the enjoyment of which are open to aliens in our midst, 11 but with the sale of government
a right, privilege or concession given by the State, by favoring it over a foreign property, which is like the grant of government largess of benefits and
national corporation. concessions covering the national economy" and therefore no one should
begrudge us if we give preferential treatment to our citizens. That at any rate
Under the rules on public bidding of the Government Service and Insurance is the command of the Constitution. For the Manila Hotel is a business owned
System, if petitioner and the Malaysian firm had offered the same price per by the Government. It is being privatized. Privatization should result in the
share, "priority [would be given] to the bidder seeking the larger ownership relinquishment of the business in favor of private individuals and groups who
interest in MHC," 2 so that petitioner bid for more shares, it would be preferred are Filipino citizens, not in favor of aliens.
to the Malaysian corporation for that reason and not because it is a Philippine
corporation. Consequently, it is only in cases like the present one, where an
Nor should there be any doubt that by awarding the shares of stocks to The foregoing provisions should be read in conjunction with Article II of the
petitioner we would be trading competence and capability for nationalism. Both same Constitution pertaining to "Declaration of Principles and State Policies"
petitioner and the Malaysian firm are qualified, having hurdled the which ordain
prequalification process. 12 It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the highest The State shall develop a self-reliant and independent national
bid. economy effectively by Filipinos. (Sec. 19).
Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder Interestingly, the matter of giving preference to "qualified Filipinos" was one of
to match the highest bid of an alien could encourage speculation, since all that the highlights in the 1987 Constitution Commission proceedings thus:
a Filipino entity would then do would be not to make a bid or make only a token
one and, after it is known that a foreign bidder has submitted the highest bid,
xxx xxx xxx
make an offer matching that of the foreign firm. This is not possible under the
rules on public bidding of the GSIS. Under these rules there is a minimum bid
required (P36.87 per share for a range of 9 to 15 million shares). 13 Bids below MR. NOLLEDO. The Amendment will read: "IN THE GRANT OF
the minimum will not be considered. On the other hand, if the Filipino entity, RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
after passing the prequalification process, does not submit a bid, he will not be NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
allowed to match the highest bid of the foreign firm because this is a privilege GIVE PREFERENCE TO QUALIFIED FILIPINOS". And the word
allowed only to those who have "validly submitted bids." 14 The suggestion is, "Filipinos" here, as intended by the proponents, will include not only
to say the least, fanciful and has no basis in fact. individual Filipinos but also Filipino-Controlled entities fully controlled
by Filipinos (Vol. III, Records of the Constitutional Commission, p.
608).
For the foregoing reasons, I vote to grant the petition.
MR. MONSOD. We also wanted to add, as Commissioner Villegas
TORRES, JR., J., separate opinion:
said, this committee and this body already approved what is known as
the Filipino First policy which was suggested by Commissioner de
Constancy in law is not an attribute of a judicious mind. I say this as we are Castro. So that it is now in our Constitution (Vol. IV, Records of the
not confronted in the case at bar with legal and constitutional issues and Constitutional Commission, p. 225).
yet I am driven so to speak on the side of history. The reason perhaps is due
to the belief that in the words of Justice Oliver Wendell Holmes, Jr., a "page of Commissioner Jose Nolledo explaining the provision adverted to above, said:
history is worth a volume of logic."
MR. NOLLEDO. In the grant of rights, privileges and concessions
I will, however, attempt to share my thoughts on whether the Manila Hotel has
covering the national economy and patrimony, the State shall give
a historical and cultural aspect within the meaning of the constitution and thus, preference to qualified Filipinos.
forming part of the "patrimony of the nation".
MR. FOZ. In connection with that amendment, if a foreign enterprise
Section 10, Article XII of the 1987 Constitution provides:
is qualified and the Filipinos enterprise is also qualified, will the Filipino
enterprise still be given a preference?
xxx xxx xxx
MR. NOLLEDO. Obviously.
In the grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified
MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipinos. Filipino enterprise, will the Filipino still be preferred:?
The nationalistic tendency is manifested in various provisions of the PUNO, J., dissenting:
Constitution. . . . It cannot therefore be said that a law imbued with the
same purpose and spirit underlying many of the provisions of the This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel
Constitution is unreasonable, invalid or unconstitutional (Ichong, et al.
Corporation, a domestic corporation, to stop the Government Service
vs. Hernandez, et al., 101 Phil. 1155).
Insurance System (GSIS) from selling the controlling shares of the Manila
Hotel Corporation to a foreign corporation. Allegedly, the sale violates the
I subscribe to the view that history, culture, heritage, and traditions are not second paragraph of section 10, Article XII of the Constitution.
legislated and is the product of events, customs, usages and practices. It is
actually a product of growth and acceptance by the collective mores of a race.
Respondent GSIS is a government-owned and controlled corporation. It is the
It is the spirit and soul of a people.
sole owner of the Manila Hotel which it operates through its subsidiary, the
Manila Hotel Corporation. Manila Hotel was included in the privatization
The Manila Hotel is part of our history, culture and heritage. Every inch of the program of the government. In 1995, GSIS proposed to sell to interested
Manila Hotel is witness to historic events (too numerous to mention) which buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000
shaped our history for almost 84 years. shares, in the Manila Hotel Corporation. After the absence of bids at the first
public bidding, the block of shares offered for sale was increased from a
As I intimated earlier, it is not my position in this opinion, to examine the single maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
instances of the legal largese which have given rise to this controversy. As I partner" of the GSIS was required to "provide management expertise and/or
believe that has been exhaustively discussed in the ponencia. Suffice it to say an international marketing/reservation system, and financial support to
at this point that the history of the Manila Hotel should not be placed in the strengthen the profitability and performance of the Manila Hotel" 1 The proposal
auction block of a purely business transaction, where profits subverts the was approved by respondent Committee on Privatization.
cherished historical values of our people.
In July 1995, a conference was held where prequalification documents and the
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable bidding rules were furnished interested parties. Petitioner Manila Prince Hotel,
tradition which, in the words of the philosopher Salvador de Madarriaga a domestic corporation, and Renong Berhad, Malaysian firm with ITT Sheraton
tradition is "more of a river than a stone, it keeps flowing, and one must view as operator, prequalified. 2
the flowing , and one must view the flow of both directions. If you look towards
the hill from which the river flows, you see tradition in the form of forceful The bidding rules and procedures entitled "Guidelines and Procedures:
currents that push the river or people towards the future, and if you look the Second Prequalification and Public Bidding of the MHC Privatization" provide:
other way, you progress."
I INTRODUCTION AND HIGHLIGHTS
Indeed, tradition and progress are the same, for progress depends on the kind
of tradition. Let us not jettison the tradition of the Manila Hotel and thereby DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
repeat our colonial history.
The party that accomplishes the steps set forth below will be declared
I grant, of course the men of the law can see the same subject in different
the Winning Bidder/Strategic Partner and will be awarded the Block of
lights.
Shares:
2. In the case of a Consortium/Joint Venture, the withdrawal 1. Bids must be contained in the prescribed Official Bid Form,
by member whose qualification was a material consideration a copy of which is attached as Annex IV. The Official Bid Form
for being included in the shortlist is ground for disqualification must be properly accomplished in all details; improper
of the Applicant. accomplishment may be a sufficient basis for disqualification.
V. GUIDELINES FOR THE PUBLIC BIDDING 2. During the Public Bidding, the Qualified Bidder will submit
the Official Bid Form, which will indicate the offered purchase
price, in a sealed envelope marked "OFFICIAL BID."
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible F. SUPPORTING DOCUMENTS
to participate in the Public Bidding.
During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
B. BLOCK OF SHARES
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH). e. The Bid Security of the Qualified Bidder will be returned immediately
after the Public Bidding if the Qualified Bidder is not declared the
If the Qualified Bidder is a corporation, the representative of Highest Bidder.
the Qualified Bidder should submit a Board resolution which
adequately authorizes such representative to bid for and in f. The Bid Security will be returned by October 23, 1995 if the Highest
behalf of the corporation with full authority to perform such Bidder is unable to negotiate and execute with GSIS/MHC the
acts necessary or requisite to bind the Qualified Bidder. Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
If the Qualified Bidder is a Consortium/Joint Venture, each its strategic plan for The Manila Hotel.
member of the Consortium/Joint venture should submit a
Board resolution authorizing one of its members and such g. The Bid Security of the Highest Bidder will be forfeited in favor of
member's representative to make the bid on behalf of the GSIS if the Highest Bidder, after negotiating and executing the
group with full authority to perform such acts necessary or Management Contract, International Marketing/Reservation System
requisite to bind the Qualified Bidder. Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:
2. BID SECURITY
i. Execute the Stock Purchase and Sale Agreement with GSIS
a. The Qualified Bidder should deposit Thirty-Three Million Pesos not later than October 23, 1995; or
(P33,000,00), in Philippine currency as Bid Security in the form of:
ii. Pay the full amount of the offered purchase price not later
i. Manager's check or unconditional demand draft payable to than October 23, 1995; or
the "Government Service Insurance System" and issued by a
reputable banking institution duly licensed to do business in iii. Consummate the sale of the Block of Shares for any other
the Philippines and acceptable to GSIS; or reason.
i. The bid does not have Bid Security; or New GSIS Headquarters Building
Financial Center, Reclamation Area
ii. The Bid Security accompanying the bid is for less than the Roxas Boulevard, Pasay City, Metro Manila.
required amount.
2. The Secretariat of the PBAC will be stationed at the Public Bidding
c. If the Bid Security is in the form of a manager's check or to accept any and all bids and supporting requirements.
unconditional demand draft, the interest earned on the Bid Security Representatives from the Commission on Audit and COP will be
will be for the account of GSIS. invited to witness the proceedings.
d. If the Qualified Bidder becomes the winning Bidder/Strategic 3. The Qualified Bidder should submit its bid using the Official Bid
Partner, the Bid Security will be applied as the downpayment on the Form. The accomplished Official Bid Form should be submitted in a
Qualified Bidder's offered purchase price. sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents 4. The highest bid will be, determined on a price per share
in another sealed envelope marked "SUPPORTING BID basis. In the event of a tie wherein two or more bids have the
DOCUMENTS" same equivalent price per share, priority will be given to the
bidder seeking the larger ownership interest in MHC.
a. Written Authority Bid
5. The Public Bidding will be declared a failed bidding in case:
b. Bid Security
a. No single bid is submitted within the prescribed
5. The two sealed envelopes marked "OFFICIAL BID" period; or
and "SUPPORTING BID DOCUMENTS" must be
submitted simultaneously to the Secretariat between b. There is only one (1) bid that is submitted and
9:00 AM and 2:00 PM, Philippine Standard Time, on acceptable to the PBAC.
the date of the Public Bidding. No bid shall be
accepted after the closing time. Opened or tampered I. EXECUTION OF THE NECESSARY CONTRACTS WITH
bids shall not be accepted. GSIS/MHC
6. The Secretariat will log and record the actual time 1. The Highest Bidder must comply with the conditions set
of submission of the two sealed envelopes. The forth below by October 23, 1995 or the Highest Bidder will lose
actual time of submission will also be indicated by the the right to purchase the Block of Shares and GSIS will
Secretariat on the face of the two envelopes. instead offer the Block of Shares to the other Qualified
Bidders:
7. After Step No. 6, the two sealed envelopes will be
dropped in the corresponding bid boxes provided for a. The Highest Bidder must negotiate and execute
the purpose. These boxes will be in full view of the with GSIS/MHC the Management Contract,
invited public. International Marketing Reservation System Contract
or other type of contract specified by the Highest
H. OPENING AND READING OF BIDS Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
1. After the closing time of 2:00 PM on the date of the Public support to The Manila Hotel, a separate institution
Bidding, the PBAC will open all sealed envelopes marked may enter into the aforementioned contract/s with
"SUPPORTING BID DOCUMENTS" for screening, evaluation GSIS/MHC.
and acceptance. Those who submitted incomplete/insufficient
documents or document/s which is/are not substantially in the b. The Highest Bidder must execute the Stock
form required by PBAC will be disqualified. The envelope Purchase and Sale Agreement with GSIS, a copy of
containing their Official Bid Form will be immediately returned which will be distributed to each of the Qualified
to the disqualified bidders. Bidder after the prequalification process is completed.
2. The sealed envelopes marked "OFFICIAL BID" will be 2. In the event that the Highest Bidder chooses a
opened at 3:00 PM. The name of the bidder and the amount Management Contract for The Manila Hotel, the maximum
of its bid price will be read publicly as the envelopes are levels for the management fee structure that GSIS/MHC are
opened. prepared to accept in the Management Contract are as
follows:
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder. a. Basic management fee: Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating a. Execution of the necessary contract with
profit(1) after deducting undistributed overhead GSIS/MHC not later than October 23, 1995; and
expenses and the basic management fee.
b. Requisite approvals from the GSIS/MHC and
c. Fixed component of the international COP/OGCC are obtained.
marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should I. FULL PAYMENT FOR THE BLOCK OF SHARES
indicate in its Information Package if it is wishes to
charge this fee.
1. Upon execution of the necessary contracts with
GSIS/MHC, the Winning Bidder/Strategic Partner must fully
Note (1): As defined in the uniform system of account for pay, not later than October 23, 1995, the offered purchase
hotels. price for the Block of Shares after deducting the Bid Security
applied as downpayment.
The GSIS/MHC have indicated above the acceptable
parameters for the hotel management fees to facilitate the 2. All payments should be made in the form of a Manager's
negotiations with the Highest Bidder for the Management Check or unconditional Demand Draft, payable to the
Contract after the Public Bidding. "Government Service Insurance System," issued by a
reputable banking institution licensed to do business in the
A Qualified Bidder envisioning a Management Contract Philippines and acceptable to GSIS.
for The Manila Hotel should determine whether or not the
management fee structure above is acceptable before M. GENERAL CONDITIONS
submitting their prequalification documents to GSIS.
1. The GSIS unconditionally reserves the right to reject any or
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS all applications, waive any formality therein, or accept such
application as maybe considered most advantageous to the
1. If for any reason, the Highest Bidder cannot be awarded GSIS. The GSIS similarly reserves the right to require the
the Block of Shares, GSIS may offer this to the other submission of any additional information from the Applicant as
Qualified Bidders that have validly submitted bids provided the PBAC may deem necessary.
that these Qualified are willing to match the highest bid in
terms of price per share. 2. The GSIS further reserves the right to call off the Public
Bidding prior to acceptance of the bids and call for a new
2. The order of priority among the interested Qualified public bidding under amended rules, and without any liability
Bidders will be in accordance wit the equivalent price per whatsoever to any or all the Qualified Bidders, except the
share of their respective bids in their public Bidding, i.e., obligation to return the Bid Security.
first and second priority will be given to the Qualified
Bidders that submitted the second and third highest bids 3. The GSIS reserves the right to reset the date of the
on the price per share basis, respectively, and so on. prequalification/bidding conference, the deadline for the
submission of the prequalification documents, the date of the
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC Public Bidding or other pertinent activities at least three (3)
PARTNER calendar days prior to the respective deadlines/target dates.
The Highest Bidder will be declared the Winning 4. The GSIS sells only whatever rights, interest and
Bidder/Strategic Partner after the following conditions are participation it has on the Block of Shares.
met:
5. All documents and materials submitted by the Qualified (1) Whether section 10, paragraph 2 of Article XII of the Constitution
Bidders, except the Bid Security, may be returned upon is a self-executing provision and does not need implementing
request. legislation to carry it into effect;
6. The decision of the PBAC/GSIS on the results of the Public (2) Assuming section 10 paragraph 2 of Article XII is self-executing
Bidding is final. The Qualified Bidders, by participating in the whether the controlling shares of the Manila Hotel Corporation form
Public Bidding, are deemed to have agreed to accept and part of our patrimony as a nation;
abide by these results.
(3) Whether GSIS is included in the term "State," hence, mandated to
7. The GSIS will be held free and harmless form any liability, implement section 10, paragraph 2 of Article XII of the Constitution;
suit or allegation arising out of the Public Bidding by the
Qualified Bidders who have participated in the Public (4) Assuming GSIS is part of the State, whether it failed to give
Bidding. 3 preference to petitioner, a qualified Filipino corporation, over and
above Renong Berhad, a foreign corporation, in the sale of the
The second public bidding was held on September 18, 1995. Petitioner bidded controlling shares of the Manila Hotel Corporation;
P41.00 per share for 15,300,000 shares and Renong Berhad bidded P44.00
per share also for 15,300,000 shares. The GSIS declared Renong Berhad the (5) Whether petitioner is estopped from questioning the sale of the
highest bidder and immediately returned petitioner's bid security. shares to Renong Berhad, a foreign corporation.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS Anent the first issue, it is now familiar learning that a Constitution provides the
offering to match the bid price of Renong Berhad. It requested that the award guiding policies and principles upon which is built the substantial foundation
be made to itself citing the second paragraph of Section 10, Article XII of the and general framework of the law and government. 5 As a rule, its provisions
Constitution. It sent a manager's check for thirty-three million pesos are deemed self-executing and can be enforced without further legislative
(P33,000,000.00) as bid security. action. 6 Some of its provisions, however, can be implemented only through
appropriate laws enacted by the Legislature, hence not self-executing.
Respondent GSIS, then in the process of negotiating with Renong Berhad the
terms and conditions of the contract and technical agreements in the operation To determine whether a particular provision of a Constitution is self-executing
of the hotel, refused to entertain petitioner's request. is a hard row to hoe. The key lies on the intent of the framers of the
fundamental law oftentimes submerged in its language. A searching inquiry
Hence, petitioner filed the present petition. We issued a temporary restraining should be made to find out if the provision is intended as a present enactment,
order on October 18, 1995. complete in itself as a definitive law, or if it needs future legislation for
completion and enforcement. 7 The inquiry demands a micro-analysis of the
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 text and the context of the provision in question. 8
of the Constitution 4 on the "National Economy and Patrimony" which provides:
Courts as a rule consider the provisions of the Constitution as self-
xxx xxx xxx executing, 9 rather than as requiring future legislation for their
enforcement. 10 The reason is not difficult to discern. For if they are not treated
as self-executing, the mandate of the fundamental law ratified by the sovereign
In the grant of rights, privileges, and concessions covering the national
people can be easily ignored and nullified by Congress. 11Suffused with
economy and patrimony, the State shall give preference to qualified
wisdom of the ages is the unyielding rule that legislative actions may give
Filipinos.
breath to constitutional rights but congressional in action should not suffocate
them. 12
xxx xxx xxx
Thus, we have treated as self-executing the provisions in the Bill of Rights on
The vital issues can be summed up as follows: arrests, searches and seizures, 13the rights of a person under custodial
investigation, 14 the rights of an accused, 15 and the privilege against self- and operation of one hundred percent Filipino-owned enterprises. In
incrimination, 16 It is recognize a that legislation is unnecessary to enable checkered contrast, the second paragraph orders the entire State to
courts to effectuate constitutional provisions guaranteeing the fundamental give preference to qualified Filipinos in the grant of rights and
rights of life, liberty and the protection of property. 17 The same treatment is privileges covering the national economy and patrimony. The third
accorded to constitutional provisions forbidding the taking or damaging of paragraph also directs the State to regulate foreign investments in line
property for public use without just compensation. 18 with our national goals and well-set priorities.
Contrariwise, case law lays down the rule that a constitutional provision is not The first paragraph of Section 10 is not self-executing. By its express
self-executing where it merely announces a policy and its language empowers text, there is a categorical command for Congress to enact laws
the Legislature to prescribe the means by which the policy shall be carried into restricting foreign ownership in certain areas of investments in the
effect. 19 Accordingly, we have held that the provisions in Article II of our country and to encourage the formation and operation of wholly-
Constitution entitled "Declaration of Principles and State Policies" should owned Filipino enterprises. The right granted by the provision is clearly
generally be construed as mere statements of principles of the State. 20 We still in esse. Congress has to breathe life to the right by means of
have also ruled that some provisions of Article XIII on "Social Justice and legislation. Parenthetically, this paragraph was plucked from section
Human Rights," 21 and Article XIV on "Education Science and Technology, 3, Article XIV of the 1973 Constitution. 27 The provision in the 1973
Arts, Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Constitution affirmed our ruling in the landmark case of Lao Ichong
Their enforcement is addressed to the discretion of Congress though they v. Hernandez, 28 where we upheld the discretionary authority of
provide the framework for legislation 23 to effectuate their policy content. 24 Congress to Filipinize certain areas of investments. 29 By reenacting
the 1973 provision, the first paragraph of section 10 affirmed the power
Guided by this map of settled jurisprudence, we now consider whether Section of Congress to nationalize certain areas of investments in favor of
10, Article XII of the 1987 Constitution is self-executing or not. It reads: Filipinos.
Sec. 10. The Congress shall, upon recommendation of the The second and third paragraphs of Section 10 are different. They are directed
economic and planning agency, when the national interest to the State and not to Congress alone which is but one of the three great
dictates, reserve to citizens of the Philippines or to branches of our government. Their coverage is also broader for they cover
corporations or associations at least sixty per centum of "the national economy and patrimony" and "foreign investments within [the]
whose capital is owned by such citizens, or such higher national jurisdiction" and not merely "certain areas of investments." Beyond
percentage as Congress may prescribe, certain areas of debate, they cannot be read as granting Congress the exclusive power to
investments. The Congress shall enact measures that will implement by law the policy of giving preference to qualified Filipinos in the
encourage the formation and operation of enterprises whose conferral of rights and privileges covering our national economy and
capital is wholly owned by Filipinos. patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for
any reason whatsoever. Their duty to implement is unconditional and it is now.
In the grant of rights, privileges, and concessions covering the
The second and the third paragraphs of Section 10, Article XII are thus self-
national economy and patrimony, the State shall give
preference to qualified Filipinos. executing.
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. G.R. No. 160318 November 10, 2003
GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,
INC., petitioner-in-intervention, vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF
vs. REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents.
ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE
VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., x---------------------------------------------------------x
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF
THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT G.R. No. 160342 November 10, 2003
FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF
THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR.
MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND
x---------------------------------------------------------x MEMBER OF THE ENGINEERING PROFESSION, petitioners,
vs.
G.R. No. 160310 November 10, 2003 THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83
HONORABLE MEMBERS OF THE HOUSE LED BY HON.
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.
MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO
MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO x---------------------------------------------------------x
GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA,
GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR.,
G.R. No. 160343 November 10, 2003
RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN,
MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P.
GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER INTEGRATED BAR OF THE PHILIPPINES, petitioner,
CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR
ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE x---------------------------------------------------------x
VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF G.R. No. 160376 November 10, 2003
THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents.
NILO A. MALANYAON, petitioner,
vs.
x---------------------------------------------------------x HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN
REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF
G.R. No. 160360 November 10, 2003 IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR.
AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE
CLARO B. FLORES, petitioner, PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
vs. VENECIA, respondents.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND
THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE x---------------------------------------------------------x
PRESIDENT, respondents.
G.R. No. 160392 November 10, 2003
x---------------------------------------------------------x
VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners,
G.R. No. 160365 November 10, 2003 vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE
PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. PRESIDENT FRANKLIN DRILON, respondents.
CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P.
NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. x---------------------------------------------------------x
CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR
THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE G.R. No. 160397 November 10, 2003
REPUBLIC OF THE PHILIPPINES, petitioners,
vs. IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA,
JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS,
THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN
JR., petitioner.
DRILON, HOUSE REPRESENTATIVES FELIX FUENTEBELLA AND
GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES
OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO x---------------------------------------------------------x
SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST
SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE, G.R. No. 160403 November 10, 2003
JR. respondents.
PHILIPPINE BAR ASSOCIATION, petitioner,
x---------------------------------------------------------x vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR
G.R. No. 160370 November 10, 2003 PRESIDING OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE
FR. RANHILIO CALLANGAN AQUINO, petitioner,
PRESIDENT, HON. FRANKLIN DRILON, respondents.
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE
SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents. x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003 In any event, it is with the absolute certainty that our Constitution is sufficient
to address all the issues which this controversy spawns that this Court
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY unequivocally pronounces, at the first instance, that the feared resort to extra-
CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU constitutional methods of resolving it is neither necessary nor legally
PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER, permissible. Both its resolution and protection of the public interest lie in
ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF adherence to, not departure from, the Constitution.
CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC],
REPRSEENTED BY ATTY. MANUEL LEGASPI, CONFEDERATION OF In passing over the complex issues arising from the controversy, this Court is
ACCREDITED MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC], ever mindful of the essential truth that the inviolate doctrine of separation of
REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS powers among the legislative, executive or judicial branches of government by
ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, no means prescribes for absolute autonomy in the discharge by each of that
FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], part of the governmental power assigned to it by the sovereign people.
REPRESENTED BY THELMA L. JORDAN, CARLOS G. CO, PRESIENT
OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY At the same time, the corollary doctrine of checks and balances which has
LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO been carefully calibrated by the Constitution to temper the official acts of each
AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF of these three branches must be given effect without destroying their
COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU indispensable co-equality.
CHAPTER, petitioners,
vs. Taken together, these two fundamental doctrines of republican government,
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE
intended as they are to insure that governmental power is wielded only for the
G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE,
good of the people, mandate a relationship of interdependence and
REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE
coordination among these branches where the delicate functions of enacting,
PRESIDENT,respondents.
interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of
CARPIO MORALES, J.: the people. Verily, salus populi est suprema lex.
There can be no constitutional crisis arising from a conflict, no matter how Article XI of our present 1987 Constitution provides:
passionate and seemingly irreconcilable it may appear to be, over the
determination by the independent branches of government of the nature, ARTICLE XI
scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.
Accountability of Public Officers
Our nation's history is replete with vivid illustrations of the often frictional, at
times turbulent, dynamics of the relationship among these co-equal branches. SECTION 1. Public office is a public trust. Public officers and
This Court is confronted with one such today involving the legislature and the employees must at all times be accountable to the people, serve them
judiciary which has drawn legal luminaries to chart antipodal courses and not with utmost responsibility, integrity, loyalty, and efficiency, act with
a few of our countrymen to vent cacophonous sentiments thereon. patriotism and justice, and lead modest lives.
There may indeed be some legitimacy to the characterization that the present SECTION 2. The President, the Vice-President, the Members of the
controversy subject of the instant petitions whether the filing of the second Supreme Court, the Members of the Constitutional Commissions, and
impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the the Ombudsman may be removed from office, on impeachment for,
House of Representatives falls within the one year bar provided in the and conviction of, culpable violation of the Constitution, treason,
Constitution, and whether the resolution thereof is a political question has bribery, graft and corruption, other high crimes, or betrayal of public
resulted in a political crisis. Perhaps even more truth to the view that it was trust. All other public officers and employees may be removed from
brought upon by a political crisis of conscience. office as provided by law, but not by impeachment.
SECTION 3. (1) The House of Representatives shall have Following the above-quoted Section 8 of Article XI of the Constitution, the 12th
the exclusive power to initiate all cases of impeachment. Congress of the House of Representatives adopted and approved the Rules
of Procedure in Impeachment Proceedings (House Impeachment Rules) on
(2) A verified complaint for impeachment may be filed by any Member November 28, 2001, superseding the previous House Impeachment
of the House of Representatives or by any citizen upon a resolution of Rules1 approved by the 11th Congress. The relevant distinctions between
endorsement by any Member thereof, which shall be included in the these two Congresses' House Impeachment Rules are shown in the following
Order of Business within ten session days, and referred to the proper tabulation:
Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its
11TH CONGRESS RULES 12TH CONGRESS NEW RULES
report to the House within sixty session days from such referral,
together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days RULE II RULE V
from receipt thereof.
INITIATING IMPEACHMENT BAR AGAINST INITIATION OF
(3) A vote of at least one-third of all the Members of the House shall AGAINST THE SAME OFFICIAL
be necessary either to affirm a favorable resolution with the Articles of Section 2. Mode of Initiating Impeachment.
Impeachment of the Committee, or override its contrary resolution. Impeachment shall be initiated only by a verified Section 16. Impeachment Pr
The vote of each Member shall be recorded. complaint for impeachment filed by any Member cases where a Member of the H
of the House of Representatives or by any impeachment or a citizen files a ve
(4) In case the verified complaint or resolution of impeachment is filed citizen upon a resolution of endorsement by any a Member of the House through a r
by at least one-third of all the Members of the House, the same shall Member thereof or by a verified complaint or impeachable officer, impeachment
constitute the Articles of Impeachment, and trial by the Senate shall resolution of impeachment filed by at least one- deemed initiated on the day the C
forthwith proceed. third (1/3) of all the Members of the House. verified complaint and/or resolutio
may be, is sufficient in substance,
(5) No impeachment proceedings shall be initiated against the same overturn or affirm the finding of th
official more than once within a period of one year. complaint and/or resolution, as th
substance.
(6) The Senate shall have the sole power to try and decide all cases
of impeachment. When sitting for that purpose, the Senators shall be In cases where a verified complain
on oath or affirmation. When the President of the Philippines is on trial, filed or endorsed, as the case may
the Chief Justice of the Supreme Court shall preside, but shall not Members of the House, impeac
vote. No person shall be convicted without the concurrence of two- initiated at the time of the filin
thirds of all the Members of the Senate. resolution of impeachment with
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging On October 28, 2003, during the plenary session of the House of
his locus standi, but alleging that the second impeachment complaint is Representatives, a motion was put forth that the second impeachment
founded on the issue of whether or not the Judicial Development Fund (JDF) complaint be formally transmitted to the Senate, but it was not carried because
was spent in accordance with law and that the House of Representatives does the House of Representatives adjourned for lack of quorum,19 and as reflected
not have exclusive jurisdiction in the examination and audit thereof, prays in above, to date, the Articles of Impeachment have yet to be forwarded to the
his petition "To Declare Complaint Null and Void for Lack of Cause of Action Senate.
and Jurisdiction" that the second impeachment complaint be declared null and
void. Before acting on the petitions with prayers for temporary restraining order
and/or writ of preliminary injunction which were filed on or before October 28,
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the 2003, Justices Puno and Vitug offered to recuse themselves, but the Court
issues raised in the filing of the second impeachment complaint involve rejected their offer. Justice Panganiban inhibited himself, but the Court
matters of transcendental importance, prays in its petition for directed him to participate.
Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent House Without necessarily giving the petitions due course, this Court in its Resolution
of Representatives be prohibited from transmitting the Articles of Impeachment of October 28, 2003, resolved to (a) consolidate the petitions; (b) require
to the Senate; and (3) respondent Senate be prohibited from accepting the respondent House of Representatives and the Senate, as well as the Solicitor
Articles of Impeachment and from conducting any proceedings thereon. General, to comment on the petitions not later than 4:30 p.m. of November 3,
2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In
taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second addition, this Court called on petitioners and respondents to maintain the
impeachment complaint as well as the resolution of endorsement and status quo, enjoining all the parties and others acting for and in their behalf to
impeachment by the respondent House of Representatives be declared null refrain from committing acts that would render the petitions moot.
and void and (2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the Chief Also on October 28, 2003, when respondent House of Representatives
Justice or, in the event that they have accepted the same, that they be through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way of
prohibited from proceeding with the impeachment trial. special appearance, submitted a Manifestation asserting that this Court has
no jurisdiction to hear, much less prohibit or enjoin the House of
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the Representatives, which is an independent and co-equal branch of government
first three of the eighteen which were filed before this Court, 18 prayed for the under the Constitution, from the performance of its constitutionally mandated
issuance of a Temporary Restraining Order and/or preliminary injunction to duty to initiate impeachment cases. On even date, Senator Aquilino Q.
prevent the House of Representatives from transmitting the Articles of Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex Abudante
Impeachment arising from the second impeachment complaint to the Senate. Cautela)21 and Comment, praying that "the consolidated petitions be
Petition bearing docket number G.R. No. 160261 likewise prayed for the dismissed for lack of jurisdiction of the Court over the issues affecting the
declaration of the November 28, 2001 House Impeachment Rules as null and impeachment proceedings and that the sole power, authority and jurisdiction
void for being unconstitutional. of the Senate as the impeachment court to try and decide impeachment cases,
including the one where the Chief Justice is the respondent, be recognized
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, and upheld pursuant to the provisions of Article XI of the Constitution."22
which were filed on October 28, 2003, sought similar relief. In addition, petition
bearing docket number G.R. No. 160292 alleged that House Resolution No. Acting on the other petitions which were subsequently filed, this Court resolved
260 (calling for a legislative inquiry into the administration by the Chief Justice to (a) consolidate them with the earlier consolidated petitions; (b) require
of the JDF) infringes on the constitutional doctrine of separation of powers and respondents to file their comment not later than 4:30 p.m. of November 3,
2003; and (c) include them for oral arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President c) political question/justiciability;
Franklin M. Drilon, filed a Manifestation stating that insofar as it is concerned,
the petitions are plainly premature and have no basis in law or in fact, adding d) House's "exclusive" power to initiate all cases of
that as of the time of the filing of the petitions, no justiciable issue was impeachment;
presented before it since (1) its constitutional duty to constitute itself as an
impeachment court commences only upon its receipt of the Articles of
e) Senate's "sole" power to try and decide all cases of
Impeachment, which it had not, and (2) the principal issues raised by the
impeachment;
petitions pertain exclusively to the proceedings in the House of
Representatives.
f) constitutionality of the House Rules on Impeachment vis-a-
vis Section 3(5) of Article XI of the Constitution; and
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and
160295, questioning the status quo Resolution issued by this Court on October g) judicial restraint (Italics in the original)
28, 2003 on the ground that it would unnecessarily put Congress and this Court
in a "constitutional deadlock" and praying for the dismissal of all the petitions In resolving the intricate conflux of preliminary and substantive issues arising
as the matter in question is not yet ripe for judicial determination. from the instant petitions as well as the myriad arguments and opinions
presented for and against the grant of the reliefs prayed for, this Court has
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino sifted and determined them to be as follows: (1) the threshold and novel issue
Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene and of whether or not the power of judicial review extends to those arising from
to Admit the Herein Incorporated Petition in Intervention." impeachment proceedings; (2) whether or not the essential pre-requisites for
the exercise of the power of judicial review have been fulfilled; and (3) the
substantive issues yet remaining. These matters shall now be discussed in
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga
seriatim.
Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No.
160261. On November 5, 2003, World War II Veterans Legionnaires of the
Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene" Judicial Review
in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.
As reflected above, petitioners plead for this Court to exercise the power of
The motions for intervention were granted and both Senator Pimentel's judicial review to determine the validity of the second impeachment complaint.
Comment and Attorneys Macalintal and Quadra's Petition in Intervention were
admitted. This Court's power of judicial review is conferred on the judicial branch of the
government in Section 1, Article VIII of our present 1987 Constitution:
On November 5-6, 2003, this Court heard the views of the amici curiae and
the arguments of petitioners, intervenors Senator Pimentel and Attorney SECTION 1. The judicial power shall be vested in one Supreme Court
Makalintal, and Solicitor General Alfredo Benipayo on the principal issues and in such lower courts as may be established by law.
outlined in an Advisory issued by this Court on November 3, 2003, to wit:
Judicial power includes the duty of the courts of justice to settle
Whether the certiorari jurisdiction of the Supreme Court may be actual controversies involving rights which are legally demandable
invoked; who can invoke it; on what issues and at what time; and and enforceable, and to determine whether or not there has been
whether it should be exercised by this Court at this time. a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
In discussing these issues, the following may be taken up: government. (Emphasis supplied)
a) locus standi of petitioners; Such power of judicial review was early on exhaustively expounded upon by
Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral
Commission23 after the effectivity of the 1935 Constitution whose provisions,
b) ripeness(prematurity; mootness);
unlike the present Constitution, did not contain the present provision in Article that instrument secures and guarantees to them. This is in truth
VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel all that is involved in what is termed "judicial supremacy" which
discoursed: properly is the power of judicial review under the Constitution.
Even then, this power of judicial review is limited to actual cases and
x x x In times of social disquietude or political excitement, the great controversies to be exercised after full opportunity of argument by the
landmarks of the Constitution are apt to be forgotten or marred, if not parties, and limited further to the constitutional question raised or the
entirely obliterated. In cases of conflict, the judicial department is very lis mota presented. Any attempt at abstraction could only lead to
the only constitutional organ which can be called upon dialectics and barren legal questions and to sterile conclusions
to determine the proper allocation of powers between the several unrelated to actualities. Narrowed as its function is in this manner, the
departments and among the integral or constituent units thereof. judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only
As any human production, our Constitution is of course lacking
because the legislature is presumed to abide by the Constitution but
perfection and perfectibility, but as much as it was within the power of
our people, acting through their delegates to so provide, that also because the judiciary in the determination of actual cases and
instrument which is the expression of their sovereignty however controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and
limited, has established a republican government intended to operate
legislative departments of the government.24(Italics in the original;
and function as a harmonious whole, under a system of checks and
emphasis and underscoring supplied)
balances, and subject to specific limitations and restrictions provided
in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental As pointed out by Justice Laurel, this "moderating power" to "determine the
powers and agencies. If these restrictions and limitations are proper allocation of powers" of the different branches of government and "to
transcended it would be inconceivable if the Constitution had not direct the course of government along constitutional channels" is inherent in
provided for a mechanism by which to direct the course of all courts25 as a necessary consequence of the judicial power itself, which
government along constitutional channels, for then the distribution is "the power of the court to settle actual controversies involving rights which
of powers would be mere verbiage, the bill of rights mere expressions are legally demandable and enforceable."26
of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our Thus, even in the United States where the power of judicial review is not
Constitution are real as they should be in any living constitution. In the explicitly conferred upon the courts by its Constitution, such power has "been
United States where no express constitutional grant is found in their set at rest by popular acquiescence for a period of more than one and a half
constitution, the possession of this moderating power of the centuries." To be sure, it was in the 1803 leading case of Marbury v.
courts, not to speak of its historical origin and development there, has Madison27 that the power of judicial review was first articulated by Chief Justice
been set at rest by popular acquiescence for a period of more than Marshall, to wit:
one and a half centuries. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2 of It is also not entirely unworthy of observation, that in declaring what
article VIII of our Constitution. shall be the supreme law of the land, the constitution itself is first
mentioned; and not the laws of the United States generally, but those
The Constitution is a definition of the powers of government. Who is only which shall be made in pursuance of the constitution, have that
to determine the nature, scope and extent of such powers? The rank.
Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to Thus, the particular phraseology of the constitution of the United
allocate constitutional boundaries, it does not assert any States confirms and strengthens the principle, supposed to be
superiority over the other departments; it does not in reality nullify or essential to all written constitutions, that a law repugnant to the
invalidate an act of the legislature, but only asserts the solemn and constitution is void; and that courts, as well as other
sacred obligation assigned to it by the Constitution to determine departments, are bound by that instrument.28(Italics in the original;
conflicting claims of authority under the Constitution and to emphasis supplied)
establish for the parties in an actual controversy the rights which
In our own jurisdiction, as early as 1902, decades before its express grant in him, "[j]udicial review is the chief, indeed the only, medium of participation or
the 1935 Constitution, the power of judicial review was exercised by our courts instrument of intervention of the judiciary in that balancing operation."34
to invalidate constitutionally infirm acts.29 And as pointed out by noted political
law professor and former Supreme Court Justice Vicente V. Mendoza, 30 the To ensure the potency of the power of judicial review to curb grave abuse of
executive and legislative branches of our government in fact effectively discretion by "any branch or instrumentalities of government," the afore-
acknowledged this power of judicial review in Article 7 of the Civil Code, to wit: quoted Section 1, Article VIII of the Constitution engraves, for the first time into
its history, into block letter law the so-called "expanded certiorari jurisdiction"
Article 7. Laws are repealed only by subsequent ones, and their of this Court, the nature of and rationale for which are mirrored in the following
violation or non-observance shall not be excused by disuse, or custom excerpt from the sponsorship speech of its proponent, former Chief Justice
or practice to the contrary. Constitutional Commissioner Roberto Concepcion:
xxx Second, where there is ambiguity, ratio legis est anima. The words of the
Constitution should be interpreted in accordance with the intent of its framers.
Briefly stated, courts of justice determine the limits of power of And so did this Court apply this principle in Civil Liberties Union v. Executive
the agencies and offices of the government as well as those of Secretary38 in this wise:
its officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its A foolproof yardstick in constitutional construction is the intention
officials has acted without jurisdiction or in excess of underlying the provision under consideration. Thus, it has been held
jurisdiction, or so capriciously as to constitute an abuse of that the Court in construing a Constitution should bear in mind the
discretion amounting to excess of jurisdiction or lack of object sought to be accomplished by its adoption, and the evils, if any,
jurisdiction. This is not only a judicial power but a duty to pass sought to be prevented or remedied. A doubtful provision will be
judgment on matters of this nature. examined in the light of the history of the times, and the condition and
circumstances under which the Constitution was framed. The object
This is the background of paragraph 2 of Section 1, which means is to ascertain the reason which induced the framers of the
that the courts cannot hereafter evade the duty to settle matters Constitution to enact the particular provision and the purpose
of this nature, by claiming that such matters constitute a political sought to be accomplished thereby, in order to construe the
question.35 (Italics in the original; emphasis and underscoring whole as to make the words consonant to that reason and
supplied) calculated to effect that purpose.39 (Emphasis and underscoring
supplied)
To determine the merits of the issues raised in the instant petitions, this Court
must necessarily turn to the Constitution itself which employs the well-settled As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking
principles of constitutional construction. through Madame Justice Amuerfina A. Melencio-Herrera, it declared:
First, verba legis, that is, wherever possible, the words used in the Constitution x x x The ascertainment of that intent is but in keeping with the
must be given their ordinary meaning except where technical terms are fundamental principle of constitutional construction that the
employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure intent of the framers of the organic law and of the people
Administration,36 this Court, speaking through Chief Justice Enrique Fernando, adopting it should be given effect. The primary task in constitutional
declared: construction is to ascertain and thereafter assure the realization of the
purpose of the framers and of the people in the adoption of the
Constitution. It may also be safely assumed that the people in
We look to the language of the document itself in our search for
its meaning. We do not of course stop there, but that is where we ratifying the Constitution were guided mainly by the explanation
begin. It is to be assumed that the words in which constitutional offered by the framers.41 (Emphasis and underscoring supplied)
provisions are couched express the objective sought to be
attained. They are to be given theirordinary meaning except Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as
where technical terms are employed in which case the a whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief Justice
significance thus attached to them prevails. As the Constitution Manuel Moran declared:
is not primarily a lawyer's document, it being essential for the rule of
law to obtain that it should ever be present in the people's x x x [T]he members of the Constitutional Convention could not
consciousness, its language as much as possible should be have dedicated a provision of our Constitution merely for the
understood in the sense they have in common use. What it says benefit of one person without considering that it could also affect
according to the text of the provision to be construed compels others. When they adopted subsection 2, they permitted, if not
acceptance and negates the power of the courts to alter it, based on willed, that said provision should function to the full extent of its
the postulate that the framers and the people mean what they say. substance and its terms, not by itself alone, but in conjunction
with all other provisions of that great document. 43 (Emphasis and argument that the Constitution has excluded impeachment proceedings from
underscoring supplied) the coverage of judicial review.
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court Briefly stated, it is the position of respondents Speaker De Venecia et. al. that
affirmed that: impeachment is a political action which cannot assume a judicial character.
Hence, any question, issue or incident arising at any stage of the impeachment
It is a well-established rule in constitutional construction that no proceeding is beyond the reach of judicial review. 47
one provision of the Constitution is to be separated from all the
others, to be considered alone, but that all the provisions bearing For his part, intervenor Senator Pimentel contends that the Senate's "sole
upon a particular subject are to be brought into view and to be power to try" impeachment cases48 (1) entirely excludes the application of
so interpreted as to effectuate the great purposes of the judicial review over it; and (2) necessarily includes the Senate's power to
instrument. Sections bearing on a particular subject should be determine constitutional questions relative to impeachment proceedings. 49
considered and interpreted together as to effectuate the whole
purpose of the Constitution and one section is not to be allowed In furthering their arguments on the proposition that impeachment proceedings
to defeat another, if by any reasonable construction, the two can are outside the scope of judicial review, respondents Speaker De Venecia, et.
be made to stand together. al. and intervenor Senator Pimentel rely heavily on American authorities,
principally the majority opinion in the case of Nixon v. United States.50 Thus,
In other words, the court must harmonize them, if practicable, and they contend that the exercise of judicial review over impeachment
must lean in favor of a construction which will render every word proceedings is inappropriate since it runs counter to the framers' decision to
operative, rather than one which may make the words idle and allocate to different fora the powers to try impeachments and to try crimes; it
nugatory.45(Emphasis supplied) disturbs the system of checks and balances, under which impeachment is the
only legislative check on the judiciary; and it would create a lack of finality and
If, however, the plain meaning of the word is not found to be clear, resort to difficulty in fashioning relief.51 Respondents likewise point to deliberations on
other aids is available. In still the same case of Civil Liberties Union v. the US Constitution to show the intent to isolate judicial power of review in
Executive Secretary, this Court expounded: cases of impeachment.
While it is permissible in this jurisdiction to consult the debates and Respondents' and intervenors' reliance upon American jurisprudence, the
proceedings of the constitutional convention in order to arrive at the American Constitution and American authorities cannot be credited to support
reason and purpose of the resulting Constitution, resort thereto may the proposition that the Senate's "sole power to try and decide impeachment
be had only when other guides fail as said proceedings are cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually
powerless to vary the terms of the Constitution when the demonstrable constitutional commitment of all issues pertaining to
meaning is clear. Debates in the constitutional convention "are of impeachment to the legislature, to the total exclusion of the power of judicial
value as showing the views of the individual members, and as review to check and restrain any grave abuse of the impeachment process.
indicating the reasons for their votes, but they give us no light as to Nor can it reasonably support the interpretation that it necessarily confers upon
the views of the large majority who did not talk, much less of the mass the Senate the inherently judicial power to determine constitutional questions
of our fellow citizens whose votes at the polls gave that instrument the incident to impeachment proceedings.
force of fundamental law. We think it safer to construe the
constitution from what appears upon its face." The proper Said American jurisprudence and authorities, much less the American
interpretation therefore depends more on how it was understood Constitution, are of dubious application for these are no longer controlling
by the people adopting it than in the framers's understanding within our jurisdiction and have only limited persuasive merit insofar as
thereof.46 (Emphasis and underscoring supplied) Philippine constitutional law is concerned. As held in the case of Garcia vs.
COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be
It is in the context of the foregoing backdrop of constitutional refinement and beguiled by foreign jurisprudence some of which are hardly applicable
jurisprudential application of the power of judicial review that respondents because they have been dictated by different constitutional settings and
Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel needs."53 Indeed, although the Philippine Constitution can trace its origins to
that of the United States, their paths of development have long since diverged. Jr.,60 this Court ruled that it is well within the power and jurisdiction of the Court
In the colorful words of Father Bernas, "[w]e have cut the umbilical cord." to inquire whether the Senate or its officials committed a violation of the
Constitution or grave abuse of discretion in the exercise of their functions and
The major difference between the judicial power of the Philippine Supreme prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the
Court and that of the U.S. Supreme Court is that while the power of judicial Philippine Senate on the ground that it contravened the Constitution, it held
review is only impliedly granted to the U.S. Supreme Court and is discretionary that the petition raises a justiciable controversy and that when an action of the
in nature, that granted to the Philippine Supreme Court and lower courts, as legislative branch is seriously alleged to have infringed the Constitution, it
expressly provided for in the Constitution, is not just a power but also a duty, becomes not only the right but in fact the duty of the judiciary to settle the
and it was given an expanded definition to include the power to correct any dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution
grave abuse of discretion on the part of any government branch or of the House of Representatives withdrawing the nomination, and rescinding
instrumentality. the election, of a congressman as a member of the House Electoral Tribunal
for being violative of Section 17, Article VI of the Constitution. In Coseteng v.
Mitra,63 it held that the resolution of whether the House representation in the
There are also glaring distinctions between the U.S. Constitution and the
Philippine Constitution with respect to the power of the House of Commission on Appointments was based on proportional representation of the
Representatives over impeachment proceedings. While the U.S. Constitution political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the House
bestows sole power of impeachment to the House of Representatives without
of Representatives in removing the petitioner from the Commission on
limitation,54 our Constitution, though vesting in the House of Representatives
Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held that
the exclusive power to initiate impeachment cases,55 provides for several
although under the Constitution, the legislative power is vested exclusively in
limitations to the exercise of such power as embodied in Section 3(2), (3), (4)
and (5), Article XI thereof. These limitations include the manner of filing, Congress, this does not detract from the power of the courts to pass upon the
constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it
required vote to impeach, and the one year bar on the impeachment of one
ruled that confirmation by the National Assembly of the election of any
and the same official.
member, irrespective of whether his election is contested, is not essential
before such member-elect may discharge the duties and enjoy the privileges
Respondents are also of the view that judicial review of impeachments of a member of the National Assembly.
undermines their finality and may also lead to conflicts between Congress and
the judiciary. Thus, they call upon this Court to exercise judicial statesmanship
Finally, there exists no constitutional basis for the contention that the exercise
on the principle that "whenever possible, the Court should defer to the
of judicial review over impeachment proceedings would upset the system of
judgment of the people expressed legislatively, recognizing full well the perils
checks and balances. Verily, the Constitution is to be interpreted as a whole
of judicial willfulness and pride."56
and "one section is not to be allowed to defeat another." 67 Both are integral
components of the calibrated system of independence and interdependence
But did not the people also express their will when they instituted the above- that insures that no branch of government act beyond the powers assigned to
mentioned safeguards in the Constitution? This shows that the Constitution it by the Constitution.
did not intend to leave the matter of impeachment to the sole discretion of
Congress. Instead, it provided for certain well-defined limits, or in the language
of Baker v. Carr,57"judicially discoverable standards" for determining the Essential Requisites for Judicial Review
validity of the exercise of such discretion, through the power of judicial review.
As clearly stated in Angara v. Electoral Commission, the courts' power of
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by judicial review, like almost all powers conferred by the Constitution, is subject
to several limitations, namely: (1) an actual case or controversy calling for the
respondents in support of the argument that the impeachment power is beyond
the scope of judicial review, are not in point. These cases concern the denial exercise of judicial power; (2) the person challenging the act must have
of petitions for writs of mandamus to compel the legislature to perform non- "standing" to challenge; he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of
ministerial acts, and do not concern the exercise of the power of judicial review.
its enforcement; (3) the question of constitutionality must be raised at the
earliest possible opportunity; and (4) the issue of constitutionality must be the
There is indeed a plethora of cases in which this Court exercised the power of very lis mota of the case.
judicial review over congressional action. Thus, in Santiago v. Guingona,
x x x Even then, this power of judicial review is limited to actual cases There is, however, a difference between the rule on real-party-in-interest and
and controversies to be exercised after full opportunity of argument by the rule on standing, for the former is a concept of civil procedure 73 while the
the parties, and limited further to the constitutional question raised or latter has constitutional underpinnings.74 In view of the arguments set forth
the very lis mota presented. Any attempt at abstraction could only lead regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan,
to dialectics and barren legal questions and to sterile conclusions Inc. v. Morato75 to clarify what is meant by locus standi and to distinguish it
unrelated to actualities. Narrowed as its function is in this manner, the from real party-in-interest.
judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the The difference between the rule on standing and real party in interest
presumption of constitutionality to legislative enactments, not only has been noted by authorities thus: "It is important to note . . . that
because the legislature is presumed to abide by the Constitution but standing because of its constitutional and public policy underpinnings,
also because the judiciary in the determination of actual cases and is very different from questions relating to whether a particular plaintiff
controversies must reflect the wisdom and justice of the people as is the real party in interest or has capacity to sue. Although all three
expressed through their representatives in the executive and requirements are directed towards ensuring that only certain parties
legislative departments of the government.68 (Italics in the original) can maintain an action, standing restrictions require a partial
consideration of the merits, as well as broader policy concerns relating
Standing to the proper role of the judiciary in certain areas.
Locus standi or legal standing or has been defined as a personal and Standing is a special concern in constitutional law because in some
substantial interest in the case such that the party has sustained or will sustain cases suits are brought not by parties who have been personally
direct injury as a result of the governmental act that is being challenged. The injured by the operation of a law or by official action taken, but by
gist of the question of standing is whether a party alleges such personal stake concerned citizens, taxpayers or voters who actually sue in the public
in the outcome of the controversy as to assure that concrete adverseness interest. Hence the question in standing is whether such parties have
which sharpens the presentation of issues upon which the court depends for "alleged such a personal stake in the outcome of the controversy as
illumination of difficult constitutional questions.69 to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of
Intervenor Soriano, in praying for the dismissal of the petitions, contends that difficult constitutional questions."
petitioners do not have standing since only the Chief Justice has sustained
and will sustain direct personal injury. Amicus curiae former Justice Minister xxx
and Solicitor General Estelito Mendoza similarly contends.
On the other hand, the question as to "real party in interest" is whether
Upon the other hand, the Solicitor General asserts that petitioners have he is "the party who would be benefited or injured by the judgment, or
standing since this Court had, in the past, accorded standing to taxpayers, the 'party entitled to the avails of the suit.'"76 (Citations omitted)
voters, concerned citizens, legislators in cases involving paramount public
interest70 and transcendental importance,71 and that procedural matters are While rights personal to the Chief Justice may have been injured by the alleged
subordinate to the need to determine whether or not the other branches of the unconstitutional acts of the House of Representatives, none of the petitioners
government have kept themselves within the limits of the Constitution and the before us asserts a violation of the personal rights of the Chief Justice. On the
laws and that they have not abused the discretion given to them. 72 Amicus contrary, they invariably invoke the vindication of their own rights as
curiae Dean Raul Pangalangan of the U.P. College of Law is of the same taxpayers; members of Congress; citizens, individually or in a class suit; and
opinion, citing transcendental importance and the well-entrenched rule members of the bar and of the legal profession which were supposedly
exception that, when the real party in interest is unable to vindicate his rights violated by the alleged unconstitutional acts of the House of Representatives.
by seeking the same remedies, as in the case of the Chief Justice who, for
ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts
In a long line of cases, however, concerned citizens, taxpayers and legislators
will grant petitioners standing.
when specific requirements have been met have been given standing by this
Court.
When suing as a citizen, the interest of the petitioner assailing the In the same vein, when dealing with class suits filed in behalf of all citizens,
constitutionality of a statute must be direct and personal. He must be able to persons intervening must be sufficiently numerous to fully protect the interests
show, not only that the law or any government act is invalid, but also that he of all concerned87 to enable the court to deal properly with all interests involved
sustained or is in imminent danger of sustaining some direct injury as a result in the suit,88 for a judgment in a class suit, whether favorable or unfavorable to
of its enforcement, and not merely that he suffers thereby in some indefinite the class, is, under the res judicata principle, binding on all members of the
way. It must appear that the person complaining has been or is about to be class whether or not they were before the court.89Where it clearly appears that
denied some right or privilege to which he is lawfully entitled or that he is about not all interests can be sufficiently represented as shown by the divergent
to be subjected to some burdens or penalties by reason of the statute or act issues raised in the numerous petitions before this Court, G.R. No. 160365 as
complained of.77 In fine, when the proceeding involves the assertion of a public a class suit ought to fail. Since petitionersadditionally allege standing as
right,78 the mere fact that he is a citizen satisfies the requirement of personal citizens and taxpayers, however, their petition will stand.
interest.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground
In the case of a taxpayer, he is allowed to sue where there is a claim that public of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No.
funds are illegally disbursed, or that public money is being deflected to any 160397, is mum on his standing.
improper purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.79 Before he can invoke the There being no doctrinal definition of transcendental importance, the following
power of judicial review, however, he must specifically prove that he has instructive determinants formulated by former Supreme Court Justice
sufficient interest in preventing the illegal expenditure of money raised by Florentino P. Feliciano are instructive: (1) the character of the funds or other
taxation and that he would sustain a direct injury as a result of the enforcement assets involved in the case; (2) the presence of a clear case of disregard of a
of the questioned statute or contract. It is not sufficient that he has merely a constitutional or statutory prohibition by the public respondent agency or
general interest common to all members of the public.80 instrumentality of the government; and (3) the lack of any other party with a
more direct and specific interest in raising the questions being
At all events, courts are vested with discretion as to whether or not a taxpayer's raised.90 Applying these determinants, this Court is satisfied that the issues
suit should be entertained.81 This Court opts to grant standing to most of the raised herein are indeed of transcendental importance.
petitioners, given their allegation that any impending transmittal to the Senate
of the Articles of Impeachment and the ensuing trial of the Chief Justice will In not a few cases, this Court has in fact adopted a liberal attitude on the locus
necessarily involve the expenditure of public funds. standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people, as when the issues raised are of
As for a legislator, he is allowed to sue to question the validity of any official paramount importance to the public.91 Such liberality does not, however, mean
action which he claims infringes his prerogatives as a legislator. 82 Indeed, a that the requirement that a party should have an interest in the matter is totally
member of the House of Representatives has standing to maintain inviolate eliminated. A party must, at the very least, still plead the existence of such
the prerogatives, powers and privileges vested by the Constitution in his interest, it not being one of which courts can take judicial notice. In petitioner
office.83 Vallejos' case, he failed to allege any interest in the case. He does not thus
have standing.
While an association has legal personality to represent its
members,84 especially when it is composed of substantial taxpayers and the With respect to the motions for intervention, Rule 19, Section 2 of the Rules of
outcome will affect their vital interests,85 the mere invocation by the Integrated Court requires an intervenor to possess a legal interest in the matter in
Bar of the Philippines or any member of the legal profession of the duty to litigation, or in the success of either of the parties, or an interest against both,
preserve the rule of law and nothing more, although undoubtedly true, does or is so situated as to be adversely affected by a distribution or other
not suffice to clothe it with standing. Its interest is too general. It is shared by disposition of property in the custody of the court or of an officer thereof. While
other groups and the whole citizenry. However, a reading of the petitions intervention is not a matter of right, it may be permitted by the courts when the
shows that it has advanced constitutional issues which deserve the attention applicant shows facts which satisfy the requirements of the law authorizing
of this Court in view of their seriousness, novelty and weight as intervention.92
precedents.86 It, therefore, behooves this Court to relax the rules on standing
and to resolve the issues presented by it.
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, violation of specific constitutional protection against abuses of
they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since, save legislative power," or that there is a misapplication of such funds by
for one additional issue, they raise the same issues and the same standing, respondent COMELEC, or that public money is being deflected to any
and no objection on the part of petitioners Candelaria, et. al. has been improper purpose. Neither do petitioners seek to restrain respondent
interposed, this Court as earlier stated, granted the Motion for Leave of Court from wasting public funds through the enforcement of an invalid or
to Intervene and Petition-in-Intervention. unconstitutional law.94 (Citations omitted)
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, In praying for the dismissal of the petitions, Soriano failed even to allege that
Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking the act of petitioners will result in illegal disbursement of public funds or in
their right as citizens to intervene, alleging that "they will suffer if this insidious public money being deflected to any improper purpose. Additionally, his mere
scheme of the minority members of the House of Representatives is interest as a member of the Bar does not suffice to clothe him with standing.
successful," this Court found the requisites for intervention had been complied
with. Ripeness and Prematurity
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that
160263, 160277, 160292, 160295, and 160310 were of transcendental for a case to be considered ripe for adjudication, "it is a prerequisite that
importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a something had by then been accomplished or performed by either branch
"Petition-in-Intervention with Leave to Intervene" to raise the additional issue before a court may come into the picture."96 Only then may the courts pass on
of whether or not the second impeachment complaint against the Chief Justice the validity of what was done, if and when the latter is challenged in an
is valid and based on any of the grounds prescribed by the Constitution. appropriate legal proceeding.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang The instant petitions raise in the main the issue of the validity of the filing of
Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines, the second impeachment complaint against the Chief Justice in accordance
Inc. possess a legal interest in the matter in litigation the respective motions to with the House Impeachment Rules adopted by the 12th Congress, the
intervene were hereby granted. constitutionality of which is questioned. The questioned acts having been
carried out, i.e., the second impeachment complaint had been filed with the
Senator Aquilino Pimentel, on the other hand, sought to intervene for the House of Representatives and the 2001 Rules have already been already
limited purpose of making of record and arguing a point of view that differs with promulgated and enforced, the prerequisite that the alleged unconstitutional
Senate President Drilon's. He alleges that submitting to this Court's jurisdiction act should be accomplished and performed before suit, as Tan v.
as the Senate President does will undermine the independence of the Senate Macapagal holds, has been complied with.
which will sit as an impeachment court once the Articles of Impeachment are
transmitted to it from the House of Representatives. Clearly, Senator Pimentel Related to the issue of ripeness is the question of whether the instant petitions
possesses a legal interest in the matter in litigation, he being a member of are premature. Amicus curiaeformer Senate President Jovito R. Salonga
Congress against which the herein petitions are directed. For this reason, and opines that there may be no urgent need for this Court to render a decision at
to fully ventilate all substantial issues relating to the matter at hand, his Motion this time, it being the final arbiter on questions of constitutionality anyway. He
to Intervene was granted and he was, as earlier stated, allowed to argue. thus recommends that all remedies in the House and Senate should first be
exhausted.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied
for, while he asserts an interest as a taxpayer, he failed to meet the standing Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law
requirement for bringing taxpayer's suits as set forth in Dumlao v. who suggests to this Court to take judicial notice of on-going attempts to
Comelec,93 to wit: encourage signatories to the second impeachment complaint to withdraw their
signatures and opines that the House Impeachment Rules provide for an
x x x While, concededly, the elections to be held involve the opportunity for members to raise constitutional questions themselves when the
expenditure of public moneys, nowhere in their Petition do said Articles of Impeachment are presented on a motion to transmit to the same to
petitioners allege that their tax money is "being extracted and spent in the Senate. The dean maintains that even assuming that the Articles are
transmitted to the Senate, the Chief Justice can raise the issue of their took cognizance thereof. Ratification by the people of a Constitution is a
constitutional infirmity by way of a motion to dismiss. political question, it being a question decided by the people in their sovereign
capacity.
The dean's position does not persuade. First, the withdrawal by the
Representatives of their signatures would not, by itself, cure the House The frequency with which this Court invoked the political question doctrine to
Impeachment Rules of their constitutional infirmity. Neither would such a refuse to take jurisdiction over certain cases during the Marcos regime
withdrawal, by itself, obliterate the questioned second impeachment complaint motivated Chief Justice Concepcion, when he became a Constitutional
since it would only place it under the ambit of Sections 3(2) and (3) of Article Commissioner, to clarify this Court's power of judicial review and its application
XI of the Constitution97 and, therefore, petitioners would continue to suffer their on issues involving political questions, viz:
injuries.
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
Second and most importantly, the futility of seeking remedies from either or
both Houses of Congress before coming to this Court is shown by the fact that, I will speak on the judiciary. Practically, everybody has made, I suppose, the
as previously discussed, neither the House of Representatives nor the Senate usual comment that the judiciary is the weakest among the three major
is clothed with the power to rule with definitiveness on the issue of branches of the service. Since the legislature holds the purse and the
constitutionality, whether concerning impeachment proceedings or otherwise, executive the sword, the judiciary has nothing with which to enforce its
as said power is exclusively vested in the judiciary by the earlier quoted decisions or commands except the power of reason and appeal to conscience
Section I, Article VIII of the Constitution. Remedy cannot be sought from a which, after all, reflects the will of God, and is the most powerful of all other
body which is bereft of power to grant it. powers without exception. x x x And so, with the body's indulgence, I will
proceed to read the provisions drafted by the Committee on the Judiciary.
Justiciability
The first section starts with a sentence copied from former Constitutions. It
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion says:
defined the term "political question," viz:
The judicial power shall be vested in one Supreme Court and in such
[T]he term "political question" connotes, in legal parlance, what it lower courts as may be established by law.
means in ordinary parlance, namely, a question of policy. In other
words, in the language of Corpus Juris Secundum, it refers to "those I suppose nobody can question it.
questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
The next provision is new in our constitutional law. I will read it first
discretionary authority has been delegated to the Legislature or
and explain.
executive branch of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular
measure.99 (Italics in the original) Judicial power includes the duty of courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a grave
Prior to the 1973 Constitution, without consistency and seemingly without any
abuse of discretion amounting to lack or excess of jurisdiction on the
rhyme or reason, this Court vacillated on its stance of taking cognizance of part or instrumentality of the government.
cases which involved political questions. In some cases, this Court hid behind
the cover of the political question doctrine and refused to exercise its power of
judicial review.100 In other cases, however, despite the seeming political nature Fellow Members of this Commission, this is actually a product of our
of the therein issues involved, this Court assumed jurisdiction whenever it experience during martial law. As a matter of fact, it has some
found constitutionally imposed limits on powers or functions conferred upon antecedents in the past, but the role of the judiciary during the
political bodies.101 Even in the landmark 1988 case of Javellana v. Executive deposed regime was marred considerably by the circumstance
Secretary102 which raised the issue of whether the 1973 Constitution was that in a number of cases against the government, which then
ratified, hence, in force, this Court shunted the political question doctrine and had no legal defense at all, the solicitor general set up the
defense of political questions and got away with it. As a
consequence, certain principles concerning particularly the writ questions to be submitted in the referendum were not announced until
of habeas corpus, that is, the authority of courts to order the the eve of its scheduled beginning, under the supposed supervision
release of political detainees, and other matters related to the not of the Commission on Elections, but of what was then designated
operation and effect of martial law failed because the government as "citizens assemblies or barangays." Thus the barangays came into
set up the defense of political question. And the Supreme Court existence. The questions to be propounded were released with
said: "Well, since it is political, we have no authority to pass upon proposed answers thereto, suggesting that it was unnecessary to hold
it." The Committee on the Judiciary feels that this was not a a plebiscite because the answers given in the referendum should be
proper solution of the questions involved. It did not merely regarded as the votes cast in the plebiscite. Thereupon, a motion was
request an encroachment upon the rights of the people, but it, in filed with the Supreme Court praying that the holding of the
effect, encouraged further violations thereof during the martial referendum be suspended. When the motion was being heard before
law regime. I am sure the members of the Bar are familiar with this the Supreme Court, the Minister of Justice delivered to the Court a
situation. But for the benefit of the Members of the Commission who proclamation of the President declaring that the new Constitution was
are not lawyers, allow me to explain. I will start with a decision of the already in force because the overwhelming majority of the votes cast
Supreme Court in 1973 on the case of Javellana vs. the Secretary of in the referendum favored the Constitution. Immediately after the
Justice, if I am not mistaken. Martial law was announced on departure of the Minister of Justice, I proceeded to the session room
September 22, although the proclamation was dated September 21. where the case was being heard. I then informed the Court and the
The obvious reason for the delay in its publication was that the parties the presidential proclamation declaring that the 1973
administration had apprehended and detained prominent newsmen on Constitution had been ratified by the people and is now in force.
September 21. So that when martial law was announced on
September 22, the media hardly published anything about it. In fact, A number of other cases were filed to declare the presidential
the media could not publish any story not only because our main proclamation null and void. The main defense put up by the
writers were already incarcerated, but also because those who government was that the issue was a political question and that the
succeeded them in their jobs were under mortal threat of being the court had no jurisdiction to entertain the case.
object of wrath of the ruling party. The 1971 Constitutional Convention
had begun on June 1, 1971 and by September 21 or 22 had not xxx
finished the Constitution; it had barely agreed in the fundamentals of
the Constitution. I forgot to say that upon the proclamation of martial
law, some delegates to that 1971 Constitutional Convention, dozens The government said that in a referendum held from January 10 to
of them, were picked up. One of them was our very own colleague, January 15, the vast majority ratified the draft of the Constitution. Note
Commissioner Calderon. So, the unfinished draft of the Constitution that all members of the Supreme Court were residents of Manila, but
was taken over by representatives of Malacaang. In 17 days, they none of them had been notified of any referendum in their respective
finished what the delegates to the 1971 Constitutional Convention had places of residence, much less did they participate in the alleged
been unable to accomplish for about 14 months. The draft of the 1973 referendum. None of them saw any referendum proceeding.
Constitution was presented to the President around December 1,
1972, whereupon the President issued a decree calling a plebiscite In the Philippines, even local gossips spread like wild fire. So, a
which suspended the operation of some provisions in the martial law majority of the members of the Court felt that there had been no
decree which prohibited discussions, much less public discussions of referendum.
certain matters of public concern. The purpose was presumably to
allow a free discussion on the draft of the Constitution on which a Second, a referendum cannot substitute for a plebiscite. There is a
plebiscite was to be held sometime in January 1973. If I may use a big difference between a referendum and a plebiscite. But
word famous by our colleague, Commissioner Ople, during the another group of justices upheld the defense that the issue was
interregnum, however, the draft of the Constitution was analyzed and a political question. Whereupon, they dismissed the case. This is
criticized with such a telling effect that Malacaang felt the danger of not the only major case in which the plea of "political question"
its approval. So, the President suspended indefinitely the holding of was set up. There have been a number of other cases in the past.
the plebiscite and announced that he would consult the people in a
referendum to be held from January 10 to January 15. But the
x x x The defense of the political question was rejected because This is the background of paragraph 2 of Section 1, which means
the issue was clearly justiciable. that the courts cannot hereafter evade the duty to settle matters
of this nature, by claiming that such matters constitute a political
xxx question.
x x x When your Committee on the Judiciary began to perform its I have made these extended remarks to the end that the
functions, it faced the following questions: What is judicial power? Commissioners may have an initial food for thought on the subject of
What is a political question? the judiciary.103 (Italics in the original; emphasis supplied)
The Supreme Court, like all other courts, has one main function: to During the deliberations of the Constitutional Commission, Chief Justice
settle actual controversies involving conflicts of rights which are Concepcion further clarified the concept of judicial power, thus:
demandable and enforceable. There are rights which are guaranteed
by law but cannot be enforced by a judiciary party. In a decided case, MR. NOLLEDO. The Gentleman used the term "judicial power"
a husband complained that his wife was unwilling to perform her duties but judicial power is not vested in the Supreme Court alone but
as a wife. The Court said: "We can tell your wife what her duties as also in other lower courts as may be created by law.
such are and that she is bound to comply with them, but we cannot
force her physically to discharge her main marital duty to her husband. MR. CONCEPCION. Yes.
There are some rights guaranteed by law, but they are so personal
that to enforce them by actual compulsion would be highly derogatory MR. NOLLEDO. And so, is this only an example?
to human dignity."
MR. CONCEPCION. No, I know this is not. The Gentleman seems
This is why the first part of the second paragraph of Section I provides that: to identify political questions with jurisdictional questions. But
there is a difference.
Judicial power includes the duty of courts to settle actual controversies
involving rights which are legally demandable or enforceable . . . MR. NOLLEDO. Because of the expression "judicial power"?
The courts, therefore, cannot entertain, much less decide, MR. CONCEPCION. No. Judicial power, as I said, refers to
hypothetical questions. In a presidential system of government, the
ordinary cases but where there is a question as to whether the
Supreme Court has, also another important function. The powers
government had authority or had abused its authority to the
of government are generally considered divided into three
extent of lacking jurisdiction or excess of jurisdiction, that is not
branches: the Legislative, the Executive and the Judiciary. Each a political question. Therefore, the court has the duty to decide.
one is supreme within its own sphere and independent of the
others. Because of that supremacy power to determine whether
a given law is valid or not is vested in courts of justice. xxx
Briefly stated, courts of justice determine the limits of power of FR. BERNAS. Ultimately, therefore, it will always have to be decided
the agencies and offices of the government as well as those of by the Supreme Court according to the new numerical need for votes.
its officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its On another point, is it the intention of Section 1 to do away with
officials has acted without jurisdiction or in excess of the political question doctrine?
jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack of MR. CONCEPCION. No.
jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature. FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse of under previous constitutions, would have normally left to the political
discretion, amounting to a lack of jurisdiction. . . departments to decide.106 x x x
FR. BERNAS. So, I am satisfied with the answer that it is not In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro
intended to do away with the political question doctrine. Padilla, this Court declared:
MR. CONCEPCION. No, certainly not. The "allocation of constitutional boundaries" is a task that this Court
must perform under the Constitution. Moreover, as held in a recent
When this provision was originally drafted, it sought to define case, "(t)he political question doctrine neither interposes an
what is judicial power. But the Gentleman will notice it says, obstacle to judicial determination of the rival claims. The
"judicial power includes" and the reason being that the definition jurisdiction to delimit constitutional boundaries has been given
that we might make may not cover all possible areas. to this Court. It cannot abdicate that obligation mandated by the
1987 Constitution, although said provision by no means does
away with the applicability of the principle in appropriate
FR. BERNAS. So, this is not an attempt to solve the problems
cases."108 (Emphasis and underscoring supplied)
arising from the political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court
truly political questions are beyond the pale of judicial ruled:
power.104 (Emphasis supplied)
In the case now before us, the jurisdictional objection becomes even
less tenable and decisive. The reason is that, even if we were to
From the foregoing record of the proceedings of the 1986 Constitutional
Commission, it is clear that judicial power is not only a power; it is also a duty, assume that the issue presented before us was political in nature, we
a duty which cannot be abdicated by the mere specter of this creature called would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in
the political question doctrine. Chief Justice Concepcion hastened to clarify,
proper cases, even the political question.110 x x x (Emphasis and
however, that Section 1, Article VIII was not intended to do away with "truly
underscoring supplied.)
political questions." From this clarification it is gathered that there are two
species of political questions: (1) "truly political questions" and (2) those which
"are not truly political questions." Section 1, Article VIII, of the Court does not define what are justiciable political
questions and non-justiciable political questions, however. Identification of
these two species of political questions may be problematic. There has been
Truly political questions are thus beyond judicial review, the reason for respect
no clear standard. The American case of Baker v. Carr111 attempts to provide
of the doctrine of separation of powers to be maintained. On the other hand,
by virtue of Section 1, Article VIII of the Constitution, courts can review some:
questions which are not truly political in nature.
x x x Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional
As pointed out by amicus curiae former dean Pacifico Agabin of the UP
commitment of the issue to a coordinate political department; or a lack
College of Law, this Court has in fact in a number of cases taken jurisdiction
over questions which are not truly political following the effectivity of the of judicially discoverable and manageable standards for resolving it;
present Constitution. or the impossibility of deciding without an initial policy determination
of a kind clearly for non-judicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing lack of
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene the respect due coordinate branches of government; or an unusual
Cortes, held: need for questioning adherence to a political decision already made;
or thepotentiality of embarrassment from multifarious
The present Constitution limits resort to the political question doctrine pronouncements by various departments on one
and broadens the scope of judicial inquiry into areas which the Court, question.112 (Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually left to the sound discretion of the legislation. Such an intent is clear
demonstrable constitutional commitment of the issue to a coordinate political from the deliberations of the Constitutional Commission.113
department; (2) the lack of judicially discoverable and manageable standards
for resolving it; and (3) the impossibility of deciding without an initial policy Although Section 2 of Article XI of the Constitution enumerates six grounds for
determination of a kind clearly for non-judicial discretion. These standards are impeachment, two of these, namely, other high crimes and betrayal of public
not separate and distinct concepts but are interrelated to each in that the trust, elude a precise definition. In fact, an examination of the records of the
presence of one strengthens the conclusion that the others are also present. 1986 Constitutional Commission shows that the framers could find no better
way to approximate the boundaries of betrayal of public trust and other high
The problem in applying the foregoing standards is that the American concept crimes than by alluding to both positive and negative examples of both, without
of judicial review is radically different from our current concept, for Section 1, arriving at their clear cut definition or even a standard therefor. 114 Clearly, the
Article VIII of the Constitution provides our courts with far less discretion in issue calls upon this court to decide a non-justiciable political question which
determining whether they should pass upon a constitutional issue. is beyond the scope of its judicial power under Section 1, Article VIII.
In our jurisdiction, the determination of a truly political question from a non- Lis Mota
justiciable political question lies in the answer to the question of whether there
are constitutionally imposed limits on powers or functions conferred upon It is a well-settled maxim of adjudication that an issue assailing the
political bodies. If there are, then our courts are duty-bound to examine constitutionality of a governmental act should be avoided whenever possible.
whether the branch or instrumentality of the government properly acted within Thus, in the case of Sotto v. Commission on Elections,115 this Court held:
such limits. This Court shall thus now apply this standard to the present
controversy.
x x x It is a well-established rule that a court should not pass upon a
constitutional question and decide a law to be unconstitutional or
These petitions raise five substantial issues: invalid, unless such question is raised by the parties and that when it
is raised,if the record also presents some other ground upon
I. Whether the offenses alleged in the Second impeachment complaint which the court may rest its judgment, that course will be
constitute valid impeachable offenses under the Constitution. adopted and the constitutional question will be left for
consideration until a case arises in which a decision upon such
II. Whether the second impeachment complaint was filed in question will be unavoidable.116 [Emphasis and underscoring
accordance with Section 3(4), Article XI of the Constitution. supplied]
III. Whether the legislative inquiry by the House Committee on Justice The same principle was applied in Luz Farms v. Secretary of Agrarian
into the Judicial Development Fund is an unconstitutional infringement Reform,117 where this Court invalidated Sections 13 and 32 of Republic Act
of the constitutionally mandated fiscal autonomy of the judiciary. No. 6657 for being confiscatory and violative of due process, to wit:
IV. Whether Sections 15 and 16 of Rule V of the Rules on It has been established that this Court will assume jurisdiction over
Impeachment adopted by the 12th Congress are unconstitutional for a constitutional question only if it is shown that the essential
violating the provisions of Section 3, Article XI of the Constitution. requisites of a judicial inquiry into such a question are first
satisfied. Thus, there must be an actual case or controversy involving
V. Whether the second impeachment complaint is barred under a conflict of legal rights susceptible of judicial determination, the
constitutional question must have been opportunely raised by the
Section 3(5) of Article XI of the Constitution.
proper party, and the resolution of the question is unavoidably
necessary to the decision of the case itself.118 [Emphasis supplied]
The first issue goes into the merits of the second impeachment
complaint over which this Court has no jurisdiction. More importantly,
any discussion of this issue would require this Court to make a Succinctly put, courts will not touch the issue of constitutionality unless it is
truly unavoidable and is the very lis mota or crux of the controversy.
determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has
As noted earlier, the instant consolidated petitions, while all seeking the circumscribed by the afore-quoted provision of the Constitution. Thus,
invalidity of the second impeachment complaint, collectively raise several as provided therein, the investigation must be "in aid of legislation in
constitutional issues upon which the outcome of this controversy could accordance with its duly published rules of procedure" and that "the
possibly be made to rest. In determining whether one, some or all of the rights of persons appearing in or affected by such inquiries shall be
remaining substantial issues should be passed upon, this Court is guided by respected." It follows then that the right rights of persons under the Bill
the related cannon of adjudication that "the court should not form a rule of of Rights must be respected, including the right to due process and
constitutional law broader than is required by the precise facts to which it is the right not be compelled to testify against one's self.123
applied."119
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among Quadra, while joining the original petition of petitioners Candelaria, et.
other reasons, the second impeachment complaint is invalid since it directly al., introduce the new argument that since the second impeachment complaint
resulted from a Resolution120 calling for a legislative inquiry into the JDF, which was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix
Resolution and legislative inquiry petitioners claim to likewise be William Fuentebella, the same does not fall under the provisions of Section 3
unconstitutional for being: (a) a violation of the rules and jurisprudence on (4), Article XI of the Constitution which reads:
investigations in aid of legislation; (b) an open breach of the doctrine of
separation of powers; (c) a violation of the constitutionally mandated fiscal Section 3(4) In case the verified complaint or resolution of
autonomy of the judiciary; and (d) an assault on the independence of the impeachment is filed by at least one-third of all the Members of the
judiciary.121 House, the same shall constitute the Articles of Impeachment, and trial
by the Senate shall forthwith proceed.
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the
studied opinion of this Court that the issue of the constitutionality of the said They assert that while at least 81 members of the House of Representatives
Resolution and resulting legislative inquiry is too far removed from the issue of signed a Resolution of Endorsement/Impeachment, the same did not satisfy
the validity of the second impeachment complaint. Moreover, the resolution of the requisites for the application of the afore-mentioned section in that the
said issue would, in the Court's opinion, require it to form a rule of constitutional "verified complaint or resolution of impeachment" was not filed "by at least one-
law touching on the separate and distinct matter of legislative inquiries in third of all the Members of the House." With the exception of Representatives
general, which would thus be broader than is required by the facts of these Teodoro and Fuentebella, the signatories to said Resolution are alleged to
consolidated cases. This opinion is further strengthened by the fact that said have verified the same merely as a "Resolution of Endorsement." Intervenors
petitioners have raised other grounds in support of their petition which would point to the "Verification" of the Resolution of Endorsement which states that:
not be adversely affected by the Court's ruling.
"We are the proponents/sponsors of the Resolution of Endorsement
En passant, this Court notes that a standard for the conduct of legislative of the abovementioned Complaint of Representatives Gilberto
inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate Teodoro and Felix William B. Fuentebella x x x"124
Blue Ribbon Commttee,122 viz:
Intervenors Macalintal and Quadra further claim that what the Constitution
The 1987 Constitution expressly recognizes the power of both houses requires in order for said second impeachment complaint to automatically
of Congress to conduct inquiries in aid of legislation. Thus, Section 21, become the Articles of Impeachment and for trial in the Senate to begin
Article VI thereof provides: "forthwith," is that the verified complaint be "filed," not merely endorsed, by at
least one-third of the Members of the House of Representatives. Not having
The Senate or the House of Representatives or any of its respective complied with this requirement, they concede that the second impeachment
committees may conduct inquiries in aid of legislation in accordance complaint should have been calendared and referred to the House Committee
with its duly published rules of procedure. The rights of persons on Justice under Section 3(2), Article XI of the Constitution, viz:
appearing in or affected by such inquiries shall be respected.
Section 3(2) A verified complaint for impeachment may be filed by any
The power of both houses of Congress to conduct inquiries in aid of Member of the House of Representatives or by any citizen upon a
legislation is not, therefore absolute or unlimited. Its exercise is resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and referred Senator Pimentel urges this Court to exercise judicial restraint on the ground
to the proper Committee within three session days thereafter. The that the Senate, sitting as an impeachment court, has the sole power to try and
Committee, after hearing, and by a majority vote of all its Members, decide all cases of impeachment. Again, this Court reiterates that the power
shall submit its report to the House within sixty session days from such of judicial review includes the power of review over justiciable issues in
referral, together with the corresponding resolution. The resolution impeachment proceedings.
shall be calendared for consideration by the House within ten session
days from receipt thereof. On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here
is a moral compulsion for the Court to not assume jurisdiction over the
Intervenors' foregoing position is echoed by Justice Maambong who opined impeachment because all the Members thereof are subject to
that for Section 3 (4), Article XI of the Constitution to apply, there should be 76 impeachment."125 But this argument is very much like saying the Legislature
or more representatives who signed and verified the second impeachment has a moral compulsion not to pass laws with penalty clauses because
complaint as complainants, signed and verified the signatories to a resolution Members of the House of Representatives are subject to them.
of impeachment. Justice Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the members of the The exercise of judicial restraint over justiciable issues is not an option before
House of Representatives as endorsers is not the resolution of impeachment this Court. Adjudication may not be declined, because this Court is not legally
contemplated by the Constitution, such resolution of endorsement being disqualified. Nor can jurisdiction be renounced as there is no other tribunal to
necessary only from at least one Member whenever a citizen files a verified which the controversy may be referred."126 Otherwise, this Court would be
impeachment complaint. shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More
than being clothed with authority thus, this Court is duty-bound to take
While the foregoing issue, as argued by intervenors Macalintal and Quadra, cognizance of the instant petitions.127 In the august words of amicus
does indeed limit the scope of the constitutional issues to the provisions on curiae Father Bernas, "jurisdiction is not just a power; it is a solemn duty which
impeachment, more compelling considerations militate against its adoption as may not be renounced. To renounce it, even if it is vexatious, would be a
the lis mota or crux of the present controversy. Chief among this is the fact dereliction of duty."
that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262,
have raised this issue as a ground for invalidating the second impeachment Even in cases where it is an interested party, the Court under our system of
complaint. Thus, to adopt this additional ground as the basis for deciding the government cannot inhibit itself and must rule upon the challenge because no
instant consolidated petitions would not only render for naught the efforts of other office has the authority to do so.128 On the occasion that this Court had
the original petitioners in G.R. No. 160262, but the efforts presented by the been an interested party to the controversy before it, it has acted upon the
other petitioners as well. matter "not with officiousness but in the discharge of an unavoidable duty and,
as always, with detachment and fairness."129 After all, "by [his] appointment to
Again, the decision to discard the resolution of this issue as unnecessary for the office, the public has laid on [a member of the judiciary] their confidence
the determination of the instant cases is made easier by the fact that said that [he] is mentally and morally fit to pass upon the merits of their varied
intervenors Macalintal and Quadra have joined in the petition of Candelaria, et. contentions. For this reason, they expect [him] to be fearless in [his] pursuit to
al., adopting the latter's arguments and issues as their own. Consequently, render justice, to be unafraid to displease any person, interest or power and to
they are not unduly prejudiced by this Court's decision. be equipped with a moral fiber strong enough to resist the temptations lurking
in [his] office."130
In sum, this Court holds that the two remaining issues, inextricably linked as
they are, constitute the very lis mota of the instant controversy: (1) whether The duty to exercise the power of adjudication regardless of interest had
Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by already been settled in the case ofAbbas v. Senate Electoral Tribunal.131 In
the 12th Congress are unconstitutional for violating the provisions of Section that case, the petitioners filed with the respondent Senate Electoral Tribunal a
3, Article XI of the Constitution; and (2) whether, as a result thereof, the second Motion for Disqualification or Inhibition of the Senators-Members thereof from
impeachment complaint is barred under Section 3(5) of Article XI of the the hearing and resolution of SET Case No. 002-87 on the ground that all of
Constitution. them were interested parties to said case as respondents therein. This would
have reduced the Tribunal's membership to only its three Justices-Members
Judicial Restraint whose disqualification was not sought, leaving them to decide the matter. This
Court held:
Where, as here, a situation is created which precludes the substitution of its jurisdiction as established by the fundamental law.
of any Senator sitting in the Tribunal by any of his other colleagues in Disqualification of a judge is a deprivation of his judicial power. And if
the Senate without inviting the same objections to the substitute's that judge is the one designated by the Constitution to exercise the
competence, the proposed mass disqualification, if sanctioned and jurisdiction of his court, as is the case with the Justices of this Court,
ordered, would leave the Tribunal no alternative but to abandon a duty the deprivation of his or their judicial power is equivalent to the
that no other court or body can perform, but which it cannot lawfully deprivation of the judicial power of the court itself. It affects the very
discharge if shorn of the participation of its entire membership of heart of judicial independence. The proposed mass disqualification, if
Senators. sanctioned and ordered, would leave the Court no alternative but to
abandon a duty which it cannot lawfully discharge if shorn of the
To our mind, this is the overriding consideration that the Tribunal participation of its entire membership of Justices. 133 (Italics in the
be not prevented from discharging a duty which it alone has the power original)
to perform, the performance of which is in the highest public interest
as evidenced by its being expressly imposed by no less than the Besides, there are specific safeguards already laid down by the Court when it
fundamental law. exercises its power of judicial review.
It is aptly noted in the first of the questioned Resolutions that the In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the
framers of the Constitution could not have been unaware of the "seven pillars" of limitations of the power of judicial review, enunciated by US
possibility of an election contest that would involve all Senators Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows:
elect, six of whom would inevitably have to sit in judgment thereon.
Indeed, such possibility might surface again in the wake of the 1992 1. The Court will not pass upon the constitutionality of legislation in a
elections when once more, but for the last time, all 24 seats in the friendly, non-adversary proceeding, declining because to decide such
Senate will be at stake. Yet the Constitution provides no scheme or questions 'is legitimate only in the last resort, and as a necessity in the
mode for settling such unusual situations or for the substitution of determination of real, earnest and vital controversy between
Senators designated to the Tribunal whose disqualification may be individuals. It never was the thought that, by means of a friendly suit,
sought. Litigants in such situations must simply place their trust and a party beaten in the legislature could transfer to the courts an inquiry
hopes of vindication in the fairness and sense of justice of the as to the constitutionality of the legislative act.'
Members of the Tribunal. Justices and Senators, singly and
collectively.
2. The Court will not 'anticipate a question of constitutional law in
advance of the necessity of deciding it.' . . . 'It is not the habit of the
Let us not be misunderstood as saying that no Senator-Member of the Court to decide questions of a constitutional nature unless absolutely
Senate Electoral Tribunal may inhibit or disqualify himself from sitting necessary to a decision of the case.'
in judgment on any case before said Tribunal. Every Member of the
Tribunal may, as his conscience dictates, refrain from participating in
3. The Court will not 'formulate a rule of constitutional law broader than
the resolution of a case where he sincerely feels that his personal is required by the precise facts to which it is to be applied.'
interests or biases would stand in the way of an objective and impartial
judgment. What we are merely saying is that in the light of the
Constitution, the Senate Electoral Tribunal cannot legally function as 4. The Court will not pass upon a constitutional question although
such, absent its entire membership of Senators and that no properly presented by the record, if there is also present some other
amendment of its Rules can confer on the three Justices-Members ground upon which the case may be disposed of. This rule has found
alone the power of valid adjudication of a senatorial election contest. most varied application. Thus, if a case can be decided on either of
two grounds, one involving a constitutional question, the other a
question of statutory construction or general law, the Court will decide
More recently in the case of Estrada v. Desierto,132 it was held that:
only the latter. Appeals from the highest court of a state challenging
its decision of a question under the Federal Constitution are frequently
Moreover, to disqualify any of the members of the Court, particularly dismissed because the judgment can be sustained on an independent
a majority of them, is nothing short ofpro tanto depriving the Court itself state ground.
5. The Court will not pass upon the validity of a statute upon complaint 2. the person challenging the act must have "standing" to challenge;
of one who fails to show that he is injured by its operation. Among the he must have a personal and substantial interest in the case such that
many applications of this rule, none is more striking than the denial of he has sustained, or will sustain, direct injury as a result of its
the right of challenge to one who lacks a personal or property right. enforcement
Thus, the challenge by a public official interested only in the
performance of his official duty will not be entertained . . . In Fairchild 3. the question of constitutionality must be raised at the earliest
v. Hughes, the Court affirmed the dismissal of a suit brought by a possible opportunity
citizen who sought to have the Nineteenth Amendment declared
unconstitutional. In Massachusetts v. Mellon, the challenge of the 4. the issue of constitutionality must be the very lis mota of the case.136
federal Maternity Act was not entertained although made by the
Commonwealth on behalf of all its citizens.
Respondents Speaker de Venecia, et. al. raise another argument for judicial
restraint the possibility that "judicial review of impeachments might also lead
6. The Court will not pass upon the constitutionality of a statute at the to embarrassing conflicts between the Congress and the [J]udiciary." They
instance of one who has availed himself of its benefits. stress the need to avoid the appearance of impropriety or conflicts of interest
in judicial hearings, and the scenario that it would be confusing and humiliating
7. When the validity of an act of the Congress is drawn in question, and risk serious political instability at home and abroad if the judiciary
and even if a serious doubt of constitutionality is raised, it is a cardinal countermanded the vote of Congress to remove an impeachable
principle that this Court will first ascertain whether a construction of official.137 Intervenor Soriano echoes this argument by alleging that failure of
the statute is fairly possible by which the question may be avoided this Court to enforce its Resolution against Congress would result in the
(citations omitted). diminution of its judicial authority and erode public confidence and faith in the
judiciary.
The foregoing "pillars" of limitation of judicial review, summarized
in Ashwander v. TVA from different decisions of the United States Supreme Such an argument, however, is specious, to say the least. As correctly stated
Court, can be encapsulated into the following categories: by the Solicitor General, the possibility of the occurrence of a constitutional
crisis is not a reason for this Court to refrain from upholding the Constitution in
1. that there be absolute necessity of deciding a case all impeachment cases. Justices cannot abandon their constitutional duties
just because their action may start, if not precipitate, a crisis.
2. that rules of constitutional law shall be formulated only as required
by the facts of the case Justice Feliciano warned against the dangers when this Court refuses to act.
3. that judgment may not be sustained on some other ground x x x Frequently, the fight over a controversial legislative or executive
act is not regarded as settled until the Supreme Court has passed
4. that there be actual injury sustained by the party by reason of the upon the constitutionality of the act involved, the judgment has not
operation of the statute only juridical effects but also political consequences. Those political
consequences may follow even where the Court fails to grant the
5. that the parties are not in estoppel petitioner's prayer to nullify an act for lack of the necessary number of
votes. Frequently, failure to act explicitly, one way or the other, itself
constitutes a decision for the respondent and validation, or at least
6. that the Court upholds the presumption of constitutionality. quasi-validation, follows." 138
As stated previously, parallel guidelines have been adopted by this Court in Thus, in Javellana v. Executive Secretary139 where this Court was split and "in
the exercise of judicial review: the end there were not enough votes either to grant the petitions, or to sustain
respondent's claims,"140 the pre-existing constitutional order was disrupted
1. actual case or controversy calling for the exercise of judicial power which paved the way for the establishment of the martial law regime.
Such an argument by respondents and intervenor also presumes that the That the sponsor of the provision of Section 3(5) of the Constitution,
coordinate branches of the government would behave in a lawless manner Commissioner Florenz Regalado, who eventually became an Associate
and not do their duty under the law to uphold the Constitution and obey the Justice of this Court, agreed on the meaning of "initiate" as "to file," as
laws of the land. Yet there is no reason to believe that any of the branches of proffered and explained by Constitutional Commissioner Maambong during
government will behave in a precipitate manner and risk social upheaval, the Constitutional Commission proceedings, which he (Commissioner
violence, chaos and anarchy by encouraging disrespect for the fundamental Regalado) as amicus curiae affirmed during the oral arguments on the instant
law of the land. petitions held on November 5, 2003 at which he added that the act of
"initiating" included the act of taking initial action on the complaint, dissipates
Substituting the word public officers for judges, this Court is well guided by the any doubt that indeed the word "initiate" as it twice appears in Article XI (3)
doctrine in People v. Veneracion, to wit:141 and (5) of the Constitution means to file the complaint and take initial action on
it.
Obedience to the rule of law forms the bedrock of our system of
justice. If [public officers], under the guise of religious or political "Initiate" of course is understood by ordinary men to mean, as dictionaries do,
beliefs were allowed to roam unrestricted beyond boundaries within to begin, to commence, or set going. As Webster's Third New International
which they are required by law to exercise the duties of their office, Dictionary of the English Language concisely puts it, it means "to perform
then law becomes meaningless. A government of laws, not of men or facilitate the first action," which jibes with Justice Regalado's position, and
excludes the exercise of broad discretionary powers by those acting that of Father Bernas, who elucidated during the oral arguments of the instant
under its authority. Under this system, [public officers] are guided by petitions on November 5, 2003 in this wise:
the Rule of Law, and ought "to protect and enforce it without fear or
favor," resist encroachments by governments, political parties, or even Briefly then, an impeachment proceeding is not a single act. It is a
the interference of their own personal beliefs.142 comlexus of acts consisting of a beginning, a middle and an end. The
end is the transmittal of the articles of impeachment to the Senate.
Constitutionality of the Rules of Procedure The middle consists of those deliberative moments leading to the
for Impeachment Proceedings formulation of the articles of impeachment. The beginning or the
adopted by the 12th Congress initiation is the filing of the complaint and its referral to the Committee
on Justice.
Respondent House of Representatives, through Speaker De Venecia, argues
that Sections 16 and 17 of Rule V of the House Impeachment Rules do not Finally, it should be noted that the House Rule relied upon by
violate Section 3 (5) of Article XI of our present Constitution, contending that Representatives Cojuangco and Fuentebella says that impeachment
the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that it is is "deemed initiated" when the Justice Committee votes in favor of
the House of Representatives, as a collective body, which has the exclusive impeachment or when the House reverses a contrary vote of the
power to initiate all cases of impeachment; that initiate could not possibly mean Committee. Note that the Rule does not say "impeachment
"to file" because filing can, as Section 3 (2), Article XI of the Constitution proceedings" are initiated but rather are "deemed initiated." The
provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint language is recognition that initiation happened earlier, but by legal
for impeachment by any member of the House of Representatives; or (2) by fiction there is an attempt to postpone it to a time after actual initiation.
any citizen upon a resolution of endorsement by any member; or (3) by at least (Emphasis and underscoring supplied)
1/3 of all the members of the House. Respondent House of Representatives
concludes that the one year bar prohibiting the initiation of impeachment As stated earlier, one of the means of interpreting the Constitution is looking
proceedings against the same officials could not have been violated as the into the intent of the law. Fortunately, the intent of the framers of the 1987
impeachment complaint against Chief Justice Davide and seven Associate Constitution can be pried from its records:
Justices had not been initiated as the House of Representatives, acting as
the collective body, has yet to act on it. MR. MAAMBONG. With reference to Section 3, regarding the
procedure and the substantive provisions on impeachment, I
The resolution of this issue thus hinges on the interpretation of the term understand there have been many proposals and, I think, these would
"initiate." Resort to statutory construction is, therefore, in order. need some time for Committee action.
However, I would just like to indicate that I submitted to the Committee the Rules of the House of Representatives of the United States
a resolution on impeachment proceedings, copies of which have been regarding impeachment.
furnished the Members of this body. This is borne out of my
experience as a member of the Committee on Justice, Human Rights I am proposing, Madam President, without doing damage to any of
and Good Government which took charge of the last impeachment this provision, that on page 2, Section 3 (3), from lines 17 to 18, we
resolution filed before the First Batasang Pambansa. For the delete the words which read: "to initiate impeachment
information of the Committee, the resolution covers several proceedings" and the comma (,) and insert on line 19 after the word
steps in the impeachment proceedings starting with initiation, "resolution" the phrase WITH THE ARTICLES, and then capitalize the
action of the Speaker committee action, calendaring of report, letter "i" in "impeachment" and replace the word "by" with OF, so that
voting on the report, transmittal referral to the Senate, trial and the whole section will now read: "A vote of at least one-third of all the
judgment by the Senate. Members of the House shall be necessary either to affirm a resolution
WITH THE ARTICLES of Impeachment OF the Committee or to
xxx override its contrary resolution. The vote of each Member shall be
recorded."
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a
reconsideration of the approval of the amendment submitted by I already mentioned earlier yesterday that the initiation, as far as
Commissioner Regalado, but I will just make of record my thinking that the House of Representatives of the United States is
we do not really initiate the filing of the Articles of Impeachment on the concerned, really starts from the filing of the verified
floor. The procedure, as I have pointed out earlier, was that the complaint and every resolution to impeach always carries with it the
initiation starts with the filing of the complaint. And what is Articles of Impeachment. As a matter of fact, the words "Articles of
actually done on the floor is that the committee resolution Impeachment" are mentioned on line 25 in the case of the direct filing
containing the Articles of Impeachment is the one approved by of a verified compliant of one-third of all the Members of the House. I
the body. will mention again, Madam President, that my amendment will not vary
the substance in any way. It is only in keeping with the uniform
As the phraseology now runs, which may be corrected by the procedure of the House of Representatives of the United States
Committee on Style, it appears that the initiation starts on the floor. If Congress. Thank you, Madam President.143 (Italics in the original;
we only have time, I could cite examples in the case of the emphasis and udnerscoring supplied)
impeachment proceedings of President Richard Nixon wherein the
Committee on the Judiciary submitted the recommendation, the This amendment proposed by Commissioner Maambong was clarified and
resolution, and the Articles of Impeachment to the body, and it was the accepted by the Committee on the Accountability of Public Officers.144
body who approved the resolution. It is not the body which initiates
it. It only approves or disapproves the resolution. So, on that It is thus clear that the framers intended "initiation" to start with the filing of the
score, probably the Committee on Style could help in rearranging complaint. In his amicus curiaebrief, Commissioner Maambong explained that
these words because we have to be very technical about this. I have "the obvious reason in deleting the phrase "to initiate impeachment
been bringing with me The Rules of the House of Representatives of proceedings" as contained in the text of the provision of Section 3 (3) was to
the U.S. Congress. The Senate Rules are with me. The proceedings settle and make it understood once and for all that the initiation of
on the case of Richard Nixon are with me. I have submitted my impeachment proceedings starts with the filing of the complaint, and the
proposal, but the Committee has already decided. Nevertheless, I just vote of one-third of the House in a resolution of impeachment does not
want to indicate this on record. initiate the impeachment proceedings which was already initiated by the
filing of a verified complaint under Section 3, paragraph (2), Article XI of
xxx the Constitution."145
MR. MAAMBONG. I would just like to move for a reconsideration of Amicus curiae Constitutional Commissioner Regalado is of the same view as
the approval of Section 3 (3). My reconsideration will not at all affect is Father Bernas, who was also a member of the 1986 Constitutional
the substance, but it is only in keeping with the exact formulation of Commission, that the word "initiate" as used in Article XI, Section 3(5) means
to file, both adding, however, that the filing must be accompanied by an action Father Bernas further explains: The "impeachment proceeding" is not initiated
to set the complaint moving. when the complaint is transmitted to the Senate for trial because that is the
end of the House proceeding and the beginning of another proceeding, namely
During the oral arguments before this Court, Father Bernas clarified that the the trial. Neither is the "impeachment proceeding" initiated when the House
word "initiate," appearing in the constitutional provision on impeachment, viz: deliberates on the resolution passed on to it by the Committee, because
something prior to that has already been done. The action of the House is
already a further step in the proceeding, not its initiation or beginning.
Section 3 (1) The House of Representatives shall have the exclusive
power to initiate all cases of impeachment. Rather, the proceeding is initiated or begins, when a verified complaint is filed
and referred to the Committee on Justice for action. This is the initiating step
which triggers the series of steps that follow.
xxx
The framers of the Constitution also understood initiation in its ordinary
(5) No impeachment proceedings shall be initiated against the same meaning. Thus when a proposal reached the floor proposing that "A vote of at
official more than once within a period of one year, (Emphasis least one-third of all the Members of the House shall be necessary toinitiate
supplied) impeachment proceedings," this was met by a proposal to delete the line on
the ground that the vote of the House does not initiate impeachment
refers to two objects, "impeachment case" and "impeachment proceeding." proceeding but rather the filing of a complaint does. 146 Thus the line was
deleted and is not found in the present Constitution.
Father Bernas explains that in these two provisions, the common verb is "to
initiate." The object in the first sentence is "impeachment case." The object in Father Bernas concludes that when Section 3 (5) says, "No impeachment
the second sentence is "impeachment proceeding." Following the principle proceeding shall be initiated against the same official more than once within a
of reddendo singuala sinuilis, the term "cases" must be distinguished from the period of one year," it means that no second verified complaint may be
term "proceedings." An impeachment case is the legal controversy that must accepted and referred to the Committee on Justice for action. By his
be decided by the Senate. Above-quoted first provision provides that the explanation, this interpretation is founded on the common understanding of
House, by a vote of one-third of all its members, can bring a case to the the meaning of "to initiate" which means to begin. He reminds that the
Senate. It is in that sense that the House has "exclusive power" to initiate all Constitution is ratified by the people, both ordinary and sophisticated, as they
cases of impeachment. No other body can do it. However, before a decision understand it; and that ordinary people read ordinary meaning into ordinary
is made to initiate a case in the Senate, a "proceeding" must be followed to words and not abstruse meaning, they ratify words as they understand it and
arrive at a conclusion. A proceeding must be "initiated." To initiate, which not as sophisticated lawyers confuse it.
comes from the Latin word initium, means to begin. On the other hand,
proceeding is a progressive noun. It has a beginning, a middle, and an end. It To the argument that only the House of Representatives as a body can initiate
takes place not in the Senate but in the House and consists of several steps: impeachment proceedings because Section 3 (1) says "The House of
(1) there is the filing of a verified complaint either by a Member of the House Representatives shall have the exclusive power to initiate all cases of
of Representatives or by a private citizen endorsed by a Member of the House impeachment," This is a misreading of said provision and is contrary to the
of the Representatives; (2) there is the processing of this complaint by the principle of reddendo singula singulisby equating "impeachment cases" with
proper Committee which may either reject the complaint or uphold it; (3) "impeachment proceeding."
whether the resolution of the Committee rejects or upholds the complaint, the
resolution must be forwarded to the House for further processing; and (4) there
From the records of the Constitutional Commission, to the amicus curiae briefs
is the processing of the same complaint by the House of Representatives
which either affirms a favorable resolution of the Committee or overrides a of two former Constitutional Commissioners, it is without a doubt that the term
contrary resolution by a vote of one-third of all the members. If at least one "to initiate" refers to the filing of the impeachment complaint coupled with
Congress' taking initial action of said complaint.
third of all the Members upholds the complaint, Articles of Impeachment are
prepared and transmitted to the Senate. It is at this point that the House
"initiates an impeachment case." It is at this point that an impeachable public Having concluded that the initiation takes place by the act of filing and referral
official is successfully impeached. That is, he or she is successfully charged or endorsement of the impeachment complaint to the House Committee on
with an impeachment "case" before the Senate as impeachment court. Justice or, by the filing by at least one-third of the members of the House of
Representatives with the Secretary General of the House, the meaning of Clearly, its power to promulgate its rules on impeachment is limited by the
Section 3 (5) of Article XI becomes clear. Once an impeachment complaint phrase "to effectively carry out the purpose of this section." Hence, these rules
has been initiated, another impeachment complaint may not be filed against cannot contravene the very purpose of the Constitution which said rules were
the same official within a one year period. intended to effectively carry out. Moreover, Section 3 of Article XI clearly
provides for other specific limitations on its power to make rules, viz:
Under Sections 16 and 17 of Rule V of the House Impeachment Rules,
impeachment proceedings are deemed initiated (1) if there is a finding by the Section 3. (1) x x x
House Committee on Justice that the verified complaint and/or resolution is
sufficient in substance, or (2) once the House itself affirms or overturns the (2) A verified complaint for impeachment may be filed by any Member
finding of the Committee on Justice that the verified complaint and/or of the House of Representatives or by any citizen upon a resolution of
resolution is not sufficient in substance or (3) by the filing or endorsement endorsement by any Member thereof, which shall be included in the
before the Secretary-General of the House of Representatives of a verified Order of Business within ten session days, and referred to the proper
complaint or a resolution of impeachment by at least 1/3 of the members of Committee within three session days thereafter. The Committee, after
the House. These rules clearly contravene Section 3 (5) of Article XI since the hearing, and by a majority vote of all its Members, shall submit its
rules give the term "initiate" a meaning different meaning from filing and report to the House within sixty session days from such referral,
referral. together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could from receipt thereof.
not use contemporaneous construction as an aid in the interpretation of Sec.3
(5) of Article XI, citing Vera v. Avelino147 wherein this Court stated that "their (3) A vote of at least one-third of all the Members of the House shall
personal opinions (referring to Justices who were delegates to the Constitution be necessary to either affirm a favorable resolution with the Articles of
Convention) on the matter at issue expressed during this Court's our Impeachment of the Committee, or override its contrary resolution.
deliberations stand on a different footing from the properly recorded utterances The vote of each Member shall be recorded.
of debates and proceedings." Further citing said case, he states that this Court
likened the former members of the Constitutional Convention to actors who
(4) In case the verified complaint or resolution of impeachment is filed
are so absorbed in their emotional roles that intelligent spectators may know
by at least one-third of all the Members of the House, the same shall
more about the real meaning because of the latter's balanced perspectives
constitute the Articles of Impeachment, and trial by the Senate shall
and disinterestedness.148
forthwith proceed.
In sum, I submit that in imposing to this Court the duty to annul acts of The provisions of Sections 16 and 17 of Rule V of the House Impeachment
government committed with grave abuse of discretion, the new Rules which state that impeachment proceedings are deemed initiated (1) if
Constitution transformed this Court from passivity to activism. This there is a finding by the House Committee on Justice that the verified complaint
transformation, dictated by our distinct experience as nation, is not and/or resolution is sufficient in substance, or (2) once the House itself affirms
merely evolutionary but revolutionary.Under the 1935 and the 1973 or overturns the finding of the Committee on Justice that the verified complaint
Constitutions, this Court approached constitutional violations by and/or resolution is not sufficient in substance or (3) by the filing or
initially determining what it cannot do; under the 1987 Constitution, endorsement before the Secretary-General of the House of Representatives
there is a shift in stress this Court is mandated to approach of a verified complaint or a resolution of impeachment by at least 1/3 of the
constitutional violations not by finding out what it should not do members of the House thus clearly contravene Section 3 (5) of Article XI as
but what it must do. The Court must discharge this solemn duty by they give the term "initiate" a meaning different from "filing."
not resuscitating a past that petrifies the present.
Validity of the Second Impeachment Complaint
I urge my brethren in the Court to give due and serious consideration
to this new constitutional provision as the case at bar once more calls
us to define the parameters of our power to review violations of the
Having concluded that the initiation takes place by the act of filing of the This Court did not heed the call to adopt a hands-off stance as far as the
impeachment complaint and referral to the House Committee on Justice, the question of the constitutionality of initiating the impeachment complaint against
initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes Chief Justice Davide is concerned. To reiterate what has been already
clear. Once an impeachment complaint has been initiated in the foregoing explained, the Court found the existence in full of all the requisite conditions
manner, another may not be filed against the same official within a one year for its exercise of its constitutionally vested power and duty of judicial review
period following Article XI, Section 3(5) of the Constitution. over an issue whose resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the land. What lies in
In fine, considering that the first impeachment complaint, was filed by former here is an issue of a genuine constitutional material which only this Court can
President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven properly and competently address and adjudicate in accordance with the clear-
associate justices of this Court, on June 2, 2003 and referred to the House cut allocation of powers under our system of government. Face-to-face thus
Committee on Justice on August 5, 2003, the second impeachment complaint with a matter or problem that squarely falls under the Court's jurisdiction, no
filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella other course of action can be had but for it to pass upon that problem head on.
against the Chief Justice on October 23, 2003 violates the constitutional
prohibition against the initiation of impeachment proceedings against the same The claim, therefore, that this Court by judicially entangling itself with the
impeachable officer within a one-year period. process of impeachment has effectively set up a regime of judicial supremacy,
is patently without basis in fact and in law.
Conclusion
This Court in the present petitions subjected to judicial scrutiny and resolved
If there is anything constant about this country, it is that there is always a on the merits only the main issue of whether the impeachment proceedings
phenomenon that takes the center stage of our individual and collective initiated against the Chief Justice transgressed the constitutionally imposed
consciousness as a people with our characteristic flair for human drama, one-year time bar rule. Beyond this, it did not go about assuming jurisdiction
conflict or tragedy. Of course this is not to demean the seriousness of the where it had none, nor indiscriminately turn justiciable issues out of decidedly
controversy over the Davide impeachment. For many of us, the past two weeks political questions. Because it is not at all the business of this Court to assert
have proven to be an exasperating, mentally and emotionally exhausting judicial dominance over the other two great branches of the government.
experience. Both sides have fought bitterly a dialectical struggle to articulate Rather, the raison d'etre of the judiciary is to complement the discharge by the
what they respectively believe to be the correct position or view on the issues executive and legislative of their own powers to bring about ultimately the
involved. Passions had ran high as demonstrators, whether for or against the beneficent effects of having founded and ordered our society upon the rule of
impeachment of the Chief Justice, took to the streets armed with their familiar law.
slogans and chants to air their voice on the matter. Various sectors of society
- from the business, retired military, to the academe and denominations of faith It is suggested that by our taking cognizance of the issue of constitutionality of
offered suggestions for a return to a state of normalcy in the official relations the impeachment proceedings against the Chief Justice, the members of this
of the governmental branches affected to obviate any perceived resulting Court have actually closed ranks to protect a brethren. That the members'
instability upon areas of national life. interests in ruling on said issue is as much at stake as is that of the Chief
Justice. Nothing could be farther from the truth.
Through all these and as early as the time when the Articles of Impeachment
had been constituted, this Court was specifically asked, told, urged and argued The institution that is the Supreme Court together with all other courts has long
to take no action of any kind and form with respect to the prosecution by the held and been entrusted with the judicial power to resolve conflicting legal
House of Representatives of the impeachment complaint against the subject rights regardless of the personalities involved in the suits or actions. This Court
respondent public official. When the present petitions were knocking so to has dispensed justice over the course of time, unaffected by whomsoever
speak at the doorsteps of this Court, the same clamor for non-interference was stood to benefit or suffer therefrom, unfraid by whatever imputations or
made through what are now the arguments of "lack of jurisdiction," "non- speculations could be made to it, so long as it rendered judgment according to
justiciability," and "judicial self-restraint" aimed at halting the Court from any the law and the facts. Why can it not now be trusted to wield judicial power in
move that may have a bearing on the impeachment proceedings. these petitions just because it is the highest ranking magistrate who is involved
when it is an incontrovertible fact that the fundamental issue is not him but the
validity of a government branch's official act as tested by the limits set by the
Constitution? Of course, there are rules on the inhibition of any member of the
judiciary from taking part in a case in specified instances. But to disqualify this opinion of J. Vitug.
entire institution now from the suit at bar is to regard the Supreme Court as Corona, J., will write a separate concurring opinion.
likely incapable of impartiality when one of its members is a party to a case, Azcuna, J., concur in the separate opinion.
which is simply a non sequitur.
G.R. No. 193459 March 8, 2011
No one is above the law or the Constitution. This is a basic precept in any legal
system which recognizes equality of all men before the law as essential to the MA. MERCEDITAS N. GUTIERREZ Petitioner,
law's moral authority and that of its agents to secure respect for and obedience vs.
to its commands. Perhaps, there is no other government branch or THE HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE, RISA
instrumentality that is most zealous in protecting that principle of legal equality HONTIVEROS-BARAQUEL, DANILO D. LIM, FELIPE PESTAO, EVELYN
other than the Supreme Court which has discerned its real meaning and PESTAO, RENATO M. REYES, JR., SECRETARY GENERAL OF
ramifications through its application to numerous cases especially of the high- BAGONG ALYANSANG MAKABAYAN (BAYAN); MOTHER MARY JOHN
profile kind in the annals of jurisprudence. The Chief Justice is not above the MANANZAN, CO-CHAIRPERSON OF PAGBABAGO; DANILO RAMOS,
law and neither is any other member of this Court. But just because he is the SECRETARY-GENERAL OF KILUSANG MAGBUBUKID NG PILIPINAS
Chief Justice does not imply that he gets to have less in law than anybody (KMP); ATTY. EDRE OLALIA, ACTING SECRETARY GENERAL OF THE
else. The law is solicitous of every individual's rights irrespective of his station NATIONAL UNION OF PEOPLE'S LAWYERS (NUPL); FERDINAND R.
in life. GAITE, CHAIRPERSON, CONFEDERATION FOR UNITY, RECOGNITION
AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE);
The Filipino nation and its democratic institutions have no doubt been put to and JAMES TERRY RIDON OF THE LEAGUE OF FILIPINO STUDENTS
test once again by this impeachment case against Chief Justice Hilario Davide. (LFS), Respondents.
Accordingly, this Court has resorted to no other than the Constitution in search FELICIANO BELMONTE, JR., Respondent-Intervenor.
for a solution to what many feared would ripen to a crisis in government. But
though it is indeed immensely a blessing for this Court to have found answers RESOLUTION
in our bedrock of legal principles, it is equally important that it went through
this crucible of a democratic process, if only to discover that it can resolve CARPIO MORALES, J.:
differences without the use of force and aggression upon each other.
For resolution is petitioners "Motion for Reconsideration (of the Decision dated
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in
15 February 2011)" dated February 25, 2011 (Motion).
Impeachment Proceedings which were approved by the House of
Representatives on November 28, 2001 are unconstitutional. Consequently,
the second impeachment complaint against Chief Justice Hilario G. Davide, Upon examination of the averments in the Motion, the Court finds neither
Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix substantial nor cogent reason to reconsider its Decision. A plain reading of the
William B. Fuentebella with the Office of the Secretary General of the House Decision could very well dispose of petitioners previous contentions, raised
of Representatives on October 23, 2003 is barred under paragraph 5, section anew in the Motion, but the Court finds it proper, in writing finis to the issue, to
3 of Article XI of the Constitution. draw petitioners attention to certain markers in the Decision.
SO ORDERED. I
Bellosillo and Tinga, JJ., see separate opinion. Contrary to petitioners assertion that the Court sharply deviated from the ruling
Puno, and Ynares-Santiago, J., see concurring and dissenting opinion. in Francisco, Jr. v. The House of Representatives,1 the Decision of February
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate 15, 2011 reaffirmed and illuminated the Francisco doctrine in light of the
concurring opinion. particular facts of the present case.
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur. To argue, as petitioner does, that there never was a simultaneous referral of
Austria-Martinez, J., concur in the majority opinion and in the separate two impeachment complaints as they were actually referred to the committee
"separately, one after the other"2 is to dismantle her own interpretation
of Francisco that the one-year bar is to be reckoned from the filing of the concedes as the start of the initiation process is to countenance a raw or half-
impeachment complaint. Petitioners Motion concedes3 that baked initiation.
the Francisco doctrine on the initiation of an impeachment proceeding includes
the Houses initial action on the complaint. By recognizing the legal import of In re-affirming what the phrase "no impeachment proceedings shall be
a referral, petitioner abandons her earlier claim that per Francisco an initiated" means, the Court closely appliedFrancisco on what comprises or
impeachment proceeding is initiated by the mere filing of an impeachment completes the initiation phase. Nothing can be more unequivocal or well-
complaint. defined than the elucidation of filing-and-referral in Francisco. Petitioner must
come to terms with her denial of the exact terms of Francisco.
Having uprooted her reliance on the Francisco case in propping her position
that the initiation of an impeachment proceeding must be reckoned from the Petitioner posits that referral is not an integral or indispensable part of the
filing of the complaint, petitioner insists on actual initiation and not initiation of impeachment proceedings, in case of a direct filing of a verified
"constructive initiation by legal fiction" as averred by Justice Adolfo Azcuna in complaint or resolution of impeachment by at least one-third of all the Members
his separate opinion in Francisco. of the House.7
In Justice Azcunas opinion which concurred with the majority, what he The facts of the case do not call for the resolution of this issue however. Suffice
similarly found untenable was the stretching of the reckoning point of initiation it to restate a footnote in the Courts Decision that in such case of "an
to the time that the Committee on Justice (the Committee) report reaches the abbreviated mode of initiation[, x x x] the filing of the complaint and the taking
floor of the House.4 Notably, the provisions of the Impeachment Rules of the of initial action [House directive to automatically transmit] are merged into a
12th Congress that were successfully challenged in Francisco provided that single act."8 Moreover, it is highly impossible in such situation to coincidentally
an impeachment proceeding was to be "deemed initiated" upon the initiate a second impeachment proceeding in the interregnum, if any, given the
Committees finding of sufficiency of substance or upon the Houses period between filing and referral.
affirmance or overturning of the Committees finding,5 which was clearly
referred to as the instances "presumably for internal purposes of the House,
Petitioners discussion on the singular tense of the word "complaint" is too
as to the timing of some of its internal action on certain relevant tenuous to require consideration. The phraseology of the one-year bar rule
matters."6 Definitely, "constructive initiation by legal fiction" did not refer to the
does not concern itself with a numerical limitation of impeachment complaints.
aspects of filing and referral in the regular course of impeachment, for this was
If it were the intention of the framers of the Constitution to limit the number of
precisely the gist of Francisco in pronouncing what initiation means.
complaints, they would have easily so stated in clear and unequivocal
language.
The Court adhered to the Francisco-ordained balance in the tug-of-war
between those who want to stretch and those who want to shrink the term
Petitioner further avers that the demonstrated concerns against reckoning the
"initiate," either of which could disrupt the provisions congruency to the
period from the filing of the complaint are mere possibilities based on a general
rationale of the constitutional provision. Petitioners imputation that the Courts
mistrust of the Filipino people and their Representatives. To her, mere
Decision presents a sharp deviation from Francisco as it defers the operability
possibility of abuse is not a conclusive argument against the existence of
of the one-year bar rule rings hollow. power nor a reason to invalidate a law.
Petitioner urges that the word "initiate" must be read in its plain, ordinary and
The present case does not involve an invalidation of a legal provision on
technical meaning, for it is contrary to reason, logic and common sense to a grant of power. Since the issue precisely involves upholding an
reckon the beginning or start of the initiation process from its end or express limitation of a power, it behooves the Court to look into the rationale
conclusion. behind the constitutional proscription which guards against an explicit instance
of abuse of power. The Courts duty entails an examination of the same
Petitioner would have been correct had the subject constitutional provision possible scenarios considered by the framers of the Constitution (i.e., incidents
been worded as "no initiation processof the impeachment proceeding shall be that may prove to disrupt the law-making function of Congress and unduly or
commenced against the same official more than once within a period of one too frequently harass the impeachable officer), which are basically the same
year," in which case the reckoning would literally point to the "start of the grounds being invoked by petitioner to arrive at her desired conclusion.
beginning." To immediately reckon the initiation to what petitioner herself
Ironically, petitioner also offers the Court with various possibilities and vivid allowed. She fails, however, to establish whether Commissioner Romulo
scenarios to grimly illustrate her perceived oppression. And her limited or quantified his reference to not more than one complaint or charge.
own mistrust leads her to find inadequate the existence of the pertinent
constitutional provisions, and to entertain doubt on "the respect for and IN SUM, the Court did not deviate from, as it did apply the twin rule of filing
adherence of the House and the respondent committee to the same."9 and referral in the present case, withFrancisco as the guiding light. Petitioner
refuses to see the other half of that light, however.
While petitioner concedes that there is a framework of safeguards for
impeachable officers laid down in Article XI of the Constitution, she downplays II
these layers of protection as illusory or inutile without implementation and
enforcement, as if these can be disregarded at will.1avvphi1
Petitioner, meanwhile, reiterates her argument that promulgation means
publication. She again cites her thesis that Commonwealth Act No. 638, Article
Contrary to petitioners position that the Court left in the hands of the House 2 of the Civil Code, and the two Taada v. Tuvera11 cases mandate that the
the question as to when an impeachment proceeding is initiated, the Court Impeachment Rules be published for effectivity. Petitioner raises nothing new
merely underscored the Houses conscious role in the initiation of an to change the Courts stance on the matter.
impeachment proceeding. The Court added nothing new in pinpointing the
obvious reckoning point of initiation in light of the Francisco doctrine.
To reiterate, when the Constitution uses the word "promulgate," it does not
Moreover, referral of an impeachment complaint to the appropriate committee
necessarily mean to publish in the Official Gazette or in a newspaper of
is already a power or function granted by the Constitution to the House. general circulation. Promulgation, as used in Section 3(8), Article XI of the
Constitution, suitably takes the meaning of "to make known" as it should be
Petitioner goes on to argue that the House has no discretion on the matter of generally understood.
referral of an impeachment complaint and that once filed, an impeachment
complaint should, as a matter of course, be referred to the Committee. Petitioner continues to misapply Neri v. Senate Committee on Accountability
of Public Officers and Investigations12 where the Court noted that the
The House cannot indeed refuse to refer an impeachment complaint that is Constitution unmistakably requires the publication of rules of procedure
filed without a subsisting bar. To refer an impeachment complaint within an pertaining to inquiries in aid of legislation. If the Constitution warranted the
existing one-year bar, however, is to commit the apparently unconstitutional publication of Impeachment Rules, then it could have expediently indicated
act of initiating a second impeachment proceeding, which may be struck down such requirement as it did in the case of legislative inquiries.
under Rule 65 for grave abuse of discretion. It bears recalling that the one-
year bar rule itself is a constitutional limitation on the Houses power or function
The Constitution clearly gives the House a wide discretion on how to effectively
to refer a complaint.
promulgate its Impeachment Rules. It is not for this Court to tell a co-equal
branch of government on how to do so when such prerogative is lodged
Tackling on the House floor in its order of business a clearly constitutionally- exclusively with it.
prohibited second impeachment complaint on the matter of whether to make
the appropriate referral goes precisely into the propriety of the referral and not
Still, petitioner argues that the Court erred when it ruled that "to require
on the merits of the complaint. The House needs only to ascertain the
publication of the House Impeachment Rules would only delay the
existence or expiry of the constitutional ban of one year, without any regard to
impeachment proceedings and cause the House of Representatives to violate
the claims set forth in the complaint.
constitutionally mandated periods" She insists that the Committee, after
publishing the Impeachment Rules, would still have a remainder of 45 days
To petitioner, the intervening days from the filing of the complaint to whatever out of the 60-day period within which to finish its business.
completes the initiation of an impeachment proceeding is immaterial in
mitigating the influx of successive complaints since allowing multiple
Petitioner is mistaken in her assertion. Note that the Court discussed the
impeachment charges would result to the same harassment and oppression.
above-mentioned scenario only "in cases where impeachment complaints are
She particularly cites Constitutional Commissioner Ricardo Romulos filed at the start of each Congress." Section 3, Article XI of the Constitution
concerns on the amount of time spent if "multiple impeachment charges"10 are contains relevant self-executing provisions which must be observed at the start
of the impeachment process, the promulgation of the Impeachment Rules WHEREFORE, the Motion for Reconsideration is DENIED for lack of merit.
notwithstanding.
SO ORDERED.
Petitioner rehashes her allegations of bias and vindictiveness on the part of
the Committee Chairperson, Rep. Niel Tupas, Jr. Yet again, the supposed CONCHITA CARPIO MORALES
actuations of Rep. Tupas partake of a keen performance of his avowed duties Associate Justice
and responsibilities as the designated manager of that phase in the
impeachment proceeding. Besides, the actions taken by the Committee were WE CONCUR:
never its Chairpersons sole act but rather the collective undertaking of its
whole 55-person membership. The Committee members even took to voting
among themselves to validate what actions to take on the motions presented RENATO C. CORONA
to the Committee. Chief Justice
Except for the constitutionally mandated periods, the pacing or alleged TERESITA J.
precipitate haste with which the impeachment proceeding against petitioner is DIOSDADO M. PERALTA
LEONARDO-DE CASTRO
conducted is beyond the Courts control. Again, impeachment is a highly Associate Justice
Associate Justice
politicized intramural that gives the House ample leg room to operate, subject
only to the constitutionally imposed limits.13 And beyond these, the Court is
LUCAS P. BERSAMIN ROBERTO A. ABAD
duty-bound to respect the discretion of a co-equal branch of government on
Associate Justice Associate Justice
matters which would effectively carry out its constitutional mandate.
FINALLY, the Court has, in its February 15, 2011 Decision, already lifted its MARIANO C. DEL MARTIN S. VILLARAMA,
September 14, 2010 Status Quo Ante Order14 which, as said Order clearly CASTILLO JR.
stated, was "effective immediately and continuing until further orders from this Associate Justice Associate Justice
Court."15 Such "further order" points to that part of the disposition in the
February 15, 2011 Decision that directs the lifting of the Status Quo Ante JOSE CATRAL
Order. JOSE PORTUGAL PEREZ
MENDOZA
Associate Justice
Associate Justice
The lifting of the Status Quo Ante Order is effective immediately, the filing of
petitioners motion for reconsideration notwithstanding, in the same way that
the Status Quo Ante Order was made effective immediately, respondents MARIA LOURDES P. A. SERENO
moves to reconsider or recall it notwithstanding. There is thus no faulting the Associate Justice
Committee if it decides to, as it did proceed with the impeachment proceeding
after the Court released its February 15, 2011 Decision. CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the 1. Fixing the time and dates for signature gathering all over the
conclusions in the above Resolution had been reached in consultation before country;
the case was assigned to the writer of the opinion of the Court.
2. Causing the necessary publications of said Order and the attached
RENATO C. CORONA "Petition for Initiative on the 1987 Constitution, in newspapers of
Chief Justice general and local circulation;
G.R. No. 127325 March 19, 1997 3. Instructing Municipal Election Registrars in all Regions of the
Philippines, to assist Petitioners and volunteers, in establishing
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA signing stations at the time and on the dates designated for the
ISABEL ONGPIN, petitioners, purpose.
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & Delfin alleged in his petition that he is a founding member of the Movement for
CARMEN PEDROSA, in their capacities as founding members of the People's Initiative, 6 a group of citizens desirous to avail of the system intended
People's Initiative for Reforms, Modernization and Action to institutionalize people power; that he and the members of the Movement
(PIRMA), respondents. and other volunteers intend to exercise the power to directly propose
amendments to the Constitution granted under Section 2, Article XVII of the
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG Constitution; that the exercise of that power shall be conducted in proceedings
KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR under the control and supervision of the COMELEC; that, as required in
BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), COMELEC Resolution No. 2300, signature stations shall be established all
INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG over the country, with the assistance of municipal election registrars, who shall
DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors. verify the signatures affixed by individual signatories; that before the
Movement and other volunteers can gather signatures, it is necessary that the
DAVIDE, JR., J.: time and dates to be designated for the purpose be first fixed in an order to be
issued by the COMELEC; and that to adequately inform the people of the
electoral process involved, it is likewise necessary that the said order, as well
The heart of this controversy brought to us by way of a petition for prohibition as the Petition on which the signatures shall be affixed, be published in
under Rule 65 of the Rules of Court is the right of the people to directly propose newspapers of general and local circulation, under the control and supervision
amendments to the Constitution through the system of initiative under Section of the COMELEC.
2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special
attention, as this system of initiative was unknown to the people of this country,
The Delfin Petition further alleged that the provisions sought to be amended
except perhaps to a few scholars, before the drafting of the 1987 Constitution.
are Sections 4 and 7 of Article VI, 7Section 4 of Article VII, 8 and Section 8 of
The 1986 Constitutional Commission itself, through the original
proponent 1 and the main sponsor 2 of the proposed Article on Amendments or Article X 9 of the Constitution. Attached to the petition is a copy of a "Petition
for Initiative on the 1987 Constitution" 10 embodying the proposed
Revision of the Constitution, characterized this system as
"innovative". 3 Indeed it is, for both under the 1935 and 1973 Constitutions, amendments which consist in the deletion from the aforecited sections of the
provisions concerning term limits, and with the following proposition:
only two methods of proposing amendments to, or revision of, the Constitution
were recognized, viz., (1) by Congress upon a vote of three-fourths of all its
members and (2) by a constitutional convention. 4 For this and the other DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL
reasons hereafter discussed, we resolved to give due course to this petition. ELECTIVE GOVERNMENT OFFICIALS, AMENDING FOR THE
PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF
ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public
PHILIPPINE CONSTITUTION?
respondent Commission on Elections (hereafter, COMELEC) a "Petition to
Amend the Constitution, to Lift Term Limits of Elective Officials, by People's
Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the COMELEC for
an order
According to Delfin, the said Petition for Initiative will first be submitted to the Constitution was left to some future law. Former Senator Arturo
people, and after it is signed by at least twelve per cent of the total number of Tolentino stressed this deficiency in the law in his privilege speech
registered voters in the country it will be formally filed with the COMELEC. delivered before the Senate in 1994: "There is not a single word in that
law which can be considered as implementing [the provision on
Upon the filing of the Delfin Petition, which was forthwith given the constitutional initiative]. Such implementing provisions have been
number UND 96-037 (INITIATIVE), the COMELEC, through its Chairman, obviously left to a separate law.
issued an Order 11 (a) directing Delfin "to cause the publication of the petition,
together with the attached Petition for Initiative on the 1987 Constitution (3) Republic Act No. 6735 provides for the effectivity of the law after
(including the proposal, proposed constitutional amendment, and the signature publication in print media. This indicates that the Act covers only laws
form), and the notice of hearing in three (3) daily newspapers of general and not constitutional amendments because the latter take effect only
circulation at his own expense" not later than 9 December 1996; and (b) setting upon ratification and not after publication.
the case for hearing on 12 December 1996 at 10:00 a.m.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to
At the hearing of the Delfin Petition on 12 December 1996, the following govern "the conduct of initiative on the Constitution and initiative and
appeared: Delfin and Atty. Pete Q. Quadra; representatives of the People's referendum on national and local laws, is ultra vires insofar
Initiative for Reforms, Modernization and Action (PIRMA); intervenor-oppositor asinitiative on amendments to the Constitution is concerned, since the
Senator Raul S. Roco, together with his two other lawyers, and representatives COMELEC has no power to provide rules and regulations for the
of, or counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya- exercise of the right of initiative to amend the Constitution. Only
Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban Congress is authorized by the Constitution to pass the implementing
ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on that same day, filed law.
a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory
petition properly cognizable by the COMELEC. (5) The people's initiative is limited to amendments to the Constitution,
not to revision thereof. Extending or lifting of term limits constitutes
After hearing their arguments, the COMELEC directed Delfin and the a revision and is, therefore, outside the power of the people's initiative.
oppositors to file their "memoranda and/or oppositions/memoranda" within five
days. 13 (6) Finally, Congress has not yet appropriated funds for people's
initiative; neither the COMELEC nor any other government
On 18 December 1996, the petitioners herein Senator Miriam Defensor department, agency, or office has realigned funds for the purpose.
Santiago, Alexander Padilla, and Maria Isabel Ongpin filed this special civil
action for prohibition raising the following arguments: To justify their recourse to us via the special civil action for prohibition, the
petitioners allege that in the event the COMELEC grants the Delfin Petition,
(1) The constitutional provision on people's initiative to amend the the people's initiative spearheaded by PIRMA would entail expenses to the
Constitution can only be implemented by law to be passed by national treasury for general re-registration of voters amounting to at least
Congress. No such law has been passed; in fact, Senate Bill No. 1290 P180 million, not to mention the millions of additional pesos in expenses which
entitled An Act Prescribing and Regulating Constitution Amendments would be incurred in the conduct of the initiative itself. Hence, the
by People's Initiative, which petitioner Senator Santiago filed on 24 transcendental importance to the public and the nation of the issues raised
November 1995, is still pending before the Senate Committee on demands that this petition for prohibition be settled promptly and definitely,
Constitutional Amendments. brushing aside technicalities of procedure and calling for the admission of a
taxpayer's and legislator's suit. 14 Besides, there is no other plain, speedy, and
(2) It is true that R.A. No. 6735 provides for three systems of initiative, adequate remedy in the ordinary course of law.
namely, initiative on the Constitution, on statutes, and on local
legislation. However, it failed to provide any subtitle on initiative on the On 19 December 1996, this Court (a) required the respondents to comment
Constitution, unlike in the other modes of initiative, which are on the petition within a non-extendible period of ten days from notice; and (b)
specifically provided for in Subtitle II and Subtitle III. This deliberate issued a temporary restraining order, effective immediately and continuing
omission indicates that the matter of people's initiative to amend the until further orders, enjoining public respondent COMELEC from proceeding
with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS
from conducting a signature drive for people's initiative to amend the CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY
Constitution. PROMULGATING GUIDELINES AND RULES FOR BOTH
NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE
On 2 January 1997, private respondents, through Atty Quadra, filed their LAWS."
Comment 15 on the petition. They argue therein that:
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO.
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE 1290 CONTAINS A PROVISION DELEGATING TO THE COMELEC
NATIONAL TREASURY FOR GENERAL REGISTRATION OF THE POWER TO "PROMULGATE SUCH RULES AND
VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE
EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED
THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE AS ANNEX E, PETITION);
COMELEC.
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE OF ELECTIVE OFFICIALS PROVIDED UNDER THE 1987
NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION. IT
PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE
RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR CONSTITUTION. REVISION CONTEMPLATES A RE-
PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO EXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE
THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-
OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE 413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G.
GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND BERNAS, S.J.).
HIS VOLUNTEERS IS P2,571,200.00;
Also on 2 January 1997, private respondent Delfin filed in his own behalf a
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON Comment 16 which starts off with an assertion that the instant petition is a
THE SIGNATURE GATHERING WHICH BY LAW COMELEC IS "knee-jerk reaction to a draft 'Petition for Initiative on the 1987 Constitution'. .
DUTY BOUND "TO SUPERVISE CLOSELY" PURSUANT TO ITS . which is not formally filed yet." What he filed on 6 December 1996 was an
"INITIATORY JURISDICTION" UPHELD BY THE HONORABLE "Initiatory Pleading" or "Initiatory Petition," which was legally necessary to start
COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE the signature campaign to amend the Constitution or to put the movement to
CASE OF SUBIC BAY METROPOLITAN AUTHORITY gather signatures under COMELEC power and function. On the substantive
VS.COMELEC, ET AL. G.R. NO. 125416; allegations of the petitioners, Delfin maintains as follows:
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE (1) Contrary to the claim of the petitioners, there is a law, R.A. No.
ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE 6735, which governs the conduct of initiative to amend the
INITIATIVE TO PROPOSE AMENDMENTS TO THE Constitution. The absence therein of a subtitle for such initiative is not
CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE fatal, since subtitles are not requirements for the validity or sufficiency
BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY of laws.
PROVIDED FOR IN REP. ACT NO. 6735;
(2) Section 9(b) of R.A. No. 6735 specifically provides that the
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON proposition in an initiative to amend the Constitution approved by the
JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD majority of the votes cast in the plebiscite shall become effective as of
BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, the day of the plebiscite.
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is (5) COMELEC Resolution No. 2300 was validly issued under Section
contradicted by (a) Section 2, Article IX-C of the Constitution, which 20 of R.A. No. 6735 and under the Omnibus Election Code. The rule-
grants the COMELEC the power to enforce and administer all laws making power of the COMELEC to implement the provisions of R.A.
and regulations relative to the conduct of an election, No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan
plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. Authority vs. COMELEC.
6735, which empowers the COMELEC to promulgate such rules and
regulations as may be necessary to carry out the purposes of the Act. On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the Motion to
(4) The proposed initiative does not involve a revision of, but Lift Temporary Restraining Order filed by private respondents through Atty.
mere amendment to, the Constitution because it seeks to alter only a Quadra, as well as the latter's Manifestation stating that he is the counsel for
few specific provisions of the Constitution, or more specifically, only private respondents Alberto and Carmen Pedrosa only and the Comment he
those which lay term limits. It does not seek to reexamine or overhaul filed was for the Pedrosas; and (c) granted the Motion for Intervention filed on
the entire document. 6 January 1997 by Senator Raul Roco and allowed him to file his Petition in
Intervention not later than 20 January 1997; and (d) set the case for hearing
As to the public expenditures for registration of voters, Delfin considers on 23 January 1997 at 9:30 a.m.
petitioners' estimate of P180 million as unreliable, for only the COMELEC can
give the exact figure. Besides, if there will be a plebiscite it will be simultaneous On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK)
with the 1997 Barangay Elections. In any event, fund requirements and the Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc.
for initiative will be a priority government expense because it will be for the (MABINI), filed a Motion for Intervention. Attached to the motion was their
exercise of the sovereign power of the people. Petition in Intervention, which was later replaced by an Amended Petition in
Intervention wherein they contend that:
In the Comment 17 for the public respondent COMELEC, filed also on 2
January 1997, the Office of the Solicitor General contends that: (1) The Delfin proposal does not involve a mere amendment to, but
a revision of, the Constitution because, in the words of Fr. Joaquin
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Bernas, S.J., 18 it would involve a change from a political philosophy
Constitution. Its Section 2 on Statement of Policy explicitly affirms, that rejects unlimited tenure to one that accepts unlimited tenure; and
recognizes, and guarantees that power; and its Section 3, which although the change might appear to be an isolated one, it can affect
enumerates the three systems of initiative, includes initiative on the other provisions, such as, on synchronization of elections and on the
Constitution and defines the same as the power to propose State policy of guaranteeing equal access to opportunities for public
amendments to the Constitution. Likewise, its Section 5 repeatedly service and prohibiting political dynasties. 19 Arevision cannot be done
mentions initiative on the Constitution. by initiative which, by express provision of Section 2 of Article XVII of
the Constitution, is limited to amendments.
(2) A separate subtitle on initiative on the Constitution is not necessary
in R.A. No. 6735 because, being national in scope, that system (2) The prohibition against reelection of the President and the limits
of initiative is deemed included in the subtitle on National Initiative and provided for all other national and local elective officials are based on
Referendum; and Senator Tolentino simply overlooked pertinent the philosophy of governance, "to open up the political arena to as
provisions of the law when he claimed that nothing therein was many as there are Filipinos qualified to handle the demands of
provided for initiative on the Constitution. leadership, to break the concentration of political and economic
powers in the hands of a few, and to promote effective proper
(3) Senate Bill No. 1290 is neither a competent nor a material proof empowerment for participation in policy and decision-making for the
that R.A. No. 6735 does not deal with initiative on the Constitution. common good"; hence, to remove the term limits is to negate and
nullify the noble vision of the 1987 Constitution.
(4) Extension of term limits of elected officials constitutes a mere
amendment to the Constitution, not a revision thereof. (3) The Delfin proposal runs counter to the purpose of initiative,
particularly in a conflict-of-interest situation. Initiative is intended as a
fallback position that may be availed of by the people only if they are The following day, the IBP filed a Motion for Intervention to which it attached a
dissatisfied with the performance of their elective officials, but not as Petition in Intervention raising the following arguments:
a premium for good performance. 20
(1) Congress has failed to enact an enabling law mandated under
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the Section 2, Article XVII of the 1987 Constitution.
enabling law that implements the people's initiative on amendments to
the Constitution. It fails to state (a) the proper parties who may file the (2) COMELEC Resolution No. 2300 cannot substitute for the required
petition, (b) the appropriate agency before whom the petition is to be implementing law on the initiative to amend the Constitution.
filed, (c) the contents of the petition, (d) the publication of the same,
(e) the ways and means of gathering the signatures of the voters
(3) The Petition for Initiative suffers from a fatal defect in that it does
nationwide and 3% per legislative district, (f) the proper parties who
not have the required number of signatures.
may oppose or question the veracity of the signatures, (g) the role of
the COMELEC in the verification of the signatures and the sufficiency
of the petition, (h) the appeal from any decision of the COMELEC, (I) (4) The petition seeks, in effect a revision of the Constitution, which
the holding of a plebiscite, and (g) the appropriation of funds for such can be proposed only by Congress or a constitutional convention. 22
people's initiative. Accordingly, there being no enabling law, the
COMELEC has no jurisdiction to hear Delfin's petition. On 21 January 1997, we promulgated a Resolution (a) granting the Motions
for Intervention filed by the DIK and MABINI and by the IBP, as well as the
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by Motion for Leave to Intervene filed by LABAN; (b) admitting the Amended
COMELEC Resolution No. 2300, since the COMELEC is without Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of
authority to legislate the procedure for a people's initiativeunder Senator Roco and of the IBP; (c) requiring the respondents to file within a
Section 2 of Article XVII of the Constitution. That function exclusively nonextendible period of five days their Consolidated Comments on the
pertains to Congress. Section 20 of R.A. No. 6735 does not constitute aforesaid Petitions in Intervention; and (d) requiring LABAN to file its Petition
a legal basis for the Resolution, as the former does not set a sufficient in Intervention within a nonextendible period of three days from notice, and the
standard for a valid delegation of power. respondents to comment thereon within a nonextendible period of five days
from receipt of the said Petition in Intervention.
On 20 January 1997, Senator Raul Roco filed his Petition in Intervention. 21 He
avers that R.A. No. 6735 is the enabling law that implements the people's right At the hearing of the case on 23 January 1997, the parties argued on the
to initiate constitutional amendments. This law is a consolidation of Senate Bill following pivotal issues, which the Court formulated in light of the allegations
No. 17 and House Bill No. 21505; he co-authored the House Bill and even and arguments raised in the pleadings so far filed:
delivered a sponsorship speech thereon. He likewise submits that the
COMELEC was empowered under Section 20 of that law to promulgate 1. Whether R.A. No. 6735, entitled An Act Providing for a System of
COMELEC Resolution No. 2300. Nevertheless, he contends that the Initiative and Referendum and Appropriating Funds Therefor, was
respondent Commission is without jurisdiction to take cognizance of the Delfin intended to include or cover initiative on amendments to the
Petition and to order its publication because the said petition is not the initiatory Constitution; and if so, whether the Act, as worded, adequately covers
pleading contemplated under the Constitution, Republic Act No. 6735, and such initiative.
COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC
in an initiative on the Constitution is the filing of a petition for initiative which 2. Whether that portion of COMELEC Resolution No. 2300 (In re:
is signedby the required number of registered voters. He also submits that the Rules and Regulations Governing the Conduct of Initiative on the
proponents of a constitutional amendment cannot avail of the authority and Constitution, and Initiative and Referendum on National and Local
resources of the COMELEC to assist them is securing the required number of Laws) regarding the conduct of initiative on amendments to the
signatures, as the COMELEC's role in an initiative on the Constitution is limited Constitution is valid, considering the absence in the law of specific
to the determination of the sufficiency of the initiative petition and the call and provisions on the conduct of such initiative.
supervision of a plebiscite, if warranted.
3. Whether the lifting of term limits of elective national and local
On 20 January 1997, LABAN filed a Motion for Leave to Intervene. officials, as proposed in the draft "Petition for Initiative on the 1987
Constitution," would constitute a revision of, or an amendment to, the THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN
Constitution. THE COMELEC OF THE DELFIN PETITION.
4. Whether the COMELEC can take cognizance of, or has jurisdiction Except for the petitioners and intervenor Roco, the parties paid no serious
over, a petition solely intended to obtain an order (a) fixing the time attention to the fifth issue, i.e., whether it is proper for this Court to take
and dates for signature gathering; (b) instructing municipal election cognizance of this special civil action when there is a pending case before the
officers to assist Delfin's movement and volunteers in establishing COMELEC. The petitioners provide an affirmative answer. Thus:
signature stations; and (c) directing or causing the publication of, inter
alia, the unsigned proposed Petition for Initiative on the 1987 28. The Comelec has no jurisdiction to take cognizance of the petition
Constitution. filed by private respondent Delfin. This being so, it becomes
imperative to stop the Comelec from proceeding any further, and
5. Whether it is proper for the Supreme Court to take cognizance of under the Rules of Court, Rule 65, Section 2, a petition for prohibition
the petition when there is a pending case before the COMELEC. is the proper remedy.
After hearing them on the issues, we required the parties to submit 29. The writ of prohibition is an extraordinary judicial writ issuing out
simultaneously their respective memoranda within twenty days and requested of a court of superior jurisdiction and directed to an inferior court, for
intervenor Senator Roco to submit copies of the deliberations on House Bill the purpose of preventing the inferior tribunal from usurping a
No. 21505. jurisdiction with which it is not legally vested. (People v. Vera, supra.,
p. 84). In this case the writ is an urgent necessity, in view of the highly
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts divisive and adverse environmental consequences on the body politic
the allegations and arguments in the main Petition. It further submits that the of the questioned Comelec order. The consequent climate of legal
COMELEC should have dismissed the Delfin Petition for failure to state a confusion and political instability begs for judicial statesmanship.
sufficient cause of action and that the Commission's failure or refusal to do so
constituted grave abuse of discretion amounting to lack of jurisdiction. 30. In the final analysis, when the system of constitutional law is
threatened by the political ambitions of man, only the Supreme Court
On 28 January 1997, Senator Roco submitted copies of portions of both the can save a nation in peril and uphold the paramount majesty of the
Journal and the Record of the House of Representatives relating to the Constitution. 25
deliberations of House Bill No. 21505, as well as the transcripts of
stenographic notes on the proceedings of the Bicameral Conference It must be recalled that intervenor Roco filed with the COMELEC a motion to
Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989 on dismiss the Delfin Petition on the ground that the COMELEC has no jurisdiction
House Bill No. 21505 and Senate Bill No. 17. or authority to entertain the petition. 26 The COMELEC made no ruling thereon
evidently because after having heard the arguments of Delfin and the
Private respondents Alberto and Carmen Pedrosa filed their Consolidated oppositors at the hearing on 12 December 1996, it required them to submit
Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI, within five days their memoranda or oppositions/memoranda. 27 Earlier, or
and IBP. 23 The parties thereafter filed, in due time, their separate specifically on 6 December 1996, it practically gave due course to the Delfin
memoranda. 24 Petition by ordering Delfin to cause the publication of the petition, together with
the attached Petition for Initiative, the signature form, and the notice of hearing;
As we stated in the beginning, we resolved to give due course to this special and by setting the case for hearing. The COMELEC's failure to act on Roco's
civil action. motion to dismiss and its insistence to hold on to the petition rendered ripe and
viable the instant petition under Section 2 of Rule 65 of the Rules of Court,
which provides:
For a more logical discussion of the formulated issues, we shall first take up
the fifth issue which appears to pose a prejudicial procedural question.
Sec. 2. Petition for prohibition. Where the proceedings of any
tribunal, corporation, board, or person, whether exercising functions
I judicial or ministerial, are without or in excess of its or his jurisdiction,
or with grave abuse of discretion, and there is no appeal or any other authorized within five years following the ratification of this
plain, speedy and adequate remedy in the ordinary course of law, a Constitution nor oftener than once every five years thereafter.
person aggrieved thereby may file a verified petition in the proper court
alleging the facts with certainty and praying that judgment be rendered The Congress shall provide for the implementation of the exercise of this right.
commanding the defendant to desist from further proceedings in the
action or matter specified therein. This provision is not self-executory. In his book, 29 Joaquin Bernas, a member
of the 1986 Constitutional Commission, stated:
It must also be noted that intervenor Roco claims that the COMELEC has no
jurisdiction over the Delfin Petition because the said petition is not supported
Without implementing legislation Section 2 cannot operate.
by the required minimum number of signatures of registered voters. LABAN
Thus, although this mode of amending the Constitution is a
also asserts that the COMELEC gravely abused its discretion in refusing to
mode of amendment which bypasses congressional action, in
dismiss the Delfin Petition, which does not contain the required number of
the last analysis it still is dependent on congressional action.
signatures. In light of these claims, the instant case may likewise be treated
as a special civil action for certiorari under Section I of Rule 65 of the Rules of
Court. Bluntly stated, the right of the people to directly propose amendments
to the Constitution through the system of initiative would remain
entombed in the cold niche of the Constitution until Congress provides
In any event, as correctly pointed out by intervenor Roco in his Memorandum,
for its implementation. Stated otherwise, while the Constitution has
this Court may brush aside technicalities of procedure in recognized or granted that right, the people cannot exercise it if
cases of transcendental importance. As we stated in Kilosbayan,
Congress, for whatever reason, does not provide for its
Inc. v. Guingona, Jr. 28
implementation.
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF (b) by a constitutional convention; or
INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, BUT IS,
UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM. (c) directly by the people themselves thru initiative as provided
for in Article___ Section ___of the Constitution. 31
Section 2 of Article XVII of the Constitution provides:
After several interpellations, but before the period of amendments, the
Sec. 2. Amendments to this Constitution may likewise be Committee submitted a new formulation of the concept of initiative
directly proposed by the people through initiative upon a which it denominated as Section 2; thus:
petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be MR. SUAREZ. Thank you, Madam President. May we
represented by at least three per centum of the registered respectfully call attention of the Members of the
voters therein. No amendment under this section shall be Commission that pursuant to the mandate given to us
last night, we submitted this afternoon a complete
Committee Report No. 7 which embodies the year period, the National Assembly can come up with
proposed provision governing the matter of initiative. the appropriate rules governing the exercise of this
This is now covered by Section 2 of the complete power.
committee report. With the permission of the
Members, may I quote Section 2: FR. BERNAS. Since the matter is left to the
legislature the details on how this is to be carried
The people may, after five years from the date of the last out is it possible that, in effect, what will be
plebiscite held, directly propose amendments to this presented to the people for ratification is the work of
Constitution thru initiative upon petition of at least ten percent the legislature rather than of the people? Does this
of the registered voters. provision exclude that possibility?
This completes the blanks appearing in the original MR. SUAREZ. No, it does not exclude that possibility
Committee Report No. 7. 32 because even the legislature itself as a body could
propose that amendment, maybe individually or
The interpellations on Section 2 showed that the details for carrying out collectively, if it fails to muster the three-fourths vote
Section 2 are left to the legislature. Thus: in order to constitute itself as a constituent assembly
and submit that proposal to the people for ratification
FR. BERNAS. Madam President, just two simple, through the process of an initiative.
clarificatory questions.
xxx xxx xxx
First, on Section 1 on the matter of initiative upon
petition of at least 10 percent, there are no details in MS. AQUINO. Do I understand from the sponsor that
the provision on how to carry this out. Do we the intention in the proposal is to vest constituent
understand, therefore, that we are leaving this matter power in the people to amend the Constitution?
to the legislature?
MR. SUAREZ. That is absolutely correct, Madam
MR. SUAREZ. That is right, Madam President. President.
FR. BERNAS. And do we also understand, therefore, MS. AQUINO. I fully concur with the underlying
that for as long as the legislature does not pass the precept of the proposal in terms of institutionalizing
necessary implementing law on this, this will not popular participation in the drafting of the Constitution
operate? or in the amendment thereof, but I would have a lot of
difficulties in terms of accepting the draft of Section 2,
as written. Would the sponsor agree with me that in
MR. SUAREZ. That matter was also taken up during
the hierarchy of legal mandate, constituent power has
the committee hearing, especially with respect to the
primacy over all other legal mandates?
budget appropriations which would have to be
legislated so that the plebiscite could be called. We
deemed it best that this matter be left to the MR. SUAREZ. The Commissioner is right, Madam
legislature. The Gentleman is right. In any event, as President.
envisioned, no amendment through the power of
initiative can be called until after five years from the MS. AQUINO. And would the sponsor agree with me
date of the ratification of this Constitution. Therefore, that in the hierarchy of legal values, the Constitution
the first amendment that could be proposed through is source of all legal mandates and that therefore we
the exercise of this initiative power would be after five require a great deal of circumspection in the drafting
years. It is reasonably expected that within that five- and in the amendments of the Constitution?
MR. SUAREZ. That proposition is nondebatable. as another separate section as if it were a self-
executing provision?
MS. AQUINO. Such that in order to underscore the
primacy of constituent power we have a separate MR. SUAREZ. We would be amenable except that,
article in the constitution that would specifically cover as we clarified a while ago, this process of initiative is
the process and the modes of amending the limited to the matter of amendment and should not
Constitution? expand into a revision which contemplates a total
overhaul of the Constitution. That was the sense that
MR. SUAREZ. That is right, Madam President. was conveyed by the Committee.
MS. AQUINO. Therefore, is the sponsor inclined, as MS. AQUINO. In other words, the Committee was
the provisions are drafted now, to again concede to attempting to distinguish the coverage of modes (a)
the legislature the process or the requirement of and (b) in Section 1 to include the process of revision;
determining the mechanics of amending the whereas theprocess of initiation to amend, which is
Constitution by people's initiative? given to the public, would only apply to amendments?
MR. SUAREZ. The matter of implementing this could MR. SUAREZ. That is right. Those were the terms
very well be placed in the hands of the National envisioned in the Committee. 35
Assembly, not unless we can incorporate into this
provision the mechanics that would adequately cover Amendments to the proposed Section 2 were thereafter introduced by then
all the conceivable situations. 33 Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:
It was made clear during the interpellations that the aforementioned Section 2 MR. DAVIDE. Thank you Madam President. I
is limited to proposals to AMEND not to REVISE the Constitution; thus: propose to substitute the entire Section 2 with the
following:
MR. SUAREZ. . . . This proposal was suggested on
the theory that this matter of initiative, which came MR. DAVIDE. Madam President, I have modified the
about because of the extraordinary developments this proposed amendment after taking into account the
year, has to be separated from the traditional modes modifications submitted by the sponsor himself and
of amending the Constitution as embodied in Section the honorable Commissioners Guingona, Monsod,
1. The committee members felt that this system of Rama, Ople, de los Reyes and Romulo. The modified
initiative should not extend to the revision of the entire amendment in substitution of the proposed Section 2
Constitution, so we removed it from the operation of will now read as follows: "SECTION 2.
Section 1 of the proposed Article on Amendment or AMENDMENTS TO THIS CONSTITUTION MAY
Revision. 34 LIKEWISE BE DIRECTLY PROPOSED BY THE
PEOPLE THROUGH INITIATIVE UPON A PETITION
xxx xxx xxx OF AT LEAST TWELVE PERCENT OF THE TOTAL
NUMBER Of REGISTERED VOTERS, OF WHICH
EVERY LEGISLATIVE DISTRICT MUST BE
MS. AQUINO. In which case, I am seriously bothered
REPRESENTED BY AT LEAST THREE PERCENT
by providing this process of initiative as a separate
OF THE REGISTERED VOTERS THEREOF. NO
section in the Article on Amendment. Would the
AMENDMENT UNDER THIS SECTION SHALL BE
sponsor be amenable to accepting an amendment in
terms of realigning Section 2 as another AUTHORIZED WITHIN FIVE YEARS FOLLOWING
subparagraph (c) of Section 1, instead of setting it up THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS MR. ROMULO. In that provision of the
THEREAFTER. Constitution can the procedures which I have
discussed be legislated?
THE NATIONAL ASSEMBLY SHALL BY LAW
PROVIDE FOR THE IMPLEMENTATION OF THE MR. DAVIDE. Yes. 37
EXERCISE OF THIS RIGHT.
Commissioner Davide also reaffirmed that his modified amendment strictly
MR. SUAREZ. Madam President, considering that confines initiative to AMENDMENTS to NOT REVISION of the
the proposed amendment is reflective of the sense Constitution. Thus:
contained in Section 2 of our completed Committee
Report No. 7, we accept the proposed amendment. 36 MR. DAVIDE. With pleasure, Madam President.
The interpellations which ensued on the proposed modified amendment to MR. MAAMBONG. My first question: Commissioner
Section 2 clearly showed that it was a legislative act which must implement Davide's proposed amendment on line 1 refers to
the exercise of the right. Thus: "amendment." Does it not cover the word "revision"
as defined by Commissioner Padilla when he made
MR. ROMULO. Under Commissioner Davide's the distinction between the words "amendments" and
amendment, is it possible for the legislature to set "revision"?
forth certain procedures to carry out the initiative. . .?
MR. DAVIDE. No, it does not, because
MR. DAVIDE. It can. "amendments" and "revision" should be covered by
Section 1. So insofar as initiative is concerned, it can
xxx xxx xxx only relate to "amendments" not "revision." 38
MR. ROMULO. But the Commissioner's amendment Commissioner Davide further emphasized that the process of proposing
does not prevent the legislature from asking another amendments through initiative must be more rigorous and difficult than the
body to set the proposition in proper form. initiative on legislation. Thus:
MR. DAVIDE. The Commissioner is correct. In other MR. DAVIDE. A distinction has to be made that under
words, the implementation of this particular right this proposal, what is involved is an amendment to
would be subject to legislation, provided the the Constitution. To amend a Constitution would
legislature cannot determine anymore the percentage ordinarily require a proposal by the National
of the requirement. Assembly by a vote of three-fourths; and to call a
constitutional convention would require a higher
MR. ROMULO. But the procedures, including the number. Moreover, just to submit the issue of calling
determination of the proper form for submission to the a constitutional convention, a majority of the National
people, may be subject to legislation. Assembly is required, the import being that the
process of amendment must be made more rigorous
and difficult than probably initiating an ordinary
MR. DAVIDE. As long as it will not destroy the legislation or putting an end to a law proposed by the
substantive right to initiate. In other words, none of National Assembly by way of a referendum. I cannot
the procedures to be proposed by the legislative body agree to reducing the requirement approved by the
must diminish or impair the right conceded here. Committee on the Legislative because it would
require another voting by the Committee, and the
voting as precisely based on a requirement of 10
percent. Perhaps, I might present such a proposal, by Has Congress "provided" for the implementation of the exercise of this right?
way of an amendment, when the Commission shall Those who answer the question in the affirmative, like the private respondents
take up the Article on the Legislative or on the and intervenor Senator Roco, point to us R.A. No. 6735.
National Assembly on plenary sessions. 39
There is, of course, no other better way for Congress to implement the exercise
The Davide modified amendments to Section 2 were subjected to of the right than through the passage of a statute or legislative act. This is the
amendments, and the final version, which the Commission approved by a vote essence or rationale of the last minute amendment by the Constitutional
of 31 in favor and 3 against, reads as follows: Commission to substitute the last paragraph of Section 2 of Article XVII then
reading:
MR. DAVIDE. Thank you Madam President. Section 2, as
amended, reads as follows: "AMENDMENT TO THIS The Congress 45 shall by law provide for the implementation
CONSTITUTION MAY LIKEWISE BE DIRECTLY of the exercise of this right. with
PROPOSED BY THE PEOPLE THROUGH INITIATIVE
UPON A PETITION OF AT LEAST TWELVE PERCENT OF The Congress shall provide for the implementation of the
THE TOTAL NUMBER OF REGISTERED VOTERS, OF exercise of this right.
WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE
This substitute amendment was an investiture on Congress of a power
REGISTERED VOTERS THEREOF. NO AMENDMENT to provide for the rules implementing the exercise of the right. The
UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN "rules" means "the details on how [the right] is to be carried out." 46
FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE
YEARS THEREAFTER. We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is a
consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE prepared by the Committee on Suffrage and Electoral Reforms of the House
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS of Representatives on the basis of two House Bills referred to it, viz., (a) House
RIGHT. 40
Bill No. 497, 47 which dealt with the initiative and referendum mentioned in
Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No.
The entire proposed Article on Amendments or Revisions was 988, 48 which dealt with the subject matter of House Bill No. 497, as well as
approved on second reading on 9 July 1986.41 Thereafter, upon his with initiative and referendum under Section 3 of Article X (Local Government)
motion for reconsideration, Commissioner Gascon was allowed to and initiative provided for in Section 2 of Article XVII of the Constitution. Senate
introduce an amendment to Section 2 which, nevertheless, was Bill No. 17 49 solely dealt with initiative and referendum concerning ordinances
withdrawn. In view thereof, the Article was again approved on Second or resolutions of local government units. The Bicameral Conference
and Third Readings on 1 August 1986. 42 Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a
draft bill, which was subsequently approved on 8 June 1989 by the
However, the Committee on Style recommended that the approved Section 2 Senate 50and by the House of Representatives. 51 This approved bill is now
be amended by changing "percent" to "per centum" and "thereof" to "therein" R.A. No. 6735.
and deleting the phrase "by law" in the second paragraph so that said
paragraph reads: The Congress 43 shall provide for the implementation of the But is R.A. No. 6735 a full compliance with the power and duty of Congress to
exercise of this right. 44 This amendment was approved and is the text of the "provide for the implementation of the exercise of the right?"
present second paragraph of Section 2.
A careful scrutiny of the Act yields a negative answer.
The conclusion then is inevitable that, indeed, the system of initiative on the
Constitution under Section 2 of Article XVII of the Constitution is not self- First. Contrary to the assertion of public respondent COMELEC, Section 2 of
executory. the Act does not suggest an initiative on amendments to the Constitution. The
said section reads:
Sec. 2. Statement and Policy. The power of the people c.3 the reason or reasons therefor;
under a system of initiative and referendum to directly
propose, enact, approve or reject, in whole or in part, the c.4 that it is not one of the exceptions provided therein;
Constitution, laws, ordinances, or resolutions passed by any
legislative body upon compliance with the requirements of this
c.5 signatures of the petitioners or registered voters; and
Act is hereby affirmed, recognized and guaranteed.
(Emphasis supplied).
c.6 an abstract or summary proposition is not more than one
hundred (100) words which shall be legibly written or printed
The inclusion of the word "Constitution" therein was a delayed
at the top of every page of the petition. (Emphasis supplied).
afterthought. That word is neither germane nor relevant to said
section, which exclusively relates to initiative and referendum on
national laws and local laws, ordinances, and resolutions. That section The use of the clause "proposed laws sought to be enacted, approved
is silent as to amendments on the Constitution. As pointed out earlier, or rejected, amended or repealed" only strengthens the conclusion
initiative on the Constitution is confined only to proposals to AMEND. that Section 2, quoted earlier, excludes initiative on amendments to
The people are not accorded the power to "directly propose, enact, the Constitution.
approve, or reject, in whole or in part, the Constitution" through the
system of initiative. They can only do so with respect to "laws, Third. While the Act provides subtitles for National Initiative and Referendum
ordinances, or resolutions." (Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is
provided for initiative on the Constitution. This conspicuous silence as to the
The foregoing conclusion is further buttressed by the fact that this section was latter simply means that the main thrust of the Act is initiative and referendum
lifted from Section 1 of Senate Bill No. 17, which solely referred to a statement on national and local laws. If Congress intended R.A. No. 6735 to fully provide
of policy on local initiative and referendum and appropriately used the phrases for the implementation of the initiative on amendments to the Constitution, it
"propose and enact," "approve or reject" and "in whole or in part." 52 could have provided for a subtitle therefor, considering that in the order of
things, the primacy of interest, or hierarchy of values, the right of the people to
directly propose amendments to the Constitution is far more important than
Second. It is true that Section 3 (Definition of Terms) of the Act
the initiative on national and local laws.
defines initiative on amendments to the Constitution and mentions it as one of
the three systems of initiative, and that Section 5 (Requirements) restates the
constitutional requirements as to the percentage of the registered voters who We cannot accept the argument that the initiative on amendments to the
must submit the proposal. But unlike in the case of the other systems Constitution is subsumed under the subtitle on National Initiative and
of initiative, the Act does not provide for the contents of a petition forinitiative on Referendum because it is national in scope. Our reading of Subtitle II (National
the Constitution. Section 5, paragraph (c) requires, among other things, Initiative and Referendum) and Subtitle III (Local Initiative and Referendum)
statement of the proposed law sought to be enacted, approved or rejected, leaves no room for doubt that the classification is not based on the scope of
amended or repealed, as the case may be. It does not include, as among the the initiative involved, but on its nature and character. It is "national initiative,"
contents of the petition, the provisions of the Constitution sought to be if what is proposed to be adopted or enacted is a national law, or a law which
amended, in the case of initiative on the Constitution. Said paragraph (c) reads only Congress can pass. It is "local initiative" if what is proposed to be adopted
in full as follows: or enacted is a law, ordinance, or resolution which only the legislative bodies
of the governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of initiative
(c) The petition shall state the following: into national and local is actually based on Section 3 of the Act, which we quote
for emphasis and clearer understanding:
c.1 contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may Sec. 3. Definition of terms
be;
xxx xxx xxx
c.2 the proposition;
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition Sec. 18. Authority of Courts. Nothing in this Act shall
proposing amendments to the Constitution; prevent or preclude the proper courts from declaring null and
void any proposition approved pursuant to this Act for violation
a.2 Initiative on Statutes which refers to a petition proposing of the Constitution or want of capacity of the local legislative
to enact a national legislation; and body to enact the said measure.
a.3 Initiative on local legislation which refers to a petition Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in
proposing to enact a regional, provincial, city, municipal, or providing for the details in the implementation of initiative and referendum on
barangay law, resolution or ordinance. (Emphasis supplied). national and local legislation thereby giving them special attention, it failed,
rather intentionally, to do so on the system of initiative on amendments to the
Constitution. Anent the initiative on national legislation, the Act provides for the
Hence, to complete the classification under subtitles there should have been
a subtitle on initiative on amendments to the Constitution. 53 following:
(a) The required percentage of registered voters to sign the petition and the
A further examination of the Act even reveals that the subtitling is not accurate.
contents of the petition;
Provisions not germane to the subtitle on National Initiative and Referendum
are placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads:
(b) The conduct and date of the initiative;
(b) The proposition in an initiative on the Constitution
approved by the majority of the votes cast in the plebiscite (c) The submission to the electorate of the proposition and the required
shall become effective as to the day of the plebiscite. number of votes for its approval;
(c) A national or local initiative proposition approved by (d) The certification by the COMELEC of the approval of the proposition;
majority of the votes cast in an election called for the purpose
shall become effective fifteen (15) days after certification and (e) The publication of the approved proposition in the Official Gazette or in a
proclamation of the Commission. (Emphasis supplied). newspaper of general circulation in the Philippines; and
55
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative (f) The effects of the approval or rejection of the proposition.
with the legislative bodies of local governments; thus:
As regards local initiative, the Act provides for the following:
Sec. 11. Indirect Initiative. Any duly accredited people's
organization, as defined by law, may file a petition for indirect (a) The preliminary requirement as to the number of signatures of registered
initiative with the House of Representatives, and other voters for the petition;
legislative bodies. . . .
(b) The submission of the petition to the local legislative body concerned;
and (3) Section 12 on Appeal, since it applies to decisions of the
COMELEC on the findings of sufficiency or insufficiency of the petition
(c) The effect of the legislative body's failure to favorably act thereon, and the
for initiative or referendum, which could be petitions for both national
invocation of the power of initiative as a consequence thereof;
and localinitiative and referendum.
(d) The formulation of the proposition;
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on
Local Initiative and Referendum is misplaced, 54 since the provision therein
applies to both national and local initiative and referendum. It reads: (e) The period within which to gather the signatures;
There was, therefore, an obvious downgrading of the more important or the III
paramount system of initiative. RA. No. 6735 thus delivered a humiliating blow
to the system of initiative on amendments to the Constitution by merely paying COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES
it a reluctant lip service. 57 RULES AND REGULATIONS ON THE CONDUCT OF INITIATIVE
ON AMENDMENTS TO THE CONSTITUTION, IS VOID.
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative It logically follows that the COMELEC cannot validly promulgate rules and
on amendments to the Constitution is concerned. Its lacunae on this regulations to implement the exercise of the right of the people to directly
substantive matter are fatal and cannot be cured by "empowering" the propose amendments to the Constitution through the system of initiative. It
COMELEC "to promulgate such rules and regulations as may be necessary to does not have that power under R.A. No. 6735. Reliance on the COMELEC's
carry out the purposes of [the] Act. 58 power under Section 2(1) of Article IX-C of the Constitution is misplaced, for
the laws and regulations referred to therein are those promulgated by the
The rule is that what has been delegated, cannot be delegated or as expressed COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law
in a Latin maxim: potestas delegata non delegari potest. 59 The recognized where subordinate legislation is authorized and which satisfies the
exceptions to the rule are as follows: "completeness" and the "sufficient standard" tests.
(1) Delegation of tariff powers to the President under Section 28(2) of Article IV
VI of the Constitution;
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE The foregoing considered, further discussion on the issue of whether the
ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN proposal to lift the term limits of elective national and local officials is
PETITION. an amendment to, and not a revision of, the Constitution is rendered
unnecessary, if not academic.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with
the power of Congress to implement the right to initiate constitutional CONCLUSION
amendments, or that it has validly vested upon the COMELEC the power of
subordinate legislation and that COMELEC Resolution No. 2300 is valid, the This petition must then be granted, and the COMELEC should be permanently
COMELEC acted without jurisdiction or with grave abuse of discretion in enjoined from entertaining or taking cognizance of any petition for initiative on
entertaining the Delfin Petition. amendments to the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No.
6735, a petition for initiative on the Constitution must be signed by at least 12% We feel, however, that the system of initiative to propose amendments to the
of the total number of registered voters of which every legislative district is Constitution should no longer be kept in the cold; it should be given flesh and
represented by at least 3% of the registered voters therein. The Delfin Petition blood, energy and strength. Congress should not tarry any longer in complying
does not contain signatures of the required number of voters. Delfin himself with the constitutional mandate to provide for the implementation of the right
admits that he has not yet gathered signatures and that the purpose of his of the people under that system.
petition is primarily to obtain assistance in his drive to gather signatures.
Without the required signatures, the petition cannot be deemed validly WHEREFORE, judgment is hereby rendered
initiated.
a) GRANTING the instant petition;
The COMELEC acquires jurisdiction over a petition for initiative only after its
filing. The petition then is theinitiatory pleading. Nothing before its filing is
cognizable by the COMELEC, sitting en banc. The only participation of the b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on
COMELEC or its personnel before the filing of such petition are (1) to prescribe amendments to the Constitution, and to have failed to provide sufficient
the form of the petition; 63(2) to issue through its Election Records and standard for subordinate legislation;
Statistics Office a certificate on the total number of registered voters in each
legislative district; 64 (3) to assist, through its election registrars, in the c) DECLARING void those parts of Resolution No. 2300 of the Commission on
establishment of signature stations; 65 and (4) to verify, through its election Elections prescribing rules and regulations on the conduct of initiative or
registrars, the signatures on the basis of the registry list of voters, voters' amendments to the Constitution; and
affidavits, and voters' identification cards used in the immediately preceding
election. 66 d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN
petition (UND-96-037).
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and
COMELEC Resolution No. 2300, it cannot be entertained or given cognizance The Temporary Restraining Order issued on 18 December 1996 is made
of by the COMELEC. The respondent Commission must have known that the permanent as against the Commission on Elections, but is LIFTED as against
petition does not fall under any of the actions or proceedings under the private respondents.
COMELEC Rules of Procedure or under Resolution No. 2300, for which
reason it did not assign to the petition a docket number. Hence, the said Resolution on the matter of contempt is hereby reserved.
petition was merely entered as UND, meaning, undocketed. That petition was
nothing more than a mere scrap of paper, which should not have been dignified
SO ORDERED.
by the Order of 6 December 1996, the hearing on 12 December 1996, and the
order directing Delfin and the oppositors to file their memoranda or
oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and
grave abuse of discretion and merely wasted its time, energy, and resources. Torres, Jr., JJ., concur.
Padilla, J., took no part. 1. As cited in Vera vs. Avelino (1946), the presidential system
which was introduced by the 1935 Constitution saw the
Separate Opinions application of the principle of separation of powers.
PUNO, J., concurring and dissenting: 2. While under the parliamentary system of the 1973
Constitution the principle remained applicable, the 1981
I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice amendments to the Constitution of 1973 ensured presidential
Davide insofar as it orders the COMELEC to dismiss the Delfin petition. I dominance over the Batasang Pambansa.
regret, however, I cannot share the view that R.A. No. 5735 and COMELEC
Resolution No. 2300 are legally defective and cannot implement the people's Constitutional history then saw the shifting and sharing of
initiative to amend the Constitution. I likewise submit that the petition with legislative powers between the Legislature and the Executive
respect to the Pedrosas has no leg to stand on and should be dismissed. With departments. Transcending changes in the exercise of
due respect: legislative power is the declaration in the Philippine
Constitution that the Philippines is a republican state where
sovereignty resides in the people and all sovereignty
I
emanates from them.
First, I submit that R.A. No. 6735 sufficiently implements the right of the people
to initiate amendments to the Constitution thru initiative. Our effort to discover 3. Under the 1987 Constitution, the lawmaking power is still
preserved in Congress; however, to institutionalize direct
the meaning of R.A. No. 6735 should start with the search of the intent of our
action of the people as exemplified in the 1986 Revolution, the
lawmakers. A knowledge of this intent is critical for the intent of the legislature
is the law and the controlling factor in its interpretation. 1 Stated otherwise, Constitution recognizes the power of the people, through the
intent is the essence of the law, the spirit which gives life to its enactment. 2 system of initiative and referendum.
Thereupon, for the sake of brevity, Mr. Roco moved that 2. The instant Bill provides three kinds of initiative, namely;
pertinent quotation on the subject which he will later submit to the initiative to amend the Constitution once every five years;
the Secretary of the House be incorporated as part of his the initiative to amend statutes approved by Congress; and
sponsorship speech. the initiative to amend local ordinances.
He then cited examples of initiative and referendum similar to 3. The instant Bill gives a definite procedure and allows the
those contained in the instant Bill among which are the Commission on Elections (COMELEC) to define rules and
constitutions of states in the United States which recognize regulations on the power of initiative.
the right of registered voters to initiate the enactment of any
statute or to project any existing law or parts thereof in a 4. Referendum means that the legislators seek the consent of
referendum. These states, he said, are Alaska, Alabama, the people on measures that they have approved.
Montana, Massachusets, Dakota, Oklahoma, Oregon, and
practically all other states.
5. Under Section 4 of the Bill the people can initiate a
referendum which is a mode of plebiscite by presenting a
Mr. Roco explained that in certain American states, the kind petition therefor, but under certain limitations, such as the
of laws to which initiative and referendum apply is also without signing of said petition by at least 10 percent of the total of
limitation, except for emergency measures, which are likewise registered voters at which every legislative district is
incorporated in House Bill No. 21505. He added that the represented by at least three percent of the registered voters
procedure provided by the Bill from the filing of the petition, thereof. Within 30 days after receipt of the petition, the
the requirements of a certain percentage of supporters to COMELEC shall determine the sufficiency of the petition,
present a proposition, to the submission to electors are publish the same, and set the date of the referendum within
substantially similar to the provisions in American laws. 45 to 90-day period.
Although an infant in Philippine political structure, the system
of initiative and referendum, he said, is a tried and tested 6. When the matter under referendum or initiative is approved
system in other jurisdictions, and the Bill is patterned after by the required number of votes, it shall become effective 15
American experience.
days following the completion of its publication in the Official
Gazette.
He further explained that the bill has only 12 sections, and
recalled that the Constitutional Commissioners saw the In concluding his sponsorship remarks, Mr. Roco stressed
system of the initiative and referendum as an instrument that the Members cannot ignore the people's call for initiative
which can be used should the legislature show itself to be
and referendum and urged the Body to approve House Bill
indifferent to the needs of the people. This is the reason, he
No. 21505.
claimed, why now is an opportune time to pass the Bill even
as he noted the felt necessity of the times to pass laws which
are necessary to safeguard individual rights and liberties. At this juncture, Mr. Roco also requested that the prepared
text of his speech together with the footnotes be reproduced
as part of the Congressional Records.
At this juncture Mr. Roco explained the process of initiative
and referendum as advocated in House Bill No. 21505. He
stated that: The same sentiment as to the bill's intent to implement people's
initiative to amend the Constitution was stressed by then
Congressman (now Secretary of Agriculture) Salvador Escudero III in
his sponsorship remarks, viz: 7
xxx xxx xxx CHAIRMAN GONZALES. But at any rate, as I have
said, because this is new in our political system, the
SPONSORSHIP REMARKS OF MR. ESCUDERO Senate decided on a more cautious approach and
limiting it only to the local government units because
even with that stage where . . . at least this has been
Mr. Escudero first pointed out that the people have been
quite popular, ano? It has been attempted on a
clamoring for a truly popular democracy ever since, especially
national basis. Alright. There has not been a single
in the so-called parliament of the streets. A substantial
segment of the population feels, he said, that the form of attempt. Now, so, kami limitado doon. And, second,
democracy is there, but not the reality or substance of it we consider also that it is only fair that the local
legislative body should be given a chance to adopt
because of the increasingly elitist approach of their
the legislation bill proposed, right? Iyong sinasabing
representatives to the country's problem.
indirect system of initiative. If after all, the local
legislative assembly or body is willing to adopt it in full
Whereupon, Mr. Escudero pointed out that the Constitution or in toto, there ought to be any reason for initiative,
has provided a means whereby the people can exercise the ano for initiative. And, number 3, we feel that there
reserved power of initiative to propose amendments to the should be some limitation on the frequency with which
Constitution, and requested that Sections 1 and 32, Article VI; it should be applied. Number 4, na the people, thru
Section 3, Article X; and Section 2, Article XVII of the initiative, cannot enact any ordinance that is beyond
Constitution be made part of his sponsorship remarks. the scope of authority of the local legislative body,
otherwise, my God, mag-aassume sila ng power that
Mr. Escudero also stressed that an implementing law is is broader and greater than the grant of legislative
needed for the aforecited Constitutional provisions. While the power to the Sanggunians. And Number 5, because
enactment of the Bill will give way to strong competition of that, then a proposition which has been the result
among cause-oriented and sectoral groups, he continued, it of a successful initiative can only carry the force and
will hasten the politization of the citizenry, aid the government effect of an ordinance and therefore that should not
in forming an enlightened public opinion, and produce more deprive the court of its jurisdiction to declare it null and
responsive legislation. The passage of the Bill will also give void for want of authority. Ha, di ba? I mean it is
street parliamentarians the opportunity to articulate their ideas beyond powers of local government units to enact.
in a democratic forum, he added. Iyon ang main essence namin, so we concentrated on
that. And that is why . . . so ang sa inyo naman
Mr. Escudero stated that he and Mr. Roco hoped for the early includes iyon sa Constitution, amendment to the
approval of the Bill so that it can be initially used for the Constitution eh . . . national laws. Sa amin, if you insist
Agrarian Reform Law. He said that the passage of House Bill on that, alright, although we feel na it will in effect
No. 21505 will show that the Members can set aside their become a dead statute. Alright, and we can agree, we
personal and political consideration for the greater good of the can agree. So ang mangyayari dito, and magiging
people. basic nito, let us not discuss anymore kung alin and
magiging basic bill, ano, whether it is the Senate Bill
The disagreeing provisions in Senate Bill No. 17 and House Bill No. or whether it is the House bill. Logically it should be
21505 were threshed out in a Bicameral Conference Committee. 8 In ours sapagkat una iyong sa amin eh. It is one of the
the meeting of the Committee on June 6, 1989, 9 the members agreed first bills approved by the Senate kaya ang number
that the two (2) bills should be consolidated and that the consolidated niyan, makikita mo, 17, eh. Huwag na nating
version should include people's initiative to amend the Constitution as pagusapan. Now, if you insist, really iyong features ng
contemplated by House Bill No. 21505. The transcript of the meeting national at saka constitutional, okay. ____ gagawin
states: na natin na consolidation of both bills.
When the consolidated bill was presented to the House for approval, MR. ALBANO. Is it our understanding therefore, that
then Congressman Roco upon interpellation by Congressman Rodolfo the two provisions were incorporated?
Albano, again confirmed that it covered people's initiative to amend
the Constitution. The record of the House Representative states: 11 MR. ROCO. Yes, Mr. Speaker.
xxx xxx xxx MR. ALBANO. So that we will now have a complete
initiative and referendum both in the constitutional
THE SPEAKER PRO TEMPORE. The Gentleman amendment and national legislation.
from Camarines Sur is recognized.
MR. ROCO. That is correct.
MR. ROCO. On the Conference Committee Report
on the disagreeing provisions between Senate Bill MR. ALBANO. And provincial as well as municipal
No. 21505 which refers to the system providing for the resolutions?
initiative and referendum, fundamentally, Mr.
Speaker, we consolidated the Senate and the House
MR. ROCO. Down to barangay, Mr. Speaker.
versions, so both versions are totally intact in the bill.
The Senators ironically provided for local initiative
and referendum and the House Representatives MR. ALBANO. And this initiative and referendum is in
correctly provided for initiative and referendum on the consonance with the provision of the Constitution
Constitution and on national legislation. whereby it mandates this Congress to enact the
enabling law, so that we shall have a system which
can be done every five years. Is it five years in the
I move that we approve the consolidated bill.
provision of the Constitution?
MR. ALBANO. Mr. Speaker. MR. ROCO. That is correct, Mr. Speaker. For
constitutional amendments in the 1987 Constitution,
THE SPEAKER PRO TEMPORE. What is the it is every five years.
pleasure of the Minority Floor Leader?
MR. ALBANO. For every five years, Mr. Speaker?
MR. ALBANO. Will the distinguished sponsor answer
just a few questions?
MR. ROCO. Within five years, we cannot have
multiple initiatives and referenda.
THE SPEAKER PRO TEMPORE. The Gentlemen will
please proceed.
MR. ALBANO. Therefore, basically, there was no
substantial difference between the two versions?
MR. ALBANO. I heard the sponsor say that the only
difference in the two bills was that in the Senate MR. ROCO. The gaps in our bill were filled by the
version there was a provision for local initiative and Senate which, as I said earlier, ironically was about
referendum, whereas the House version has none.
local, provincial and municipal legislation.
Sec. 2. Statement of Policy. The power of the people under In the same vein, the argument that R.A. No. 7535 does not include people's
a system of initiative and referendum to directly propose, initiative to amend the Constitution simply because it lacks a sub-title on the
enact, approve or reject, in whole or in part, the Constitution, subject should be given the weight of helium. Again, the hoary rule in statutory
laws, ordinances, or resolutions passed by any legislative construction is that headings prefixed to titles, chapters and sections of a
body upon compliance with the requirements of this Act is statute may be consulted in aid of interpretation, but inferences drawn
hereby affirmed, recognized and guaranteed. (emphasis therefrom are entitled to very little weight, and they can never control the plain
supplied) terms of the enacting clauses. 14
Second, the law defines "initiative" as "the power of the people to propose All said, it is difficult to agree with the majority decision that refuses to enforce
amendments to the constitution or to propose and enact legislations through the manifest intent or spirit of R.A. No. 6735 to implement the people's initiative
an election called for the purpose," and "plebiscite" as "the electoral process to amend the Constitution. It blatantly disregards the rule cast in concrete that
by which an initiative on the Constitution is approved or rejected by the people. the letter of the law must yield to its spirit for the letter of the law is its body but
its spirit is its soul. 15
II enact, approve or reject, in whole or in part, the Constitution, laws, ordinances,
or resolutions passed by any legislative body upon compliance with the
COMELEC Resolution No. 2300, 16 promulgated under the stewardship of requirements of this Act is hereby affirmed, recognized and guaranteed."
Commissioner Haydee Yorac, then its Acting Chairman, spelled out the Spread out all over R.A. No. 6735 are the standards to canalize the delegated
procedure on how to exercise the people's initiative to amend the Constitution. power to the COMELEC to promulgate rules and regulations from overflowing.
This is in accord with the delegated power granted by section 20 of R.A. No. Thus, the law states the number of signatures necessary to start a people's
6735 to the COMELEC which expressly states: "The Commission is hereby initiative, 18 directs how initiative proceeding is commenced, 19 what the
empowered to promulgate such rules and regulations as may be necessary to COMELEC should do upon filing of the petition for initiative, 20 how a
carry out the purposes of this Act." By no means can this delegation of power proposition is approved, 21 when a plebiscite may be held, 22 when the
be assailed as infirmed. In the benchmark case of Pelaez v. Auditor amendment takes effect 23 and what matters may not be the subject of any
General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down initiative. 24 By any measure, these standards are adequate.
the test to determine whether there is undue delegation of legislative
power, viz: Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard
is intended to map out the boundaries of the delegates' authority by defining
xxx xxx xxx the legislative policy and indicating the circumstances under which it is to be
pursued and effected. The purpose of the sufficient standard is to prevent a
total transference of legislative power from the lawmaking body to the
Although Congress may delegate to another branch of the
delegate." 25 In enacting R.A. No. 6735, it cannot be said that Congress totally
Government the power to fill details in the execution, enforcement or
administration of a law, it is essential, to forestall a violation of the transferred its power to enact the law implementing people's initiative to
principle of separation of powers, that said law: (a) be complete in itself COMELEC. A close look at COMELEC Resolution No. 2300 will show that it
merely provided the procedure to effectuate the policy of R.A. No. 6735 giving
it must set forth therein the policy to be executed, carried out or
life to the people's initiative to amend the Constitution. The debates 26 in the
implemented by the delegate and (b) to fix standard the limits of
Constitutional Commission make it clear that the rules of procedure to enforce
which are sufficiently determinate or determinable to which the
the people's initiative can be delegated, thus:
delegate must conform in the performance of his functions. Indeed,
without a statutory declaration of policy, which is the essence of every
law, and, without the aforementioned standard, there would be no MR. ROMULO. Under Commissioner Davide's amendment, it
means to determine, with reasonable certainty, whether the delegate is possible for the legislature to set forth certain procedures to
has acted within or beyond the scope of his authority. Hence, he could carry out the initiative. . . ?
thereby arrogate upon himself the power, not only to make the law,
but, also and this is worse to unmake it, by adopting measures MR. DAVIDE. It can.
inconsistent with the end sought to be attained by the Act of Congress,
thus nullifying the principle of separation of powers and the system of xxx xxx xxx
checks and balances, and, consequently, undermining the very
foundation of our republican system. MR. ROMULO. But the Commissioner's amendment does not
prevent the legislature from asking another body to set the
Section 68 of the Revised Administrative Code does not meet these proposition in proper form.
well-settled requirements for a valid delegation of the power to fix the
details in the enforcement of a law. It does not enunciate any policy to
MR. DAVIDE. The Commissioner is correct. In other words,
be carried out or implemented by the President. Neither does it give a the implementation of this particular right would be subject to
standard sufficiently precise to avoid the evil effects above referred to. legislation, provided the legislature cannot determine
anymore the percentage of the requirement.
R.A. No. 6735 sufficiently states the policy and the standards to guide the
COMELEC in promulgating the law's implementing rules and regulations of the
MR. DAVIDE. As long as it will not destroy the substantive
law. As aforestated, section 2 spells out the policy of the law; viz: "The power
right to initiate. In other words, none of the procedures to be
of the people under a system of initiative and referendum to directly propose,
proposed by the legislative body must diminish or impair the resources in the designated areas against espionage and
right conceded here. sabotage.
MR. ROMULO. In that provision of the Constitution can the In the case at bar, the policy and the standards are bright-lined in R.A.
procedures which I have discussed be legislated? No. 6735. A 20-20 look at the law cannot miss them. They were not
written by our legislators in invisible ink. The policy and standards can
MR. DAVIDE. Yes. also be found in no less than section 2, Article XVII of the Constitution
on Amendments or Revisions. There is thus no reason to hold that the
In his book, The Intent of the 1986 Constitution Writers, 27 Father standards provided for in R.A. No. 6735 are insufficient for in other
cases we have upheld as adequate more general standards such as
Bernas likewise affirmed: "In response to questions of Commissioner 30 31
"simplicity and dignity," "public interest," "public
Romulo, Davide explained the extent of the power of the legislature 32 33
welfare," "interest of law and order," "justice and
over the process: it could for instance, prescribe the 'proper form
equity," 34 "adequate and efficient instruction," 35"public
before (the amendment) is submitted to the people,' it could authorize
safety," 36 "public policy", 37 "greater national interest", 38 "protect the
another body to check the proper form. It could also authorize the
local consumer by stabilizing and subsidizing domestic pump
COMELEC, for instance, to check the authenticity of the signatures of
rates", 39 and "promote simplicity, economy and efficiency in
petitioners. Davide concluded: 'As long as it will not destroy the
government." 40 A due regard and respect to the legislature, a co-equal
substantive right to initiate. In other words, none of the procedures to
and coordinate branch of government, should counsel this Court to
be proposed by the legislative body must diminish or impair the right
conceded here.'" Quite clearly, the prohibition against the legislature refrain from refusing to effectuate laws unless they are clearly
is to impair the substantive right of the people to initiate amendments unconstitutional.
to the Constitution. It is not, however, prohibited from legislating the
procedure to enforce the people's right of initiative or to delegate it to III
another body like the COMELEC with proper standard.
It is also respectfully submitted that the petition should he dismissed with
A survey of our case law will show that this Court has prudentially refrained respect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly
from invalidating administrative rules on the ground of lack of adequate baseless. The records show that the case at bar started when respondent
legislative standard to guide their promulgation. As aptly perceived by former Delfin alone and by himself filed with the COMELEC a Petition to Amend the
Justice Cruz, "even if the law itself does not expressly pinpoint the standard, Constitution to Lift Term Limits of Elective Officials by People's Initiative. The
the courts will bend backward to locate the same elsewhere in order to spare Pedrosas did not join the petition. It was Senator Roco who moved to intervene
the statute, if it can, from constitutional infirmity." 28 He cited the ruling and was allowed to do so by the COMELEC. The petition was heard and
in Hirabayashi v. United States, 29 viz: before the COMELEC could resolve the Delfin petition, the case at bar was
filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding
xxx xxx xxx
members of the People's Initiative for Reform, Modernization and Action
(PIRMA). The suit is an original action for prohibition with prayer for temporary
It is true that the Act does not in terms establish a particular restraining order and/or writ of preliminary injunction.
standard to which orders of the military commander are to
conform, or require findings to be made as a prerequisite to
The petition on its face states no cause of action against the Pedrosas. The
any order. But the Executive Order, the Proclamations and the
statute are not to be read in isolation from each other. They only allegation against the Pedrosas is that they are founding members of the
were parts of a single program and must be judged as such. PIRMA which proposes to undertake the signature drive for people's initiative
to amend the Constitution. Strangely, the PIRMA itself as an organization was
The Act of March 21, 1942, was an adoption by Congress of
not impleaded as a respondent. Petitioners then prayed that we order the
the Executive Order and of the Proclamations. The
Pedrosas ". . . to desist from conducting a signature drive for a people's
Proclamations themselves followed a standard authorized by
initiative to amend the Constitution." On December 19, 1996, we temporarily
the Executive Order the necessity of protecting military
enjoined the Pedrosas ". . . from conducting a signature drive for people's
initiative to amend the Constitution." It is not enough for the majority to lift the
temporary restraining order against the Pedrosas. It should dismiss the petition IV
and all motions for contempt against them without equivocation.
In a stream of cases, this Court has rhapsodized people power as expanded
One need not draw a picture to impart the proposition that in soliciting in the 1987 Constitution. On October 5, 1993, we observed that people's might
signatures to start a people's initiative to amend the Constitution the Pedrosas is no longer a myth but an article of faith in our Constitution. 41 On September
are not engaged in any criminal act. Their solicitation of signatures is a right 30, 1994, we postulated that people power can be trusted to check excesses
guaranteed in black and white by section 2 of Article XVII of the Constitution of government and that any effort to trivialize the effectiveness of people's
which provides that ". . . amendments to this Constitution may likewise be initiatives ought to be rejected. 42 On September 26, 1996, we pledged that ".
directly proposed by the people through initiative. . ." This right springs from . . this Court as a matter of policy and doctrine will exert every effort to nurture,
the principle proclaimed in section 1, Article II of the Constitution that in a protect and promote their legitimate exercise."43 Just a few days ago, or on
democratic and republican state "sovereignty resides in the people and all March 11, 1997, by a unanimous decision, 44 we allowed a recall election in
government authority emanates from them." The Pedrosas are part of the Caloocan City involving the mayor and ordered that he submits his right to
people and their voice is part of the voice of the people. They may constitute continue in office to the judgment of the tribunal of the people. Thus far, we
but a particle of our sovereignty but no power can trivialize them for have succeeded in transforming people power from an opaque abstraction to
sovereignty is indivisible. a robust reality. The Constitution calls us to encourage people empowerment
to blossom in full. The Court cannot halt any and all signature campaigns to
But this is not all. Section 16 of Article XIII of the Constitution provides: "The amend the Constitution without setting back the flowering of people
right of the people and their organizations to effective and reasonable empowerment. More important, the Court cannot seal the lips of people who
participation at all levels of social, political and economic decision-making shall are pro-change but not those who are anti-change without concerting the
not be abridged. The State shall by law, facilitate the establishment of debate on charter change into a sterile talkaton. Democracy is enlivened by a
adequate consultation mechanisms." This is another novel provision of the dialogue and not by a monologue for in a democracy nobody can claim any
1987 Constitution strengthening the sinews of the sovereignty of our people. infallibility.
In soliciting signatures to amend the Constitution, the Pedrosas are
participating in the political decision-making process of our people. The Melo and Mendoza, JJ., concur.
Constitution says their right cannot be abridged without any ifs and buts. We
cannot put a question mark on their right.
Over and above these new provisions, the Pedrosas' campaign to amend the VITUG, J., concurring and dissenting:
Constitution is an exercise of their freedom of speech and expression and their
right to petition the government for redress of grievances. We have
The COMELEC should have dismissed, outrightly, the Delfin Petition.
memorialized this universal right in all our fundamental laws from the Malolos
Constitution to the 1987 Constitution. We have iterated and reiterated in our
rulings that freedom of speech is a preferred right, the matrix of other important It does seem to me that there is no real exigency on the part of the Court to
rights of our people. Undeniably, freedom of speech enervates the essence of engross, let alone to commit, itself on all the issues raised and debated upon
the democratic creed of think and let think. For this reason, the Constitution by the parties. What is essential at this time would only be to resolve whether
encourages speech even if it protects the speechless. or not the petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in
his capacity as a "founding member of the Movement for People's Initiative"
and seeking through a people initiative certain modifications on the 1987
It is thus evident that the right of the Pedrosas to solicit signatures to start a
Constitution, can properly be regarded and given its due course. The
people's initiative to amend the Constitution does not depend on any law, Constitution, relative to any proposed amendment under this method, is
much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no explicit. Section 2, Article XVII, thereof provides:
Constitution can chain the people to an undesirable status quo. To be sure,
there are no irrepealable laws just as there are no irrepealable Constitutions.
Change is the predicate of progress and we should not fear change. Mankind Sec. 2. Amendments to this Constitution may likewise be directly
has long recognized the truism that the only constant in life is change and so proposed by the people through initiative upon a petition of at least
should the majority. twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this There is no question that my esteemed colleague Mr. Justice Davide has
section shall be authorized within five years following the ratification prepared a scholarly and well-written ponencia. Nonetheless, I cannot fully
of this Constitution nor oftener than once every five years thereafter. subscribe to his view that R. A. No. 6735 is inadequate to cover the system of
initiative on amendments to the Constitution.
The Congress shall provide for the implementation of the exercise of
this right. To begin with, sovereignty under the constitution, resides in the people and all
government authority emanates from them. 1 Unlike our previous constitutions,
The Delfin petition is thus utterly deficient. Instead of complying with the the present 1987 Constitution has given more significance to this declaration
constitutional imperatives, the petition would rather have much of its burden of principle for the people are now vested with power not only to propose, enact
passed on, in effect, to the COMELEC. The petition would require COMELEC or reject any act or law passed by Congress or by the local legislative body,
to schedule "signature gathering all over the country," to cause the necessary but to propose amendments to the constitution as well. 2 To implement these
publication of the petition "in newspapers of general and local circulation," and constitutional edicts, Congress in 1989 enacted Republic Act No. 6735,
to instruct "Municipal Election Registrars in all Regions of the Philippines to otherwise known as "The initiative and Referendum Act". This law, to my mind,
assist petitioners and volunteers in establishing signing stations at the time amply covers an initiative on the constitution. The contrary view maintained by
and on the dates designated for the purpose. petitioners is based principally on the alleged lack of sub-title in the law on
initiative to amend the constitution and on their allegation that:
I submit, even then, that the TRO earlier issued by the Court which,
consequentially, is made permanent under the ponencia should be held to Republic Act No. 6735 provides for the effectivity of the law
cover only the Delfin petition and must not be so understood as having after publication in print media. [And] [t]his indicates that
intended or contemplated to embrace the signature drive of the Pedrosas. The Republic Act No. 6735 covers only laws and not constitutional
grant of such a right is clearly implicit in the constitutional mandate on people amendments, because constitutional amendments take effect
initiative. upon ratification not after publication. 3
The distinct greatness of a democratic society is that those who reign are the which allegation manifests petitioners' selective interpretation of the
governed themselves. The postulate is no longer lightly taken as just a law, for under Section 9 of Republic Act No. 6735 on the Effectivity of
perceived myth but a veritable reality. The past has taught us that the vitality Initiative or Referendum Proposition paragraph (b) thereof is clear in
of government lies not so much in the strength of those who lead as in the providing that:
consent of those who are led. The role of free speech is pivotal but it can only
have its true meaning if it comes with the correlative end of being heard. The proposition in an initiative on the constitution approved by a majority of
the votes cast in the plebiscite shall become effective as to the day of the
Pending a petition for a people's initiative that is sufficient in form and plebiscite.
substance, it behooves the Court, I most respectfully submit, to yet refrain from
resolving the question of whether or not Republic Act No. 6735 has effectively It is a rule that every part of the statute must be interpreted with reference the
and sufficiently implemented the Constitutional provision on right of the people context, i.e., that every part of the statute must be construed together with the
to directly propose constitutional amendments. Any opinion or view formulated other parts and kept subservient to the general intent of the whole
by the Court at this point would at best be only a non-binding, albeit possibly enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be
persuasive, obiter dictum. interpreted in isolation. The legislative intent behind every law is to be
extracted from the statute as a whole. 5
I vote for granting the instant petition before the Court and for clarifying that
the TRO earlier issued by the Court did not prescribe the exercise by the In its definition of terms, Republic Act No. 6735 defines initiative as "the power
Pedrosas of their right to campaign for constitutional amendments. of the people to propose amendments to the constitution or to propose and
enact legislations through an election called for the purpose". 6The same
section, in enumerating the three systems of initiative, included an "initiative
on the constitution which refers to a petition proposing amendments to the
constitution" 7 Paragraph (e) again of Section 3 defines "plebiscite" as
FRANCISCO, J., dissenting and concurring:
"the electoral process by which an initiative on the constitution is approved or MR. ALBANO. Will the distinguished sponsor answer
rejected by the people" And as to the material requirements for an initiative on just a few questions?
the Constitution, Section 5(b) distinctly enumerates the following:
THE SPEAKER PRO TEMPORE. What does the
A petition for an initiative on the 1987 Constitution must have sponsor say?
at least twelve per centum (12%) of the total number of the
registered voters as signatories, of which every legislative MR. ROCO. Willingly, Mr. Speaker.
district must be represented by at least three per centum (3%)
of the registered voters therein. Initiative on the constitution
THE SPEAKER PRO TEMPORE. The Gentleman will
may be exercised only after five (5) years from the ratification
please proceed.
of the 1987 Constitution and only once every five years
thereafter.
MR. ALBANO. I heard the sponsor say that the only
difference in the two bills was that in the Senate
These provisions were inserted, on purpose, by Congress the intent
version there was a provision for local initiative and
being to provide for the implementation of the right to propose an
referendum, whereas the House version has none.
amendment to the Constitution by way of initiative. "A legal provision",
the Court has previously said, "must not be construed as to be a
useless surplusage, and accordingly, meaningless, in the sense of MR. ROCO. In fact, the Senate version provided
adding nothing to the law or having no effect whatsoever purely for local initiative and referendum, whereas in
thereon". 8 That this is the legislative intent is further shown by the the House version, we provided purely for national
deliberations in Congress, thus: and constitutional legislation.
. . . More significantly, in the course of the consideration of the MR. ALBANO. Is it our understanding, therefore, that
Conference Committee Report on the disagreeing provisions the two provisions were incorporated?
of Senate Bill No. 17 and House Bill No. 21505, it was noted:
MR. ROCO. Yes, Mr. Speaker.
MR. ROCO. On the Conference Committee Report
on the disagreeing provisions between Senate Bill MR. ALBANO. So that we will now have a complete
No. 17 and the consolidated House Bill No. 21505 initiative and referendum both in the constitutional
which refers to the system providing for the initiative amendment and national legislation.
and referendum, fundamentally, Mr. Speaker, we
consolidated the Senate and the House versions, so MR. ROCO. That is correct.
both versions are totally intact in the bill. The Senators
ironically provided for local initiative and referendum MR. ALBANO. And provincial as well as municipal
and the House of Representatives correctly provided resolutions?
for initiative and referendum an the Constitution and
on national legislation.
MR. ROCO. Down to barangay, Mr. Speaker.
I move that we approve the consolidated bill.
MR. ALBANO. And this initiative and referendum is in
consonance with the provision of the Constitution to
MR. ALBANO, Mr. Speaker. enact the enabling law, so that we shall have a
system which can be done every five years. Is it five
THE SPEAKER PRO TEMPORE. What is the years in the provision of the Constitution?
pleasure of the Minority Floor Leader?
MR. ROCO. That is correct, Mr. Speaker. For ACCORDINGLY, I take exception to the conclusion reached in
constitutional amendments to the 1987 Constitution, the ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a
it is every five years." (Id. [Journal and Record of the people's initiative to propose amendments to the Constitution. I, however,
House of Representatives], Vol. VIII, 8 June 1989, p. register my concurrence with the dismissal, in the meantime, of private
960; quoted in Garcia v. Comelec, 237 SCRA 279, respondents' petition for initiative before public respondent Commission on
292-293 [1994]; emphasis supplied) Elections until the same be supported by proof of strict compliance with
Section 5 (b) of R.A. No. 6735.
. . . The Senate version of the Bill may not have
comprehended initiatives on the Constitution. When Melo and Mendoza, JJ., concur.
consolidated, though, with the House version of the Bill and
as approved and enacted into law, the proposal included
initiative on both the Constitution and ordinary laws. 9
PANGANIBAN, J., concurring and dissenting:
Clearly then, Republic Act No. 6735 covers an initiative on the
constitution. Any other construction as what petitioners foist upon the
Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the
Court constitute a betrayal of the intent and spirit behind the
majority, holds that:
enactment.
(1) The Comelec acted without jurisdiction or with grave abuse of discretion in
At any rate, I agree with the ponencia that the Commission on Elections, at
entertaining the "initiatory" Delfin Petition.
present, cannot take any action (such as those contained in the Commission's
orders dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative
of its having already assumed jurisdiction over private respondents' petition. (2) While the Constitution allows amendments to "be directly proposed by the
This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would people through initiative," there is no implementing law for the purpose. RA
appear that proof of procurement of the required percentage of registered 6735 is "incomplete, inadequate, or wanting in essential terms and conditions
voters at the time the petition for initiative is filed, is a jurisdictional requirement. insofar as initiative on amendments to the Constitution is concerned."
Thus: (3) Comelec Resolution No. 2330, "insofar as it prescribes rules and
regulations on the conduct of initiative on amendments to the Constitution, is
void."
A petition for an initiative on the 1987 Constitution must have
at least twelve per centum (12%) of the total number of
registered voters as signatories, of which every legislative I concur with the first item above. Until and unless an initiatory petition can
district must be represented by at least three per centum (3%) show the required number of signatures in this case, 12% of all the
of the registered voters therein. Initiative on the Constitution registered voters in the Philippines with at least 3% in every legislative district
may be exercised only after five (5) years from the ratification no public funds may be spent and no government resources may be used
of the 1987 Constitution and only once every five (5) years in an initiative to amend the Constitution. Verily, the Comelec cannot even
thereafter. entertain any petition absent such signatures. However, I dissent most
respectfully from the majority's two other rulings. Let me explain.
Here private respondents' petition is unaccompanied by the required
signatures. This defect notwithstanding, it is without prejudice to the Under the above restrictive holdings espoused by the Court's majority, the
refiling of their petition once compliance with the required percentage Constitution cannot be amended at all through a people's initiative. Not by
is satisfactorily shown by private respondents. In the absence, Delfin, not by Pirma, not by anyone, not even by all the voters of the country
therefore, of an appropriate petition before the Commission on acting together. This decision will effectively but unnecessarily curtail, nullify,
Elections, any determination of whether private respondents' proposal abrogate and render inutile the people's right to change the basic law. At the
constitutes an amendment or revision is premature. very least, the majority holds the right hostage to congressional discretion on
whether to pass a new law to implement it, when there is already one existing
at present. This right to amend through initiative, it bears stressing, is initiative and referendum on national and local laws," not by the incumbent
guaranteed by Section 2, Article XVII of the Constitution, as follows: Commission on Elections but by one then composed of Acting Chairperson
Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres
Sec. 2. Amendments to this Constitution may likewise be R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these
directly proposed by the people through initiative upon a Commissioners who signed Resolution 2300 have retired from the
petition of at least twelve per centum of the total number of Commission, and thus we cannot ascribe any vile motive unto them, other than
registered voters, of which every legislative district must be an honest, sincere and exemplary effort to give life to a cherished right of our
represented by at least three per centum of the registered people.
voters therein. No amendment under this section shall be
authorized within five years following the ratification of this The majority argues that while Resolution 2300 is valid in regard to national
Constitution nor oftener than once every five years thereafter. laws and local legislations, it is void in reference to constitutional amendments.
There is no basis for such differentiation. The source of and authority for the
With all due respect, I find the majority's position all too sweeping and all too Resolution is the same law, RA 6735.
extremist. It is equivalent to burning the whole house to exterminate the rats,
and to killing the patient to relieve him of pain. What Citizen Delfin wants the I respectfully submit that taken together and interpreted properly and liberally,
Comelec to do we should reject. But we should not thereby preempt any future the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec
effort to exercise the right of initiative correctly and judiciously. The fact that Resolution 2300 provide more than sufficient authority to implement,
the Delfin Petition proposes a misuse of initiative does not justify a ban against effectuate and realize our people's power to amend the Constitution.
its proper use. Indeed, there is a right way to do the right thing at the right time
and for the right reason. Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
Taken Together and Interpreted Properly, the Constitution, RA 6735
and Comelec Resolution 2300 Are Sufficient to Implement I am glad the majority decided to heed our plea to lift the temporary restraining
Constitutional Initiatives order issued by this Court on 18 December 1996 insofar as it prohibited
Petitioner Delfin and the Spouses Pedrosa from exercising their right of
While RA 6735 may not be a perfect law, it was as the majority openly initiative. In fact, I believe that such restraining order as against private
concedes intended by the legislature to cover and, I respectfully submit, it respondents should not have been issued, in the first place. While I agree that
contains enough provisions to effectuate an initiative on the Constitution. 1 I the Comelec should be stopped from using public funds and government
completely agree with the inspired and inspiring opinions of Mr. Justice resources to help them gather signatures, I firmly believe that this Court has
Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco no power to restrain them from exercising their right of initiative. The right to
law on initiative, sufficiently implements the right of the people to initiate propose amendments to the Constitution is really a species of the right of free
amendments to the Constitution. Such views, which I shall no longer repeat speech and free assembly. And certainly, it would be tyrannical and despotic
nor elaborate on, are thoroughly consistent with this Court's unanimous en to stop anyone from speaking freely and persuading others to conform to
banc rulings in Subic Bay Metropolitan Authority vs. Commission on his/her beliefs. As the eminent Voltaire once said, "I may disagree with what
Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to you say, but I will defend to the death your right to say it." After all, freedom is
effectuate their purposes, to facilitate and not hamper the exercise by the not really for the thought we agree with, but as Justice Holmes wrote, "freedom
voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any for the thought that we hate." 5
"effort to trivialize the effectiveness of people's initiatives ought to be rejected."
Epilogue
No law can completely and absolutely cover all administrative details. In
recognition of this, RA 6735 wisely empowered 4 the Commission on Election By way of epilogue, let me stress the guiding tenet of my Separate Opinion.
"to promulgate such rules and regulations as may be necessary to carry out Initiative, like referendum and recall, is a new and treasured feature of the
the purposes of this Act." And pursuant thereto, the Comelec issued its Filipino constitutional system. All three are institutionalized legacies of the
Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was world-admired EDSA people power. Like elections and plebiscites, they are
promulgated "to govern the conduct of initiative on the Constitution and hallowed expressions of popular sovereignty. They are sacred democratic
rights of our people to be used as their final weapons against political ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN
excesses, opportunism, inaction, oppression and misgovernance; as well as PONCE ENRILE, in his capacity as Secretary of National Defense;
their reserved instruments to exact transparency, accountability and General ROMEO ESPINO, in his capacity as Chief of Staff of the Armed
faithfulness from their chosen leaders. While on the one hand, their misuse Forces of the Philippines; TANCIO E. CASTAEDA, in his capacity as
and abuse must be resolutely struck down, on the other, their legitimate Secretary General Services; Senator GIL J. PUYAT, in his capacity as
exercise should be carefully nurtured and zealously protected. President of the Senate; and Senator JOSE ROY, his capacity, as
President Pro Tempore of the of the Senate, respondents.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al.
and to DIRECT Respondent Commission on Elections to DISMISS the Delfin G.R. No. L-36236 March 31, 1973
Petition on the ground of prematurity, but not on the other grounds relied upon
by the majority. I also vote to LIFT the temporary restraining order issued on EDDIE B. MONTECLARO, [personally and in his capacity as President
18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and of the National Press Club of the Philippines], petitioner,
Carmen Pedrosa from exercising their right to free speech in proposing vs.
amendments to the Constitution. THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC
INFORMATION, THE AUDITOR GENERAL, THE BUDGET
Melo and Mendoza, JJ., concur. COMMISSIONER & THE NATIONAL TREASURER, respondents.
G.R. No. L-36142 March 31, 1973 G.R. No. L-36283 March 31, 1973
In view of these events relative to the postponement of the "8. That it was later reported that the following are to be the
aforementioned plebiscite, the Court deemed it fit to refrain, forms of the questions to be asked to the Citizens Assemblies:
for the time being, from deciding the aforementioned cases,
for neither the date nor the conditions under which said
plebiscite would be held were known or announced officially.
[1] Do you approve of the New Society?
Then, again, Congress was, pursuant to the 1935
Constitution, scheduled to meet in regular session on January
22, 1973, and since the main objection to Presidential Decree [2] Do you approve of the reform measures under martial law?
No. 73 was that the President does not have the legislative
authority to call a plebiscite and appropriate funds therefor, [3] Do you think that Congress should meet again in regular session?
which Congress unquestionably could do, particularly in view
of the formal postponement of the plebiscite by the President [4] How soon would you like the plebiscite on the new Constitution to
reportedly after consultation with, among others, the be held? [Bulletin Today, January 5, 1973].
leaders of Congress and the Commission on Elections the
Court deemed it more imperative to defer its final action on "9. That the voting by the so-called Citizens Assemblies was
these cases. announced to take place during the period from January 10 to
January 15, 1973;
"In the afternoon of January 12, 1973, the petitioners in Case
G.R. No. L-35948 filed an "urgent motion," praying that said "10. That on January 10, 1973, it was reported that on more
case be decided "as soon as possible, preferably not later question would be added to the four (4) question previously
than January 15, 1973." It was alleged in said motion, inter announced, and that the forms of the question would be as
alia: follows:
"6. That the President subsequently announced the issuance [1] Do you like the New Society?
of Presidential Decree No. 86 organizing the so-called
Citizens Assemblies, to be consulted on certain public
[2] Do you like the reforms under martial law?
questions [Bulletin Today, January 1, 1973];
In order to broaden the base of citizens' participation in The vote of the Citizens Assemblies should be considered the
government. plebiscite on the New Constitution.
15. That petitioners have reason to fear, and therefore state, "21. That with the withdrawal by the President of the limited
that the question added in the last list of questions to be asked freedom of discussion on the proposed Constitution which
to the Citizens Assemblies, namely: was given to the people pursuant to Sec. 3 of Presidential
Decree No. 73, the opposition of respondents to petitioners'
Do you approve of the New Constitution? prayer at the plebiscite be prohibited has now collapsed and
that a free plebiscite can no longer be held."
in relation to the question following it:
At about the same time, a similar prayer was made in a
Do you still want a plebiscite to be called to ratify the new "manifestation" filed by the petitioners in L-35949, "Gerardo
Roxas, et al. v. Commission on Elections, et al.," and L-35942,
Constitution?"
"Sedfrey A. Ordoez, et al. v. The National Treasurer, et al."
would be an attempt to by-pass and short-circuit this
Honorable Court before which the question of the validity of The next day, January 13, 1973, which was a Saturday, the
the plebiscite on the proposed Constitution is now pending; Court issued a resolution requiring the respondents in said
three (3) cases to comment on said "urgent motion" and
"manifestation," "not later than Tuesday noon, January 16,
"16. That petitioners have reason to fear, and therefore allege, 1973." Prior thereto, or on January 15, 1973, shortly before
that if an affirmative answer to the two questions just referred noon, the petitioners in said Case G.R. No. L-35948 riled a
to will be reported then this Honorable Court and the entire "supplemental motion for issuance of restraining order and
nation will be confronted with a fait accompli which has been inclusion of additional respondents," praying
attained in a highly unconstitutional and undemocratic
manner;
"... that a restraining order be issued enjoining and
restraining respondent Commission on Elections, as
"17. That the fait accompli would consist in the supposed well as the Department of Local Governments and its
expression of the people approving the proposed head, Secretary Jose Roo; the Department of
Constitution; Agrarian Reforms and its head, Secretary Conrado
Estrella; the National Ratification Coordinating
"18. That, if such event would happen, then the case before Committee and its Chairman, Guillermo de Vega;
this Honorable Court could, to all intents and purposes, their deputies, subordinates and substitutes, and all
become moot because, petitioners fear, and they therefore other officials and persons who may be assigned
allege, that on the basis of such supposed expression of the such task, from collecting, certifying, and announcing
will of the people through the Citizens Assemblies, it would be and reporting to the President or other officials
announced that the proposed Constitution, with all its defects, concerned, the so-called Citizens' Assemblies
both congenital and otherwise, has been ratified; referendum results allegedly obtained when they
were supposed to have met during the period
"19. That, in such a situation the Philippines will be facing a comprised between January 10 and January 15,
real crisis and there is likelihood of confusion if not chaos, 1973, on the two questions quoted in paragraph 1 of
because then, the people and their officials will not know this Supplemental Urgent Motion."
which Constitution is in force.
In support of this prayer, it was alleged
"3. That petitioners are now before this Honorable Court in [d] It is seriously to be doubted that, for lack of
order to ask further that this Honorable Court issue a material time, more than a handful of the so called
restraining order enjoining herein respondents, particularly Citizens' Assemblies have been actually formed,
respondent Commission on Elections as well as the because the mechanics of their organization were still
Department of Local Governments and its head, Secretary being discussed a day or so before the day they were
Jose Roo; the Department of Agrarian Reforms and its head, supposed to begin functioning:
Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de "Provincial governors and city and municipal
Vega; and their deputies, subordinates and/or substitutes, mayors had been meeting with barrio
from collecting, certifying, announcing and reporting to the captains and community leaders since last
President the supposed Citizens' Assemblies referendum Monday [January 8, 1973) to thresh out the
results allegedly obtained when they were supposed to have mechanics in the formation of the Citizens
met during the period between January 10 and January 15, Assemblies and the topics for discussion."
1973, particularly on the two questions quoted in paragraph 1 [Bulletin Today, January 10, 1973]
of this Supplemental Urgent Motion;
"It should be recalled that the Citizens' Assemblies were
"4. That the proceedings of the so-called Citizens' Assemblies ordered formed only at the beginning of the year [Daily
are illegal, null and void particularly insofar as such Express, January 1, 1973], and considering the lack of
proceedings are being made the basis of a supposed experience of the local organizers of said assemblies, as well
consensus for the ratification of the proposed Constitution as the absence of sufficient guidelines for organization, it is
because: too much to believe that such assemblies could be organized
at such a short notice.
[a] The elections contemplated in the Constitution,
Article XV, at which the proposed constitutional "5. That for lack of material time, the appropriate amended
amendments are to be submitted for ratification, are petition to include the additional officials and government
elections at which only qualified and duly registered agencies mentioned in paragraph 3 of this Supplemental
voters are permitted to vote, whereas, the so called Urgent Motion could not be completed because, as noted in
Citizens' Assemblies were participated in by persons the Urgent Motion of January 12, 1973, the submission of the
15 years of age and older, regardless of qualifications proposed Constitution to the Citizens' Assemblies was not
or lack thereof, as prescribed in the Election Code; made known to the public until January 11, 1973. But be that
as it may, the said additional officials and agencies may be
[b] Elections or plebiscites for the ratification of properly included in the petition at bar because:
constitutional amendments contemplated in Article
XV of the Constitution have provisions for the secrecy [a] The herein petitioners have prayed in
of choice and of vote, which is one of the safeguards their petition for the annulment not only of
of freedom of action, but votes in the Citizens' Presidential Decree No. 73, but also of "any
Assemblies were open and were cast by raising similar decree, proclamation, order or
hands; instruction.
[c] The Election Code makes ample provisions for so that Presidential Decree No. 86, insofar at least as it
free, orderly and honest elections, and such attempts to submit the proposed Constitution to a plebiscite
provisions are a minimum requirement for elections by the so-called Citizens' Assemblies, is properly in issue in
or plebiscites for the ratification of constitutional this case, and those who enforce, implement, or carry out the
amendments, but there were no similar provisions to said Presidential Decree No. 86. and the instructions
guide and regulate proceedings of the so called incidental thereto clearly fall within the scope of this petition;
Citizens' Assemblies;
[b] In their petition, petitioners sought the [a] After the result of the supposed voting on the
issuance of a writ of preliminary injunction questions mentioned in paragraph 1 hereof shall have
restraining not only the respondents named been announced, a conflict will arise between those
in the petition but also their "agents" from who maintain that the 1935 Constitution is still in
implementing not only Presidential Decree force, on the one hand, and those who will maintain
No. 73, but also "any other similar decree, that it has been superseded by the proposed
order, instruction, or proclamation in relation Constitution, on the other, thereby creating confusion,
to the holding of a plebiscite on January 15, if not chaos;
1973 for the purpose of submitting to the
Filipino people for their ratification or [b] Even the jurisdiction of this Court will be subject to
rejection the 1972 Draft or proposed serious attack because the advocates of the theory
Constitution approved by the Constitutional that the proposed Constitution has been ratified by
Convention on November 30, 1972"; and reason of the announcement of the results of the
finally, proceedings of the so-called Citizens' Assemblies will
argue that, General Order No. 3, which shall also be
[c] Petitioners prayed for such other relief deemed ratified pursuant to the Transitory Provisions
which may be just and equitable. [p. 39, of the proposed Constitution, has placed Presidential
Petition]. Decree Nos. 73 and 86 beyond the reach and
jurisdiction of this Honorable Court."
"Therefore, viewing the case from all angles, the officials and
government agencies mentioned in paragraph 3 of this On the same date January 15, 1973 the Court passed a
Supplemental Urgent Motion, can lawfully be reached by the resolution requiring the respondents in said case G.R. No. L-
processes of this Honorable Court by reason of this petition, 35948 to file "file an answer to the said motion not later than
considering, furthermore, that the Commission on Elections 4 P.M., Tuesday, January 16, 1973," and setting the motion
has under our laws the power, among others, of: for hearing "on January 17, 1973, at 9:30 a.m." While the case
was being heard, on the date last mentioned, at noontime, the
(a) Direct and immediate supervision and Secretary of Justice called on the writer of this opinion and
control over national, provincial, city, said that, upon instructions of the President, he (the Secretary
municipal and municipal district officials of Justice) was delivering to him (the writer) a copy of
required by law to perform duties relative to Proclamation No. 1102, which had just been signed by the
the conduct of elections on matters President. Thereupon, the writer returned to the Session Hall
pertaining to the enforcement of the and announced to the Court, the parties in G.R. No. L-35948
provisions of this Code ..." [Election Code of inasmuch as the hearing in connection therewith was still
1971, Sec. 3]. going on and the public there present that the President
had, according to information conveyed by the Secretary of
"6. That unless the petition at bar is decided immediately and Justice, signed said Proclamation No. 1102, earlier that
morning. Thereupon, the writer read Proclamation No. 1102
the Commission on Elections, together with the officials and
which is of the following tenor:
government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion are restrained or enjoined from
collecting, certifying, reporting or announcing to the President "BY THE PRESIDENT OF THE PHILIPPINES
the results of the alleged voting of the so-called Citizens'
Assemblies, irreparable damage will be caused to the "PROCLAMATION NO. 1102
Republic of the Philippines, the Filipino people, the cause of
freedom an democracy, and the petitioners herein because:
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF "NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
THE CONSTITUTION PROPOSED BY THE 1971 Philippines, by virtue of the powers in me vested by the Constitution,
CONSTITUTIONAL CONVENTION. do hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention
"WHEREAS, the Constitution proposed by the nineteen hundred has been ratified by an overwhelming majority of all of the votes cast
seventy-one Constitutional Convention is subject to ratification by the by the members of all the Barangays (Citizens Assemblies)
Filipino people; throughout the Philippines, and has thereby come into effect.
"WHEREAS, Citizens Assemblies were created in barrios, in "IN WITNESS WHEREOF, I have hereunto set my hand and caused
municipalities and in districts/wards in chartered cities pursuant to the seal of the Republic of the Philippines to be affixed.
Presidential Decree No. 86, dated December 31, 1972, composed of
all persons who are residents of the barrio, district or ward for at least "Done in the City of Manila, this 17th day of January, in the year of Our
six months, fifteen years of age or over, citizens of the Philippines and Lord, nineteen hundred and seventy-three.
who are registered in the list of Citizen Assembly members kept by the
barrio, district or ward secretary; (Sgd.) FERDINAND E. MARCOS
"President of the Philippines
"WHEREAS, the said Citizens Assemblies were established precisely
to broaden the base of citizen participation in the democratic process "By the President:
and to afford ample opportunity for the citizenry to express their views
on important national issues;
"ALEJANDRO MELCHOR
"Executive Secretary"
"WHEREAS, responding to the clamor of the people and pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following Such is the background of the cases submitted determination.
questions were posed before the Citizens Assemblies or Barangays:
After admitting some of the allegations made in the petition in
Do you approve of the New Constitution? Do you still want a plebiscite
L-35948 and denying the other allegations thereof,
to be called to ratify the new Constitution?
respondents therein alleged in their answer thereto, by way
affirmative defenses: 1) that the "questions raised" in said
"WHEREAS, fourteen million nine hundred seventy-six thousand five petition "are political in character"; 2) that "the Constitutional
hundred sixty-one (14,976,561) members of all the Barangays Convention acted freely and had plenary authority to propose
(Citizens Assemblies) voted for the adoption of the proposed not only amendments but a Constitution which would
Constitution, as against seven hundred forty-three thousand eight supersede the present Constitution"; 3) that "the President's
hundred sixty-nine (743,869) who voted for its rejection; while on the call for a plebiscite and the appropriation of funds for this
question as to whether or not the people would still like a plebiscite to purpose are valid"; 4) that "there is not an improper
be called to ratify the new Constitution, fourteen million two hundred submission" and "there can be a plebiscite under Martial
ninety-eight thousand eight hundred fourteen (14,298,814) answered Law"; and 5) that the "argument that the Proposed
that there was no need for a plebiscite and that the vote of the Constitution is vague and incomplete, makes an
Barangays (Citizens Assemblies) should be considered as a vote in a unconstitutional delegation of power, includes a referendum
plebiscite; on the proclamation of Martial Law and purports to exercise
judicial power" is "not relevant and ... without merit." Identical
"WHEREAS, since the referendum results show that more than ninety- defenses were set up in the other cases under consideration.
five (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng Immediately after the hearing held on January 17, 1973, or
Mga Barangay has strongly recommended that the new Constitution since the afternoon of that date, the Members of the Court
should already be deemed ratified by the Filipino people; have been deliberating on the aforementioned cases and,
after extensive discussions on the merits thereof, have
deemed it best that each Member write his own views thereon 6. On Presidential Proclamation No. 1102, the following views were
and that thereafter the Chief Justice should state the result or expressed:
the votes thus cast on the points in issue. Hence, the
individual views of my brethren in the Court are set forth in the a. Justices Makalintal, Castro, Fernando, Teehankee,
opinions attached hereto, except that, instead of writing their Makasiar, Esguerra and myself are of the opinion that the
separate opinions, some Members have preferred to merely question of validity of said Proclamation has not been properly
concur in the opinion of one of our colleagues. raised before the Court, which, accordingly, should not pass
upon such question.
Then the writer of said decision expressed his own opinion on the issues
involved therein, after which he recapitulated the views of the Members of the b. Justice Barredo holds that the issue on the constitutionality
Court, as follows: of Proclamation No. 1102 has been submitted to and should
be determined by the Court, and that the "purported
1. There is unanimity on the justiciable nature of the issue on the ratification of the Proposed Constitution ... based on the
legality of Presidential Decree No. 73. referendum among Citizens' Assemblies falls short of being in
strict conformity with the requirements of Article XV of the
2. On the validity of the decree itself, Justices Makalintal, Castro, 1935 Constitution," but that such unfortunate drawback
Fernando, Teehankee, Esguerra and myself, or six (6) Members of notwithstanding, "considering all other related relevant
the Court, are of the opinion that the issue has become moot and circumstances, ... the new Constitution is legally recognizable
academic, whereas Justices Barredo, Makasiar and Antonio voted to and should be recognized as legitimately in force."
uphold the validity of said Decree.
c. Justice Zaldivar maintains unqualifiedly that the Proposed
3. On the authority of the 1971 Constitutional Convention to pass the Constitution has not been ratified in accordance with Article
proposed Constitution or to incorporate therein the provisions XV of the 1935 Constitution, and that, accordingly, it has no
contested by the petitioners in L-35948, Justices Makalintal, Castro, force and effect whatsoever.
Teehankee and Esguerra opine that the issue has become moot and
academic. Justices Fernando, Barredo, Makasiar, Antonio and myself d. Justice Antonio feels "that the Court is not competent to act"
have voted to uphold the authority of the Convention. on the issue whether the Proposed Constitution has been
ratified by the people or not, "in the absence of any judicially
4. Justice Fernando, likewise, expressed the view that the 1971 discoverable and manageable standards," since the issue
Constitutional Convention had authority to continue in the "poses a question of fact.
performance of its functions despite the proclamation of Martial Law.
In effect, Justices Barredo, Makasiar and Antonio hold the same view. 7. On the question whether or not these cases should be dismissed,
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra
5. On the question whether the proclamation of Martial Law affected voted in the affirmative, for the reasons set forth in their respective
the proper submission of the proposed Constitution to a plebiscite, opinions. Justices Fernando, Teehankee, and the writer similarly
insofar as the freedom essential therefor is concerned, Justice voted, except as regards Case No. L-35948 as to which they voted to
Fernando is of the opinion that there is a repugnancy between the grant to the petitioners therein a reasonable period of time within which
election contemplated under Art. XV of the 1935 Constitution and the to file appropriate pleadings should they wish to contest the legality of
existence of Martial Law, and would, therefore, grant the petitions Presidential Proclamation No. 1102. Justice Zaldivar favors the
were they not moot and academic. Justices Barredo, Antonio and granting of said period to the petitioners in said Case No. L-35948 for
Esguerra are of the opinion that issue involves questions of fact which the aforementioned purpose, but he believes, in effect, that the Court
cannot be predetermined, and that Martial Law per se does not should go farther and decide on the merits everyone of the cases
necessarily preclude the factual possibility of adequate freedom, for under consideration.
the purposes contemplated.
Accordingly, the Court acting in conformity with the position taken by six (6) against the Executive Secretary, the Secretary National Defense, the Chief of
of its members, 1 with three (3) members dissenting, 2 with respect to G.R. No. Staff of the Armed Forces of the Philippines, the Secretary of General
L-35948, only and another member 3 dissenting, as regards all of the cases Services, the President and the President Pro Tempore of the Senate. In their
dismissed the same, without special pronouncement as to costs. petition as amended on January 26, 1973 petitioners Gerardo Roxas, et
al. allege, inter alia, that the term of office of three of the aforementioned
The Present Cases petitioners 8 would expire on December 31, 1975, and that of the others 9 on
December 31, 1977; that pursuant to our 1935 Constitution, "which is still in
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L- force Congress of the Philippines "must convene for its 8th Session on
36142 against the Executive Secretary and the Secretaries of National Monday, January 22, 1973, at 10:00 A.M., which is regular customary hour of
its opening session"; that "on said day, from 10:00 A.M. up to the afternoon,"
Defense, Justice and Finance, to restrain said respondents "and their
said petitioner "along with their other colleagues, were unlawfully prevented
subordinates or agents from implementing any of the provisions of the propose
from using the Senate Session Hall, the same having been closed by the
Constitution not found in the present Constitution" referring to that of 1935.
authorities in physical possession and control the Legislative Building"; that
The petition therein, filed by Josue Javellana, as a "Filipino citizen, and a
qualified and registered voter" and as "a class suit, for himself, and in behalf "(a)t about 5:00 to 6:00 P.M. the said day, the premises of the entire Legislative
of all citizens and voters similarly situated," was amended on or about January Building were ordered cleared by the same authorities, and no one was
allowed to enter and have access to said premises"; that "(r)espondent Senate
24, 1973. After reciting in substance the facts set forth in the decision in the
President Gil J. Puyat and, in his absence, respondent President Pro Tempore
plebiscite cases, Javellana alleged that the President had announced "the
Jose Roy we asked by petitioning Senators to perform their duties under the
immediate implementation of the New Constitution, thru his Cabinet,
law and the Rules of the Senate, but unlawfully refrained and continue to
respondents including," and that the latter "are acting without, or in excess of
jurisdiction in implementing the said proposed Constitution" upon the ground: refrain from doing so"; that the petitioners ready and willing to perform their
"that the President, as Commander-in-Chief of the Armed Forces of the duties as duly elected members of the Senate of the Philippines," but
respondent Secretary of National Defense, Executive Secretary and Chief of
Philippines, is without authority to create the Citizens Assemblies"; that the
Staff, "through their agents and representatives, are preventing petitioners
same "are without power to approve the proposed Constitution ..."; "that the
from performing their duties as duly elected Senators of the Philippines"; that
President is without power to proclaim the ratification by the Filipino people of
the proposed Constitution"; and "that the election held to ratify the proposed "the Senate premise in the Congress of the Philippines Building ... are
Constitution was not a free election, hence null and void." occupied by and are under the physical control of the elements military
organizations under the direction of said respondents"; that, as per "official
reports, the Department of General Services ... is now the civilian agency in
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio custody of the premises of the Legislative Building"; that respondents "have
Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de unlawfully excluded and prevented, and continue to so exclude and prevent"
Peralta and Lorenzo M. Taada, against the Executive Secretary, the the petitioners "from the performance of their sworn duties, invoking the
Secretaries of Finance, Justice, Land Reform, and National Defense, the alleged approval of the 1972 (1973) Constitution of the Philippines by action
Auditor General, the Budget Commissioner, the Chairman of the Presidential of the so-called Citizens' Assemblies on January 10, 1973 to January 15, 1973,
Commission on Reorganization, the Treasurer of the Philippines, the as stated in and by virtue of Proclamation No. 1102 signed and issued by the
Commission on Elections and the Commissioner of Civil Service 4 on February President of the Philippines"; that "the alleged creation of the Citizens'
3, 1973, by Eddie Monteclaro, personally and as President of the National Assemblies as instrumentalities for the ratification of the Constitution of the
Press Club of the Philippines, against the Executive Secretary, the Secretary Republic of the Philippines" is inherently illegal and palpably unconstitutional;
of Public Information, the Auditor General, the Budget Commissioner and the that respondents Senate President and Senate President Pro Tempore "have
National Treasurer 5 and on February 12, 1973, by Napoleon V. Dilag, Alfredo unlawfully refrained and continue to refrain from and/or unlawfully neglected
Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 against the and continue to neglect the performance of their duties and functions as such
Executive Secretary, the Secretary of National Defense, the Budget officers under the law and the Rules of the Senate" quoted in the petition; that
Commissioner and the Auditor General. because of events supervening the institution of the plebiscite cases, to which
reference has been made in the preceding pages, the Supreme Court
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. dismissed said cases on January 22, 1973, by a majority vote, upon the ground
Salonga, Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, that the petitions therein had become moot and academic; that the alleged
the first as "duly elected Senator and Minority Floor Leader of the Senate," and ratification of the 1972 (1973) Constitution "is illegal, unconstitutional and void
others as "duly elected members" thereof, filed Case G.R. No. L-36165,
and ... can not have superseded and revoked the 1935 Constitution," for the results of the election, is conclusive upon the courts"; and 6) "(t)he amending
reasons specified in the petition as amended; that, by acting as they did, the process outlined in Article XV of the 1935 Constitution is not exclusive of other
respondents and their "agents, representatives and subordinates ...have modes of amendment."
excluded the petitioners from an office to which" they "are lawfully entitled";
that "respondents Gil J. Puyat and Jose Roy have unlawfully refrained from Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their
convening the Senate for its 8th session, assuming general jurisdiction over separate comment therein, alleging that "(t)he subject matter" of said case "is
the Session Hall and the premises of the Senate and ... continue such inaction a highly political question which, under the circumstances, this ...Court would
up to this time and ... a writ of mandamus is warranted in order to compel them not be in a position to act upon judicially," and that, in view of the opinions
to comply with the duties and functions specifically enjoined by law"; and that expressed by three members of this Court in its decision in the plebiscite
"against the above mentioned unlawful acts of the respondents, the petitioners cases, in effect upholding the validity of Proclamation No. 1102, "further
have no appeal nor other speedy and adequate remedy in the ordinary course proceedings in this case may only be an academic exercise in futility."
of law except by invoking the equitable remedies of mandamus and prohibition
with the provisional remedy of preliminary mandatory injunction."
On February 5, 1973, the Court issued a resolution requiring respondents in
L-36236 to comment on the petition therein not later than Saturday, February
Premised upon the foregoing allegations, said petitioners prayed that, 10, 1973, and setting the case for hearing on February 12, 1973, at 9:30 a.m.
"pending hearing on the merits, a writ of preliminary mandatory injunction be By resolution dated February 7, 1973, this Court resolved to consider the
issued ordering respondents Executive Secretary, the Secretary of National comments of the respondents in cases G.R. Nos. L-36142, L-36164, and L-
Defense, the Chief of Staff of the Armed Forces of the Philippines, and the ... 36165, as motions to dismiss the petitions therein, and to set said cases for
Secretary of General Service, as well as all their agents, representatives and hearing on the same date and time as L-36236. On that date, the parties in
subordinates to vacate the premises of the Senate of the Philippines and to G.R. No. L-36283 10 agreed that the same be, likewise, heard, as it was, in
deliver physical possession of the same to the President of the Senate or his fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L-36164,
authorized representative"; and that hearing, judgment be rendered declaring L-36165 and L-36236. The hearing, which began on February 12, 1973,
null and Proclamation No. 1102 ... and any order, decree, proclamation having shortly after 9:30 a.m., was continued not only that afternoon, but, also, on
the same import and objective, issuing writs of prohibition and mandamus, as February 13, 14, 15 and 16, morning and afternoon, after which the parties
prayed for against above-mentioned respondents, and making the writ were granted up to February 24, 1973, noon, within which to submit their notes
injunction permanent; and that a writ of mandamusbe issued against the of oral arguments and additional arguments, as well as the documents
respondents Gil J. Puyat and Jose Roy directing them to comply with their required of them or whose presentation was reserved by them. The same
duties and functions as President and President Pro Tempore, respectively, of resolution granted the parties until March 1, 1973, to reply to the notes filed by
the Senate of Philippines, as provided by law and the Rules of the Senate." their respective opponents. Counsel for the petitioners in G.R. Nos. L-36164
and L-36165 filed their aforementioned notes on February 24, 1973, on which
Required to comment on the above-mentioned petitions and/or amended date the Solicitor General sought an extension of time up to March 3, 1973,
petitions, respondents filed, with the leave Court first had and obtained, a within which to file his notes, which was granted, with the understanding that
consolidated comment on said petitions and/or amended petitions, alleging said notes shall include his reply to the notes already filed by the petitioners in
that the same ought to have been dismissed outright; controverting petitioners' G.R. Nos. L-36164 a L-36165. Counsel for the petitioners, likewise, moved
allegations concerning the alleged lack impairment of the freedom of the 1971 and were granted an extension of time, to expire on March 10, 1973, within
Constitution Convention to approve the proposed Constitution, its alleged lack which to file, as they did, their notes in reply to those submitted by the Solicitor
of authority to incorporate certain contested provisions thereof, the alleged General on March 3, 1973. On March 21, 1973, petitioners in L-36165 filed a
lack of authority of the President to create and establish Citizens' Assemblies "Manifestation a Supplemental Rejoinder," whereas the Office of the Solicitor
"for the purpose submitting to them the matter of ratification of the new General submitted in all these cases a "Rejoinder Petitioners' Replies."
Constitution," the alleged "improper or inadequate submiss of the proposed
constitution," the "procedure for ratification adopted ... through the Citizens After deliberating on these cases, the members of the Court agreed that each
Assemblies"; a maintaining that: 1) "(t)he Court is without jurisdiction to act on would write his own opinion and serve a copy thereof on his colleagues, and
these petitions"; 2) the questions raised therein are "political in character and this they did. Subsequently, the Court discussed said opinions and votes were
therefore nonjusticiable"; 3) "there substantial compliance with Article XV of cast thereon. Such individual opinions are appended hereto.
the 1 Constitution"; 4) "(t)he Constitution was properly submitted the people in
a free, orderly and honest election; 5) "Proclamation No. 1102, certifying the
Accordingly, the writer will first express his person opinion on the issues before same he would not necessarily adhere to said opinion if the petitioners herein
the Court. After the exposition his aforesaid opinion, the writer will make, succeeded in convincing him that their view should be sustained.
concurrently with his colleagues in the Court, a resume of summary of the
votes cast by them in these cases. Secondly, counsel for the aforesaid respondents had apparently assumed
that, under the 1935 Constitution, eight (8) votes are necessary to declare
Writer's Personal Opinion invalid the contested Proclamation No. 1102. I do not believe that this
assumption is borne out by any provision of said Constitution. Section 10 of
I. Article VIII thereof reads:
Alleged academic futility of further proceedings in G.R. L-36165. All cases involving the constitutionality of a treaty or law shall be heard
and decided by the Supreme Court in banc, and no treaty or law may
This defense or theory, set up by counsel for respondents Gil J. Puyat and be declared unconstitutional without the concurrence of two thirds of
Jose Roy in G.R. No. L-36165, and, also, by the Solicitor General, is all the members of the Court.
predicated upon the fact that, in Our decision in the plebiscite cases, Mr.
Justice Barredo had expressed the view that the 1935 Constitution had "pro Pursuant to this section, the concurrence of two-thirds of all the Members of
tanto passed into history" and "been legitimately supplanted by the the Supreme Court is required only to declare "treaty or law" unconstitutional.
Constitution now in force by virtue of Proclamation No. 1102 ..."; that Mr. Construing said provision, in a resolution dated September 16, 1949, then
Justice Antonio did not feel "that this Court competent to act" in said cases "in Chief Justice Moran, voicing the unanimous view of the Members of this Court,
the absence of any judicially discoverable and manageable standards" and postulated:
because "the access to relevant information is insufficient to assure the correct
determination of the issue," apart from the circumstance that "the new ... There is nothing either in the Constitution or in the Judiciary Act
constitution has been promulgated and great interests have already arisen requiring the vote of eight Justices to nullify a rule or regulation or an
under it" and that the political organ of the Government has recognized its executive order issued by the President. It is very significant that in the
provisions; whereas, Mr. Justice Esguerra had postulated that "(w)ithout any previous drafts of section 10, Article VIII of the Constitution, "executive
competent evidence ... about the circumstances attending the holding" of the order" and "regulation"were included among those that required for
"referendum or plebiscite" thru the Citizens' Assemblies, he "cannot say that it their nullification the vote of two-thirds of all the members of the Court.
was not lawfully held" and that, accordingly, he assumed "that what the But "executive order" and "regulation" were later deleted from the final
proclamation (No. 1102) says on its face is true and until overcome by draft (Aruego, The Framing of the Philippine Constitution, Vol. I, pp.
satisfactory evidence" he could not "subscribe to the claim that such plebiscite 495, 496), and thus a mere majority of six members of this Court is
was not held accordingly"; and that he accepted "as a fait accompli that the enough to nullify them. 11
Constitution adopted (by the 1971 Constitutional Convention) on November
30, 1972, has been duly ratified. The distinction is not without reasonable foundation. The two thirds vote (eight
[8] votes) requirement, indeed, was made to apply only to treaty and law,
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under because, in these cases, the participation of the two other departments of the
these circumstances, "it seems remote or improbable that the necessary eight government the Executive and the Legislative is present, which
(8) votes under the 1935 Constitution, and much less the ten (10) votes circumstance is absent in the case of rules, regulations and executive orders.
required by the 1972 (1973) Constitution, can be obtained for the relief sought Indeed, a law (statute) passed by Congress is subject to the approval or veto
in the Amended Petition" in G.R. No. of the President, whose disapproval cannot be overridden except by the vote
L-36165. of two-thirds (2/3) of all members of each House of Congress. 12 A treaty is
entered into by the President with the concurrence of the Senate,13 which is
I am unable to share this view. To begin with, Mr. Justice Barredo announced not required in the case of rules, regulations or executive orders which are
publicly, in open court, during the hearing of these cases, that he was and is exclusive acts of the President. Hence, to nullify the same, a lesser number of
willing to be convinced that his aforementioned opinion in the plebiscite cases votes is necessary in the Supreme Court than that required to invalidate a law
should be reconsidered and changed. In effect, he thus declared that he had or treaty.
an open mind in connection with the cases at bar, and that in deciding the
Although the foregoing refers to rules, regulations and executive orders issued The Solicitor General maintains in his comment the affirmative view and this
by the President, the dictum applies with equal force to executive is his main defense. In support thereof, he alleges that "petitioners would have
proclamation, like said Proclamation No. 1102, inasmuch as the authority to this Court declare as invalid the New Constitution of the Republic" from which
issue the same is governed by section 63 of the Revised Administrative Code, he claims "this Court now derives its authority"; that "nearly 15 million of
which provides: our body politic from the age of 15 years have mandated this Constitution to
be the New Constitution and the prospect of unsettling acts done in reliance
Administrative acts and commands of the (Governor-General) on it caution against interposition of the power of judicial review"; that "in the
President of the Philippines touching the organization or mode of case of the New Constitution, the government has been recognized in
operation of the Government or rearranging or readjusting any of the accordance with the New Constitution"; that "the country's foreign relations are
districts, divisions, parts or ports of the (Philippine Islands) Philippines now being conducted in accordance with the new charter"; that "foreign
and all acts and commands governing the general performance of governments have taken note of it"; that the "plebiscite cases" are "not
duties by public employees or disposing of issues of general concern precedents for holding questions regarding proposal and ratification
shall be made effective in executive orders. justiciable"; and that "to abstain from judgment on the ultimate issue of
constitutionality is not to abdicate duty."
Executive orders fixing the dates when specific laws, resolutions, or
orders are to have or cease to (have) effect and any information At the outset, it is obvious to me that We are not being asked to "declare"
concerning matters of public moment determined by law, resolution, the new Constitution invalid. What petitioners dispute is the theory that it has
or executive orders, may be promulgated in an executive been validly ratified by the people, especially that they have done so in
proclamation, with all the force of an executive order. 14 accordance with Article XV of the 1935 Constitution. The petitioners maintain
that the conclusion reached by the Chief Executive in the dispositive portion of
Proclamation No. 1102 is not borne out by the whereases preceding the same,
In fact, while executive order embody administrative acts or commands of the
as the predicates from which said conclusion was drawn; that the plebiscite or
President, executive proclamations are mainly informative and declaratory in
"election" required in said Article XV has not been held; that the Chief
character, and so does counsel for respondents Gil J. Puyat and Jose Roy
Executive has no authority, under the 1935 Constitution, to dispense with said
maintain in G.R. No.
L-36165. 15 As consequence, an executive proclamation has no more than "the election or plebiscite; that the proceedings before the Citizens' Assemblies did
not constitute and may not be considered as such plebiscite; that the facts of
force of an executive order," so that, for the Supreme Court to declare such
record abundantly show that the aforementioned Assemblies could not have
proclamation unconstitutional, under the 1935 Constitution, the same number
been held throughout the Philippines from January 10 to January 15, 1973;
of votes needed to invalidate an executive order, rule or regulation namely,
and that, in any event, the proceedings in said Assemblies are null and void
six (6) votes would suffice.
as an alleged ratification of the new Constitution proposed by the 1971
Constitutional Convention, not only because of the circumstances under which
As regards the applicability of the provisions of the proposed new Constitution, said Assemblies had been created and held, but, also, because persons
approved by the 1971 Constitutional Convention, in the determination of the disqualified to vote under Article V of the Constitution were allowed to
question whether or not it is now in force, it is obvious that such question participate therein, because the provisions of our Election Code were not
depends upon whether or not the said new Constitution has been ratified in observed in said Assemblies, because the same were not held under the
accordance with the requirements of the 1935 Constitution, upon the authority supervision of the Commission on Elections, in violation of section 2 of Article
of which said Constitutional Convention was called and approved the X of the 1935 Constitution, and because the existence of Martial Law and
proposed Constitution. It is well settled that the matter of ratification of an General Order No. 20, withdrawing or suspending the limited freedom to
amendment to the Constitution should be settled by applying the provisions of discuss the merits and demerits of said proposed Constitution, impaired the
the Constitution in force at the time of the alleged ratification, or the old people's freedom in voting thereon, particularly a viva voce, as it was done in
Constitution. 16 many instances, as well as their ability to have a reasonable knowledge of the
contents of the document on which they were allegedly called upon to express
II their views.
Does the issue on the validity of Proclamation No. 1102 partake of the nature Referring now more specifically to the issue on whether the new Constitution
of a political, and, hence, non-justiciable question? proposed by the 1971 Constitutional Convention has been ratified in
accordance with the provisions of Article XV of the 1935 Constitution is a mainly with the enforcement of such laws and of judicial decisions applying
political question or not, I do not hesitate to state that the answer must be in and/or interpreting the same, which belong to the executive department; and
the negative. Indeed, such is the position taken by this Court, 17 in an endless 3) those dealing with the settlement of disputes, controversies or conflicts
line of decisions, too long to leave any room for possible doubt that said issue involving rights, duties or prerogatives that are legally demandable and
is inherently and essentially justiciable. Such, also, has been the consistent enforceable, which are apportioned to courts of justice. Within its own sphere
position of the courts of the United States of America, whose decisions have but only within such sphere each department is supreme and
a persuasive effect in this jurisdiction, our constitutional system in the 1935 independent of the others, and each is devoid of authority, not only to encroach
Constitution being patterned after that of the United States. Besides, no upon the powers or field of action assigned to any of the other departments,
plausible reason has, to my mind, been advanced to warrant a departure from but, also, to inquire into or pass upon the advisability or wisdom of the acts
said position, consistently with the form of government established under said performed, measures taken or decisions made by the other departments
Constitution.. provided that such acts, measures or decisions are withinthe area allocated
thereto by the Constitution. 25
Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of the
respondents therein that the question whether Presidential Decree No. 73 This principle of separation of powers under the presidential system goes hand
calling a plebiscite to be held on January 15, 1973, for the ratification or in hand with the system of checks and balances, under which each department
rejection of the proposed new Constitution, was valid or not, was not a proper is vested by the Fundamental Law with some powers to forestall, restrain or
subject of judicial inquiry because, they claimed, it partook of a political nature, arrest a possible or actual misuse or abuse of powers by the other
and We unanimously declared that the issue was a justiciable one. With departments. Hence, the appointing power of the Executive, his pardoning
identical unanimity, We overruled the respondents' contention in the power, his veto power, his authority to call the Legislature or Congress to
1971 habeas corpus cases, 19 questioning Our authority to determine the special sessions and even to prescribe or limit the object or objects of
constitutional sufficiency of the factual bases of the Presidential proclamation legislation that may be taken up in such sessions, etc. Conversely, Congress
suspending the privilege of the writ of habeas corpus on August 21, 1971, or an agency or arm thereof such as the commission on Appointments
despite the opposite view taken by this Court in Barcelona v. may approve or disapprove some appointments made by the President. It,
Baker 20 and Montenegro v. Castaeda, 21insofar as it adhered to the former also, has the power of appropriation, to "define, prescribe, and apportion the
case, which view We, accordingly, abandoned and refused to apply. For the jurisdiction of the various courts," as well as that of impeachment. Upon the
same reason, We did not apply and expressly modified, in Gonzales v. other hand, under the judicial power vested by the Constitution, the "Supreme
Commission on Elections, 22 the political-question theory adopted in Mabanag Court and ... such inferior courts as may be established by law," may settle or
v. Lopez Vito. 23 Hence, respondents herein urge Us to reconsider the action decide with finality, not only justiciable controversies between private
thus taken by the Court and to revert to and follow the views expressed individuals or entities, but, also, disputes or conflicts between a private
in Barcelon v. Baker and Mabanag v. Lopez Vito. 24 individual or entity, on the one hand, and an officer or branch of the
government, on the other, or between two (2) officers or branches of service,
The reasons adduced in support thereof are, however, substantially the same when the latter officer or branch is charged with acting without jurisdiction or
as those given in support of the political-question theory advanced in in excess thereof or in violation of law. And so, when a power vested in said
said habeas corpus and plebiscite cases, which were carefully considered by officer or branch of the government is absolute orunqualified, the acts in the
this Court and found by it to be legally unsound and constitutionally untenable. exercise of such power are said to be political in nature, and, consequently,
As a consequence, Our decision in the aforementioned habeas corpus cases non-justiciable or beyond judicial review. Otherwise, courts of justice would be
partakes of the nature and effect of a stare decisis, which gained added weight arrogating upon themselves a power conferred by the Constitution upon
by its virtual reiteration in the plebiscite cases. another branch of the service to the exclusion of the others. Hence, in Taada
v. Cuenco, 26 this Court quoted with approval from In re McConaughy, 27 the
following:
The reason why the issue under consideration and other issues of similar
character are justiciable, not political, is plain and simple. One of the principal
bases of the non-justiciability of so-called political questions is the principle of "At the threshold of the case we are met with the assertion that the
separation of powers characteristic of the Presidential system of questions involved are political, and not judicial. If this is correct, the
government the functions of which are classified or divided, by reason of court has no jurisdiction as the certificate of the state canvassing
their nature, into three (3) categories, namely: 1) those involving the making of board would then be final, regardless of the actual vote upon the
laws, which are allocated to the legislative department; 2) those concerned amendment. The question thus raised is a fundamental one; but it has
been so often decided contrary to the view contended for by the branch of the government." It is concerned with issues dependent upon
Attorney General that it would seem to be finally settled. the wisdom, not legality, of a particular measure."
xxx xxx xxx Accordingly, when the grant of power is qualified, conditional or subject to
limitations, the issue on whether or not the prescribed qualifications or
"... What is generally meant, when it is said that a question is political, conditions have been met, or the limitations respected, is justiciable or non-
and not judicial, is that it is a matter which is to be exercised by the political, the crux of the problem being one of legality or validity of the
people in their primary political capacity, or that it has been specifically contested act, not its wisdom. Otherwise, said qualifications, conditions or
delegated to some other department or particular officer of the limitations particularly those prescribed or imposed by the Constitution
government, with discretionary power to act. See State vs. would be set at naught. What is more, the judicial inquiry into such issue and
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 the settlement thereof are the mainfunctions of courts of justice under the
Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. Presidential form of government adopted in our 1935 Constitution, and the
852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37 system of checks and balances, one of its basic predicates. As a
N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus theLegislature consequence, We have neither the authority nor the discretion to decline
may in its discretion determine whether it will pass law or submit a passing upon said issue, but are under the ineluctable obligation made
proposed constitutional amendment to the people. The courts have no particularly more exacting and peremptory by our oath, as members of the
judicial control over such matters, not merely because they involve highest Court of the land, to support and defend the Constitution to settle it.
political questions, but because they are matters which the people This explains why, in Miller v. Johnson, 28 it was held that courts have a "duty,
have by the Constitution delegated to the Legislature. The Governor rather than a power", to determine whether another branch of the government
may exercise the powers delegated him, free from judicial control, so has "kept within constitutional limits." Not satisfied with this postulate, the court
long as he observes the laws act within the limits of the power went farther and stressed that, if the Constitution provides how it may be
conferred. His discretionary acts cannot be controllable, not primarily amended as it is in our 1935 Constitution "then, unless the manner is
because they are of a politics nature, but because the Constitution and followed, the judiciary as the interpreter of that constitution, will declare the
laws have placed the particular matter under his control.But every amendment invalid." 29 In fact, this very Court speaking through Justice
officer under constitutional government must act accordingly to law Laurel, an outstanding authority on Philippine Constitutional Law, as well as
and subject its restrictions, and every departure therefrom or disregard one of the highly respected and foremost leaders of the Convention that
thereof must subject him to that restraining and controlling power of drafted the 1935 Constitution declared, as early as July 15, 1936, that "(i)n
the people, acting through the agency of the judiciary; for it must be times of social disquietude or political excitement, the great landmarks of the
remembered that the people act through courts, as well as through the Constitution are apt to be forgotten or marred, if not entirely obliterated. In
executive or the Legislature. One department is just as representative cases of conflict, thejudicial department is the only constitutional organ which
as the other, and the judiciary is the department which is charged with can be called upon to determine the proper allocation of powers between the
the special duty of determining the limitations which the law places several departments" of the government. 30
upon all official action. The recognition of this principle, unknown
except in Great Britain and America, is necessary, to "the end that the The Solicitor General has invoked Luther v. Borden 31 in support of his stand
government may be one of laws and not of men" words which that the issue under consideration is non-justiciable in nature. Neither the
Webster said were the greatest contained in any written constitutional factual background of that case nor the action taken therein by the Federal
document." (Emphasis supplied.) Supreme Court has any similarity with or bearing on the cases under
consideration.
and, in an attempt to describe the nature of a political question in terms, it was
hoped, understandable to the laymen, We added that "... the term "political Luther v. Borden was an action for trespass filed by Luther with the Circuit
question" connotes, in legal parlance, what it means in ordinary parlance, Court of the United States against Borden and others for having forcibly
namely, a question of policy" in matters concerning the government of a State, entered into Luther's house, in Rhode Island, sometime in 1842. The
as a body politic. "In other words, in the language of Corpus Juris Secundum defendants who were in the military service of said former colony of England,
(supra), it refers to "those questions which, under the Constitution, are to alleged in their defense that they had acted in obedience to the commands of
be decided by the people in their sovereign capacity, or in regard to which full a superior officer, because Luther and others were engaged in a conspiracy to
discretionary authority has been delegated to the Legislature or executive overthrow the government by force and the state had been placed by
competent authority under Martial Law. Such authority was the charter About a year before, or in May 1842, Dorr, at the head of a military force, had
government of Rhode Island at the time of the Declaration of Independence, made an unsuccessful attempt to take possession of the state arsenal in
for unlike other states which adopted a new Constitution upon secession Providence, but he was repulsed, and, after an "assemblage of some
from England Rhode Island retained its form of government under a British hundreds of armed men under his command at Chepatchet in the June
Charter, making only such alterations, by acts of the Legislature, as were following, which dispersed upon approach of the troops of the old
necessary to adapt it to its subsequent condition as an independent state. It government, no further effort was made to establish" his government. "... until
was under this form of government when Rhode Island joined other American the Constitution of 1843" adopted under the auspices of the charter
states in the Declaration of Independence and, by subsequently ratifying the government "went into operation, the charter government continued to
Constitution of the United States, became a member of the Union. In 1843, it assert its authority and exercise its powers and to enforce obedience
adopted a new Constitution. throughout the state ... ."
Prior thereto, however, many citizens had become dissatisfied with the charter Having offered to introduce evidence to prove that the constitution of the rebels
government. Memorials addressed by them to the Legislature having failed to had been ratified by the majority of the people, which the Circuit Court rejected,
bring about the desired effect, meetings were held and associations formed apart from rendering judgment for the defendants, the plaintiff took the case
by those who belonged to this segment of the population which eventually for review to the Federal Supreme Court which affirmed the action of the Circuit
resulted in a convention called for the drafting of a new Constitution to be Court, stating:
submitted to the people for their adoption or rejection. The convention
was not authorized by any law of the existing government. The delegates to It is worthy of remark, however, when we are referring to the authority
such convention framed a new Constitution which was submitted to the of State decisions, that the trial of Thomas W. Dorr took place after the
people. Upon the return of the votes cast by them, the convention declared constitution of 1843 went into operation. The judges who decided that
that said Constitution had been adopted and ratified by a majority of the people case held their authority under that constitution and it is admitted on
and became the paramount law and Constitution of Rhode Island. all hands that it was adopted by the people of the State, and is the
lawful and established government. It is the decision, therefore, of a
The charter government, which was supported by a large number of citizens State court, whose judicial authority to decide upon the constitution
of the state, contested, however, the validity of said proceedings. This and laws of Rhode Island is not questioned by either party to this
notwithstanding, one Thomas W. Dorr, who had been elected governor under controversy, although the government under which it acted was
the new Constitution of the rebels, prepared to assert authority by force of framed and adopted under the sanction and laws of the charter
arms, and many citizens assembled to support him. Thereupon, the charter government.
government passed an Act declaring the state under Martial Law and adopted
measures to repel the threatened attack and subdue the rebels. This was the The point, then, raised here has been already decided by the courts
state of affairs when the defendants, who were in the military service of the of Rhode Island. The question relates, altogether, to the constitution
charter government and were to arrest Luther, for engaging in the support of and laws of that State, and the well settled rule in this court is, that the
the rebel government which was never able to exercise any authority in the courts of the United States adopt and follow the decisions of the State
state broke into his house. courts in questions which concern merely the constitution and laws of
the State.
Meanwhile, the charter government had taken measures to call its own
convention to revise the existing form of government. Eventually, a new Upon what ground could the Circuit Court of the United States which
constitution was drafted by a convention held under the authority of the charter tried this case have departed from this rule, and disregarded and
government, and thereafter was adopted and ratified by the people. "(T)he overruled the decisions of the courts of Rhode Island?Undoubtedly the
times and places at which the votes were to be given, the persons who were courts of the United States have certain powers under the Constitution
to receive and return them, and the qualifications of the voters having all been and laws of the United States which do not belong to the State courts.
previously authorized and provided for by law passed by the charter But the power of determining that a State government has been
government," the latter formally surrendered all of its powers to the new lawfully established, which the courts of the State disown and
government, established under its authority, in May 1843, which had been in repudiate, is not one of them. Upon such a question the courts of the
operation uninterruptedly since then. United States are bound to follow the decisions of the State tribunals,
and must therefore regard the charter government as the lawful and slightest application to the case at bar. When carefully analyzed, it
established government during the time of this contest. 32 appears that it merely determines that the federal courts will accept as
final and controlling a decision of the highest court of a state upon a
It is thus apparent that the context within which the case of Luther v. question of the construction of the Constitution of the state. ... . 33
Borden was decided is basically and fundamentally different from that of the
cases at bar. To begin with, the case did not involve a federal question, but Baker v. Carr, 34 cited by respondents, involved an action to annul a
one purely municipal in nature. Hence, the Federal Supreme Court was "bound Tennessee statute apportioning the seats in the General Assembly among the
to follow the decisions of the State tribunals" of Rhode Island upholding the counties of the State, upon the theory that the legislation violated the equal
constitution adopted under the authority of the charter government. Whatever protection clause. A district court dismissed the case upon the ground, among
else was said in that case constitutes, therefore, an obiter dictum. Besides, no others, that the issue was a political one, but, after a painstaking review of the
decision analogous to that rendered by the State Court of Rhode Island exists jurisprudence on the matter, the Federal Supreme Court reversed the
in the cases at bar. Secondly, the states of the Union have a measure appealed decision and held that said issue was justiciable and non-political,
of internal sovereignty upon which the Federal Government may not encroach, inasmuch as:"... (d)eciding whether a matter has in any measure been
whereas ours is a unitary form of government, under which our local committed by the Constitution to another branch of government, or whether
governments derive their authority from the national government. the action of that branch exceeds whatever authority has been committed, is
Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island itself a delicate exercise in constitutional interpretation, and is a responsibility
contained noprovision on the manner, procedure or conditions for its of this Court as ultimate interpreter of the Constitution ... ."
amendment.
Similarly, in Powell v. McCormack, 35 the same Court, speaking through then
Then, too, the case of Luther v. Borden hinged more on the question of Chief Justice Warren, reversed a decision of the Court of Appeals of New York
recognition of government, than on recognition of constitution, and there is a affirming that of a Federal District Court, dismissing Powell's action for a
fundamental difference between these two (2) types of recognition, the first declaratory judgment declaring thereunder that he whose qualifications
being generally conceded to be a political question, whereas the nature of the were uncontested had been unlawfully excluded from the 90th Congress of
latter depends upon a number of factors, one of them being whether the new the U.S. Said dismissal was predicated upon the ground, inter alia, that the
Constitution has been adopted in the manner prescribed in the Constitution in issue was political, but the Federal Supreme Court held that it was clearly a
force at the time of the purported ratification of the former, which justiciable one.
is essentially a justiciablequestion. There was, in Luther v. Borden, a conflict
between two (2) rival governments, antagonistic to each other, which is absent The Supreme Court of Minnessota undertook a careful review of American
in the present cases. Here, the Government established under the 1935 jurisprudence on the matter. Owing to the lucidity of its appraisal thereof, We
Constitution is the very same government whose Executive Department has append the same to this opinion as Annex A thereof.
urged the adoption of the new or revised Constitution proposed by the 1971
Constitutional Convention and now alleges that it has been ratified by the
After an, exhaustive analysis of the cases on this subject, the Court concluded:
people.
The authorities are thus practically uniform in holding that whether a
In short, the views expressed by the Federal Supreme Court in Luther v.
constitutional amendment has been properly adopted according to the
Borden, decided in 1849, on mattersother than those referring to its power to
requirements of an existing Constitution is a judicial question. There
review decisions of a state court concerning the constitution and government
can be little doubt that the consensus of judicial opinion is to the effect
of that state, not the Federal Constitution or Government, are manifestly
that it is the absolute duty of the judiciary to determine whether the
neither, controlling, nor even persuasive in the present cases, having as
Constitution has been amended in the manner required by the
the Federal Supreme Court admitted no authority whatsoever to pass upon
Constitution, unless a special tribunal has been created to determine
such matters or to review decisions of said state court thereon. In fact, referring the question; and even then many of the courts hold that the tribunal
to that case, the Supreme Court of Minnessota had the following to say: cannot be permitted to illegally amend the organic law. ... . 36
III The reasons adduced by the petitioners in L-36165 in favor of the negative
view have already been set forth earlier in this opinion. Hence, it is
Has the proposed new or revised Constitution been ratified conformably to unnecessary to reproduce them here. So it is, with respect to the positions
said Art. XV of the 1935 Constitution? taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose Roy
although more will be said later about them and by the Solicitor General,
on behalf of the other respondents in that case and the respondents in the
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the
President "is without authority to create the Citizens' Assemblies" through other cases.
which, respondents maintain, the proposed new Constitution has been ratified;
that said Assemblies "are without power to approve the proposed 1. What is the procedure prescribed by the 1935 Constitution for its
Constitution"; 3) that the President "is without power to proclaim the ratification amendment?
by the Filipino people of the proposed Constitution"; and 4) that "the election
held (in the Citizens' Assemblies) to ratify the proposed Constitution was not a Under section 1 of Art. XV of said Constitution, three (3) steps are essential,
free election, hence null and void." namely:
Apart from substantially reiterating these grounds support of said negative 1. That the amendments to the Constitution be proposed either by Congress
view, the petitioners in L-36164 contend: 1) that the President "has no power or by a convention called for that purpose, "by a vote of three-fourths of all the
to call a plebiscite for the ratification or rejection" of the proposed new Members of the Senate and the House of Representatives voting separately,"
Constitution or "to appropriate funds for the holding of the said plebiscite"; 2) but "in joint session assembled";
that the proposed new or revised Constitution "is vague and incomplete," as
well as "contains provisions which are beyond the powers of the 1971 2. That such amendments be "submitted to the people for their ratification" at
Convention to enact," thereby rendering it "unfit for ... submission the people;" an "election"; and
3) that "(t)he period of time between November 1972 when the 1972 draft was
approved and January 11-15, 1973," when the Citizens' Assemblies
3. That such amendments be "approved by a majority of the votes cast" in said
supposedly ratified said draft, "was too short, worse still, there was practically
election.
no time for the Citizens' Assemblies to discuss the merits of the Constitution
which the majority of them have not read a which they never knew would be
submitted to them ratification until they were asked the question "do you Compliance with the first requirement is virtually conceded, although the
approve of the New Constitution?" during the said days of the voting"; and that petitioners in L-36164 question the authority of the 1971 Constitutional
"(t)here was altogether no freedom discussion and no opportunity to Convention to incorporate certain provisions into the draft of the new or revised
concentrate on the matter submitted to them when the 1972 draft was Constitution. The main issue in these five (5) cases hinges, therefore, on
supposedly submitted to the Citizens' Assemblies for ratification." whether or not the last two (2) requirements have been complied with.
Petitioner in L-36236 added, as arguments in support of the negative view, 2. Has the contested draft of the new or revised Constitution been submitted
that : 1) "(w)ith a government-controlled press, there can never be a fair and to the people for their ratification conformably to Art. XV of the Constitution?
In this connection, other provisions of the 1935 Constitution concerning persons than "citizens of the Philippines not otherwise disqualified by law, who
"elections" must, also, be taken into account, namely, section I of Art. V and are twenty-one years of age or over and are able to read and write, and who
Art. X of said Constitution. The former reads: shall have resided in the Philippines for one year and in the municipality
wherein they propose to vote for at least six months preceding the election,"
Section 1. Suffrage may be exercised by male citizens of the may exercise the right of suffrage in the Philippines. Upon the other hand, the
Philippines not otherwise disqualified by law, who are twenty- Solicitor General contends that said provision merely guarantees the right of
one years of age or over and are able to read and write, and suffrage to persons possessing the aforementioned qualifications and none of
who shall have resided in the Philippines for one year and in the disqualifications, prescribed by law, and that said right may be vested by
the municipality wherein they propose to vote for at least six competent authorities in persons lacking some or all of the aforementioned
months preceding the election. The National Assembly shall qualifications, and possessing some of the aforesaid disqualifications. In
extend the right of suffrage to women, if in a plebiscite which support of this view, he invokes the permissive nature of the language
shall be held for that purpose within two years after the "(s)uffrage may be exercised" used in section 1 of Art. V of the Constitution,
adoption of this Constitution, not less than three hundred and the provisions of the Revised Barrio Charter, Republic Act No. 3590,
thousand women possessing the necessary qualifications particularly sections 4 and 6 thereof, providing that citizens of the Philippines
shall vote affirmatively on the question. "eighteen years of age or over," who are registered in the list of barrio
assembly members, shall be members thereof and may participate as such in
the plebiscites prescribed in said Act.
Sections 1 and 2 of Art. X of the Constitution ordain in part:
Section 1. There shall be an independent Commission on Elections I cannot accept the Solicitor General's theory. Art. V of the Constitution
declares who may exercise the right of suffrage, so that those lacking the
composed of a Chairman and two other Members to be appointed by
qualifications therein prescribed may not exercise such right. This view is
the President with the consent of the Commission on Appointments,
borne out by the records of the Constitutional Convention that drafted the 1935
who shall hold office for a term of nine years and may not be
Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was largely
reappointed. ...
based on the report of the committee on suffrage of the Convention that drafted
said Constitution which report was, in turn, "strongly influenced by the election
xxx xxx xxx laws then in force in the Philippines ... ." 40 " Said committee had
recommended: 1) "That the right of suffrage should exercised only by male
Sec. 2. The Commission on Elections shall have exclusive charge of citizens of the Philippines." 2) "That should be limited to those who could read
the enforcement and administration of all laws relative to the conduct and write." 3) "That the duty to vote should be made obligatory." It appears
of elections and shall exercise all other functions which may be that the first recommendation was discussed extensively in the Convention,
conferred upon it by law. It shall decide, save those involving the right and that, by way of compromise, it was eventually agreed to include, in section
to vote, alladministrative questions, affecting elections, including the 1 of Art. V of the Constitution, the second sentence thereof imposing upon the
determination of the number and location of polling places, and the National Assembly established by the original Constitution instead of the
appointment of election inspectors and of other election officials. All bicameral Congress subsequently created by amendment said Constitution
law enforcement agencies and instrumentalities of the Government, the duty to "extend the right of suffrage women, if in a plebiscite to, be held for
when so required by the Commission, shall act as its deputies for the that purpose within two years after the adoption of this Constitution, not less
purpose of insuring fee, orderly, and honest elections. The decisions, than three hundred thousand women possessing the necessary qualifications
orders, and rulings of the Commission shall be subject to review by shall vote affirmatively on the question." 41
the Supreme Court.
The third recommendation on "compulsory" voting was, also debated upon
xxx xxx xxx 39 rather extensively, after which it was rejected by the Convention. 42 This
accounts, in my opinion, for the permissive language used in the first sentence
a. Who may vote in a plebiscite under Art. V of the Constitution? of said Art. V. Despite some debates on the age qualification amendment
having been proposed to reduce the same to 18 or 20, which were rejected,
Petitioners maintain that section 1 of Art. V of the Constitution is a and the residence qualification, as well as the disqualifications to the exercise
limitation upon the exercise of the right of suffrage. They claim that no other of the right of suffrage the second recommendation limiting the right of
suffrage to those who could "read and write" was in the language of Dr. on Elections, 45 granting the writs, of prohibition and injunction therein applied
Jose M. Aruego, one of the Delegates to said Convention "readily for, upon the ground that, under the Constitution, all of the amendments
approved in the Convention without any dissenting vote," although there was adopted by the Convention should be submitted in "an election" or a single
some debate on whether the Fundamental Law should specify the language election, not separately or in several or distinct elections, and that the
or dialect that the voter could read and write, which was decided in the proposed amendment sought to be submitted to a plebiscite was not even a
negative. 43 complete amendment, but a "partial amendment" of said section 1, which could
be amended further, after its ratification, had the same taken place, so that the
What is relevant to the issue before Us is the fact that the constitutional aforementioned partial amendment was, for legal purposes, no more than
provision under consideration was meant to be and is a grant or conferment of a provisional or temporary amendment. Said partial amendment was
a right to persons possessing the qualifications and none of the predicated upon the generally accepted contemporary construction that, under
disqualifications therein mentioned, which in turn, constitute a limitation of the 1935 Constitution, persons below twenty-one (21) years of age could not
or restriction to said right, and cannot, accordingly, be dispensed with, except exercise the right of suffrage, without a previous amendment of the
by constitutional amendment. Obviously, every such constitutional grant or Constitution.
conferment of a right is necessarily a negation of the authority of Congress or
of any other branch of the Government to deny said right to the subject of the Upon the other hand, the question, whether 18-year-old members of barrio
grant and, in this sense only, may the same partake of the nature of a assemblies may vote in barrio assembly plebiscites is, to say the least, a
guarantee. But, this does not imply not even remotely, that the Fundamental debatable one. Indeed, there seems to be a conflict between the last
Law allows Congress or anybody else to vest in those lacking the qualifications paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the
and having the disqualifications mentioned in the Constitution the right of "majority vote of all the barrio assemblymembers" (which include all barrio
suffrage. residents 18 years of age or over, duly registered in the list of barrio assembly
members) is necessary for the approval, in an assembly plebiscite, of "any
At this juncture, it is noteworthy that the committee on suffrage responsible for budgetary, supplemental appropriations or special tax ordinances," whereas,
the adoption of section 1 of Art. V of the Constitution was "strongly influenced according to the paragraph preceding the penultimate one of said
by the election laws then in force in the Philippines." Our first Election Law was section, 47 "(a)ll duly registered barrio assembly members qualified to vote"
Act 1582, passed on January 9, 1907, which was partly amended by Acts who, pursuant to section 10 of the same Act, must be citizens "of the
1669, 1709, 1726 and 1768, and incorporated into the Administrative Code of Philippines, twenty-one years of age or over, able to read and write," and
1916 Act 2657 as chapter 20 thereof, and then in the Administrative Code residents the barrio "during the six months immediately preceding election,
of 1917 Act 2711 as chapter 18 thereof, which, in turn, was amended by duly registered in the list of voters" and " otherwise disqualified ..." just like
Act 3387, approved on December 3, 1927. Sections 431 and 432 of said Code the provisions of present and past election codes of the Philippines and Art. V
of 1917, prescribing, respectively, the qualifications for and disqualifications of the 1935 Constitution "may vote in the plebiscite."
from voting, are quoted below. 44 In all of these legislative acts, the provisions
concerning the qualifications of voters partook of the nature of a grant or I believe, however, that the apparent conflict should resolved in favor of the
recognition of the right of suffrage, and, hence, of adenial thereof to those who 21-year-old members of the assembly, not only because this interpretation is
lacked the requisite qualification and possessed any of the statutory in accord with Art. V the Constitution, but, also, because provisions of a
disqualifications. In short, the history of section 1, Art. V of the Constitution, Constitution particularly of a written and rigid one, like ours generally
shows beyond doubt than the same conferred not guaranteed the accorded a mandatory status unless the intention to the contrary is
authority to persons having the qualifications prescribed therein and none of manifest, which is not so as regards said Art. V for otherwise they would
disqualifications to be specified in ordinary laws and, necessary not have been considered sufficiently important to be included in the
implication, denied such right to those lacking any said qualifications, Fundamental Law of the land. 48Besides, it would be illogical, if not absurd,
or having any of the aforementioned disqualifications. believe that Republic Act No. 3590 requires, for the most important measures
for which it demands in addition to favorable action of the barrio council
This view is further bolstered by the fact that the 1971 Constitutional the approval of barrio assembly through aplebiscite, lesser qualifications than
Convention sought the submission to a plebiscite of a "partial amendment" to those prescribed in dealing with ordinary measures for which such plebiscite
said section 1 of Art. V of the 1935 Constitution, by reducing the voting age need not be held.
from twenty-one (21) years to eighteen (18) years, which, however, did not
materialize on account of the decision of this Court in Tolentino v. Commission
It is similarly inconceivable that those who drafted the 1935 Constitution In Usman v. Commission on Elections, et al., 55 We held:
intended section 1 of Art. V thereof to apply only to elections of public officers,
not to plebiscites for the ratification of amendments to the Fundamental Law Several circumstances, defying exact description and dependent
or revision thereof, or of an entirely new Constitution, and permit the legislature mainly on the factual milieu of the particular controversy, have the
to require lesser qualifications for such ratification, notwithstanding the fact effect of destroying the integrity and authenticity of disputed election
that the object thereof much more important if not fundamental, such as the returns and of avoiding their prima facie value and character. If
basic changes introduced in the draft of the revised Constitution adopted by satisfactorily proven, although in a summary proceeding, such
the 1971 Constitutional Convention, which a intended to be in force circumstances as alleged by the affected or interested parties, stamp
permanently, or, at least, for many decades, and to affect the way of life of the the election returns with the indelible mark of falsity and irregularity,
nation and, accordingly, demands greater experience and maturity on the and, consequently, of unreliability, and justify their exclusion from the
part of the electorate than that required for the election of public canvass.
officers, 49 whose average term ranges from 2 to 6 years.
Then, too, the 1935 Constitution requires "a majority of the votes cast" for a
It is admitted that persons 15 years of age or over, but below 21 years, proposed amendment to the Fundamental Law to be "valid" as part thereof,
regardless of whether or not they possessed the other qualifications laid down and the term "votes cast" has a well-settled meaning.
in both the Constitution and the present Election Code, 50 and of whether or
not they are disqualified under the provisions of said Constitution and The term "votes cast" ... was held in Smith v. Renville County
Code, 51 or those of Republic Act No. 3590, 52 have participated and voted in
Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as an
the Citizens' Assemblies that have allegedly ratified the new or revised equivalent of "ballots cast." 56
Constitution drafted by the 1971 Constitutional Convention.
The word "cast" is defined as "to deposit formally or officially." 57
In fact, according to the latest official data, the total number of registered voters
21 years of age or over in the entire Philippines, available in January 1973,
was less than 12 million. Yet, Proclamation No. 1102 states that 14,976,56 It seems to us that a vote is cast when a ballot is deposited indicating
"members of all the Barangays (Citizens Assemblies) voted for the adoption of a "choice." ... The word "cast" means "deposit (a ballot) formally or
the proposed Constitution, as against ... 743,869 who voted for its rejection," officially ... .
whereas, on the question whether or not the people still wanted a plebiscite to
be called to ratify the new Constitution, "... 14,298,814 answered that there ... In simple words, we would define a "vote cast" as the exercise on a
was no need for a plebiscite and that the vote of the Barangays (Citizens ballot of the choice of the voter on the measure proposed. 58
Assemblies) should be considered as a vote in a plebiscite." In other words, it
is conceded that the number of people who allegedly voted at the Citizens' In short, said Art. XV envisages with the term "votes cast" choices
Assemblies for exceeded the number of registered voters under the Election made on ballots not orally or by raising by the persons taking part in
Code in force in January 1973. plebiscites. This is but natural and logical, for, since the early years of the
American regime, we had adopted the Australian Ballot System, with its major
It is thus clear that the proceedings held in such Citizens' Assemblies and characteristics, namely, uniform official ballots prepared and furnished by the
We have more to say on this point in subsequent pages were fundamentally Government and secrecy in the voting, with the advantage of keeping records
irregular, in that persons lacking the qualifications prescribed in section 1 of that permit judicial inquiry, when necessary, into the accuracy of the election
Art. V of the Constitution were allowed to vote in said Assemblies. And, since returns. And the 1935 Constitution has been consistently interpreted
there is no means by which the invalid votes of those less than 21 years of age in all plebiscites for the ratification rejection of proposed amendments thereto,
can be separated or segregated from those of the qualified voters, the from 1935 to 1967. Hence, the viva voce voting in the Citizens' Assemblies
proceedings in the Citizens' Assemblies must be considered null and void. 53 was and is null and void ab initio.
It has been held that "(t)he power to reject an entire poll ... should be b. How should the plebiscite be held? (COMELEC supervision indispensable;
exercised ... in a case where it is impossibleto ascertain with reasonable essential requisites)
certainty the true vote," as where "it is impossible to separate the legal votes
from the illegal or spurious ... ." 54
Just as essential as compliance with said Art. V of the 19 Constitution is that only 61; that "(n)o pardon, parole, or suspension sentence for the violation of
of Art. X thereof, particularly its sections 1 and 2. Indeed, section 1 provides any election law may be granted without the favorable recommendation of the
that "(t)here shall be an independent Commission on Elections ... ." The point Commission" 62; and, that its chairman and members "shall not, during the
to be stressed here is the term "independent." Indeed, why was the term used? continuance in office, engage in the practice of any profession or intervene,
directly or indirectly, in the management or control of any private enterprise
In the absence of said constitutional provision as to the independence of the which in anyway may affected by the functions of their office; nor shall they,
Commission, would it have been depends upon either Congress or the directly or indirectly, be financially interested in any contract with the
Judiciary? The answer must be the negative, because the functions of the Government or any subdivision or instrumentality thereof." 63 Thus, the framers
Commission "enforcement and administration" of election laws are of the amendment to the original Constitution of 1935 endeavored to do
neither legislative nor judicial in nature, and, hence, beyond the field allocated everything possible protect and insure the independence of each member of
to either Congress or courts of justice. Said functions are by their nature the Commission.
essentially executive, for which reason, the Commission would be under the
"control" of the President, pursuant to section 10, paragraph (1) of Art. VII of With respect to the functions thereof as a body, section 2 of said Art. X ordains
the Constitution, if Art. X thereof did not explicitly declare that it (the that "(t)he Commission on Elections shall have exclusive charge of the
Commission) is an "independent" body. In other words, in amending the enforcement and administration all laws relative to the conduct of elections,"
original 1935 Constitution, by inserting therein said Art. X, on the Commission apart from such other "functions which may be conferred upon it by law." It
on Elections, the purpose was to make said Commission independent further provides that the Commission "shall decide, save those involving the
principally of the Chief Executive. right to vote, all administrative question affecting elections, including the
determination of the number and location of polling places, and the
And the reason therefor is, also, obvious. Prior to the creation of the appointment of election inspectors and of other election officials." And, to
Commission on Elections as a constitutional organ, election laws in the forests possible conflicts or frictions between the Commission, on one hand,
Philippines were enforced by the then Department of the Interior, through its and the other offices or agencies of the executive department, on the other,
Executive Bureau, one of the offices under the supervision and control of said said section 2 postulates that "(a)ll law enforcement agencies and
Department. The same like other departments of the Executive Branch of instrumentalities of the Government, when so required by the Commission,
the Government was, in turn, under the control of the Chief Executive, shall act as its deputies for the purpose of insuring free, orderly, and honest
before the adoption of the 1935 Constitution, and had been until the elections." Not satisfied with this, it declares, in effect, that "(t)he decisions,
abolition of said Department, sometime ago under the control of the orders, and ruling of the Commission" shall not be subject to review, except by
President of the Philippines, since the effectivity of said Fundamental Law. the Supreme Court.
Under the provisions thereof, the Executive could so use his power of control
over the Department of the Interior and its Executive Bureau as to place the In accordance with the letter and spirit of said Art. X of the Constitution, Rep.
minority party at such a great, if not decisive, disadvantage, as to deprive it, in Act No. 6388, otherwise known as the Election Code of 1971, implements the
effect, of the opportunity to defeat the political party in power, and, hence, to constitutional powers of the Commission on Elections and grants additional
enable the same to perpetuate itself therein. To forestall this possibility, the powers thereto, some of which are enumerated in sections 5 and 6 of said Act,
original 1935 Constitution was amended by the establishment of the quoted below. 64Moreover, said Act contains, inter alia, detailed provisions
Commission on Elections as a constitutional body independent primarily of the regulating contributions and other (corrupt) practices; the establishment of
President of the Philippines. election precincts; the designation and arrangement of polling places,
including voting booths, to protect the secrecy of the ballot; formation of lists
The independence of the Commission was sought to be strengthened by the of voters, the identification and registration of voters, the proceedings therefor,
long term of office of its members nine (9) years, except those first as well as for the inclusion in, or exclusion or cancellation from said list and
appointed 59 the longest under the Constitution, second only to that of the the publication thereof; the establishment of municipal, provincial and files of
Auditor General 60; by providing that they may not be removed from office registered voters; the composition and appointment of board of election
except by impeachment, placing them, in this respect, on the same plane as inspectors; the particulars of the official ballots to be used and the precautions
the President, the Vice-President, the Justices of the Supreme Court and the to be taken to insure authenticity thereof; the procedure for the casting of
Auditor General; that they may not be reappointed; that their salaries, "shall votes; the counting of votes by boards of inspectors; the rules for the
be neither increased nor diminished during their term of office"; that the appreciation of ballots and the preparation and disposition of election returns;
decisions the Commission "shall be subject to review by the Supreme Court" the constitution and operation of municipal, provincials and national boards of
canvassers; the presentation of the political parties and/or their candidates in Upon the other hand, said General Order No. 20 expressly suspended "the
each election precinct; the proclamation of the results, including, in the case provisions of Section 3 of Presidential Decree No. 73 insofar as they allow free
of election of public officers, election contests; and the jurisdiction of courts of public discussion of proposed Constitution ... temporarily suspending effects
justice in cases of violation of the provisions of said Election Code and the of Proclamation No. 1081 for the purposes of free open dabate on the
penalties for such violations. proposed Constitution ... ." This specific mention of the portions of the decrees
or orders or instructions suspended by General Order No. 20 necessarily
Few laws may be found with such meticulous and elaborate set of provisions implies that all other portions of said decrees, orders or instructions and,
aimed at "insuring free, orderly, and honest election," as envisaged in section hence, the provisions of Presidential Decree No. 73 outlining the procedure to
2 of Art. X of the Constitution. Yet, none of the foregoing constitutional and be followed in the plebiscite for ratification or rejection of the proposed
statutory provisions was followed by the so-called Barangays or Citizens' Constitution remained in force, assuming that said Decree is valid.
Assemblies. And no reasons have been given, or even sought to be given
therefor. In many, if not most, instances, the election were held a viva voce, It is claimed that by virtue of Presidential Decree No. 86-A the text of which
thus depriving the electorate of the right to vote secretly one of the most, is quoted below 67 the Executive declared, inter alia, that the collective views
fundamental and critical features of our election laws from time immemorial expressed in the Citizens' Assemblies "shall be considered in the formulation
particularly at a time when the same was of utmostimportance, owing to of national policies or programs and, wherever practicable, shall be translated
the existence of Martial Law. into concrete and specific decision"; that such Citizens' Assemblies "shall
consider vital national issues ... like the holding of the plebiscite on the new
In Glen v. Gnau, 65 involving the casting of many votes, openly, without Constitution ... and others in the future, which shall serve as guide or basis for
complying with the requirements of the law pertinent thereto, it was held that action or decision by the national government"; and that the Citizens'
the "election officers" involved "cannot be too strongly condemned" therefor Assemblies "shall conduct between January 10 and 15, 1973, a referendum on
and that if they "could legally dispense with such requirement ... they could important national issues, including those specified in paragraph 2 hereof, and
with equal propriety dispense with all of them, including the one that the vote submit the results thereof to the Department of Local Governments and
shall be by secret ballot, or even by ballot at all ... ." Community Development immediately thereafter, ... ." As in Presidential
Decree No. 86, this Decree No. 86-A does not and cannot exclude the exercise
Moreover, upon the formal presentation to the Executive of the proposed of the constitutional supervisory power of the Commission on Elections or its
participation in the proceedings in said Assemblies, if the same had been
Constitution drafted by the 1971 Constitutional Convention, or on December
intended to constitute the "election" or Plebiscite required Art. V of the 1935
1, 1972, Presidential Decree No. 73 (on the validity of which which was
contested in the plebiscite cases, as well as in the 1972 habeas Constitution. The provision of Decree No. 86-A directing the immediate
corpus cases 66 We need not, in the case of bar, express any opinion) was submission of the result thereof to the Department of Local Governments
issued, calling a plebiscite, to be held on January 15, 1973, at which the Community Development is not necessarily inconsistent with, and must be
proposed Constitution would be submitted to the people for ratification or subordinate to the constitutional power of the Commission on Elections to
exercise its "exclusive authority over the enforcement and administration of all
rejection; directing the publication of said proposed Constitution; and
declaring, inter alia, that "(t)he provision of the Election Code of 1971, insofar laws to the conduct of elections," if the proceedings in the Assemblies would
partake of the nature of an "election" or plebiscite for the ratification or rejection
as they are not inconsistent" with said decree excepting those "regarding
right and obligations of political parties and candidates" "shall apply to the of the proposed Constitution.
conduct of the plebiscite." Indeed, section 2 of said Election Code of 1971
provides that "(a)ll elections of public officers except barrio officials and We are told that Presidential Decree No. 86 was further amended by
plebiscites shall be conducted in the manner provided by this Code." General Presidential Decree No. 86-B, dated 1973, ordering "that important national
Order No. 20, dated January 7, 1973, postponing until further notice, "the issues shall from time to time; be referred to the Barangays (Citizens
plebiscite scheduled to be held on January 15, 1973," said nothing about the Assemblies) for resolution in accordance with Presidential Decree No. 86-A
procedure to be followed in plebiscite to take place at such notice, and no other dated January 5, 1973 and that the initial referendum include the matter of
order or decree has been brought to Our attention, expressly or impliedly ratification of the Constitution by the 1971 Constitutional Convention" and that
repealing the provisions of Presidential Decree 73, insofar as said procedure "(t)he Secretary of the Department of Local Governments and Community
is concerned. Development shall insure the implementation of this order." As in the case of
Presidential Decrees Nos. 86 and 86-A, the foregoing directives do not
necessarily exclude exercise of the powers vested by the 1935 Constitution in
the Commission on Elections, even if the Executive had the authority to repeal passing upon the validity of Proclamation No. 1102, not only because such
Art. X of our Fundamental Law which he does not possess. Copy of question is political in nature, but, also, because should the Court invalidate
Presidential Decree No. 86-B is appended hereto as Annex B hereof. the proclamation, the former would, in effect, veto the action of the people in
whom sovereignty resides and from its power are derived.
The point is that, such of the Barrio Assemblies as were held took place without
the intervention of the Commission on Elections, and without complying with The major flaw in this process of rationalization is that it assumes, as a fact,
the provisions of the Election Code of 1971 or even of those of Presidential the very premise on which it is predicated, and which, moreover, is contested
Decree No. 73. What is more, they were held under the supervision of the very by the petitioners. As the Supreme Court of Minnessota has aptly put it
officers and agencies of the Executive Department sought to be
excluded therefrom by Art. X of the 1935 Constitution. Worse still, said officers ... every officer under a constitutional government must act according
and agencies of the 1935 Constitution would be favored thereby, owing to the to law and subject to its restrictions, and every departure therefrom or
practical indefinite extension of their respective terms of office in consequence disregard thereof must subject him to the restraining and controlling of
of section 9 of the Transitory Provisions, found in Art. XVII of the proposed the people, acting through the agency of the judiciary; for it must be
Constitution, without any elections therefor. And the procedure therein mostly remembered that the people act through courts, as well as through the
followed is such that there is no reasonable means of checking the accuracy executive or the Legislature. One department is just as representative
of the returns files by the officers who conducted said plebiscites. This is as the other, and the judiciary is the department which is charged with
another patent violation of Art. of the Constitution which can hardly be the special duty of determining the limitations which the law places
sanctioned. And, since the provisions of this article form part of upon all official action. ... .
the fundamental scheme set forth in the 1935 Constitution, as amended, to
insure the "free, orderly, and honest" expression of the people's will, the Accordingly, the issue boils downs to whether or not the Executive acted within
aforementioned violation thereof renders null and void the contested
the limits of his authority when he certified in Proclamation No. 1102 "that the
proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the
Constitution proposed by the nineteen hundred and seventy-one (1971)
same are claimed to have ratified the revised Constitution proposed by the
Constitutional Convention has been ratified by an overwhelming majority of all
1971 Constitutional Convention. "... (a)ll the authorities agree that the legal
of the votes cast by the members of all the Barangays (Citizens Assemblies)
definition of an election, as well as that which is usually and ordinarily throughout the Philippines and has thereby come into effect."
understood by the term, is a choosing or as election by those having a right to
participate (in the selection) of those who shall fill the offices, or of the adoption
or rejection of any public measure affecting the territory involved. 15 Cyc. In this connection, it is not claimed that the Chief Executive had personal
279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 knowledge of the data he certified in said proclamation. Moreover, Art. X of the
Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A. 1935 Constitution was precisely inserted to place beyond the Executive the
354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law power to supervise or even exercise any authority whatsoever over "all laws
Dictionary. 68 relative to the conduct of elections," and, hence, whether the elections are for
the choice or selection of public officers or for the ratification or rejection of any
proposed amendment, or revision of the Fundamental Law, since the
IV
proceedings for the latter are, also, referred to in said Art. XV as "elections".
[7] Do you approve of the new Constitution? ... This report includes a resumee (sic) of the activities we undertook
in effecting the referendum on the eleven questions you wanted our
people consulted on and the Summary of Results thereof for each
[8] Do you want a plebiscite to be called to ratify the new Constitution?
municipality and for the whole province.
... As to our people, in general, their enthusiastic participation showed In the light of the foregoing, I cannot see how the question under consideration
their preference and readiness to accept this new method of can be answered or resolved otherwise than in the negative.
government to people consultation in shaping up government policies.
V
Thus, as late as January 10, 1973, the Bataan officials had
to suspend "all scheduled Citizens' Assembly meetings ..." and call all Have the people acquiesced in the proposed Constitution?
available officials "... to discuss with them the new set of guidelines and
materials to be used ... ." Then, "on January 11 ... another instruction from the
It is urged that the present Government of the Philippines is now and has been
top was received to include the original five questions among those
run, since January 17, 1971, under the Constitution drafted by the 1971
be discussed and asked in the Citizens' Assembly meetings. With this latest
Constitutional Convention; that the political department of the Government has
order, we again had to make modifications in our instructions to all those recognized said revised Constitution; that our foreign relations are being
managing and supervising holding of the Citizens' Assembly meetings
conducted under such new or revised Constitution; that the Legislative
throughout province. ... As to our people, in general, their enthusiastic
Department has recognized the same; and that the people, in general, have,
participation showed their preference and readiness to accept the new method
by their acts or omissions, indicated their conformity thereto.
of government to people consultation in shaping upgovernment policies."
As regards the so-called political organs of the Government, gather that
This communication manifestly shows: 1) that, as late a January 11, 1973, the
respondents refer mainly to the offices under the Executive Department. In a
Bataan officials had still to discuss not put into operation means and ways
sense, the latter performs some functions which, from a constitutional
to carry out the changing instructions from the top on how to organize the
viewpoint, are politics in nature, such as in recognizing a new state or
citizens' assemblies, what to do therein and even what questions or topics to
government, in accepting diplomatic representatives accredited to our
propound or touch in said assemblies; 2) that the assemblies would involve no Government, and even in devising administrative means and ways to better
more than consultations or dialogues between people and government
carry into effect. Acts of Congress which define the goals or objectives thereof,
not decisions be made by the people; and 3) that said consultations were
but are either imprecise or silent on the particular measures to be resorted to
aimed only at "shaping up government policies" and, hence could not, and did
in order to achieve the said goals or delegate the power to do so, expressly or
not, partake of the nature of a plebiscite for the ratification or rejection of a
impliedly, to the Executive. This, notwithstanding, the political organ of a
proposed amendment of a new or revised Constitution for the latter does not
government that purports to be republican is essentially the Congress or
entail the formulation of a policy of the Government, but the making of decision
Legislative Department. Whatever may be the functions allocated to the
by the people on the new way of life, as a nation, they wish to have, once the
Executive Department specially under a written, rigid Constitution with a
proposed Constitution shall have been ratified.
republican system of Government like ours the role of that Department is
inherently, basically and fundamentally executive in nature to "take care
If this was the situation in Bataan one of the provinces nearest to Manila that the laws be faithfully executed," in the language of our 1935
as late as January 11, 1973, one can easily imagine the predicament of the Constitution. 79
local officials and people in the remote barrios in northern and southern Luzon,
Consequently, I am not prepared to concede that the acts the officers and 2. The "Legislature in its formal official act adopting a joint resolution, July 15,
offices of the Executive Department, in line with Proclamation No. 1102, 1902, recognizing the Constitution ordained by the Convention ...";
connote a recognition thereof o an acquiescence thereto. Whether they
recognized the proposed Constitution or acquiesce thereto or not is something 3. The "individual oaths of its members to support it, and by its having been
that cannot legally, much less necessarily or even normally, be deduced from engaged for nearly a year, in legislating under it and putting its provisions
their acts in accordance therewith, because the are bound to obey and act in into operation ...";
conformity with the orders of the President, under whose "control" they
are, pursuant to the 1935 Constitution. They have absolutely no other choice,
4. The "judiciary in taking the oath prescribed thereby to support it and by
specially in view of Proclamation No. 1081 placing the Philippines under enforcing its provisions ..."; and
Martial Law. Besides, by virtue of the very decrees, orders and instructions
issued by the President thereafter, he had assumed all powers of Government
although some question his authority to do so and, consequently, there 5. The "people in their primary capacity by peacefully accepting it and
is hardly anything he has done since the issuance of Proclamation No. 1102, acquiescing in it, by registering as voters under it to the extent of thousands
on January 17, 1973 declaring that the Constitution proposed by the 1971 throughout the State, and by voting, under its provisions, at a general election
Constitutional Convention has been ratified by the overwhelming majority of for their representatives in the Congress of the United States."
the people that he could not do under the authority he claimed to have under
Martial Law, since September 21, 1972, except the power of supervision over Note that the New Constitution of Virginia, drafted by a convention whose
inferior courts and its personnel, which said proposed Constitution would place members were elected directly by the people, was not submitted to the people
under the Supreme Court, and which the President has not ostensibly for ratification or rejection thereof. But, it was recognized, not by the convention
exercised, except as to some minor routine matters, which the Department of itself, but by other sectors of the Government, namely, the Governor; the
Justice has continued to handle, this Court having preferred to maintain Legislature not merely by individual acts of its members, but by formal joint
the status quo in connection therewith pending final determination of these resolution of its two (2) chambers; by the judiciary; and by the people, in the
cases, in which the effectivity of the aforementioned Constitution is disputed. various ways specified above. What is more, there was no martial law. In the
present cases, noneof the foregoing acts of acquiescence was present. Worse
Then, again, a given department of the Government cannot generally be said still, there is martial law, the strict enforcement of which was announced shortly
to have "recognized" its own acts. Recognition normally connotes the before the alleged citizens' assemblies. To top it all, in the Taylor case, the
acknowledgment by a party of the acts of another. Accordingly, when a effectivity of the contested amendment was not contested judicially until
subordinate officer or office of the Government complies with the commands about one (1) year after the amendment had been put into operation
of a superior officer or office, under whose supervision and control he or it is, in all branches of the Government, and complied with by the people who
the former merely obeys the latter. Strictly speaking, and from a legal and participated in the elections held pursuant to the provisions of the new
constitutional viewpoint, there is no act of recognition involved therein. Indeed, Constitution. In the cases under consideration, the legality of Presidential
the lower officer or office, if he or it acted otherwise, would just be guilty of Decree No. 73 calling a plebiscite to be held on January 15, 1973, was
insubordination. impugned as early as December 7, 1972, or five (5) weeks before the
scheduled plebiscite, whereas the validity of Proclamation No. 1102 declaring
on January 17, 1973, that the proposed Constitution had been ratified
Thus, for instance, the case of Taylor v. Commonwealth 80 cited by
despite General Order No. 20, issued on January 7, 1972, formally and
respondents herein in support of the theory of the people's acquiescence officially suspending the plebiscite until further notice was impugned as
involved a constitution ordained in 1902 and "proclaimed by a convention duly early as January 20, 1973, when L-36142 was filed, or three (3) days after the
called by a direct vote of the people of the state to revise and amend the
issuance of Proclamation No. 1102.
Constitution of 1869. The result of the work of that Convention has been
recognized, accepted and acted upon as the only valid Constitution of the
State" by It is further alleged that a majority of the members of our House of
Representatives and Senate have acquiesced in the new or revised
Constitution, by filing written statements opting to serve in the Ad Interim
1. The "Governor of the State in swearing fidelity to it and proclaiming it, as
Assembly established in the Transitory Provisions of said Constitution.
directed thereby";
Individual acts of recognition by members of our legislature, as well as of other
collegiate bodies under the government, are invalid as acts of said legislature
or bodies, unless its members have performed said acts in session duly who comply with the orders of the party wielding the weapon does not detract
assembled, or unless the law provides otherwise, and there is no such law in from the intimidation that Martial Law necessarily connotes. It may reflect the
the Philippines. This is a well-established principle of Administrative Law and good, reasonable and wholesome attitude of the person who has the gun,
of the Law of Public Officers, and no plausible reason has been adduced to either pointed at others, without pulling the trigger, or merely kept in its holster,
warrant departure therefrom. 81 but not without warning that he may or would use it if he deemed it necessary.
Still, the intimidation is there, and inaction or obedience of the people, under
Indeed, if the members of Congress were generally agreeable to the proposed these conditions, is not necessarily an act of conformity or acquiescence. This
Constitution, why did it become necessary to padlock its premises to prevent is specially so when we consider that the masses are, by and
its meeting in session on January 22, 1973, and thereafter as provided in the large, unfamiliar with the parliamentary system, the new form of government
1935 Constitution? It is true that, theoretically, the members of Congress, if introduced in the proposed Constitution, with the particularity that it is not even
bent on discharging their functions under said Constitution, could have met in identical to that existing in England and other parts of the world, and that even
any other place, the building in which they perform their duties being experienced lawyers and social scientists find it difficult to grasp the full
immaterial to the legality of their official acts. The force of this argument is, implications of some provisions incorporated therein.
however, offset or dissipated by the fact that, on or about December 27, 1972,
immediately after a conference between the Executive, on the one hand, and As regards the applicability to these cases of the "enrolled bill" rule, it is well
members of Congress, on the other, some of whom expressed the wish to to remember that the same refers to a document certified to the President
meet in session on January 22, 1973, as provided in the 1935 Constitution, a for his action under the Constitution by the Senate President and the
Daily Express columnist (Primitivo Mijares) attributed to Presidential Assistant Speaker of the House of Representatives, and attested to by the Secretary of
Guillermo de Vega a statement to the effect that "'certain members of the the Senate and the Secretary of the House of Representatives, concerning
Senate appear to be missing the point in issue' when they reportedly insisted legislative measures approved by the two Houses of Congress. The argument
on taking up first the question of convening Congress." The Daily Express of of the Solicitor General is, roughly, this: If the enrolled bill is entitled to full faith
that date, 82 likewise, headlined, on its front page, a "Senatorial PlotAgainst and credence and, to this extent, it is conclusive upon the President and the
'Martial Law Government' Disclosed". Then, in its issue of December 29, 1972, judicial branch of the Government, why should Proclamation No. 1102 merit
the same paper imputed to the Executive an appeal "to diverse groups less consideration than in enrolled bill?
involved in a conspiracy to undermine" his powers" under martial law to desist
from provoking a constitutional crisis ... which may result in the exercise by me Before answering this question, I would like to ask the following: If, instead of
of authority I have not exercised." being certified by the aforementioned officers of Congress, the so-called
enrolled bill were certified by, say, the President of the Association of Sugar
No matter how good the intention behind these statement may have been, the Planters and/or Millers of the Philippines, and the measure in question were a
idea implied therein was too clear an ominous for any member of Congress proposed legislation concerning Sugar Plantations and Mills sponsored by
who thought of organizing, holding or taking part in a session of Congress, not said Association, which even prepared the draft of said legislation, as well as
to get the impression that he could hardly do so without inviting or risking the lobbied actually for its approval, for which reason the officers of the
application of Martial Law to him. Under these conditions, I do not feel justified Association, particularly, its aforementioned president whose honesty and
in holding that the failure of the members of Congress to meet since January integrity are unquestionable were present at the deliberations in Congress
22, 1973, was due to their recognition, acquiescence in or conformity with the when the same approved the proposed legislation, would the enrolled bill rule
provisions of the aforementioned Constitution, or its alleged ratification. apply thereto? Surely, the answer would have to be in the negative. Why?
Simply, because said Association President has absolutely no official authority
For the same reasons, especially because of Proclamation No. 1081, placing to perform in connection therewith, and, hence, his certification is legally, as
the entire Philippines under Martial Law, neither am I prepared to declare that good as non-existent.
the people's inaction as regards Proclamation No. 1102, and their compliance
with a number of Presidential orders, decrees and/or instructions some or Similarly, a certification, if any, of the Secretary of the Department of Local
many of which have admittedly had salutary effects issued subsequently Governments and Community Development about the tabulated results of the
thereto amounts, constitutes or attests to a ratification, adoption or approval of voting in the Citizens Assemblies allegedly held all over the Philippines and
said Proclamation No. 1102. In the words of the Chief Executive, "martial law the records do not show that any such certification, to the President of the
connotespower of the gun, meant coercion by the military, Philippines or to the President Federation or National Association of presidents
and compulsion and intimidation." 83 The failure to use the gun against those of Provincial Associations of presidents of municipal association presidents of
barrio or ward assemblies of citizens would not, legally and constitutionally, merits thereof. On the other hand, three (3) members of the Court Justices
be worth the paper on which it is written. Why? Because said Department Barredo, Antonio and Esguerra filed separate opinions favorable to the
Secretary is not the officer designated by law to superintend plebiscites or respondents in the plebiscite cases, Justice Barredo holding "that the 1935
elections held for the ratification or rejection of a proposed amendment or Constitution has pro tanto passed into history and has been legitimately
revision of the Constitution and, hence, to tabulate the results thereof. Worse supplanted by the Constitution in force by virtue of Proclamation
still, it is the department which, according to Article X of the Constitution, 1102." 86 When the petitions at bar were filed, the same three (3) members of
should not and must not be all participate in said plebiscite if plebiscite there the Court, consequently, voted for the dismissal of said petitions. The majority
was. of the members of the Court did not share, however, either view, believing that
the main question that arose before the rendition of said judgment had not
After citing approvingly its ruling in United States v. Sandoval, 84 the Highest been sufficiently discussed and argued as the nature and importance thereof
Court of the United States that courts "will not stand impotent before an demanded.
obvious instance of a manifestly unauthorized exercise of power." 85
The parties in the cases at bar were accordingly given every possible
I cannot honestly say, therefore, that the people impliedly or expressly opportunity to do so and to elucidate on and discuss said question. Thus, apart
indicated their conformity to the proposed Constitution. from hearing the parties in oral argument for five (5) consecutive days
morning and afternoon, or a total of exactly 26 hours and 31 minutes the
respective counsel filed extensive notes on their or arguments, as well as on
VI
such additional arguments as they wished to submit, and reply notes or
memoranda, in addition to rejoinders thereto, aside from a sizeable number of
Are the Parties entitled to any relief? document in support of their respective contentions, or as required by the
Court. The arguments, oral and written, submitted have been so extensive and
Before attempting to answer this question, a few words be said about the exhaustive, and the documents filed in support thereof so numerous and bulky,
procedure followed in these five (5) cases. In this connection, it should be that, for all intents and purposes, the situation is as if disregarding forms
noted that the Court has not decided whether or not to give due course to the the petitions had been given due course and the cases had been submitted
petitions herein or to require the respondents to answer thereto. Instead, it has for decision.
required the respondents to comment on the respective petitions with three
(3) members of the voting to dismiss them outright and then considers Accordingly, the majority of the members of the Court believe that they should
comments thus submitted by the respondents as motions to dismiss, as well express their views on the aforementioned issues as if the same were being
as set the same for hearing. This was due to the transcendental nature of the decided on the merits, and they have done so in their individual opinion
main issue raised, the necessity of deciding the same with utmost dispatch, attached hereto. Hence, the resume of the votes cast and the tenor of the
and the main defense set up by respondents herein, namely, the alleged resolution, in the last pages hereof, despite the fact that technically the Court
political nature of said issue, placing the same, according to respondents, has not, as yet, formally given due course to the petitions herein.
beyond the ambit of judicial inquiry and determination. If this defense was
sustained, the cases could readily be dismissed; but, owing to the importance
And, now, here are my views on the reliefs sought by the parties.
of the questions involved, a reasoned resolution was demanded by public
interest. At the same time, respondents had cautioned against a judicial inquiry
into the merits of the issues posed on account of the magnitude of the evil In L-36165, it is clear that we should not issue the writ of mandamus prayed
consequences, it was claimed, which would result from a decision thereon, if for against Gil J. Puyat and Jose Roy, President and President Pro Tempore
adverse to the Government. respectively of the Senate, it being settled in our jurisdiction, based upon the
theory of separation of powers, that the judiciary will not issue such writ to the
As a matter of fact, some of those issues had been raised in the plebiscite head of a co-equal department, like the aforementioned officers of the Senate.
cases, which were dismissed as moot and academic, owing to the issuance of
Proclamation No. 1102 subsequently to the filing of said cases, although In all other respects and with regard to the other respondent in said case, as
before the rendition of judgment therein. Still one of the members of the Court well as in cases L-36142, L-36164, L-36236 and L-36283, my vote is that the
(Justice Zaldivar) was of the opinion that the aforementioned issues should be petitions therein should be given due course, there being more thanprima
settled in said cases, and he, accordingly, filed an opinion passing upon the facie showing that the proposed Constitution has not been ratified in
accordance with Article XV of the 1935 Constitution, either strictly, 2. Has the Constitution proposed by the 1971 Constitutional Convention been
substantially, or has been acquiesced in by the people or majority thereof; that ratified validly (with substantial, if not strict, compliance) conformably to the
said proposed Constitution is not in force and effect; and that the 1935 applicable constitutional and statutory provisions?
Constitution is still the Fundamental Law of the Land, without prejudice to the
submission of said proposed Constitution to the people at a plebiscite for its 3. Has the aforementioned proposed Constitution acquiesced in (with or
ratification or rejection in accordance with Articles V, X and XV of the 1935 without valid ratification) by the people?
Constitution and the provisions of the Revised Election Code in force at the
time of such plebiscite. 4. Are petitioners entitled to relief? and
Perhaps others would feel that my position in these cases overlooks what they
5. Is the aforementioned proposed Constitution in force?
might consider to be the demands of "judicial statesmanship," whatever may
be the meaning of such phrase. I am aware of this possibility, if not probability;
but "judicial statesmanship," though consistent with Rule of Law, cannot The results of the voting, premised on the individual views expressed by the
prevail over the latter. Among consistent ends or consistent values, there members of the Court in their respect opinions and/or concurrences, are as
always is a hierarchy, a rule of priority. follows:
We must realize that the New Society has many achievements which would 1. On the first issue involving the political-question doctrine Justices
have been very difficult, if not impossible, to accomplish under the old Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6)
dispensation. But, in and for the judiciary, statesmanship should not prevail members of the Court, hold that the issue of the validity of Proclamation No.
over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law and 1102 presents a justiciable and non-political question. Justices Makalintal and
faithful adherence thereto are basic, fundamental and essential parts of Castro did not vote squarely on this question, but, only inferentially, in their
statesmanship itself. discussion of the second question. Justice Barredo qualified his vote, stating
that "inasmuch as it is claimed there has been approval by the people, the
Court may inquire into the question of whether or not there has actually been
Resume of the Votes Cast and the Court's Resolution
such an approval, and, in the affirmative, the Court should keep hands-off out
of respect to the people's will, but, in negative, the Court may determine from
As earlier stated, after the submittal by the members of the Court of their both factual and legal angles whether or not Article XV of the 1935 Constitution
individual opinions and/or concurrences as appended hereto, the writer will been complied with." Justices Makasiar, Antonio, Esguerra, or three (3)
now make, with the concurrence of his colleagues, a resume or summary of members of the Court hold that the issue is political and "beyond the ambit of
the votes cast by each of them. judicial inquiry."
It should be stated that by virtue of the various approaches and views 2. On the second question of validity of the ratification, Justices Makalintal,
expressed during the deliberations, it was agreed to synthesize the basic Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the
issues at bar in broad general terms in five questions for purposes of taking Court also hold that the Constitution proposed by the 1971 Constitutional
the votes. It was further agreed of course that each member of the Court would Convention was not validly ratified in accordance with Article XV, section 1 of
expound in his individual opinion and/or concurrence his own approach to the the 1935 Constitution, which provides only one way for ratification, i.e., "in an
stated issues and deal with them and state (or not) his opinion thereon singly election or plebiscite held in accordance with law and participated in only by
or jointly and with such priority, qualifications and modifications as he may qualified and duly registered voters. 87
deem proper, as well as discuss thereon other related issues which he may
consider vital and relevant to the cases at bar. Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973
Constitution has been validly ratified pursuant to Article XV, I still maintain that
The five questions thus agreed upon as reflecting the basic issues herein in the light of traditional concepts regarding the meaning and intent of said
involved are the following: Article, the referendum in the Citizens' Assemblies, specially in the manner the
votes therein were cast, reported and canvassed, falls short of the
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political requirements thereof. In view, however, of the fact that I have no means of
and therefore non-justiciable, question? refusing to recognize as a judge that factually there was voting and that the
majority of the votes were for considering as approved the 1973 Constitution considerations other than judicial, an therefore beyond the competence of this
without the necessity of the usual form of plebiscite followed in past Court, 90 are relevant and unavoidable." 91
ratifications, I am constrained to hold that, in the political sense, if not in the
orthodox legal sense, the people may be deemed to have cast their favorable Four (4) members of the Court, namely, Justices Zaldivar, Fernando,
votes in the belief that in doing so they did the part required of them by Article Teehankee and myself voted to deny respondents' motion to dismiss and to
XV, hence, it may be said that in its political aspect, which is what counts most, give due course to the petitions.
after all, said Article has been substantially complied with, and, in effect, the
1973 Constitution has been constitutionally ratified." 5. On the fifth question of whether the new Constitution of 1973 is in force:
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court
Four (4) members of the Court, namely, Justices Barredo, Makasiar,
hold that under their view there has been in effect substantial compliance with
Antonio and Esguerra hold that it is in force by virtue of the people's
the constitutional requirements for valid ratification.
acceptance thereof;
4. On the fourth question of relief, six (6) members of the Court, namely, PERTINENT PORTIONS OF THE MINNESSOTA SUPREME COURT
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted DECISION ON THE CASE IN RE McCONAUGHY
to DISMISS the petition. Justice Makalintal and Castro so voted on the strength
of their view that "(T)he effectivity of the said Constitution, in the final analysis, "(a) An examination of the decisions shows that the courts have almost
is the basic and ultimate question posed by these cases to resolve which uniformly exercised the authority to determine the validity of the proposal,
submission, or ratification of constitutional amendments. It has beenjudicially Constitution until ratified by a vote of the people. One prerequisite is equally
determined whether a proposed amendment received the constitutional as essential as the other. The amendment must first receive the requisite
majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. majority in the Legislature, and afterwards be adopted by the requisite vote. ...
432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. It is the fact of a majority vote which makes the amendment a part of the
251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh Constitution."
National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779; Green v. State Board,
5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156 Ind. 104, 59 "In considering the cases it is necessary to note whether in the particular case
N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a the court was called upon to determine between rival governments, or whether
proposed amendment is a single amendment, within the constitutional the Legislature, or some board or official, had legally performed the duty
requirement that every amendment must be separately submitted (State v. imposed by the Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29
Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. Am. Dec. 636, it was held that the General Assembly, under the power granted
84, 70 S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re Denny, 156 by the Constitution, could change the Constitutiononly in the manner
Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181, 102 prescribed by it, and that it was the duty of the court to determine whether all
N.W. 1121; People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; prerequisites had been complied with. In Collier v. Frierson, 24 Ala. 100, it was
State v. Board, 34 Mont. 426, 87 Pac. 450; State v. Winnett [Neb.] 110 N.W. held that a Constitution can be changes only by the people in convention or in
1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the resolution of a mode described by the Constitution itself, and that if the latter mode is
submission upon the legislative journals invalidates the amendment (Koehler adoptedevery requisite of the Constitution must be observed. 'It has been
v. Hill, 60 Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, said," says the court, "that certain acts are to be done, certain requisitions are
69 Cal. 479, 11 Pac. 3; West v. State, 50 Fla. 154, 39 South. 412; Durfee v. to be observed, before a change can be effected; but to what purpose are
Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 these acts required, or these requisitions enjoined, if the Legislature or any
Am. St. Rep. 895); whether the description of the amendment and the form of other department of the government candispense with them. To do so would
the ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v. be to violate the instrument which they are sworn to support; and every
Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney principle of public law and sound constitutional policy requires the court to
General [Mich.] 112 N.W. 127); whether the method of submission sufficient pronounce against every amendment which is shown not to have been made
(Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164 Mo. 69, in accordance with the rules prescribed by the fundamental law.'
63 S.W. 849); whether the publication of the amendment or of a notice relative
to it is sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; "In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may form
Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the submission may be an original Constitution, or abrogate an old one and form a new one, at any
well by resolution as by a legislative act approved by the executive (Com. v. time, without any political restriction, except the Constitution of the United
Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. States, but if they undertake to add an amendment, by the authority of
78, 60 Atl. 538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; legislation to a Constitution already in existence, they can do it only by the
Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418, method pointed out by the Constitution to which the amendment is added. The
34 L.R.A. 97); at what election the amendment be submitted(People v. Curry,
power to amend a Constitution by legislative action does not confer the power
130 Cal. 82, 62 Pac. 516). to break it, any more than it confers the power to legislate on any other subject
contrary to its prohibitions.' So, in State v. Timme, 54 Wis. 318, 11 N.W. 785,
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: it was held that no amendments can be made to the Constitution of the
"It is contended that the determination of the question whether an amendment state without a compliance with the provisions thereof, both in the passage of
to the Constitution has been carried involves the exercise of political, and not such amendment by the Legislature and the manner of submitting it to the
judicial, power. If this be so, it follows that the promulgation of any purported people. The courts have not all agreed as to the strictness of compliance which
amendment by the executive or any executive department is final, and that the should be required.
action cannot be questioned by the judiciary; but, with reference to the
conditions precedent to submitting a proposed amendment to a vote of the "In the Prohibition and Amendment Case, 24 Kan. 700, the court determined
people, it has been repeatedly held, by courts of the highest respectability, that
judicially whether an amendment to the Constitution had been legally adopted.
it is within the power of the judiciary to inquire into the question, even in a
After approving the statement quoted from Collier v. Frierson, supra, that 'we
collateral proceeding. ... It is to be noted that under section 1 of article 20 of
entertain no doubt that, to change the Constitution in an other mode than by a
the Constitution of the state no amendment can become a part of the convention, every requisite which is demanded by the instrument itself must
be observed, and the omission of any one is fatal to the amendment,' the court "The entire question received elaborate consideration in Koehler v. Hill, 60
held that, 'as substance of right is grander and more potent than methods of Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, which concededly had
form,' there had been substantial compliance with the constitutional been adopted by the people, had not, before its submission, been entered in
requirement that a proposed amendment to the Constitution must be entered full upon the legislative journals, as required by the Constitution, and it was
at length on the legislative journal. It appears that the joint resolution making held that this was amaterial variance in both form and substance from the
submission simply provided that a proposition should be submitted to the constitutional requirements, and that the amendment didnot, therefore,
electors at the general election of 1880. It did not declare that the machinery become a part of the Constitution. As to the claim that the question was
of the general election law should control, or that any particular officers or political, and not judicial, it was said that, while it is not competent for courts to
board would receive, count, or canvass the votes cast. But the existing election inquire into the validity of the Constitution and the form of government under
machinery was adequate, and the votes were received, counted, and which they themselves exist, and from which they derive their powers,
canvassed, and the result declared as fully as though it had been in terms so yet, where the existing Constitution prescribes a method for its own
ordered. These methods had been followed in the adoption of previous amendment, an amendment thereto, to be valid, must be adopted in strict
amendments, and was held that, conceding the irregularity of the proceedings conformity to that method; and it is the duty of the courts in a proper case,
the Legislature and the doubtful scope of the provisions for the election, yet in when an amendment does not relate to their own power or functions, to
view of the very uncertainty of such provision the past legislative history of inquire whether, in the adoption of the amendment, the provisions of the
similar propositions, theuniversal prior acquiescence in the same forms of existing Constitution have been observed, and, if not, to declare the
procedure and the popular and unchallenged acceptance of the legal amendment invalid and of no force. This case was followed in State v.
pendency before the people of the question of the amendment for decision, Brookhart, 113 Iowa, 250, 84 N.W. 1064.
and in view of the duty cast upon the court taking judicial knowledge of
anything affecting the existence and validity of any law or portion of the "In University v. McIver, 72 N.C. 76, the question whether a proposed
Constitution, it must be adjudged that the proposed amendment became part amendment to the Constitution had been legally adopted was treated as
of the Constitution. The effect was to hold that a provision of the Constitution a judicial question. By the Constitution a proposed amendment was required
requiring the proposed amendment to be entered in full on the journals to be approved by Legislatures before its submission to the people. In this
was directory, and not mandatory. This liberal view was approved in State v. instance a bill was passed which contained 17 amendments. The next
Winnett (Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31 Legislature rejected 9 and adopted 8 of the amendments, and submitted them
Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not been universally to the people. The majority of the people voted for their adoption; but it was
accepted. contended that the Constitution contemplated and required that the same bill
and the same amendments, without change, should approved by both
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in Legislatures, and that it did not follow because the second Legislature adopted
commenting upon the Kansas case said: 'The reasoning by which the learned separately 8 out of 17amendments adopted by the first Legislature, it would
court reached the conclusion it did is not based on any sound legal principles, have adopted the 17, or any of them, if they had been voted upon the second
but contrary to them. Neither the argument nor the conclusion can command in the form adopted by the first body. The substance of the contention was that
our assent or approval. The argument is illogical, and based on premises there had not been a concurrence of the two Legislatures on the same
which are without any sound foundation, and rests merely on assumption.' amendments, according to the letter and spirit of the Constitution. The court
See, also, the well-considered case of Kadderly v. Portland, 44 Or. 118, 74 held that the power of the Legislature in submitting amendments could not be
Pac. 710, 75 Pac. 222.All these cases concede the jurisdiction of the court to distinguished from the powers of convention, and that, as the people had
determine whether, in submitting a proposed amendment to the people, the spoken and ratified the amendments, they became a part of the Constitution.
Legislature legally observed the constitutional provisions as to the manner of
procedure. InLivermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, "In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior
the court, at the instance of a citizen and a taxpayer, restrained the Secretary to 1876 a proposed amendment to Constitution could not be submitted to the
of State from taking steps to submit to the people a proposed amendment to people at any other than a general election; but, as the amendment under
the Constitution agreed to by the Legislature on the ground that the Legislature consideration had been submitted after the Constitution been changed, it had
had not acted in conformity with the Constitution and that the proposed been legally submitted and adopted.
amendment was of such a character that it could not properly become a part
of the Constitution. The Supreme Court of Colorado, in People v. Sours, supra,
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an
refused to exercise this authority.
amendment to the Constitution had been legally submitted and adopted by the
people was held to be judicial, and not political, in its nature. The amendment for canvassing the votes. The Legislature having agreed to certain proposed
under consideration changed the Constitution by providing for an elective, amendments, passed an act for submitting the same to the people. This statute
instead of an appointive, judiciary. It was contented that the amendments had provided for the transmission to the Secretary of State of certificate showing
been improperly submitted and adopted by a majority of the qualified voters the result of the voting throughout the state, and made it the duty of the
voting at election, as required by the Constitution. The law did direct how the Governor at the designated time summon four or more Senators, who, with
result of the election should be determined. The Legislature by joint resolution the Governor, should constitute a board of state canvassers to canvass and
recited that the election had been duly held throughout the state, and, as it estimate the votes for and against each amendment. This board was to
appeared from the returns made to the Secretary of State, that 21,169 votes determine and declare which of the proposed amendments had been adopted
were cast in favor of, and 8,643 votes against, the amendment, it resolved 'that and to deliver a statement of the results to the Secretary of State, and "any
said amendment be, and hereby is, insertedinto the Constitution of the state proposed amendment, which by said certificate and determination of the board
of Mississippi as a part of the Constitution.' In fact, the amendment of canvassers shall appear to have received in its favor the majority of all the
was notsubmitted in the manner prescribed by the Constitution, and it did not votes cast in the state for and against said proposed amendment, shall from
receive a majority of all the qualified voters voting at the election. It was argued the time of filing such certificate be and become an amendment to and a part
that the rules prescribed by the Constitution "are all for the guidance of the of the Constitution of the state; and it shall be the duty of the Governor of the
Legislature, and from the very nature of the thing the Legislature must be state forthwith, after such a determination, to issue a proclamation declaring
the exclusive judge of all questions to be measured or determined by these which of the said proposed amendments have been adopted by the people."
rules. Whether the question be political, and certainly a legislative one, or This board was required to file a statement of the result of the election, and
judicial, to be determined by the courts, this section of rules, not only of the Governor to issue his proclamation declaring that the amendment had
procedure, but of final judgment as well, confides to the separate magistracy been adopted and become a part of the Constitution. At the instance of a
of the legislative department full power to hear, consider, and adjudge that taxpayer the Supreme Court allowed a writ of certiorari to remove into the court
question. The Legislature puts the question to the qualified electors. for review the statement of the results of the election made by the canvassing
The qualified electors answer back to the Legislature. "If it shall appear" to the board, in order that it might be judicially determined whether on the facts
Legislature that its question has been answered in the affirmative, the shown in that statement the board had legally determined that the proposed
amendment is inserted and made a part of the Constitution. The Governor and amendment had been adopted. The Supreme Court decided that the
the courts have no authority to speak at any stage of the proceedings between concurrence of the board of state canvassers and the executive department of
the sovereign and the Legislature, and when the matter is thus concluded it is the government in their respective official functions placed the subject-
closed, and the judiciary is as powerless to interfere as the executive.' But it matter beyond the cognizance of the judicial department of the state. The
was held that the question whether the proposition submitted to the voters Court of Appeals, after a full review of the authorities, reversed this decision,
constituted one, or more than one, amendment, whether the submission was and held that the questions were of a judicial nature, and properly determinable
according to the requirements of the Constitution, and whether the proposition by the court on their merits. Mr. Justice Dixon, after stating the facts, said: 'It
was in fact adopted, were all judicial, and not political, questions. 'We do not,' thus becomes manifest that there was present in the Supreme Court, and is
said Chief Justice Whitfield, 'seek a jurisdiction not imposed upon us by the now pending in this court, every element tending to maintain jurisdiction over
Constitution. We could not, if we would, escape the exercise of that the subject-matter, unless it be true, as insisted, that the judicial department of
jurisdiction which the Constitution has imposed upon us. In the particular the government has not the right to consider whether the legislative
instance in which we are now acting, our duty to know what the Constitution of department and its agencies have observed constitutional injunctions in
the state is, and in accordance with our oaths to support and maintain it in its attempting to amend the Constitution, and to annul their acts in case that they
integrity, imposed on us a most difficult and embarrassing duty, one which we have not done so. That such a proposition is not true seems to be indicated by
have not sought, but one which, like all others, must be discharged." the whole history of jurisprudence in this country.' The court, after considering
the case on the merits, held that the proper conclusion had been drawn
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was held therefrom, and that the amendment in question was legally submitted and
that it was the duty of the judicial department of the government to determine adopted.
whether the legislative department or its officers had observed the
constitutional injunctions in attempting to amend the Constitution, and to annul "The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the
their acts if they had not done so. The case is an interesting and well- identical question which we have under consideration. In reference to the
considered one. The Constitution provided the manner in which proposed contention that the Constitution intended to delegate to the Speaker of the
amendments should be submitted to the people, but did not provide a method House of Representatives the power to determine whether an amendment had
been adopted, and that the question was political, and not judicial, the court Done in the City of Manila, this 7th day of January in the year of Our Lord,
observed: "The argument has often been made in similar cases to the courts, nineteen hundred and seventy-three.
and it is found in many dissenting opinions; but, with probably
a few exceptions, it is not found in anyprevailing opinion." (
S
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that G
the constitutional requirement of publication of a proposed constitutional D
provision for three months prior to the election at which it is to be submitted to .
the people is mandatory and that noncompliance therewith renders the )
adoption of an amendment of no effect." F
E
ANNEX B R
D
MALACAANG MANILA BY THE PRESIDENT OF THE PHILIPPINES I
N
PRESIDENTIAL DECREE NO. 86-B
A
N
Defining Further the Role of Barangays (Citizens Assemblies) D
E
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated .
December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the M
Office of the President to submit to them for resolution important national A
issues; R
C
WHEREAS, one of the questions persistently mention refers to the ratification O
of the Constitution proposed by the 1971 Constitutional Convention; S
WHEREAS, on the basis of the said petitions, it is evident that the people By the President:
believe that the submission of the proposed Constitution to the Citizens
Assemblies or Barangays should taken as a plebiscite in itself in view of the (SGD.) ALEJANDRO MELCHOR
fact that freedom of debate has always been limited to the leadership in Executive Secretary
political, economic and social fields, and that it is now necessary to bring this
down to the level of the people themselves through the Barangays or Citizens Separate Opinions
Assemblies;
MAKALINTAL, J., concurring:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do hereby
CASTRO, J., concurring:
order that important national issues shall from time to time be referred to the
Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86-A dated January 5, 1973 an that the initial The preliminary question before this Court was whether or not the petitioners
referendum shall include the matter of ratification of the Constitution proposed had made out a sufficient prima facie case in their petitions to justify their being
by the 1971 Constitutional Convention. given due course. Considering on the one hand the urgency of the matter and
on the other hand its transcendental importance, which suggested the need
The Secretary of the Department of Local Government and Community for hearing the side of the respondents before that preliminary question was
resolved, We required them to submit their comments on the petitions. After
Development shall insure the implementation of this Order.
the comments were filed We considered them as motions to dismiss so that
they could be orally argued. As it turned out, the hearing lasted five days, Election Code. Section 102 enumerates the classes of persons disqualified to
morning and afternoon, and could not have been more exhaustive if the vote. Succeeding sections prescribe the election paraphernalia to be used, the
petitions had been given due course from the beginning. procedure for registering voters, the records, of registration and the custody
thereof, the description and printing of official ballots, the actual casting of
The major thrust of the petitions is that the act of the Citizens Assemblies as votes and their subsequent counting by the boards of inspectors, the rules for
certified and proclaimed by the President on January 17, 1973 (Proclamation appreciation of ballots, and then the canvass and proclamation of the results.
No. 1102) was not an act of ratification, let alone a valid one, of the proposed
Constitution, because it was not in accordance with the existing Constitution With specific reference to the ratification of the 1972 draft Constitution, several
(of 1935) and the Election Code of 1971. Other grounds are relied upon by the additional circumstances should be considered:
petitioners in support of their basic proposition, but to our mind they are merely
subordinate and peripheral. (1) This draft was prepared and approved by a Convention which had been
convened pursuant to Resolution No. 2 passed by Congress on March 16,
Article XV, Section 1, of the 1935 Constitution provides that amendments 1967, which provides:
(proposed either by Congress in joint session or by a Convention called by it
for the purpose) "shall be valid part of this Constitution when approved by a Sec. 7. The amendments proposed by the Convention shall
majority of votes cast at an election at which the amendments submitted to the be valid and considered part of the Constitution when
people for their ratification." At the time Constitution was approved by the approved by a majority of the votes cast in an election at which
Constitutional Convention on February 8, 1935, and ratified in a plebiscite held they are submitted to the people for their ratification pursuant
on following May 14, the word "election" had already a definite meaning in our to Article XV of the Constitution.
law and jurisprudence. It was not a vague and amorphous concept, but a
procedure prescribed by statute ascertaining the people's choices among
(2) Article XVII, Section 16, of the draft itself states:
candidates for public offices, or their will on important matters submitted to the
pursuant to law, for approval. It was in this sense that word was used by the
framers in Article XV (also in Articles VI and VII), and in accordance with such Sec. 16. This Constitution shall take effect immediately upon its
procedure that plebiscites were held to ratify the very same Constitution in ratification by a majority of the votes cast in a plebiscite called for the
1935 as well as the subsequent amendments thereto, thus: in 1939 purpose and, except as herein provided, shall supersede the
(Ordinance appended to the Constitution); 1940 (establishment of a bicameral Constitution of nineteen hundred and thirty-five and all amendments
legislature; eligibility of the President and the Vice President for re election; thereto.
creation of the Commission of Elections); 1947 (Parity Amendment); and 1967
(increase in membership of the House of Representatives and eligibility of The same procedure is prescribed in Article XVI, Section 2, for the ratification
members of Congress to run for the Constitutional Convention without of any future amendment to or revision of the said Constitution.
forfeiture of their offices).
(3) After the draft Constitution was approved by the Constitutional Convention
The Election Code of 1971, in its Section 2, states that "all elections of public on November 30, 1972 the said body adopted Resolution No. 5843, proposing
officers except barrio officials andplebiscites shall be conducted in the manner "to President Ferdinand E. Marcos that a decree be issued calling
provided by this Code." This is a statutory requirement designed, as were the a plebiscite for the ratification of the proposed New Constitution on such
other election laws previously in force, to carry out the constitutional mandate appropriate date as he shall determine and providing for the necessary funds
relative to the exercise of the right suffrage, and with specific reference to the therefor." Pursuant to said Resolution the President issued Decree No. 73 on
term "plebiscites," the provision of Article XV regarding ratification of the same day, calling a plebiscite to be held on January 15, 1973, at which the
constitutional amendments. proposed Constitution "shall be submitted to the people for ratification or
rejection." The Decree had eighteen (18) sections in all, prescribing in detail
The manner of conducting elections and plebiscites provided by the Code is the different steps to be taken to carry out the process of ratification, such as:
spelled out in other sections thereof. Section 99 requires that qualified voters (a) publication of the proposed Constitution in English and Pilipino; (b) freedom
be registered in a permanent list, the qualifications being those set forth in of information and discussion; (c) registration of voters: (d) appointment of
Article V, Section 1, of the 1935 Constitution on the basis of age (21), literacy boards of election inspectors and designation of watchers in each precinct; (e)
and residence. These qualifications are reiterated in Section 101 of the printing of official ballots; (f) manner of voting to insure freedom and secrecy
thereof; (g) canvass of plebiscite returns; and (h) in general, compliance with Presidential Decree No. 86-A, dated January 5, 1973, the Assemblies were
the provisions of the Election Code of 1971, with the Commission on Elections convened for a referendum between January 10 and 15, to "consider vital
exercising its constitutional and statutory powers of supervision of the entire national issues now confronting the country, like the holding of the plebiscite
process. on the new Constitution, the continuation of martial rule, the convening of
Congress on January 22, 1973, and the holding of elections in November
There can hardly be any doubt that in everybody's view from the framers of 1973."
the 1935 Constitution through all the Congresses since then to the 1971
Constitutional Convention amendments to the Constitution should be On January 5, 1973 the newspapers came out with a list of four questions to
ratified in only one way, that is, in an election or plebiscite held in accordance be submitted to the Citizens Assemblies, the fourth one being as follows: "How
with law and participated in only by qualified and duly registered voters. soon would you like plebiscite on the new Constitution to be held?" It should
Indeed, so concerned was this Court with the importance and indispensability be noted in this connection that the President had previously announced that
of complying with the mandate of the (1935) Constitution in this respect that in he had ordered the postponement of plebiscite which he had called for January
the recent case of Tolentino vs. Commission on Elections, No. L-34150, 15, 1973 (Presidential Decree No. 73) for the ratification of the Constitution,
October 16, 1971 (41 SCRA 702), a resolution of the (1971) Constitutional and that he was considering two new dates for the purpose February 19 or
Convention submitting a proposed amendment for ratification to a plebiscite to March 5; that he had ordered that the registration of voters (pursuant to Decree
be held in November 1971 was declared null and void. The amendment sought No. 73) be extended to accommodate new voters; and that copies of the new
to reduce the voting age from twenty-one to eighteen years and was approved Constitution would be distributed in eight dialects the people. (Bulletin Today,
by the Convention for submission to a plebiscite ahead of and separately from December 24, 1972.)
other amendments still being or to be considered by it, so as to enable the
youth to be thus enfranchised to participate in the plebiscite for the ratification On January 10, 1973 it was reported that one more question would be added
of such other amendments later. This Court held that such separate to the original four which were to be submitted to the Citizens Assemblies. The
submission was violative of Article XV, Section 1, of the Constitution, which question concerning plebiscite was reworded as follows: "Do you like the
contemplated that "all the amendments to be proposed by the same plebiscite to be held later?" The implication, it may likewise be noted, was that
Convention must be submitted to the people in a single "election" or the Assemblies should express their views as to the plebiscite should be held,
plebiscite." * Thus a grammatical construction based on a singular, instead of not as to whether or not it should be held at all.
plural, rendition of the word "election" was considered a sufficient ground to
rule out the plebiscite which had been called to ratify a proposed amendment
The next day, January 11, it was reported that six additional questions would
in accordance with the procedure and under all the safeguards provided in the
be submitted, namely:
Election Law.
(1) Do you approve of the citizens assemblies as the base of popular
In the cases now before Us what is at issue is not merely the ratification of just
government to decide issues of national interest?
one amendment, as in Tolentino vs. COMELEC, but the ratification of an entire
charter setting up a new form of government; and the issue has arisen not
because of a disputed construction of one word or one provision in the 1935 (2) Do you approve of the new Constitution?
Constitution but because no election or plebiscite in accordance with that
Constitution and with the Election Code of 1971 was held for the purpose of (3) Do you want a plebiscite to be called to ratify the new Constitution?
such ratification.
(4) Do you want the elections to be held in November, 1973
The Citizens Assemblies which purportedly ratified the draft Constitution were accordance with the provisions of the 1935 Constitution?
created by Presidential Decree No. 86 dated December 31, 1972, "to broaden
the base of citizen participation in the democratic process and to afford ample (5) If the elections would not be held, when do you want the next
opportunities for the citizenry to express their views on important national elections to be called?
issues." The Assemblies "shall consist of all persons who are residents of the
barrio, district or ward for at least six months, fifteen years of age or over, (6) Do you want martial law to continue? [Bulletin Today, January 11,
citizens of the Philippines and who are registered in the lists of Citizen 1973; emphasis supplied].
Assembly members kept by the barrio, district or ward secretary." By
Appended to the six additional questions above quoted were the suggested So it was that on January 11, 1973, the second day of the purported
answers, thus: referendum, the suggestion was broached, for the first time, that the plebiscite
should be done away with and a favorable vote by the Assemblies deemed
COMMENTS ON equivalent ratification. This was done, not in the questionnaire itself, but in the
suggested answer to question No. 3. Strangely, however, it was not similarly
suggested that an unfavorable vote be considered as rejection.
QUESTION No. 1
In order to broaden the base of citizens' participation in government. There should be no serious dispute as to the fact that the manner in which the
voting was conducted in the Citizen Assemblies, assuming that such voting
was held, was not within the intendment of Article XV, Section 1, of the 1935
QUESTION No. 2 Constitution nor in accordance with the Election Code of 1971. The
referendum can by no means be considered as the plebiscite contemplated in
But we do not want the Ad Interim Assembly to be convoked. Or if it is Section 2 of said Code and in Article XVII, Section 16, of the draft Constitution
to be convened at all, it should not be done so until after at least seven itself, or as the election intended by Congress when it passed Resolution No.
(7) years from the approval of the New Constitution by the Citizens 2 on March 16, 1967 calling a Convention for the revision of the 1935
Assemblies. Constitution. The Citizens Assemblies were not limited to qualified, let alone
registered voters, but included all citizens from the age of fifteen, and
QUESTION No. 3 regardless of whether or not they were illiterates, feeble-minded, or ex
convicts * these being the classes of persons expressly disqualified from
If the Citizens Assemblies approve of the New Constitution, then the voting by Section 102 of the Election Code. In short, the constitutional and
new Constitution should be deemed ratified. statutory qualifications were not considered in the determination of who should
participate. No official ballots were used in the voting; it was done mostly by
acclamation or open show of hands. Secrecy, which is one of the essential
The vote of the Citizens Assemblies should already be considered the
features of the election process, was not therefore observed. No set of rules
plebiscite on the New Constitution.
for counting the votes or of tabulating them and reporting the figures was
prescribed or followed. The Commission on Elections, which is the
QUESTION No. 4 constitutional body charged with the enforcement and administration of all laws
relative to the conduct of elections, took no part at all, either by way of
We are sick and tired of too frequent elections. We are fed up with supervision or in the assessment of the results.
politics, of so many debates and so much expenses.
It has been suggested that since according to Proclamation No. 1102 the
QUESTION No. 5 overwhelming majority of all the members of the Citizens Assemblies had
voted for the adoption of the proposed Constitution there was a substantial
Probably a period of at least seven (7) years moratorium on elections compliance with Article XV, Section 1, of the 1935 Constitution and with the
will be enough for stability to be established in the country, for reforms Election Code of 1971. The suggestion misses the point entirely. It is of the
to take root and normalcy to return. essence of a valid exercise of the right of suffrage that not only must a majority
or plurality of the voters carry the day but that the same must be duly
QUESTION No. 6 ascertained in accordance with the procedure prescribed by law. In other
words the very existence of such majority or plurality depends upon the
manner of its ascertainment, and to conclude that it exists even if it has not
We want President Marcos to continue with Martial Law. We want him been ascertained according to law is simply to beg the issue, or to assume the
to exercise his powers with more authority. We want him to be strong very fact to be established. Otherwise no election or plebiscite could be
and firm so that he can accomplish all his reform program and questioned for non-compliance with the provisions of the Election Law as long
establish normalcy in the country. If all other measures fail, we want as it is certified that a majority of the citizens had voted favorably or adversely
President Marcos to declare a revolutionary government along the on whatever it was that was submitted to them to vote upon.
lines of the new Constitution without the ad interim Assembly.
However, a finding that the ratification of the draft Constitution by the Citizens organizing themselves and discharging their functions under it, and the latter
Assemblies, as certified by the President in Proclamation No. 1102, was not in by not convening on January 22, 1973 or at any time thereafter, as ordained
accordance with the constitutional and statutory procedure laid down for the by the 1935 Constitution, and in the case of a majority of the members by
purpose does not quite resolve the questions raised in these cases. Such a expressing their option to serve in the Interim National Assembly in
finding, in our opinion, is on a matter which is essentially justiciable, that is, accordance with Article XVIII, Section 2, of the 1973 Constitution. *
within the power of this Court to inquire into. It imports nothing more than a
simple reading and application of the pertinent provisions of the 1935 The theory advanced by Senator Tolentino, as counsel for respondents Puyat
Constitution, of the Election Code and of other related laws and official acts. and Roy, may be taken up and restated at same length if only because it would
No question of wisdom or of policy is involved. But from this finding it does not constitute, if sustained, the most convenient ground for the invocation of the
necessarily follow that this Court may justifiably declare that the Constitution political-question doctrine. In support of his theory, Senator Tolentino contends
has not become effective, and for that reason give due course to these that after President Marcos declared martial law on September 21, 1972
petitions or grant the writs herein prayed for. The effectivity of the said (Proclamation No. 1081) he established a revolutionary government when he
Constitution, in the final analysis, is the basic and ultimate question posed by issued General Order No. 1 the next day, wherein he proclaimed "that I shall
these cases, to resolve which considerations other than judicial, and therefore govern the nation and direct the operation of the entire government, including
beyond the competence of this Court, are relevant and unavoidable. all its agencies and instrumentalities, in my capacity, and shall exercise all the
powers and prerogatives appurtenant and incident to my position as such
Several theories have been advanced respectively by the parties. The Commander-in-Chief of all the Armed Forces of the Philippines." By this order,
petitioners lay stress on the invalidity of the ratification process adopted by the it is pointed out, the Commander-in-Chief of the Armed Forces assumed all
Citizens Assemblies and on that premise would have this Court grant the the powers of government executive, legislative, and judicial; and thereafter
reliefs they seek. The respondents represented by the Solicitor General, proceeded to exercise such powers by a series of Orders and Decrees which
whose theory may be taken as the official position of the Government, amounted to legislative enactments not justified under martial law and, in some
challenge the jurisdiction of this Court on the ground that the questions raised instances, trenched upon the domain of the judiciary, by removing from its
in the petitions are political and therefore non-justiciable, and that in any case jurisdiction certain classes of cases, such as "those involving the validity,
popular acquiescence in the new Constitution and the prospect of unsettling legality, or constitutionality of Proclamation No. 1081, or of any decree, order
acts done in reliance thereon should caution against interposition of the power or act issued, promulgated or performed by me or by my duly designated
of judicial review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in their representative pursuant thereto." (General Order No. 3 as amended by
respective capacities as President and President Pro Tempore of the Senate General Order No. 3-A, dated September 24, 1972.) The ratification by the
of the Philippines, and through their counsel, Senator Arturo Tolentino, Citizens Assemblies, it is averred, was the culminating act of the revolution,
likewise invoke the political question doctrine, but on a ground not concurred which thereupon converted the government into a de jure one under the 1973
in by the Solicitor General, namely, that approval of the 1973 Constitution by Constitution.
the people was made under a revolutionary government, in the course of a
successful political revolution, which was converted by act of the people to the If indeed it be accepted that the Citizens Assemblies had ratified the 1973
present de jure government under the 1973 Constitution." Constitution and that such ratification as well as the establishment of the
government thereunder formed part of a revolution, albeit peaceful, then the
Heretofore, constitutional disputes which have come before this Court for issue of whether or not that Constitution has become effective and, as
adjudication proceeded on the assumption, conceded by all, that the necessary corollary, whether or not the government legitimately functions
Constitution was in full force and effect, with the power and authority of the under it instead of under the 1935 Constitution, is political and therefore non-
entire Government behind it; and the task of this Court was simply to determine judicial in nature. Under such a postulate what the people did in the Citizen
whether or not the particular act or statute that was being challenged Assemblies should be taken as an exercise of the ultimate sovereign power. If
contravened some rule or mandate of that Constitution. The process employed they had risen up in arms and by force deposed the then existing government
was one of interpretation and synthesis. In the cases at bar there is no such and set up a new government in its place, there could not be the least doubt
assumption: the Constitution (1935) has been derogated and its continued that their act would be political and not subject to judicial review but only to the
existence as well as the validity of the act of derogation is issue. The legal judgment of the same body politic act, in the context just set forth, is based on
problem posed by the situation is aggravated by the fact that the political arms realities. If a new government gains authority and dominance through force, it
of the Government the Executive Departments and the two Houses of can be effectively challenged only by a stronger force; judicial dictum can
Congress have accepted the new Constitution as effective: the former by prevail against it. We do not see that situation would be any different, as far as
the doctrine of judicial review is concerned, if no force had been resorted to to really familiarize themselves with the Constitution, much less with the many
and the people, in defiance of the existing Constitution but peacefully because other subjects that were submitted to them. In fact the plebiscite planned for
of the absence of any appreciable opposition, ordained a new Constitution and January 15, 1973 under Presidential Decree No. 73 had been postponed to
succeeded in having the government operate under it. Against such a reality an indefinite date, the reasons for the postponement being, as attributed to the
there can be no adequate judicial relief; and so courts forbear to take President in the newspapers, that "there was little time to campaign for or
cognizance of the question but leave it to be decided through political means. against ratification" (Daily Express, Dec. 22, 1972); that he would base his
decision (as to the date, of the plebiscite) on the compliance by the
The logic of the political-question doctrine is illustrated in statement of the U.S. Commission (on Elections) on the publication requirement of the new Charter
Supreme Court in a case * relied upon, curiously enough, by the Solicitor and on the position taken by national leaders" (Daily Express, Dec. 23, 1972);
General, who disagrees with the revolutionary government theory of Senator and that "the postponement would give us more time to debate on the merits
Tolentino. The case involved the issue of which of two opposing governments of the Charter." (Bulletin Today, Dec. 24, 1972.)
struggling for supremacy in the State of Rhode Island was the lawful one. The
issue had previously come up in several other cases before the courts of the The circumstances above enumerated lead us to the conclusion that the
State, which uniformly held that the inquiry belonged to the political power and Citizens Assemblies could not have understood the referendum to be for the
not to the judicial. Commenting on the ruling thus arrived at, the U.S. Supreme ratification of the Constitution, but only for the expression of their views on a
Court said: "And if a State court should enter upon the inquiry proposed in this consultative basis. Indeed, if the expression of those views had been intended
case, and should come to the conclusion that the government under which it as an act of ratification (or of rejection as a logical corollary) there would
acted had been put aside and displaced by an opposing government, it would have been no need for the Katipunan ng mga Barangay to recommend that
cease to be a court, and incapable of pronouncing a judicial decision upon the the Constitution should already be deemed ratified, for recommendation
question it undertook to try. If it decides at all as a court, it necessarily affirms imports recognition of some higher authority in whom the final decision rests.
the existence and authority of the government under which it is exercising
judicial power." In other words, since the court would have no choice but to But then the President, pursuant to such recommendation, did proclaim that
decide in one way alone in order to be able to decide at all, the question could the Constitution had been ratified and had come into effect. The more relevant
not be considered proper for judicial determination. consideration, therefore, as far as we can see, should be as to what the
President had in mind in convening the Citizens Assemblies, submitting the
It should be noted that the above statement from Luther vs. Borden would be Constitution to them and proclaiming that the favorable expression of their
applicable in the cases at bar only on the premise that the ratification of the views was an act of ratification. In this respect subjective factors, which defy
Constitution was a revolutionary act and that the government now functioning judicial analysis and adjudication, are necessarily involved.
it is the product of such revolution. However, we are not prepared to agree that
the premise is justified. In positing the problem within an identifiable frame of reference we find no
need to consider whether or not the regime established by President Marcos
In the first, place, with specific reference to the questioned ratification, several since he declared martial law and under which the new Constitution was
significant circumstances may be noted. (1) The Citizens Assemblies were submitted to the Citizens Assemblies was a revolutionary one. The pivotal
created, according to Presidential Decree No. 86, "to broaden the base of question is rather whether or not the effectivity of the said Constitution by virtue
citizen participation in the democratic process and to afford ample of Presidential Proclamation No. 1102, upon the recommendation of
opportunities for the citizenry to express their views on important national the Katipunan ng mga Barangay, was intended to be definite and irrevocable,
issues." (2) The President announced, according to the Daily Express of regardless of non-compliance with the pertinent constitutional and statutory
January 2, 1973, that "the referendum will be in the nature of a loose provisions prescribing the procedure for ratification. We must confess that after
consultation with the people." (3) The question, as submitted to them on the considering all the available evidence and all the relevant circumstances we
particular point at issue here, was "Do you a approve of the Constitution?" (4) have found no reasonably reliable answer to the question. On one hand we
President Marcos, in proclaiming that the Constitution had been ratified, stated read, for instance, the following public statements of the President:
as follows: "(S)ince the referendum results show that more than ninety-five
(95) per cent of the members of the Barangays (Citizens Assemblies) are in Speaking about the proclamation of martial law, he said:
favor of the new Constitution, the Katipunan ng mga Barangay has strongly
recommended that the new Constitution should already be deemed ratified by
the Filipino people." (5) There was not enough time for the Citizens Assemblies
I reiterate what I have said in the past: there is no turning back for our They cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens'
people. Assemblies which submitted this recommendation merely sought articulate
their impatience with the status quo that has brought about anarchy, confusion
We have committed ourselves to this revolution. We have pledged to and misery to the masses ..." The only alternatives which the President clearly
it our future, our fortunes, our lives, our destiny. We have burned our implied by the foregoing statements were the ratification of the new
bridges behind us. Let no man misunderstand the strength of our Constitution and the establishment of a revolutionary government, the latter
resolution. (A Report to the Nation, Jan. 7, 1973.) being unnecessary, in his opinion, because precisely the Constitution had
been ratified. The third obvious alternative was entirely ruled out, namely, a
return to the 1935 Constitution, for it was the status quo under that Constitution
On the occasion of the signing of Proclamation No. 1102 on January 17, 1973,
that had caused "anarchy, confusion and misery." The message seems clear:
the President said the following, among other things:
rather than return to such status quo, he would heed the recommendation of
the Citizens' Assemblies to establish a revolutionary government, because that
... We can, perhaps delimit the power of the people to speak on legal would be the only other way to carry out the reforms he had envisioned and
matters, on justiciable matters, on matters that may come before the initiated reforms which, in all fairness and honesty, must be given credit for
experts and interpreters of the law. But we cannot disqualify the the improved quality of life in its many aspects, except only in the field of civil
people from speaking on what we and the people consider purely liberties.
political matters especially those that affect the fundamental law of the
land.
If there is any significance, both explicit and implicit, and certainly
unmistakable, in the foregoing pronouncements, it is that the step taken in
... The political questions that were presented to the people are exactly connection with the ratification of the Constitution was meant to be irreversible,
those that refer to the form of government which the people want ... and that nothing anyone could say would make the least difference. And if this
The implications of disregarding the people's will are too awesome to is a correct and accurate assessment of the situation, then we would say that
be even considered. For if any power in government should even dare since it has been brought about by political action and is now maintained by
to disregard the people's will there would be valid ground for revolt. the government that is in undisputed authority and dominance, the matter lies
beyond the power of judicial review.
... Let it be known to everybody that the people have spoken and they
will no longer tolerate any attempt to undermine the stability of their On the other hand, by avowals no less significant if not so emphatic in terms,
Republic; they will rise up in arms not in revolt against the Republic but President Marcos has professed fealty to the Constitution. In "Today's
in protection of the Republic which they have installed. It is quite clear Revolution: Democracy" he says:
when the people say, we ratify the Constitution, that they mean they
will not discard, the Constitution.
I believe, therefore, in the necessity of Revolution as an instrument of
individual and social change ... but that in a democratic society,
On January 19, 1973 the Daily Express published statement of the President revolution is of necessity, constitutional, peaceful, and legal.
made the day before, from which the following portion is quoted:
In his TV address of September 23, 1972, President Marcos told the nation:
... the times are too grave and the stakes too high for us permit the
customary concessions to traditional democratic process to hold back
I have proclaimed martial law in accordance with the powers vested in
our people's clear and unequivocal resolve and mandate to meet and
the President by the Constitution of the Philippines.
overcome the extraordinary challenges presented by these
extraordinary times.
xxx xxx xxx
On the same occasion of the signing of Proclamation No. 1102 the President
made pointed reference to "the demand of some of our citizens ... that when I repeat, this is not a military takeover of civil government functions.
all other measures should fail, that the President be directed to organize and The Government of the Republic of the Philippines which was
establish a Revolutionary Government," but in the next breath added: "... if we established by our people in 1946 continues.
do ratify the Constitution, how can we speak of Revolutionary Government?
xxx xxx xxx turning back, that what the people recommended through the Citizens
Assemblies, as they were reported to him, demand that the action he took
I assure you that I am utilizing this power vested in me by the pursuant thereto be final and irrevocable, then judicial review is out of the
Constitution to save the Republic and reform our society... question.
I have had to use this constitutional power in order that we may not In articulating our view that the procedure of ratification that was followed was
completely lose the civil rights and freedom which we cherish... not in accordance with the 1935 Constitution and related statutes, we have
discharged our sworn duty as we conceive it to be. The President should now
... We are against the wall. We must now defend the Republic with the perhaps decide, if he has not already decided, whether adherence to such
stronger powers of the Constitution. procedure is weighty enough a consideration, if only to dispel any cloud of
doubt that may now and in the future shroud the nation's Charter.
(Vital Documents, pp. 1-12; emphasis supplied).
In the deliberations of this Court one of the issues formulated for resolution is
whether or not the new Constitution, since its submission to the Citizens
In the report of an interview granted by the President to the Newsweek Assemblies, has found acceptance among the people, such issue being
Magazine (published in the issue of January 29, 1973), the following appears: related to the political question theory propounded by the respondents. We
have not tarried on the point at all since we find no reliable basis on which to
xxx xxx xxx form a judgment. Under a regime of martial law, with the free expression of
opinions through the usual media vehicles restricted, we have no means of
Q. Now that you have gotten off the constitutional track, won't you be knowing, to the point of judicial certainty, whether the people have accepted
in serious trouble if you run into critical problems with your programs? the Constitution. In any event, we do not find the issue decisive insofar as our
vote in these cases is concerned. To interpret the Constitution that is
R. I have never gotten off the constitutional track. Everything I am judicial. That the Constitution should be deemed in effect because of popular
doing is in accordance with the 1935 Constitution. The only thing is acquiescence that is political, and therefore beyond the domain of judicial
that instead of 18-year-olds voting, we have allowed 15-year-olds the review.
right to vote. But the 15-year-olds of today are high-school students, if
not graduates, and they are better informed than my contemporaries We therefore vote not to give due course to the instant petitions.
at that age. On the matter of whether it is constitutional to proclaim
martial law, it is constitutional because the Constitution provides for it BARREDO, J., concurring:
in the event of invasion, insurrection, rebellion or immediate danger
thereof. We may quarrel about whether what we have gone through is As far as I am concerned, I regard the present petitions as no more than mere
sufficient cause to proclaim martial law but at the very least there is a reiterations of the Supplemental Petitions filed by Counsel Lorenzo M. Taada
danger of rebellion because so many of our soldiers have been killed. on January 15, 1973 in the so called Plebiscite Cases decided by this Court
You must remember this (martial law provision) was lifted from the on January 22, 1978. Of course, there are amplifications of some of the
American legislation that was the fundamental law of our country. grounds previously alleged and in the course of the unprecedented five-day
hearing that was held from February 12 to 16 last, more extensive and
xxx xxx xxx illuminating arguments were heard by Us, but, in my estimation, and with due
recognition of the sincerety, brilliance and eloquence of counsels, nothing
In the light of this seeming ambivalence, the choice of what course of action to more cogent and compelling than what had already been previously presented
pursue belongs to the President. We have earlier made reference to subjective by Counsel Taada is before Us now. Accordingly, I cannot see any reason
factors on which this Court, to our mind, is in no position to pass judgment. why I should change the position I took in regard to the earlier cases. I
Among them is the President's own assessment of the will of the people as reiterate, therefore, the vote I cast when these petitions were initially
expressed through the Citizens Assemblies and of the importance of the 1973 considered by the Court; namely, to dismiss them.
Constitution to the successful implementation of the social and economic
reforms he has started or envisioned. If he should decide that there is no
In view, however, of the transcendental importance of the issues before the overconcentrating powers in their officers, the delegates went about their work
Court and the significance to our people and in history of the individual stands in comparatively slow pace, and by the third quarter of 1972 had finished
of the members of the Court in relation to said issues and to the final outcome deliberations and second-reading voting only on an insignificant number of
of these cases, and considering that I reserved before the filing of a more proposals until September 21, 1972, when the President, not altogether
extended opinion, I will take this opportunity to explain further why I hold that unexpectedly, yet abruptly, issued Proclamation 1081 declaring martial law
the 1973 Constitution is already in force, if only to clarify that apart from the throughout the country. An attempt was made to have the Convention
people's right of revolution to which I made pointed reference in my previous recessed until after the lifting of martial law, and not long after the motion of
opinion, I can see now, after further reflection, that the vote of the people in Delegate Kalaw to such effect was turned down, the activities within the
the referendum in the Citizens Assemblies held on January 10 to 15, 1973, assembly shifted to high gear. As if unmindful of the arrest and continued
upon the result of which Proclamation 1102 is based, may be viewed more detention of several of its members, the convention gathered swift momentum
importantly as a political act than as a purely legal one with the result that such in its work, and on November 30, 1972, it approved by overwhelming vote the
vote to consider the 1973 Constitution as ratified without the necessity of draft of a complete constitution, instead of mere specific amendments of
holding a plebiscite in the form followed in the previous ratification plebiscites particular portions of the Constitution of 1935. Needless to say, before martial
in 1935 of the Constitution itself, 1937 of women's suffrage, 1939 of the law was declared, there was full and unlimited coverage of the workings in the
amendments to the Ordinance Appended to the Constitution, 1940 of the re- convention by the mass media. At the same time, public debates and
election of the President, the bicameral legislature and the Commission on discussions on various aspects of proposed amendments were not
Elections, 1947 of the parity amendment and 1967, rejecting the proposed uncommon.
increase in the members of the House of Representatives and eligibility of
members of Congress to the Constitutional Convention, may be deemed as a Earlier, on November 22, 1972, the Convention had Resolution No. 5843
valid ratification substantially in compliance with the basic intent of Article XV proposing "to President Ferdinand Marcos that a decree be issued calling a
of the 1935 Constitution. If indeed this explanation may be considered as a plebiscite for ratification of the proposed new Constitution on appropriate date
modification of my rationalization then, I wish to emphasize that my position as he shall determine and providing for necessary funds therefor." Acting
as to the fundamental issue regarding the enforceability of the new under this authority, December 1, 1972, the President issued Presidential
Constitution is even firmer now than ever before. As I shall elucidate anon, Decree No. 73 submitting the draft constitution for ratification by the people at
paramount considerations of national import have led me to the conviction that a plebiscite set for January 15, 1973. This order contained provisions more or
the best interests of all concerned would be best served by the Supreme Court less similar to the plebiscite laws passed by Congress relative to the past
holding that the 1973 Constitution is now in force, not necessarily as a plebiscites held in connection with previous proposed amendments.
consequence of the revolutionary concept previously suggested by me, but
upon the ground that as a political, more than as a legal, act of the people, the
In connection with the plebiscite thus contemplated, General Order No. 17 was
result of the referendum may be construed as a compliance with the
issued ordering and enjoining the authorities to allow and encourage public
substantiality of Article XV of the 1935 Constitution. and free discussions on proposed constitution. Not only this, subsequently,
under date of December 17, 1972, the President ordered the suspension the
I effects of martial law and lifted the suspension of privilege of the writ of habeas
corpus insofar as activities connected with the ratification of the draft
The facts that gave rise to these proceedings are historical and well known. constitution were concerned. These two orders were not, however, to last very
Generally, they may be taken judicial notice of. They revolve around the long. On January 7, 1973, the President, invoking information related to him
purported ratification of the Constitution of 1973 declared in Proclamation 1102 that the area of public debate and discussion had opened by his previous
issued by the President on January 17, 1973. orders was being taken advantage of by subversive elements to defeat the
purposes for which they were issued and to foment public confusion, withdrew
Pursuant to a joint resolution of the Congress sitting as a constituent assembly said orders and enjoined full and stricter implementation of martial law.
approved on March 16, 1967, delegates to a constitutional convention to
propose amendments to the Constitution of 1935 were elected in accordance In the meantime, the President had issued on December 3, 1972 Presidential
with the implementing law, Republic Act 6132, on November 10, 1970. Known Decree No. 86 creating Citizens Assemblies "so as to afford ample
as the Constitutional Convention of 1971, the assembly began its sessions on opportunities for the citizenry to express their views on important national
June 1, 1971. After encountering a lot of difficulties, due to bitter rivalries over issues" and one of the questions presented to said assemblies was: "Do you
important positions and committees and an incomprehensible fear of like the plebiscite on the proposed Constitution to be held later" So, the same
order of January 7, 1973, General Order No. 20, the President ordered, "that 2. Such barangays (citizens assemblies) shall consider vital national
the plebiscite scheduled to be held January 15, 1973, be postponed until issues now confronting the country, like the holding of the plebiscite
further notice". on the new Constitution, the continuation of martial rule, the convening
of Congress on January 22, 1973, and the holding of elections in
In the meanwhile also, on January 5, 1973, the President issued Presidential November 1973, and others in the future, which shall serve as guide
Decree, No. 86-A providing as follows: or basis for action or decision by the national government;
PRESIDENTIAL DECREE NO. 86-A 3. The barangays (citizens assemblies) shall conduct between
January 10 and 15, 1973, a referendum on important national issues,
including those specified in paragraph 2 hereof, and submit results
STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS
thereof to the Department of Local Governments Community
(CITIZENS ASSEMBLIES)
Development immediately thereafter, pursuant to express will of the
people as reflected in the reports gathered from the many thousands
WHEREAS, on the basis of preliminary and initial reports from the field of barangays (citizens assemblies) throughout the country.
as gathered from barangays (citizens assemblies) that have so far
been established, the people would like to decide for themselves
4. This Decree shall take effect immediately.
questions or issues, both local and national, affecting their day-to-day
lives and their future;
Done in the City of Manila, this 5th day of January, in the year of Our
Lord, nineteen hundred and seventy three.
WHEREAS, the barangays (citizens assemblies) would like
themselves to be the vehicle for expressing the views of the people on
important national issues; And on January 7, 1973, this was followed by Presidential Decree No. 86-B
reading thus:
WHEREAS, such barangays (citizens assemblies) desire that they be
given legal status and due recognition as constituting the genuine, PRESIDENTIAL DECREE NO. 86-B
legitimate and valid expression of the popular will; and
DEFINING FURTHER THE ROLE OF BARANGAYS
WHEREAS, the people would like the citizens assemblies to conduct (CITIZENS ASSEMBLIES)
immediately a referendum on certain specified questions such as the
ratification of the new Constitution, continuance of martial law, the WHEREAS, since their creation pursuant to Presidential
convening of Congress on January 22, 1973, and the elections in Decree No. 86 dated December 31, 1972, the Barangays
November 1973 pursuant to the 1935 Constitution. (Citizens Assemblies) have petitioned the Office of the
President to submit them for resolution important national
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the issues;
Philippines, by virtue of the powers vested in me by the Constitution
as Commander-in-Chief of all Armed Forces of the Philippines, do WHEREAS, one of the questions persistently mentioned
hereby declare as part of the law of the land the following: refers to the ratification of the Constitution proposed by the
1971 Constitutional Convention;
1. The present barangays (citizens assemblies) are created under
Presidential Decree No. 86 dated December 31, 1972, shall constitute WHEREAS, on the basis of the said petitions, it is evident that
the base for citizen participation in governmental affairs and their the people believe that the submission of the proposed
collective views shall be considered in the formulation of national Constitution to the Citizens Assemblies or Barangays should
policies or programs and, wherever practicable, shall be translated be taken as a plebiscite in itself in view of the fact that freedom
into concrete and specific decision; of debate has always been limited to the leadership in political,
economic and social fields, and that it is now necessary to
bring this down to the level of the people themselves through (4) Do you want the elections to be held in November, 1973
the Barangays or Citizens Assemblies; in accordance with the provisions of the 1935 Constitution?
NOW THEREFORE, I, FERDINAND E. MARCOS, President (5) If the elections would not be held, when do you want it to
of the Philippines, by virtue of the powers in me vested by the be called?
Constitution, do hereby order that important national issues
shall from time to time be referred to the Barangays (Citizens (6) Do you want martial law to continue?
Assemblies) for resolution in accordance with Presidential
Decree No. 86-A dated January 5, 1973 and that the initial
It is not seriously denied that together with the question the voters were
referendum shall include the matter of ratification of the
furnished "comments" on the said questions more or less suggestive of the
Constitution proposed by the 1971 Constitutional Convention.
answer desired. It may assumed that the said "comments" came from official
sources, albeit specifically unidentified. As petitioners point out, the most
The Secretary of the Department of Local Governments and relevant of these "comments" were the following:
Community Development shall insure the implementation of
this Order.
COMMENTS ON
Done in the City of Manila, this 7th day of January in the year xxx xxx xxx
of Our Lord, nineteen hundred and seventy-three.
QUESTION No. 2
And so it was that by January 10, 1973, when the Citizens Assemblies thus
created started the referendum which was held from said date to January 15,
1973, the following questions were submitted to them: But we do not want the Ad Interim Assembly to be convoke. Or if it is
to be convened at all, it should not be done so until after at least seven
(7) years from the approval of the New Constitution by the Citizens
(1) Do you like the New Society?
Assemblies.
(2) Do you like the reforms under martial law? QUESTION No. 3
(1) Do you approve of the citizens assemblies as the base of Thereafter, the results of the voting were collated and sent to the
popular government to decide issues of national interests? Department of Local Governments. The transmission of the results
was made by telegram, telephone, the provincial government SSB
(2) Do you approve of the New Constitution? System in each province connecting all towns; the SSB
communication of the PACD connecting most provinces; the
(3) Do you want a plebiscite to be called to ratify the new Department of Public Information Network System; the Weather
Constitution? Bureau Communication System connecting all provincial capitals and
the National Civil Defense Network connecting all provincial capitals.
The certificates of results were then flown to Manila to confirm the WHEREAS, fourteen million nine hundred seventy-six thousand five
previous figures received by the aforementioned means of hundred sixty one (14,976,561) members of all the Barangays
transmission. The certificates of results tallied with the previous (Citizens Assemblies) voted for the adoption of the proposed
figures taken with the exception of few cases of clerical errors. Constitution, as against seven hundred forty-three thousand eight
hundred sixty nine (743,869) who voted for its rejection; while on the
The Department adopted a system of regionalizing the receiving question as to whether or not the people would still like a plebiscite to
section of the Citizens Assemblies operation at the Department be called to ratify the new Constitution fourteen million two hundred
wherein the identity of the barrio and the province was immediately ninety-eight thousand eight hundred fourteen (14,298,814) answered
given to a staff in charge of each region. Every afternoon at 2:00 that there was no need for plebiscite and that the vote of the
o'clock, the 11 regions submitted the figures they received from the Barangays (Citizens Assemblies) should be considered as a vote in a
field to the central committee to tabulate the returns. The last figures plebiscite;
were tabulated at 12 midnight of January 16, 1973 and early morning
of January 17, 1973 and were then communicated to the President by WHEREAS, since the referendum results show that more than ninety-
the Department of Local Governments. five (95) percent of the members of the Barangays (Citizen
Assemblies) are in favor of the New Constitution, the Katipunan ng
The development culminated in the issuance by the President of Proclamation Mga Barangay has strongly recommended that the new Constitution
1102 on January 17, 1973. Said proclamation reads: should already be deemed ratified by the Filipino people;
PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY Philippines, by virtue of the powers in me vested by the Constitution,
THE 1971 CONSTITUTIONAL CONVENTION. do hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention
has been ratified by an overwhelmingly majority of all of the votes cast
WHEREAS, the Constitution proposed by the nineteen hundred
seventy-one Constitutional Convention is subject to ratification by the by the members of all the Barangays (Citizens Assemblies)
throughout the Philippines, and has thereby come into effect.
Filipino people;
I must confess that the fact that the referendum was held during martial law
It is my sincere conviction that the Constitution of 1973 has been accepted or
detracts somehow from the value that the referendum would otherwise have
adopted by the people. And on this premise, my considered opinion is that the
had. As I intimated, however, in my former opinion, it is not fair to condemn
Court may no longer decide these cases on the basis of purely legal
and disregard the result of the referendum barely because of martial law per
considerations. Factors which are non-legal but nevertheless ponderous and
se. For one thing, many of the objectionable features of martial law have not
compelling cannot be ignored, for their relevancy is inherent in the issue itself
actually materialized, if only because the implementation of martial law since
to be resolved.
its inception has been generally characterized by restraint and consideration,
thanks to the expressed wishes of the President that the same be made
"Philippine style", which means without the rigor that has attended it in other In my opinion in the Plebiscite Cases, I joined my colleagues in holding that
lands and other times. Moreover, although the restrictions on the freedom of the question of whether or not there was proper submission under Presidential
speech, the press and movement during martial law do have their Decree No. 73 is justiciable, and I still hold that the propriety of submission
corresponding adverse effects on the area of information which should be under any other law or in any other form is constitutionally a fit subject for
open to a voter, in its real sense what "chills" his freedom of choice and mars inquiry by the courts. The ruling in the decided cases relied upon by petitioners
his exercise of discretion is suspension of the privilege of the writ of habeas are to this effect. In view, however, of the factual background of the cases at
corpus. The reason is simply that a man may freely and correctly vote even if bar which include ratification itself, it is necessary for me to point out that when
the needed information he possesses as to the candidates or issues being it comes to ratification, I am persuaded that there should be a boundary
voted upon is more or less incomplete, but when he is subject to arrest and beyond which the competence of the courts no longer has any reason for
detention without investigation and without being informed of the cause being, because the other side is exclusively political territory reserved for their
thereof, that is something else which may actually cause him to cast a captive own dominion by the people.
vote. Thus it is the suspension of the writ of habeas corpus accompanying
The main basis of my opinion in the previous cases was acceptance by the 1. Consider that in the present case what is involved is not just an amendment
people. Others may feel there is not enough indication of such acceptance in of a particular provision of an existing Constitution; here, it is, as I have
the record and in the circumstances the Court can take judicial notice of. For discussed earlier above, an entirely new Constitution that is being proposed.
my part, I consider it unnecessary to be strictly judicial in inquiring into such This important circumstance makes a great deal of difference.
fact. Being personally aware, as I have already stated, that the Citizens
Assemblies did meet and vote, if irregularly and crudely, it is not for me to No less than counsel Tolentino for herein respondents Puyat and Roy, who
resort, for the purposes of these cases, to judicial tape and measure, to find was himself the petitioner in the case I have just referred to is, now inviting Our
out with absolute precision the veracity of the total number of votes actually attention to the exact language of Article XV and suggesting that the said
cast. After all, the claims that upon a comparison of conflicting reports, cases Article may be strictly applied to proposed amendments but may hardly govern
of excess votes may be found, even if extrapolated will not, as far as I can the ratification of a new Constitution. It is particularly stressed that the Article
figure out, suffice to overcome the outcome officially announced. Rather than specifically refers to nothing else but "amendments to this Constitution" which
try to form a conclusion out of the raw evidence before Us which the parties if ratified "shall be valid as part of this Constitution." Indeed, how can a whole
did not care to really complete, I feel safer by referring to the results announced new constitution be by any manner of reasoning an amendment to any other
in the proclamation itself. Giving substantial allowances for possible error and constitution and how can it, if ratified, form part of such other constitution? In
downright manipulation, it must not be overlooked that, after all, their having fact, in the Tolentino case I already somehow hinted this point when I made
been accepted and adopted by the President, based on official reports reference in the resolution denying the motion for reconsideration to the fact
submitted to him in due course of performance of duty of appropriate that Article XV must be followed "as long as any amendment is formulated and
subordinate officials, elevated them to the category of an act of a coordinate submitted under the aegis of the present Charter." Said resolution even added.
department of the government which under the principle separation of powers "(T)his is not to say that the people may not, in the exercise of their inherent
is clothed with presumptive correctness or at least entitled to a high degree of revolutionary powers, amend the Constitution or promulgate an entirely new
acceptability, until overcome by better evidence, which in these cases does one otherwise.".
not exist. In any event, considering that due to the unorthodoxy of the
procedure adopted and the difficulty of an accurate checking of all the figures,
It is not strange at all to think that the amending clause of a constitution should
I am unable to conceive of any manageable means of acquiring information
be confined in its application only to proposed changes in any part of the same
upon which to predicate a denial, I have no alternative but to rely on what has constitution itself, for the very fact that a new constitution is being adopted
been officially declared. At this point, I would venture to express the feeling implies a general intent to put aside the whole of the old one, and what would
that if it were not generally conceded that there has been sufficient showing of
be really incongrous is the idea that in such an eventuality, the new
the acceptance in question by this time, there would have been already
Constitution would subject its going into effect to any provision of the
demonstrative and significant indications of a rather widespread, if not
constitution it is to supersede, to use the language precisely of Section 6,
organized resistance in one form or another. Much as they are to be given due
Article XVII, the effectivity clause, of the New Constitution. My understanding
recognition as magnificent manifestations of loyalty and devotion to principles, is that generally, constitutions are self-born, they very rarely, if at all, come into
I cannot accord to the filing of these cases as indicative enough of the general being, by virtue of any provision of another constitution. 3 This must be the
attitude of the people.
reason why every constitution has its own effectivity clause, so that if, the
Constitutional Convention had only anticipated the idea of the referendum and
It is true that in the opinion I had the privilege of penning the Court in Tolentino provided for such a method to be used in the ratification of the New
vs. Comelec, 41 SCRA 702, I made strong and unequivocal pronouncements Constitution, I would have had serious doubts as to whether Article XV could
to the effect that any amendment to the Constitution of 1935, to be valid, must have had priority of application.
appear to have been made in strict conformity with the requirements of Article
XV thereof. What is more, that decision asserted judicial competence to inquire
2. When an entirely new constitution is proposed to supersede the existing
into the matter of compliance or non compliance as a justiciable matter. I still
one, we cannot but take into consideration the forces and the circumstances
believe in the correctness of those views and I would even add that I sincerely
dictating the replacement. From the very nature of things, the proposal to
feel it reflects the spirit of the said constitutional provision. Without trying to ordain a new constitution must be viewed as the most eloquent expression of
strain any point however, I, submit the following considerations in the context
a people's resolute determination to bring about a massive change of the
of the peculiar circumstances of the cases now at bar, which are entirely
existing order, a meaningful transformation of the old society and a responsive
different from those in the backdrop of the Tolentino rulings I have referred to.
reformation of the contemporary institutions and principles. Accordingly,
should any question arise as to its effectivity and there is some reasonable
indication that the new charter has already received in one way or another the of such a gesture that concerns me. More than that, there is the stark reality
sanction of the people, I would hold that the better rule is for the courts to defer that the Senators and the Congressmen, no less than the President, have
to the people's judgment, so long as they are convinced of the fact of their taken the same oath of loyalty to the Constitution that we, the Justices, have
approval, regardless of the form by which it is expressed provided it be taken and they are, therefore, equally bound with Us to preserve and protect
reasonably feasible and reliable. Otherwise stated, in such instances, the the Constitution. If as the representatives of the people, they have already
courts should not bother about inquiring into compliance with technical opted to accept the New Constitution as the more effective instrument for
requisites, and as a matter of policy should consider the matter non-justiciable. fulfillment of the national destiny, I really wonder if there is even any idealistic
worth in our desperately clinging by Ourselves alone to Our sworn duty vis-a-
3. There is still another circumstance which I consider to be of great relevancy. vis the 1935 Constitution. Conscious of the declared objectives of the new
I refer to the ostensible reaction of the component elements, both collective dispensation and cognizant of the decisive steps being with the least loss of
and individual, of the Congress of the Philippines. Neither the Senate nor the time, towards their accomplishment, cannot but feel apprehensive that instead
House of Representatives has been reported to have even made any of serving the best interests of our people, which to me is in reality the real
appreciable effort or attempt to convene as they were supposed to do under meaning of our oath of office, the Court might be standing in the way of the
the Constitution of 1935 on January 22, 1973 for the regular session. It must very thing our beloved country needs to retrieve its past glory and greatness.
be assumed that being composed of experienced, knowledgeable and In other words, it is my conviction that what these cases demand most of all is
courageous members, it would not have been difficult for said parliamentary not a decision demonstrative of our legal erudition and Solomonic wisdom but
bodies to have conceived some ingenious way of giving evidence of their an all rounded judgment resulting from the consideration of all relevant
determined adherence to the Constitution under which they were elected. circumstances, principally the political, or, in brief, a decision more political
Frankly, much as I admire the efforts of the handful of senators who had their than legal, which a court can render only by deferring to the apparent judgment
picture taken in front of the padlocked portals of the Senate chamber, I do not of the people and the announcement thereof by the political departments of
feel warranted to accord such act as enough token of resistance. As counsel the government and declaring the matter non-justiciable.
Tolentino has informed the court, there was noting to stop the senators and
the congressmen to meet in any other convenient place and somehow officially 4. Viewed from the strictly legal angle and in the light of judicial methods of
organize themselves in a way that can logically be considered as a session, ascertainment, I cannot agree with the Solicitor General that in the legal sense,
even if nothing were done than to merely call the roll and disperse. Counsel there has been at least substantial compliance with Article XV of the 1935
Tolentino even pointed out that if there were not enough members to form a Constitution, but what I can see is that in a political sense, the answers to the
quorum, any smaller group could have ordered the arrest of the absent referendum questions were not given by the people as legal conclusions. I
members. And with particular relevance to the present cases, it was not take it that when they answered that by their signified approval of the New
constitutionally indispensable for the presiding officers to issue any call to the Constitution, they do not consider it necessary to hold a plebiscite, they could
members to convene, hence the present prayers for mandamus have no legal not have had in mind any intent to do what was constitutionally improper.
and factual bases. And to top it all, quite to the contrary, the records of the Basically accustomed to proceed along constitutional channels, they must
Commission on Elections show that at least 15 of 24 senators and over 95 out have acted in the honest conviction that what was being done was in
of less than 120 members of the House of Representatives, have officially and conformity with prevailing constitutional standards. We are not to assume that
in writing exercised the option given to them to join the Interim National the sovereign people were indulging in a futile exercise of their supreme
Assembly under the New Constitution, thereby manifesting their acceptance political right to choose the fundamental charter by which their lives, their
of the new charter. liberties and their fortunes shall be safeguarded. In other words, we must
perforce infer that they meant their decision to count, and it behooves this
Now, having these facts in mind, and it being obvious that of the three great Court to render judgment herein in that context. It is my considered opinion
departments of the government under the 1935 Constitution, two, the that viewed understandingly and realistically, there is more than sufficient
Executive and the Legislative, have already accepted the New Constitution ground to hold that, judged by such intent and, particularly, from the political
and recognized its enforceability and enforcement, I cannot see how this standpoint, the ratification of the 1973 Constitution declared in Proclamation
Supreme Court can by judicial fiat hold back the political developments taking 1102 complies substantially with Article XV of the 1935 Charter, specially when
place and for the sake of being the guardian of the Constitution and the it is considered that the most important element of the ratification therein
defender of its integrity and supremacy make its judicial power prevail against contemplated is not in the word "election", which conceivably can be in many
the decision of those who were duly chosen by the people to be their feasible and manageable forms but in the word "approved" which may be said
authorized spokesmen and representatives. It is not alone the physical futility to constitute the substantiality of the whole article, so long as such approval is
reasonably ascertained. In the last analysis, therefore, it can be rightly said, society purported to make more realistic and feasible, rather than idealistic and
even if only in a broad sense, that the ratification here in question was cumbersomely deliberative, the attainment of our national aspirations, I am led
constitutionally justified and justifiable. to wonder whether or not we, as members of the Supreme Court are being
true to our duty to our people by refusing to follow suit and accept the realities
5. Finally, if any doubt should still linger as to the legitimacy of the New of the moment, despite our being convinced of the sincerity and laudableness
Constitution on legal grounds, the same should be dispelled by viewing the of their objectives, only because we feel that by the people's own act of
situation in the manner suggested by Counsel Tolentino and by the writer of ratifying the Constitution of 1935, they have so encased themselves within its
this opinion in his separate opinion, oft-referred to above, in the Plebiscite provisions and may, therefore, no longer take measures to redeem themselves
Cases that is, as an extra constitutional exercise by the people, under the from the situation brought about by the deficiencies of the old order, unless
leadership of President Marcos, of their inalienable right to change their they act in strict conformity therewith. I cannot believe that any people can be
fundamental charter by any means they may deem appropriate, the moment so stifled and enchained. In any event, I consider it a God-given attribute of
they are convinced that the existing one is no longer responsive to their the people to disengage themselves, if necessary, from any covenant that
fundamental, political and social needs nor conducive to the timely attainment would obstruct their taking what subsequently appears to them to be the better
of their national destiny. This is not only the teaching of the American road to the promotion and protection of their welfare. And once they have
Declaration of Independence but is indeed, a truth that is self-evident. More, it made their decision in that respect, whether sophisticatedly or crudely,
should be regarded as implied in every constitution that regardless of the whether in legal form or otherwise, certainly, there can be no court or power
language of its amending clause, once the people have given their sanction to on earth that can reverse them.
a new charter, the latter may be deemed as constitutionally permissible even
from the point of view of the preceding constitution. Those who may feel I would not be human if I should be insensitive to the passionate and eloquent
restrained to consider this view out of respect to the import of Tolentino vs. appeals of Counsels Taada and Salonga that these cases be decided on the
Comelec, supra., would be well advised to bear in mind that the case was basis of conscience. That is exactly what I am doing. But if counsel mean that
decided in the context of submission, not accomplished ratification. only by granting their petitions can this Court be worthily the bulwark of the
people's faith in the government, I cannot agree, albeit my admiration and
V respect are all theirs for their zeal and tenacity, their industry and wisdom, their
patriotism and devotion to principle. Verily, they have brought out everything
in the Filipino that these cases demand.
The language of the disputed amending clause of the 1935 Constitution should
not be deemed as the be all and end all the nation. More important than even
the Constitution itself with all its excellent features, are the people living under In times of national emergencies and crises, not arising from foreign invasion,
it their happiness, their posterity and their national destiny. There is nothing we need not fear playing opposite roles, as long as we are all animated by
that cannot be sacrificed in the pursuit of these objectives, which constitute the sincere love of country and aim exclusively at the attainment of the national
totality of the reasons for national existence. The sacred liberties and freedom destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio Luna,
enshrined in it and the commitment and consecration thereof to the forms of Mabini and so also with our patriots of the recent generations, Quezon,
democracy we have hitherto observed are mere integral parts of this totality; Osmea, Roxas, Laurel and Recto, to mention only some of them, had their
they are less important by themselves. differences of views and they did not hesitate to take diametrically opposing
sides that even reached tragic proportions, but all of them are admired and
What seems to me to be bothering many of our countrymen now is that by venerated.
denying the present petitions, the Court would be deemed as sanctioning, not
only the deviations from traditional democratic concepts and principles but also It is my faith that to act with absolute loyalty to our country and people is more
the qualified curtailment of individual liberties now being practiced, and this important than loyalty to any particular precept or provision of the Constitution
would amount, it is feared, to a repudiation of our oath to support and defend or to the Constitution itself. My oath to abide by the Constitution binds me to
the Constitution of 1935. This is certainly something one must gravely ponder whatever course of action I feel sincerely is demanded by the welfare and best
upon. When I consider, however, that the President, the Vice President, the interests of the people.
members of both Houses of Congress, not to speak of all executive
departments and bureaus under them as well as all the lower courts, including In this momentous juncture of our history, what is imperative is national unity.
the Court of Appeals have already accepted the New Constitution as an May God grant that the controversies the events leading to these cases have
instrument of a meaningful nationwide-all-level change in our government and
entail will heal after the decision herein is promulgated, so that all us Filipinos Proclamation No. 1102 would inevitably render inoperative the 1973
may forever join hands in the pursuit of our national destiny. Constitution, which is in fact the express prayer of the petitioners in G.R. No.
L-36164. Regardless of the modality of submission or ratification or adoption
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions even if it deviates from or violates the procedure delineated therefore by the
for mandamus and prohibition without costs. old Constitution once the new Constitution is ratified, adopted and/or
acquiesced in by the people or ratified even by a body or agency not duly
MAKASIAR, J., concurring: authorized therefor but is subsequently adopted or recognized by the people
and by the other official organs and functionaries of the government
established under such a new Constitution, this Court is precluded from
Assuming, without conceding, that Article XV of the 1935 Constitution inquiring into the validity of such ratification, adoption or acquiescence and of
prescribes a procedure for the ratification of constitutional amendments or of the consequent effectivity of the new Constitution. This is as it should be in a
a new Constitution and that such procedure was no complied with, the validity democracy, for the people are the repository of all sovereign powers as well
of Presidential Proclamation No. 1102 is a political, not a justiciable, issue; for as the source of all governmental authority (Pole vs. Gray, 104 SO 2nd 841
it is inseparably or inextricably link with and strikes at, because it is decisive [1958]). This basic democratic concept is expressly restated in Section 1 of
of, the validity of ratification and adoption of, as well as acquiescence of people Article II of the Declaration of Principles of the 1935 and 1973 Constitutions,
in, the 1973 Constitution and the legitimacy of the government organized and thus: "Sovereignty resides in the people and all government authority
operating thereunder. And being political, it is beyond the ambit of judicial emanates from them."
inquiry, tested by the definition of a political question enunciated inTaada, et.
al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will not
do violence to rights vested under the new Constitution, to international The legality of the submission is no longer relevant; because the ratification,
commitments forged pursuant thereto and to decisions rendered by the judicial adoption and/or acquiescence by the people cures any infirmity in its
submission or any other irregularities therein which are deemed mandatory
as well as quasi-judicial tribunals organized and functioning or whose
before submission as they are considered merely directory after such
jurisdiction has been altered by the 1973 Constitution and the government
ratification or adoption or acquiescence by the people. As Mr. Justice Brewer,
established thereunder, and will dissipate any confusion in the minds of the
then of the Kansas State Supreme Court and later Associate Justice of the
citizenry, who have been obeying the mandates of the new Constitution, as
well as exercising the rights and performing the obligations defined by the new Federal Supreme Court, stated in re Prohibitory Amendment Cases (24
Kansas 700 & 710 Reprint 499, 506): "The two important, vital elements of the
Constitution, and decrees and orders issued in implementation of the same
Legislature and a majority of the popular vote. Beyond these, other provisions
and cooperating with the administration in the renovation of our social,
are mere machineries and forms. They may not be disregarded, because by
economic and political system as re-structured by the 1973 Constitution and
them certainty as to the essentials is secured. But they are not themselves the
by the implementing decrees and orders (see Miller vs. Johnson, 18 SW 522,
essentials." (Cited in Larken vs. Gronna, 285 NW 59, 61-64, 1939).
522-526, 1892).
This was the ruling by the American Supreme Court in the 1939 case
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in
of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice
behalf of the Court, defined a political question as one which, under the
Hughes, speaking for the majority, stated that:
Constitution, is "to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government." (Taada, et al. vs. ... Thus the political departments of the government dealt with
Cuenco, et al., supra). the effect of both previous rejection and attempted withdrawal
and determined that both were ineffectual in the presence of
an actual ratification ... . This decision by the political
Article XV of the 1935 Constitution provides: "Such amendments shall be valid
as part of this Constitution when approved by a majority of the votes cast at departments of the Government as to the validity of the
an election at which the amendments are submitted to the people for adoption of the Fourteenth amendment has been accepted.
ratification." Under Article XV of the 1935 Constitution, the power to propose
constitutional amendments is vested in Congress or in a constitutional We think that in accordance with this historic precedent the
convention; while the power to ratify or reject such proposed amendments or question of the efficacy of ratifications by state legislatures, in
new Constitution is reserved by the sovereign people. The nullification of the light of previous rejection or attempted withdrawal, should
be regarded as a political question pertaining to the political
departments, with the ultimate authority in the Congress in the advance the reasoning that the present petitions pray only for the nullification
exercise of its control over the promulgation of the adoption of of the 1973 Constitution and the government operating thereunder.
the amendment.
It should be stressed that even in the Gonzales case, supra, We held that:
This view was likewise emphasized by Mr. Justice Black in his concurring
opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join, thus: Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative
The Constitution grants Congress exclusive power to control powers to Congress. It is part of the inherent powers of the people
submission of constitutional amendments. Final determination by as the repository of sovereignty in a republican state, such as ours
Congress that ratification by three-fourths of the States has taken to make, and hence, to amend their own Fundamental Law. Congress
place "is conclusive upon the courts." In the exercise of that power, may propose amendments to the same explicitly grants such power.
Congress, of course, is governed by the Constitution. However, Hence, when exercising the same, it is said that Senators and
whether submission, intervening procedure or Congressional Members of the House of Representatives act, not as members, but
determination of ratification conforms to the commands of the as component elements of a constituent assembly. When acting as
Constitution, calls for decisions by a "political department" of such, the members of Congress derive their authority from the
questions of a type which this Court has frequently designated Constitution, unlike the people, when performing the same function,
"political." And decision of a "political question" by the "political for their authority does not emanate from the Constitution they
department" to which the Constitution has committed it "conclusively are the very source of all powers of government, including the
binds the judges, as well as all other officers, citizens and subjects Constitution itself. (21 SCRA 787)
of...government." Proclamation under authority of Congress that an
amendment has been ratified will carry with it a solemn assurance by We did not categorically and entirely overturn the doctrine in Mabanag vs.
the Congress that ratification has taken place as the Constitution Lopez Vito (78 Phil. 1) that both the proposal to amend and the ratification of
commands. Upon this assurance a proclaimed amendment must be such a constitutional amendment are political in nature forming as they do the
accepted as a part of the Constitution, leaving to the judiciary its essential parts of one political scheme the amending process. WE merely
traditional authority of interpretation. To the extent that the Court's stated therein that the force of the ruling in the said case of Mabanag vs. Lopez
opinion in the present case even impliedly assumes a power to make Vito has been weakened by subsequent cases. Thus, We pronounced therein:
judicial interpretation of the exclusive constitutional authority of
Congress over submission and ratification of amendments, we are
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the
unable to agree... (American Constitutional Issues, by Pritchett, 1962 issue submitted thereto as a political one, declined to pass upon the
Ed., p. 44). question whether or not a given number of votes cast in Congress in
favor of a proposed amendment to the Constitution which was
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our being submitted to the people for ratification satisfied the three
Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1). fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes vs. Chief
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, Accountant of the Senate, Avelino vs. Cuenco, Taada vs. Cuenco
1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, and Macias vs. Commission on Elections. In the first, we held the
1971, 41 SCRA 702) on which petitioners place great reliance that the officers and employees of the Senate Electoral Tribunal are
courts may review the propriety of a submission of a proposed constitutional supervision and control, not of that of the Senate President, claimed
amendment before the ratification or adoption of such proposed amendment by the latter; in the second, this Court proceeded to determine the
by the sovereign people, hardly applies to the cases at bar; because the issue number of Senators necessary for a quorum in the Senate; in the third
involved in the aforesaid cases refers to only the propriety of the submission we nullified the election, by Senators belonging to the party having the
of a proposed constitutional amendment to the people for ratification, unlike largest number of votes in said chamber purporting to act on behalf of
the present petitions, which challenge inevitably the validity of the 1973 the party having the second largest number of votes therein, of two (2)
Constitution after its ratification or adoption thru acquiescence by the Senators belonging to the first party, as members, for the second
sovereign people. As heretofore stated, it is specious and pure sophistry to party, of the Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the
representative districts for the House of Representatives, upon the The Convention convened at Philadelphia on May 14, 1787. Article XIII of the
ground that the apportionment had not been made as may be possible Articles of Confederation and Perpetual Union stated specifically:
according to the number of inhabitants of each province. Thus we
rejected the theory advanced in these four (4) cases, that the issues The articles of this confederation shall be inviolably observed in every
therein raised were political questions the determination of which is state, and the union shall be perpetual; nor shall any alterations at any
beyond judicial review. (21 SCRA pp. 785-786); time hereafter be made in any of them; unless such alteration be
agreed to in a congress of the united states, and be afterwards
for which reason We concluded confirmed by the legislatures of every state. (See the Federalist,
Appendix II, Modern Library Ed., 1937, p. 584; emphasis supplied.)
In short, the issue whether or not a resolution of Congress before
acting as a constituent assembly violates the Constitution is But the foregoing requirements prescribed by the Articles of Confederation and
essentially justiciable, not political, and, hence, subject to judicial Perpetual Union for the alteration for the ratification of the Federal Constitution
review, and to the extent that this view may be inconsistent with the as drafted by the Philadelphia Convention were not followed. Fearful the said
stand taken in Mabanag vs. Lopez Vito, the latter should be deemed Federal Constitution would not be ratified by the legislatures as prescribed, the
modified accordingly. (p. 787, emphasis supplied.) Philadelphia Convention adopted a resolution requesting the Congress of the
Confederation to pass a resolution providing that the Constitution should be
In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA submitted to elected state conventions and if ratified by the conventions in nine
703-714). (9) states, not necessarily in all thirteen (13) states, the said Constitution shall
take effect.
The inevitable consequence therefore is that the validity of the ratification or
adoption of or acquiescence by the people in the 1973 Constitution, remains Thus, history Professor Edward Earle Mead of Princeton University recorded
a political issue removed from the jurisdiction of this Court to review. that:
One more word about the Gonzales and Tolentino cases. Both primarily It would have been a counsel of perfection to consign the new
stressed on the impropriety of the submission of a proposed constitutional constitution to the tender mercies of the legislatures of each and all of
amendment. Courts do not deal with propriety or wisdom or absence of either the 13 states. Experience clearly indicated that ratification then would
of an official act or of a law. Judicial power concerns only with the legality or have had the same chance as the scriptural camel passing through
illegality, constitutionality or unconstitutionality of an act: it inquires into the the eye of a needle. It was therefore determined to recommend to
existence of power or lack of it. Judicial wisdom is not to be pitted against the Congress that the new Constitution be submitted to conventions in the
wisdom of the political department of the government. several states especially elected to pass upon it and that, furthermore,
the new government should go into effect if and when it should be
ratified by nine of the thirteen states ... . (The Federalist, Modern
The classic example of an illegal submission that did not impair the validity of
the ratification or adoption of a new Constitution is the case of the Federal Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix;
Constitution of the United States. It should be recalled that the thirteen (13) emphasis supplied)
original states of the American Union which succeeded in liberating
themselves from England after the revolution which began on April 19, 1775 Historian Samuel Eliot Morison similarly recounted:
with the skirmish at Lexington, Massachusetts and ended with the surrender
of General Cornwallis at Yorktown, Virginia, on October 19, The Convention, anticipating that the influence of many state
1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) adopted their Articles of politicians would be Antifederalist, provided for ratification of the
Confederation and Perpetual Union, that was written from 1776 to 1777 and Constitution by popularly elected conventions in each state.
ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About Suspecting that Rhode Island, at least, would prove recalcitrant, it
six thereafter, the Congress of the Confederation passed a resolution on declared that the Constitution would go into effect as soon as nine
February 21, 1787 calling for a Federal Constitutional Convention "for the sole states ratified. The convention method had the further advantage that
and express purpose of revising the articles of confederation ... ." (Appendix I, judges, ministers, and others ineligible to state legislatures, could be
Federalist, Modern Library ed., p. 577, emphasis supplied). elected to a convention. The nine-state provision was, of course,
mildly revolutionary. But the Congress of the Confederation, still sitting Pomeroy's Constitutional Law, p. 55, discussing the convention that
in New York to carry on federal government until relieved, formally formulated the constitution of the United States, has this to say: "The
submitted the new constitution to the states and politely faded out convention proceeded to do, and did accomplish, what they were not
before the first presidential inauguration. (The Oxford History of the authorized to do by a resolution of Congress that called them together.
Am. People, by Samuel Eliot Morison, 1965 ed., p. 312). That resolution plainly contemplated amendments to the articles of
confederation, to be submitted to and passed by the Congress, and
And so the American Constitution was ratified by nine (9) states on June 21, afterwards ratified by all the State legislatures, in the manner pointed
1788 and by the last four states on May 29, 1790 (12 C.J. p. 679 footnote, 16 out by the existing organic law. But the convention soon became
C.J.S., 27. by the state conventions and not by all thirteen (13) state convinced that any amendments were powerless to effect a cure; that
legislatures as required by Article XIII of the Articles of Confederation and the disease was too deeply seated to be reached such tentative
Perpetual Union aforequoted and in spite of the fact that the Federal means. They saw that the system they were called to improve must
Constitution as originally adopted suffers from two basic infirmities, be totally abandoned, and that the national idea must be re-
namely, the absence of a bill of Rights and of a provision affirming the power established at the center of their political society. It was objected by
of judicial review. some members, that they had no power, no authority, to construct a
new government. They had no authority, if their decisions were to be
final; and no authority whatsoever, under the articles of confederation,
The liberties of the American people were guaranteed by subsequent
to adopt the course they did. But they knew that their labors were only
amendments to the Federal Constitution. The doctrine of judicial review has
to be suggestions; and that they as well as any private individuals, and
become part of American constitutional law only by virtue of a judicial
pronouncement by Chief Justice Marshall in the case of Marbury vs. any private individuals as well as they, had a right to propose a plan
Madison (1803, 1 Cranch 137). of government to the people for their adoption. They were, in fact, a
mere assemblage of private citizens, and their work had no more
binding sanction than a constitution drafted by Mr. Hamilton in his
Until this date, no challenge has been launched against the validity of the office would have had. The people, by their expressed will,
ratification of the American Constitution, nor against the legitimacy of the transformed this suggestion, this proposal, into an organic law, and
government organized and functioning thereunder. the people might have done the same with a constitution submitted to
them by a single citizen."
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330),
which enunciated the principle that the validity of a new or revised Constitution xxx xxx xxx
does not depend on the method of its submission or ratification by the people,
but on the fact or fiat or approval or adoption or acquiescence by the people
which fact of ratification or adoption or acquiescence is all that is essential, the ... When the people adopt a completely revised or new constitution,
the framing or submission of the instrument is not what gives it binding
Court cited precisely the case of the irregular revision and ratification by state
force and effect. The fiat of the people and only the fiat of the people,
conventions of the Federal Constitution, thus:
can breathe life into a constitution.
No case identical in its facts with the case now under consideration
has been called to our attention, and we have found none. We think xxx xxx xxx
that the principle which we apply in the instant case was very clearly
applied in the creation of the constitution of the United States. The ... We do not hesitate to say that a court is never justified in placing by
convention created by a resolution of Congress had authority to do implication a limitation upon the sovereign. This would be an
one thing, and one only, to wit, amend the articles of confederation. authorized exercise of sovereign power by the court. In State v. Swift,
This they did not do, but submitted to the sovereign power, the people, 69 Ind. 505, 519, the Indiana Supreme Court said: "The people of a
a new constitution. In this manner was the constitution of the United State may form an original constitution, or abrogate an old one and
States submitted to the people and it became operative as the organic form a new one, at any time, without any political restriction except the
law of this nation when it had been properly adopted by the people. constitution of the United States; ... ." (37 SE 327-328, 329, emphasis
supplied.)
In the 1903 case of Weston vs. Ryan, the Court held: force from July 12, 1776 to 1788, forged as it was during the war of
independence was a revolutionary constitution of the thirteen (13) states. In
It remains to be said that if we felt at liberty to pass upon this question, the existing Federal Constitution of the United States which was adopted
and were compelled to hold that the act of February 23, 1887, is seven (7) or nine (9) years after the thirteen (13) states won their
unconstitutional and void, it would not, in our opinion, by any means independence and long after popular support for the government of the
follow that the amendment is not a part of our state Constitution. In the Confederation had stabilized was not a product of a revolution. The Federal
recent case of Taylor vs. Commonwealth (Va.) 44 S.E. 754, the Constitution was a "creation of the brain and purpose of man" in an era of
Supreme Court of Virginia hold that their state Constitution of 1902, peace. It can only be considered revolutionary in the sense that it is a radical
having been acknowledged and accepted by the officers administering departure from its predecessor, the Articles of Confederation and Perpetual
the state government, and by the people, and being in force without Union.
opposition, must be regarded as an existing Constitution irrespective
of the question as to whether or not the convention which promulgated It is equally absurd to affirm that the present Federal Constitution of the United
it had authority so to do without submitting it to a vote of the people. States is not the successor to the Articles of Confederation and Perpetual
In Brittle v. People, 2 Neb. 198, is a similar holding as to certain Union. The fallacy of the statement is so obvious that no further refutation is
provisions of the Nebraska Constitution of 1886, which were added by needed.
the Legislature at the requirement of Congress, though never
submitted to the people for their approval." (97 NW 349-350; emphasis As heretofore stated, the issue as to the validity of Proclamation No. 1102
supplied). strikes at the validity and enforceability of the 1973 Constitution and of the
government established and operating thereunder. Petitioners pray for a
Against the decision in the Wheeler case, supra, confirming the validity of the declaration that the 1973 Constitution is inoperative (L-36164). If Proclamation
ratification and adoption of the American Constitution, in spite of the fact that No. 1102 is nullified, then there is no valid ratification of the 1973 Constitution
such ratification was in clear violation of the prescription on alteration and and the inevitable conclusion is that the government organized and functioning
ratification of the Articles of Confederation and Perpetual Union, petitioners in thereunder is not a legitimate government.
G.R. No. L-36165 dismissed this most significant historical fact by calling the
Federal Constitution of the United States as a revolutionary one, invoking the That the issue of the legitimacy of a government is likewise political and not
opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27, that it was a justiciable, had long been decided as early as the 1849 case of Luther vs.
revolutionary constitution because it did not obey the requirement that the Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of Taylor vs.
Articles of Confederation and Perpetual Union can be amended only with the Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the case
consent of all thirteen (13) state legislatures. This opinion does not cite any of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S.
decided case, but merely refers to the footnotes on the brief historic account 118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements
of the United States Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. in both Borden and Beckham cases, it is sufficient for us to quote the decision
18 of their main Notes, refer US to pp. 270-316 of the Oxford History of the in Pacific States Telephone and Telegraph Co., supra, penned by Mr. Chief
American People, 1965 Ed. by Samuel Eliot Morison, who discusses the Justice White, who re-stated:
Articles of Confederation and Perpetual Union in Chapter XVIII captioned
"Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX In view of the importance of the subject, the apparent
on "The Creative Period in Politics, 1785-1788," Professor Morison delineates misapprehension on one side and seeming misconception on the
the genesis of the Federal Constitution, but does not refer to it even implicitly
other, suggested by the argument as to the full significance of the
as revolutionary constitution (pp. 297-316). However, the Federal Constitution
previous doctrine, we do not content ourselves with a mere citation of
may be considered revolutionary from the view point of McIver if the the cases, but state more at length than we otherwise would the issues
term revolution is understood in "its wider sense to embrace decisive changes
and the doctrine expounded in the leading and absolutely controlling
in the character of government, even though they do not involve the violent case Luther v. Borden, 7 How. 1, 12 L.ed. 581.
overthrow of an established order, ... ." (R.M. MacIver, The Web of
Government, 1965 ed., p. 203).
xxx xxx xxx
It is rather ridiculous to refer to the American Constitution as a revolutionary
constitution. The Articles of Confederation and Perpetual Union that was in ... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this inquiry, proposed by necessary to be decided concerning the nature and effect of the
the plaintiff, and it should be decided that the character government guaranty of S 4 of article 4, it was said (p. 578):
had no legal existence during the period of time above mentioned,
if it had been annulled by the adoption of the opposing government, "But it is said that the 14th Amendment must be read with S 4 of article
then the laws passed by its legislature during that time were 4, of the Constitution, providing that the United States shall guarantee
nullities; its taxes wrongfully collected, its salaries and compensations to every state in this Union a republican form of government, and shall
to its officers illegally paid ; its public accounts improperly settled and protect each of them against invasion; and on application of the
the judgments and sentences of its courts in civil and criminal cases legislature, or the Executive (when the legislature cannot be
null and void, and the officers who carried their decisions into convened), against domestic violence."
operation answerable as trespassers, if not in some cases as
criminals."
xxx xxx xxx
xxx xxx xxx "It was long ago settled that the enforcement of this guaranty belonged
to the political department. Luther v. Borden, 7 How. 1, 12 L.ed. 581.
"The fourth section of the fourth article of the Constitution of the United In that case it was held that the question, which of the two opposing
States shall guarantee to every state in the Union a republican form of governments of Rhode Island, namely, the charter government or the
government, and shall protect each of them against invasion; and on government established by a voluntary convention, was the legitimate
the application of the Legislature or of the Executive (when the one, was a question for the determination of the political department;
legislature cannot be convened) against domestic violence. and when that department had decided, the courts were bound to take
notice of the decision and follow it."
"Under this article of the Constitution it rests with Congress to decide
what government is established one in a state. For, as the United State xxx xxx xxx
guarantee to each state a republican government, Congress must
necessarily decide what government is established in the state before As the issues presented, in their very essence, are, and have long
it can determine whether it is republican or not. And when the senators
since by this Court been, definitely determined to be political and
and representatives of a state are admitted into the Councils of the
governmental, and embraced within the scope of the scope of the
Union, the authority of the government under which they were
powers conferred upon Congress, and not, therefore within the reach
appointed, as well as its republican character, is recognized by the of judicial power, it follows that the case presented is not within our
proper constitutional authority. And its decision is binding on every jurisdiction, and the writ of error must therefore be, and it is, dismissed
other department of the government, and could not be questioned in
for want of jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).
a judicial tribunal. It is true that the contest in this case did not last long
enough to bring the matter to this issue; and as no senators or
representatives were elected under the authority of the government of Even a constitutional amendment that is only promulgated by the
which Mr. Dorr was the head, Congress was not called upon to decide Constitutional Convention without authority therefor and without submitting the
the controversy. Yet the right to decide is placed there and not in the same to the people for ratification, becomes valid, when recognized, accepted
courts." and acted upon the by Chief of State and other government functionaries, as
well as by the people. In the 1903 case of Taylor vs. Commonwealth (44 SE
754-755), the Court ruled:
xxx xxx xxx
The sole ground urged in support of the contention that Constitution
... We do not stop to cite other cases which indirectly or incidentally
proclaimed in 1902 is invalid is that it was ordained and promulgated
refer to the subject, but conclude by directing attention to the
by the convention without being submitted for ratification or rejection
statement by the court, speaking through Mr. Chief Justice Fuller, in
by the people of the commonwealth.
Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep.
890, 1009, where, after disposing of a contention made concerning
the 14th Amendment, and coming to consider a proposition which was The Constitution of 1902 was ordained and proclaimed by convention
duly called by direct vote of the people of the state to revise and
amend the Constitution of 1869. The result of the work that the by the people (and the people are the principal in this instance) renders the
convention has been recognized, accepted, and acted upon as the act valid and binding."
only valid Constitution of the state by the Governor in swearing fidelity
to it and proclaiming it, as directed thereby; by the Legislature in its It has likewise been held that it is not necessary that voters ratifying the new
formal official act adopting a joint resolution, July 15, 1902, Constitution are registered in the book of voters; it is enough that they are
recognizing the Constitution ordained by the convention which electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45
assembled in the city of Richmond on the 12th day of June 1901, as LRA 251, emphasis supplied).
the Constitution of Virginia; by the individual oaths of members to
support it, and by its having been engaged for nearly a year in In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375),
legislating under it and putting its provisions into operation but the
the Supreme Court of Wisconsin ruled that "irregularity in the procedure for the
judiciary in taking the oath prescribed thereby to support and by
submission of the proposed constitutional amendment will not defeat the
enforcing its provisions; and by the people in their primary capacity by
ratification by the people."
peacefully accepting it and acquiescing in it, registering as voters
under it to the extent of thousands through the state, and by voting,
under its provisions, at a general election for their representatives in Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769),
the Congress of the United States. (p. 755). the Alabama Supreme Court pronounced that "the irregularity in failing to
publish the proposed constitutional amendment once in each of the 4 calendar
weeks next preceding the calendar week in which the election was held or
The Court in the Taylor case above-mentioned further said:
once in each of the 7-day periods immediately preceding the day of the
election as required by the Constitution, did not invalidate the amendment
While constitutional procedure for adoption or proposal to amend the which was ratified by the people."
constitution must be duly followed, without omitting any requisite
steps, courts should uphold amendment, unless satisfied that the The same principle was reiterated in 1961 by the Mississippi Supreme Court
Constitution was violated in submitting the proposal. ... Substance
in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they admitted
more than form must be regarded in considering whether the complete
irregularities or illegalities committed in the procedure for submission of the
constitutional system for submitting the proposal to amend the
proposed constitutional amendment to the people for ratification consisted of:
constitution was observed.
"(a) the alleged failure of the county election commissioners of the several
counties to provide a sufficient number of ballot boxes 'secured by good and
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated: substantial locks,' as provided by Section 3249, Code of 1942, Rec., to be
used in the holding of the special election on the constitutional amendment,
There may be technical error in the manner in which a proposed and (b) the alleged failure of the State Election Commissioners to comply with
amendment is adopted, or in its advertisement, yet, if followed, the requirements of Code Sections 3204 and 3205 in the appointment of
unobjected to, by approval of the electors, it becomes part of the election commissioners in each of the 82 counties. The irregularities
Constitution. Legal complaints to the submission may be made prior complained of, even if proved, were not such irregularities would have
to taking the vote, but, if once sanctioned, the amendment is embodied invalidated the election." (Emphasis supplied; see also Sylvester vs. Tindall, 8
therein, and cannot be attacked, either directly or collaterally, because SO 2nd 892; 154 Fla. 663).
of any mistake antecedent thereto. Even though it be submitted at an
improper time, it is effective for all purposes when accepted by the Even prior to the election in November, 1970 of delegates of the Constitutional
majority. Armstrong v. King, 281 Pa. 207, 126 A. 263. (130 A 409). Convention and during the deliberations of the Constitutional Convention from
June 1, 1971 until martial law was proclaimed on Sept. 21, 1972, the salient
Even if the act of the Constitutional Convention is beyond its authority, such reforms contained in the 1973 Constitution which have long been desired by
act becomes valid upon ratification or adoption or acquiescence by the people. the people, had been thoroughly discussed in the various committees of the
Thus, in the 1905 case of Ex parte Birmingham and A.R. Company (42 SO pp. Constitutional Convention, on the floor of the Convention itself, in civic forums
118 & 123), the Alabama Supreme Court upheld this principle and stated that: and in all the media of information. Many of the decrees promulgated by the
"The authorities are almost uniform that this ratification of an unauthorized act Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the
reforms and had been ratified in Sec. 3(2) of Article XVII of the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of respondents
Constitution. Puyat and Roy in L-36165).
Petitioners cannot safely state that during martial law the majority of the people In brief, it cannot be said that the people are ignoring the 1973 Constitution
cannot freely vote for these reforms and are not complying with the and the government which is enforcing the same for over 10 weeks now With
implementing decrees promulgated by the President. the petitioners herein, secessionists, rebels and subversives as the only
possible exceptions, the rest of the citizenry are complying with decrees,
Free election is not inevitably incompatible with martial law. We had free orders and circulars issued by the incumbent President implementing the 1973
elections in 1951 and 1971 when the opposition won six out of eight senatorial Constitution.
seats despite the suspension of the privileges of the writ of habeas corpus (see
Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which suspension Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW
implies constraint on individual freedom as the proclamation of martial law. In 522:
both situations, there is no total blackout of human rights and civil liberties.
If a set of men, not selected by the people according to the forms of
All the local governments, dominated either by Nacionalistas or Liberals, as law, were to formulate an instrument and declare it the constitution, it
well as officials of the Legislative and Executive branches of the government would undoubtedly be the duty of the courts declare its work a nullity.
elected and/or appointed under the 1935 Constitution have either recognized This would be revolution, and this the courts of the existing
or are now functioning under the 1973 Constitution, aside from the fact of its government must resist until they are overturned by power, and a new
ratification by the sovereign people through the Citizens Assemblies. Ninety- government established. The convention, however, was the offspring
five (95) of a total of one hundred ten (110) members of the House of of law. The instrument which we are asked to declare invalid as a
Representatives including the Speaker and the Speaker Pro Tempore as well constitution has been made and promulgated according to the forms
as about eleven (11) Congressmen who belong to the Liberal Party and fifteen of law. It is a matter of current history that both the executive and
(15) of a total of twenty-four (24) senators including Liberal senators Edgar U. legislative branches of the government have recognized its validity as
Ilarde and John Osmea opted to serve in the Interim Assembly, according to a constitution, and are now daily doing so. Is the question, therefore,
the certification of the Commission on Elections dated February 19, 1973 one of a judicial character? It is our undoubted duty, if a statute be
(Annex Rejoinder-3 to Consolidated Rejoinder of petitioners in L-36165). Only unconstitutional to so declare it; also, if a provision of the state
the five (5) petitioners in L-36165 close their eyes to a fait accompli. All the constitution be in conflict with the federal constitution, to hold the
other functionaries recognize the new government and are performing their former invalid. But this is a very different case. It may be said,
duties and exercising their powers under the 1973 Constitution, including the however, that, for every violation of or non-compliance with the law,
lower courts. The civil courts, military tribunals and quasi-judicial bodies there should be a remedy in the courts. This is not, however, always
created by presidential decrees have decided some criminal, civil and the case. For instance, the power of a court as to the acts of the other
administrative cases pursuant to such decrees. The foreign ambassadors who departments of the government is not an absolute one, but merely to
were accredited to the Republic of the Philippines before martial law continue determine whether they have kept within constitutional limits, it is a
to serve as such in our country; while two new ambassadors have been duty rather than a power, The judiciary cannot compel a co-equal
accepted by the Philippines after the ratification of the 1973 Constitution on department to perform a duty. It is responsible to the people; but if it
January 17, 1973. Copies of the 1973 Constitution had been furnished the does act, then, when the question is properly presented, it is the duty
United Nations Organization and practically all the other countries with which of the court to say whether it has conformed to the organic law. While
the Philippines has diplomatic relations. No adverse reaction from the United the judiciary should protect the rights of the people with great care and
Nations or from the foreign states has been manifested. On the contrary, our jealousy, because this is its duty, and also because, in times of great
permanent delegate to the United Nations Organization and our diplomatic popular excitement, it is usually their last resort, yet it should at the
representatives abroad appointed before martial law continue to remain in their same time be careful to overstep the proper bounds of its power, as
posts and are performing their functions as such under the 1973 Constitution. being perhaps equally dangerous; and especially where such
momentous results might follow as would be likely in this instance, if
Even the Commission on Elections is now implementing the provisions of the the power of the judiciary permitted, and its duty required, the
1973 Constitution by requiring all election registrars to register 18-year olds overthrow of the work of the convention.
and above whether literates or not, who are qualified electors under the 1973
After the American Revolution the state of Rhode Island retained its amendment to a constitution, made without calling a convention, has
colonial character as its constitution, and no law existed providing for been adopted, as required by that constitution. If it provides how it is
the making of a new one. In 1841 public meetings were held, resulting to be done, then, unless the manner be followed, the judiciary, as the
in the election of a convention to form a new one, to be submitted interpreter of that constitution, will declare the amendment
to a popular vote. The convention framed one, submitted it to a vote, invalid. Koehler v. Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W.
and declared it adopted. Elections were held for state officers, who Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep. 835. But it is a case
proceeded to organize a new government. The charter government where a new constitution has been formed and promulgated according
did not acquiesce in these proceedings, and finally declared the state to the forms of law. Great interests have already arisen under it;
under martial law. It called another convention, which in 1843 formed important rights exist by virtue of it; persons have been convicted of
a new constitution. Whether the charter government, or the one the highest crime known to the law, according to its provisions; the
established by the voluntary convention, was the legitimate one, was political power of the government has in many ways recognized it; and,
uniformly held by the courts of the state not to be a judicial, but a under such circumstances, it is our duty to treat and regard it as a valid
political question; and the political department having recognized the constitution, and now the organic law of our commonwealth.
one, it was held to be the duty of the judiciary to follow its decision.
The supreme court of the United States, in Luther v. Borden, 7 How. We need not consider the validity of the amendments made after the
1, while not expressly deciding the principle, as it held the federal convention reassembled. If the making of them was in excess of its
court, yet in the argument approves it, and in substance says that powers, yet, as the entire instrument has been recognized as valid in
where the political department has decided such a matter the judiciary the manner suggested, it would be equally an abuse of power by the
should abide by it. judiciary and violative of the rights of the people, who can and
properly should remedy the matter, if not to their liking, if it were to
Let us illustrate the difficulty of a court deciding the question: Suppose declare the instrument of a portion invalid, and bring confusion and
this court were to hold that the convention, when it reassembled, had anarchy upon the state. (emphasis supplied).
no power to make any material amendment, and that such as were
made are void by reason of the people having theretofore approved If this Court inquires into the validity of Proclamation No. 1102 and
the instrument. Then, next, this court must determine what consequently of the adoption of the 1973 Constitution it would be exercising a
amendments were material; and we find the court, in effect, making a veto power on the act of the sovereign people, of whom this Court is merely
constitution. This would be arrogating sovereignty to itself. Perhaps an agent, which to say the least, would be anomalous. This Court cannot
the members of the court might differ as to what amendments are dictate to our principal, the sovereign people, as to how the approval of the
material, and the result would be confusion and anarchy. One judge new Constitution should be manifested or expressed. The sovereign people
might say that all the amendments, material and immaterial, were void; have spoken and we must abide by their decision, regardless of our notion as
another, that the convention had then the implied power to correct to what is the proper method of giving assent to the new Charter. In this
palpable errors, and then the court might differ as to what respect, WE cannot presume to know better than the incumbent Chief
amendments are material. If the instrument as ratified by the people Executive, who, unlike the members of this Court, only last January 8, 1973,
could not be corrected or altered at all, or if the court must determine We affirmed in Osmea vs. Marcos(Pres. Election Contest No. 3, Jan. 8,
what changes were material, then the instrument, as passed upon by 1973), was re-elected by the vote of over 5 million electors in 1969 for another
the people or as fixed by the court would be lacking a promulgation by term of four years until noon of December 30, 1973 under the 1935
the convention; and, if this be essential, then the question would arise, Constitution. This Court, not having a similar mandate by direct fiat from the
what constitution are we now living under, and what is the organic law sovereign people, to execute the law and administer the affairs of government,
of the state? A suggestion of these matters shows what endless must restrain its enthusiasm to sally forth into the domain of political action
confusion and harm to the state might and likely would arise. If, expressly and exclusively reserved by the sovereign people themselves.
through error of opinion, the convention exceeded its power, and the
people are dissatisfied, they have ample remedy, without the judiciary
The people in Article XV of the 1935 Constitution did not intend to tie their
being asked to overstep the proper limits of its power. The instrument
hands to a specific procedure for popular ratification of their organic law. That
provides for amendment and change. If a wrong has been done, it can,
would be incompatible with their sovereign character of which We are
in the proper way in which it should be remedied, is by the people
reminded by Section 1, of Article II of both the 1935 and the 1973
acting as a body politic. It is not a question of whether merely an
Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people Petitioners decry that even 15-year olds, ex convicts and illiterates were
cannot violate the procedure for ratification which they themselves define in allowed to vote in the Citizens' Assemblies, despite their admission that the
their Constitution, cannot apply to a unitary state like the Republic of the term "Filipino people" in the preamble as well as "people" in Sections 1 and 5
Philippines. His opinion expressed in 1868 may apply to a Federal State like of Article II of the 1935 Constitution and in Section 1(3) of Article III of the Bill
the United States, in order to secure and preserve the existence of the Federal of Rights includes all Filipino citizens of all ages, of both sexes, whether literate
Republic of the United States against any radical innovation initiated by the or illiterate, whether peaceful citizens, rebels, secessionists, convicts or ex-
citizens of the fifty (50) different states of the American Union, which states convicts. Without admitting that ex-convicts voted in the referendum, about
may be jealous of the powers of the Federal government presently granted by which no proof was even offered, these sectors of our citizenry, whom
the American Constitution. This dangerous possibility does not obtain in the petitioners seem to regard with contempt or decision and whom petitioners
case of our Republic. would deny their sovereign right to pass upon the basic Charter that shall
govern their lives and the lives of their progenies, are entitled as much as the
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he educated, the law abiding, and those who are 21 years of age or above to
wrote his opus "Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969 express their conformity or non conformity to the proposed Constitution,
ed. pp. 445 446). It is possible that, were he live today, in a milieu vastly because their stake under the new Charter is not any less than the stake of
different from 1868 to 1898, he might have altered his views on the matter. the more fortunate among us. As a matter of fact, these citizens, whose
juridical personality or capacity to act is limited by age, civil interdiction or
ignorance deserve more solicitude from the State than the rest of the citizenry.
Even if conclusiveness is to be denied to the truth of the declaration by the
In the ultimate analysis, the inclusion of those from 15 years up to below 21
President in Proclamation No. 1102 that the people through their Citizens'
years old, the ex-convicts and the ignorant, is more democratic as it broadens
Assemblies had overwhelmingly approved the new Constitution due regard to
a separate, coordinate and co-equal branch of the government demands the base of democracy and therefore more faithful to the express affirmation
adherence to the presumption of correctness of the President's declaration. in Section 1 of Article II of the Declaration of Principles that "sovereignty
resides in the people and all government authority emanates from them."
Such presumption is accorded under the law and jurisprudence to officials in
the lower levels of the Executive branch, there is no over-riding reason to deny
the same to the Chief of State as head of the Executive Branch. WE cannot Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all
reverse the rule on presumptions, without being presumptuous, in the face of ex-convicts are banned from voting. Only those who had been sentenced to at
the certifications by the Office the Secretary of the Department of Local least one year imprisonment are disenfranchised but they recover their right of
Government and Community Development. (Annexes 1, to 1-E, Annexes 2 to suffrage upon expiration of ten years after service of sentence (Sec. 102, 1971
2-O to the compliance with manifestation filed by the Solicitor General on Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a very
behalf of the respondents public officers dated March 7, 1973). There is negligible number in any locality or barrio, including the localities of petitioners.
nothing in the records that contradicts, much less overthrow the results of the
referendum as certified. Much less are We justified in reversing the burden of Included likewise in the delegated authority of the President, is the prerogative
proof by shifting it from the petitioners to the respondents. Under the rules to proclaim the results of the plebiscite or the voting the Citizens' Assemblies.
on pleadings, the petitioners have the duty to demonstrate by clear and Petitioners deny the accuracy or correctness of Proclamation No. 1102 that
convincing evidence their claim that the people did not ratify through the the 1973 Constitution was ratified by the overwhelming vote of close to 15
Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And million citizens because there was no official certification to the results of the
have failed to do so. same from the Department of Local Governments. But there was such
certification as per Annex 1 to 1-A to the Notes submitted by the Solicitor
No member of this Tribunal is justified in resolving the issues posed by the General counsel for respondents public officers. This should suffice to dispose
cases at bar on the basis of reports relayed to him from private sources which of this point. Even in the absence of such certification, in much the same way
could be biased and hearsay, aside from the fact that such reports are not that in passing law, Congress or the legislative body is presumed to be in
contained in the record. Proclamation No. 1102 is not just an ordinary act of possession of the facts upon which such laws are predicated (Justice
the Chief Executive. It is a well-nigh solemn declaration which announces the Fernando, The Power of Judicial Review, 1967 Ed., pp. 112-11 citing Lorenzo
highest act of the sovereign people their imprimatur to the basic Charter vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford, etc.,
that shall govern their lives hereafter may be for decades, if not for [1931] 282 U.S. 251), it should likewise be presumed that the President was
generations. in possession of the fact upon which Proclamation No. 1102 was based. This
presumption is further strengthened by the fact that the Department of Local
Governments, the Department National Defense and the Philippine For the last seven (7) decades since the turn of the century, for the last thirty-
Constabulary as well the Bureau of Posts are all under the President, which five (35) years since the establishment of the Commonwealth government in
offices as his alter ego, are presumptively acting for and in behalf of the 1935 and for the last twenty seven (27) years since the inauguration of the
President and their acts are valid until disapproved or reprobated by the Republic on July 4, 1946, no tangible substantial reform had been effected,
President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. funded and seriously implemented, despite the violent uprisings in the thirties,
451). To deny the truth or the proclamation of the President as to the and from 1946 to 1952, and the violent demonstrations of recent memory.
overwhelming majority vote in the Citizens' Assemblies in favor of the new Congress and the oligarchs acted like ostriches, "burying their heads in
Constitution, is to charge the President with falsification, which is a most timeless sand. "Now the hopes for the long-awaited reforms to be within a year
grievous accusation. Under the, rules of pleadings and evidence, the or to are brighter. It would seem therefore to the duty of everyone including
petitioners have the burden of proof by preponderance of evidence in civil herein petitioners to give the present leadership the opportunity to institute and
cases and by proof beyond reasonable doubt in criminal prosecutions, where carry out the needed reforms as provided for in the new or 1973 Constitution
the accused is always presumed to be innocent. Must this constitutional right and thru the means prescribed in that same Constitution.
be reversed simply because the petitioner all assert the contrary? Is the rule
of law they pretend invoke only valid as long as it favors them? As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing
by implication a limitation upon the sovereign."
The presumption of regularity in the performance of official functions is
accorded by the law and jurisprudence to acts of public officers whose This Court in the Gonzales and Tolentino cases transcended its proper sphere
category in the official hierarchy is very much lower than that of the Chief of and encroached upon the province exclusively reserved to and by the
State. What reason is there to withhold such a presumption in favor of the sovereign people. This Court did not heed to the principle that the courts are
President? Does the fact that the President belong to the party in power and not the fountain of all remedies for all wrongs. WE cannot presume that we
that four (4) of the five (5) senators who are petitioners in L-36165 belong to alone can speak with wisdom as against the judgment of the people on the
the opposition party, justify a discrimination against the President in matters of basic instrument which affects their very lives. WE cannot determine what is
this nature? Unsupported as their word is by any credible and competent good for the people or ought to be their fundamental law. WE can only exercise
evidence under the rules of evidence, must the word of the petitioners prevail the power delegated to Us by the sovereign people, to apply and interpret the
over that of the Chief Executive, because they happen to be former senators Constitution and the laws for the benefit of the people, not against them nor to
and delegates to the Constitutional Convention? More than any of the prejudice them. WE cannot perform an act inimical to the interest of Our
petitioners herein in all these cases, the incumbent President realizes that he principal, who at any time may directly exercise their sovereign power ratifying
risks the wrath of his people being visited upon him and the adverse or hostile a new Constitution in the manner convenient to them.
verdict of history; because of the restrictions on the civil liberties of his people,
inevitable concomitants of martial law, which necessarily entail some degree It is pertinent to ask whether the present Supreme Court can function under
of sacrifice on the part of the citizenry. Until the contrary is established or the 1935 Constitution without being a part of the government established
demonstrated, herein petitioners should grant that the Chief Executive is pursuant thereto. Unlike in the Borden case, supra, where there was at least
motivated by what is good for the security and stability of the country, for the
another government claiming to be the legitimate organ of the state of Rhode
progress and happiness of the people. All the petitioners herein cannot stand
Island (although only on paper as it had no established organ except Dorr who
on the proposition that the rights under the 1935 Constitution are absolute and
represented himself to be its head; in the cases at bar there is no other
invulnerable to limitations that may be needed for the purpose of bringing government distinct from and maintaining a position against the existing
about the reforms for which the petitioners pretend to be clamoring for and in government headed by the incumbent Chief Executive. (See Taylor vs.
behalf of the people. The five (5) petitioners in L-36165 and four (4) of the Commonwealth, supra). There is not even a rebel government duly organized
seven (7) petitioners in L-36164 were all participants in the political drama of
as such even only for domestic purposes, let alone a rebel government
this country since 1946. They are witness to the frustrations of well-meaning
engaged in international negotiations. As heretofore stated, both the executive
Presidents who wanted to effect the reforms, especially for the benefit of the
branch and the legislative branch established under the 1935 Constitution had
landless and the laboring class how politics and political bargaining had
been supplanted by the government functioning under the 1973 Constitution
stymied the effectuation of such reforms thru legislation. The eight (8)
as of January 17, 1973. The vice president elected under the 1935 Constitution
petitioners in L-36164 and L-36165 may not have participated in the
does not asset any claim to the leadership of the Republic of the Philippines.
systematic blocking of the desired reforms in Congress or outside of it; but the
Can this Supreme Court legally exist without being part of any government?
question may be asked as to what exactly they did to support such reforms.
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his confused by esteemed counsel's eloquence and mastery of the spoken and
appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of the written word as well as by his eminence as law professor, author of law books,
American Bar," because during the American civil war he apparently had the political leader, and member of the newly integrated Philippine Bar.
courage to nullify the proclamation of President Lincoln suspending the
privileges of the writ of habeas corpus in Ex parte Merryman (Federal Case It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did
No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? not address likewise his challenge to the five (5) senators who are petitioners
The Editorial Board of Vol. 21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779, in L-36165 to also act as "heroes and idealists," to defy the President by
1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in Calvert holding sessions by themselves alone in a hotel or in their houses if they can
County, Maryland, of parents who were landed aristocrats as well as slave muster a quorum or by causing the arrest of other senators to secure a quorum
owners. Inheriting the traditional conservatism of his parents who belonged to and thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco,
the landed aristocracy, Taney became a lawyer in 1799, practiced law and was et al. [1949] 83 Phil. 17), if they believe most vehemently in the justice and
later appointed Attorney General of Maryland. He also was a member of the correctness of their position that the 1973 Constitution has not been validly
Maryland state legislature for several terms. He was a leader of the Federalist ratified, adopted or acquiesced in by the people since January 18, 1973 until
Party, which disintegrated after the war of 1812, compelling him to join the the present. The proclaimed conviction of petitioners in L-36165 on this issue
Democratic Party of Andrew Jackson, also a slave owner and landed would have a ring of credibility, if they proceeded first to hold a rump session
aristocrat, who later appointed him first as Attorney General of the United outside the legislative building; because it is not unreasonable to demand or
States, then Secretary of the Treasury and in 1836 Chief Justice of the United to exact that he who exhorts others to be brave must first demonstrate his own
States Supreme Court to succeed Chief Justice John Marshall, in which courage. Surely, they will not affirm that the mere filing of their petition in L-
position he continued for 28 years until he died on October 21, 1864. His death 36165 already made them "heroes and idealists." The challenge likewise
"went largely unnoticed and unregretted." Because he himself was a slave seems to insinuate that the members of this Court who disagree with
owner and a landed aristocrat, Chief Justice Taney sympathized with the petitioners' views are materialistic cowards or mercenary fence-sitters. The
Southern States and, even while Chief Justice, hoped that the Southern States Court need not be reminded of its solemn duty and how to perform it. WE
would be allowed to secede peacefully from the Union. That he had no refuse to believe that petitioners and their learned as well as illustrious
sympathy for the Negroes was revealed by his decision in Dred Scott vs. counsels, scholars and liberal thinkers that they are, do not recognize the
Sandford (19 How. 398 [1857]) where he pronounced that the American Negro sincerity of those who entertain opinions that clash with their own. Such an
is not entitled to the rights of an American citizen and that his status as a slave attitude does not sit well with the dictum that "We can differ without being
is determined by his returning to a slave state. One can therefore discern his difficult; we can disagree without being disagreeable," which distinguished
hostility towards President Lincoln when he decided Ex parte Merryman, which counsel in L-36165 is wont to quote.
animosity to say the least does no befit a judicial mind. Such a man could
hardly be spoken of as a hero of the American Bar, least of all of the American
WE reserve the right to prepare an extensive discussion of the other points
nation. The choice of heroes should not be expressed indiscriminately just to raised by petitioners, which We do not find now necessary to deal with in view
embellish one's rhetoric. of Our opinion on the main issue.
Article XVIII. Mode of Amending the Constitution Sec. 285. Form of ballot for amendment. Upon the ballots
used at all elections provided for in section 284 of this
Sec. 284. Legislative Proposals. Amendments may be Constitution, the substance or subject matter of each
proposed to this Constitution by the legislature in the manner proposed amendment shall be so printed that the nature
following: The proposed amendments shall be read in the thereof shall be clearly indicated. Following each proposed
house in which they originate on three several days, and, if amendment on the ballot shall be printed the word "Yes" and
upon the third reading, three-fifths of all the members elected immediately under that shall be printed the word "No". The
to that house shall vote in favor thereof, the proposed choice of the elector shall be indicated by a cross mark made
amendments shall be sent to the other house, in which they by him or under his direction, opposite the word expressing
shall likewise be read on three several days, and if upon the his desire, and no amendment shall be adopted unless it
third reading, three-fifths of all the members elected that receives the affirmative vote of a majority of all the qualified
house shall vote in favor of the proposed amendments, electors who vote at such election.
Constitution of Arkansas (1874): Article XIV. Amendments to the Constitution.
Article XIX. Miscellaneous Provisions. Sec. 1. Proposal in general assembly; publication; submission
to voters; governor's proclamation. The General Assembly
Sec. 22. Constitutional amendments. Either branch of the may propose Amendments to this Constitution; provided that
General Assembly at a regular session thereof may propose each Amendment shall be embraced in a separate bill,
amendments to this Constitution, and, if the same be agreed embodying the Article or Section, as the same will stand when
to by a majority of all the members, elected to each house, amended and passed by three fifths of all the members
such proposed amendments shall be entered on the journal elected to each of the two Houses, by yeas and nays, to be
with the yeas and nays, and published in at least one entered on the Journals with the proposed Amendment. The
newspaper in each county, where a newspaper is published, bill or bills proposing amendment or amendments shall be
for six months immediately preceding the next general published by order of the Governor, in at least two
election for Senators and Representatives, at which time the newspapers, in each County, where so many may be
same shall be submitted to the electors of the State for published, and where not more than one may be published,
approval or rejection, and if a majority of the electors voting at then in the newspaper, and in three newspapers published in
such election adopt such amendments, the same shall the City of Baltimore, once a week for four weeks immediately
become a part of this Constitution; but no more than three preceding the next ensuing general election, at which the
amendments shall be proposed or submitted at the same proposed amendment or amendments shall be submitted, in
time. They shall be so submitted as to enable the electors to a form to be prescribed by the General Assembly, to the
vote on each amendment separately. qualified voters of the State for adoption or rejection. The
votes cast for and against said proposed amendment or
amendments, severally, shall be returned to the Governor, in
Constitution of Kansas (1861):
the manner prescribed in other cases, and if it shall appear to
the Governor that a majority of the votes cast at said election
Article XIV. Amendments. on said amendment or amendments, severally, were cast in
favor thereof, the Governor shall, by his proclamation, declare
Sec. 1. Proposal of amendments; publications; elections. the said amendment or amendments having received said
Propositions for the amendment of this constitution may be majority of votes, to have been adopted by the people of
made by either branch of the legislature; and if two thirds of Maryland as part of the Constitution thereof, and henceforth
all the members elected to each house shall concur therein, said amendment or amendments shall be part of the said
such proposed amendments, together with the yeas and Constitution. When two or more amendments shall be
nays, shall be entered on the journal; and the secretary of submitted in the manner aforesaid, to the voters of this State
state shall cause the same to be published in at least one at the same election, they shall be so submitted as that each
newspaper in each county of the state where a newspaper is amendment shall be voted on separately.
published, for three months preceding the next election for
representatives, at which time, the same shall be submitted to Constitution of Missouri (1945):
the electors, for their approval or rejection; and if a majority of
the electors voting on said amendments, at said election, shall
Article XII. Amending the Constitution.
adopt the amendments, the same shall become a part of the
constitution. When more than one amendment shall be
submitted at the same time, they shall be so submitted as to Sec. 2(b). Submission of amendments proposed by general assembly
enable the electors to vote on each amendments separately; or by the initiative. All amendments proposed by the general assembly
and not more than three propositions to amend shall be or by the initiative shall be submitted to the electors for their approval
submitted at the same election. or rejection by official ballot title as may be provided by law, on a
separate ballot without party designation, at the next general election,
Constitution of Maryland (1867): or at a special election called by the governor prior thereto, at which
he may submit any of the amendments. No such proposed
amendment shall contain more than one amended and revised article Because before August, 1940 the Commission on Election was not yet in
of this constitution, or one new article which shall not contain more existence, the former Department of Interior (now Department of Local
than one subject and matters properly connected therewith. If Governments and Community Development) supervised the plebiscites on the
possible, each proposed amendment shall be published once a week 1937 amendment on woman's suffrage, the 1939 amendment to the
for two consecutive weeks in two newspapers of different political faith Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of
in each county, the last publication to be not more than thirty nor less the U.S. Congress) and the three 1940 amendments on the establishment of
than fifteen days next preceding the election. If there be but one a bicameral Congress, the re-election of the President and the Vice-President,
newspaper in any county, publication of four consecutive weeks shall and the creation of the Commission on Elections (ratified on June 18, 1940).
be made. If a majority of the votes cast thereon is in favor of any The supervision of said plebiscites by the then Department of Interior was not
amendment, the same shall take effect at the end of thirty days after automatic, but by virtue of an express authorization in Commonwealth Act Nos.
the election. More than one amendment at the same election shall be 34, 49 and 517.
so submitted as to enable the electors to vote on each amendment
separately. If the National Assembly then intended that the Commission on Elections
should also supervise the plebiscite for ratification of constitutional
Article XV of the 1935 Constitution does not require a specific procedure, much amendments or revision, it should have likewise proposed the corresponding
less a detailed procedure for submission or ratification. As heretofore stated, amendment to Article XV by providing therein that the plebiscite on
it does not specify what kind of election at which the new Constitution shall be amendments shall be supervised by the Commission on Elections.
submitted; nor does it designate the Commission on Elections to supervise the
plebiscite. Neither does it limit the ratification to the qualified electors as 3) If the framers of the 1935 Constitution and the people in ratifying the same
defined in Article V of the 1935 Constitution. Much less does it require the on May 14, 1935 wanted that only the qualified voters under Article V of the
publication of the proposed Constitution for any specific period before the 1935 Constitution should participate in the referendum on any amendment or
plebiscite nor does it even insinuate that the plebiscite should be supervised revision thereof, they could have provided the same in 1935 or in the 1940
in accordance with the existing election law. amendment by just adding a few words to Article XV by changing the last
phrase to "submitted for ratification to the qualified electors as defined in Article
(2) As aforequoted, Article XV does not indicate the procedure for submission V hereof," or some such similar phrases.
of the proposed Constitution to the people for ratification. It does not make any
reference to the Commission on Elections as the body that shall supervise the Then again, the term "people" in Article XV cannot be understood to
plebiscite. And Article XV could not make any reference to the Commission on exclusively refer to the qualified electors under Article V of the 1935
Elections because the original 1935 Constitution as ratified on May 14, 1935 Constitution because the said term "people" as used in several provisions of
by the people did not contain Article X on the Commission on Elections, which the 1935 Constitution, does not have a uniform meaning. Thus in the
article was included therein pursuant to an amendment by that National preamble, the term "Filipino people" refer, to all Filipino citizens of all ages of
Assembly proposed only about five (5) years later on April 11, 1940, ratified both sexes. In Section 1 of Article II on the Declaration of Principles, the term
by the people on June 18, 1940 as approved by the President of the United "people" in whom sovereignty resides and from whom all government authority
States on December 1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, emanates, can only refer also to Filipino citizens of all ages and of both sexes.
715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the But in Section 5 of the same Article II on social justice, the term "people"
original framers of the 1935 Constitution as ratified May 14, 1935 intended that comprehends not only Filipino citizens but also all aliens residing in the country
a body known as the Commission on Elections should be the one to supervise of all ages and of both sexes. Likewise, that is the same connotation of the
the plebiscite, because the Commission on Elections was not in existence then term "people" employed in Section 1(3) of Article III on the Bill of Rights
as was created only by Commonwealth Act No. 607 approved on August 22, concerning searches and seizures.
1940 and amended by Commonwealth Act No. 657 approved on June 21,
1941 (see Taada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., When the 1935 Constitution wants to limit action or the exercise of a right to
pp. 475-476; Sumulong vs. Commission, 170 Phil. 703, 708-715; 73 Phil. 288, the electorate, it does so expressly as the case of the election of senators and
290-300; Taada & Fernando, Constitution of the Philippines, 1953 ed., Vol. I,
congressmen. Section 2 Article VI expressly provides that the senators "shall
p. 5, Vol. II, pp. 11-19).
be chosen at large by the qualified electors of the Philippines as may provided
by law." Section 5 of the same Article VI specifically provides that
congressmen shall "be elected by the qualified electors." The only provision
that seems to sustain the theory of petitioners that the term "people" in Article The election laws then in force before 1938 were found in Sections 392-483 of
XV should refer to the qualified electors as defined in Article V of the 1935 the Revised Administrative Code.
Constitution is the provision that the President and Vice-President shall be
elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August
Constitution). But this alone cannot be conclusive as to such construction, 22, 1938, makes it expressly applicable to plebiscites. Yet the subsequent
because of explicit provisions of Sections 2 and 5 of Article VI, which laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for the
specifically prescribes that the senators and congressmen shall be elected by plebiscite on the constitutional amendments in 1939, 1940 and 1946, including
the qualified electors. the amendment creating the Commission on Elections, specifically provided
that the provisions of the existing election law shall apply to such plebiscites
As aforesaid, most of the constitutions of the various states of the United insofar as they are not inconsistent with the aforesaid Com. Act Nos. 492 and
States, specifically delineate in detail procedure of ratification of amendments 517, as well as Rep. Act No. 73. Thus
to or revision of said Constitutions and expressly require ratification by
qualified electors, not by the generic term "people". Commonwealth Act No. 492, enacted on September 19, 1939, calling for a
plebiscite on the proposed amendments to the Constitution adopted by the
The proposal submitted to the Ozamis Committee on the Amending Process National Assembly on September 15, 1939, consists of 8 sections and
of the 1934-35 Constitutional Convention satisfied that the amendment shall provides that the proposed amendments to the Constitution adopted in
be submitted to qualified election for ratification. This proposal was not Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino
accepted indicating that the 1934-35 Constitutional Convention did intend to people for approval or disapproval at a general election to be held throughout
limit the term "people" in Article XV of the 1935 Constitution to qualified the Philippines on Tuesday, October 24, 1939"; that the amendments to said
electors only. As above demonstrated, the 1934-35 Constitutional Convention Constitution proposed in "Res. No. 38, adopted on the same date, shall be
limits the use of the term "qualified electors" to elections of public officials. It submitted at following election of local officials," (Sec. 1, Com. Act No. 492)
did not want to tie the hands of succeeding future constitutional conventions that the said amendments shall be published in English and Spanish in three
as to who should ratify the proposed amendment or revision. consecutive issues of the Official Gazette at least ten (10) days prior to the
elections; that copies thereof shall be posted not later than October 20, 1939
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on (Sec. 2, Com. Act 492); that the election shall be conducted according to
constitutional amendment contemplates the automatic applicability of election provisions of the Election Code insofar as the same may be applicable; that
laws to plebiscites on proposed constitutional amendments or revision. within thirty (30) days after the election, Speaker of the National Assembly
shall request the President to call a special session of the Assembly for the
The very phraseology of the specific laws enacted by the National Assembly purpose of canvassing the returns and certify the results thereof (Sec. 6, Com.
and later by Congress, indicates that there is need of a statute expressly Act No. 492).
authorizing the application of the election laws to plebiscites of this nature.
Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on Commonwealth Act No. 517, consisting of 11 sections, was approved on April
September 30, 1936, consists of 12 sections and, aside from providing that 25, 1940 and provided, among others: that the plebiscite on the constitutional
"there shall be held a plebiscite on Friday, April 30, 1937, on the question of amendments providing bicameral Congress, re-election of the President and
woman's suffrage ... and that said amendment shall be published in the Official Vice-President, and the creation of a Commission on Elections shall be held
Gazette in English and Spanish for three consecutive issues at least fifteen at a general election on June 18, 1940 (Sec. 1); that said amendments shall
(15) days prior to said election, ... and shall be posted in a conspicuous place be published in three consecutive issues of the Official Gazette in English and
in its municipal and provincial office building and in its polling place not later Spanish at least 20 days prior to the election and posted in every local
than April 22, 1937" (Sec. 12, Com. Act No. 34), specifies that the provisions government office building and polling place not later than May 18, 1940 (Sec.
of the Election Law regarding, the holding of aspecial election, insofar as said 2); that the election shall be conducted in conformity with the Election Code
provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3, insofar as the same may be applicable (Sec. 3) that copies of the returns shall
Com. Act No. 34)1; and, that the votes cast according to the returns of the be forwarded to the Secretary of National Assembly and the Secretary of
board of inspectors shall be counted by the National Assembly (Sec. 10, Com. Interior (Sec. 7); that the National Assembly shall canvass the returns to certify
Act No. 34). the results at a special session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on provided they are also residents of the barrio for at least 6 months (Sec. 4,
the parity amendment consists of 8 sections provides that the Amendment R.A. No. 3590).
"shall be submitted to the people, for approval or disapproval, at a general
election which shall be held on March 11, 1947, in accordance with the Sec. 4. The barrio assembly. The barrio assembly shall consist of
provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendment shall all persons who are residents of the barrio for at least six
be published in English and Spanish in three consecutive issues of the Official months, eighteen years of age or over, citizens of the Republic of the
Gazette at least 20 days prior to the election; that copies of the same shall Philippines and who are duly registered in the list of barrio assembly
be posted in a conspicuous place and in every polling place not later than members kept by the Barrio Secretary.
February 11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act
No. 357 (Election Code) and Com. Act No. 657 creating the Commission on
The barrio assembly shall meet at least once a year to hear the annual
Elections, shall apply to the election insofar as they are not inconsistent with
report of the barrio council concerning the activities and finances of
this Act (Sec. 3, R.A. No. 73); and that within 30 days after the election, the
the barrio.
Senate and House of Representatives shall hold a joint session to canvass the
returns and certify the results thereof (Section 6, R.A. No. 73).
It shall meet also at the case of the barrio council or upon written
petition of at least One-Tenth of the members of the barrio assembly.
From the foregoing provisions, it is patent that Article XV of the 1935
Constitution does not contemplate nor envision the automatic application of
the election law; and even at that, not all the provisions of the election law were No meeting of the barrio assembly shall take place unless notice is
made applicable because the various laws aforecited contain several given one week prior to the meeting except in matters involving public
provisions which are inconsistent with the provisions of the Revised Election safety or security in which case notice within a reasonable time shall
Code (Com. Act No. 357). Moreover, it should be noted that the period for the be sufficient. The barrio captain, or in his absence, the councilman
publication of the copies of the proposed amendments was about 10 days, 15 acting as barrio captain, or any assembly member selected during the
days or 20 days, and for posting at least 4 days, 8 days or 30 days. meeting, shall act as presiding officer at all meetings of the barrio
assembly. The barrio secretary or in his absence, any member
designated by the presiding officer to act as secretary shall discharge
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election the duties of secretary of the barrio assembly.
Code shall apply to plebiscites (See. 2, R.A. No. 180, as amended, and
Section 2, Rep. Act No. 6388).
For the purpose of conducting business and taking any official action
in the barrio assembly, it is necessary that at least one-fifth of the
If the Election Code ipso facto applies to plebiscites under Article XV of the members of the barrio assembly be present to constitute a quorum.
1935 Constitution, there would be no need for Congress to expressly provide All actions shall require a majority vote of these present at the meeting
therefor in the election laws enacted after the inauguration of the there being a quorum.
Commonwealth government under the 1935 Constitution.
Sec. 5. Powers of the barrio assembly. The powers of the barrio
(5) Article XV of the 1935 Constitution does not specify who can vote and how assembly shall be as follows:
they shall vote. Unlike the various State Constitutions of the American Union
(with few exceptions), Article XV does not state that only qualified electors can
vote in the plebiscite. As above-intimated, most of the Constitutions of the a. To recommend to the barrio council the adoption of
various states of the United States provide for very detailed amending process measures for the welfare of the barrio;
and specify that only qualified electors can vote at such plebiscite or election.
b. To decide on the holding of a plebiscite as provided for in
Congress itself, in enacting Republic Act No. 3590, otherwise known as the Section 6 of this Act;
Barrio Charter, which was approved on June 17, 1967 and superseded
Republic Act No. 2370, expanded the membership of the barrio assembly to c. To act on budgetary and supplemental appropriations and
include citizens who are at least 18 years of age, whether literate or not, special tax ordinances submitted for its approval by the barrio
council; and
d. To hear the annual report council concerning the activities c. Insane or feeble-minded persons.
and finances of the assembly.
All these barrio assembly members, who are at least 18 years of age, although
Sec. 6. Plebiscite. A plebiscite may be held in the barrio when illiterate, may vote at the plebiscite on the recall of any member of the barrio
authorized by a majority vote of the members present in the barrio council or on a budgetary, supplemental appropriation, or special ordinances,
assembly, there being a quorum, or when called by at least four a valid action on which requires "a majority vote of all of the barrio assembly
members of the barrio council; Provided, however, That no plebiscite members registered in the list of the barrio secretary" (par. 5, Sec. 6, R.A. No.
shall be held until after thirty days from its approval by either body, 3590). Such plebiscite may be authorized by a majority vote of the members
and such plebiscite has been given the widest publicity in the barrio, present in the barrio assembly, there being a quorum (par. 1, Sec. 6).
stating the date, time, and place thereof, the questions or issues to be
decided, action to be taken by the voters, and such other information However, in the case of election of barrio officials, only Filipino citizens, who
relevant to the holding of the plebiscite. are at least 21 years of age, able to read and write, residents of the barrio
during the 6 months immediately preceding the election and duly registered in
All duly registered barrio assembly members qualified to vote may the list of voters kept by the barrio secretary, not otherwise disqualified, may
vote in the plebiscite. Voting procedures may be made either in writing vote (Sec. 10, R.A. No. 3590).
as in regular election, and/or declaration by the voters to the board of
election tellers. The board of election tellers shall be the same board Paragraph 2 of Section 6 likewise authorizes open voting as it provides that
envisioned by section 8, paragraph 2 of this Act, in case of vacancies "voting procedures may be made ... either in writing as in regular elections,
in this body, the barrio council may fill the same. and/or declaration by the voters to the board of election tellers."
A plebiscite may be called to decide on the recall of any member of That said paragraph 2 of Section 6 provides that "all duly registered barrio
the barrio council. A plebiscite shall be called to approve any assembly members qualified to vote may vote in the plebiscite," cannot sustain
budgetary, supplemental appropriations or special tax ordinances. the position of petitioners in G.R. No. L-36165 that only those who are 21 years
of age and above and who possess all other qualifications of a voter under
For taking action on any of the above enumerated measures, majority Section 10 of R.A. No. 3590, can vote on the plebiscites referred to in Section
vote of all the barrio assembly members registered in the list of barrio 6; because paragraph 3 of Section 6 does not expressly limit the voting to
secretary is necessary. those with the qualifications under Section 10 as said Section 6 does not
distinguish between those who are 21 or above on the one hand and those 18
xxx xxx xxx or above but below 21 on the other, and whether literate or not, to constitute a
quorum of the barrio assembly.
Sec 10. Qualifications of voters and candidates. Every citizen of the
Philippines, twenty-one years of age or over, able to read and write, Consequently, on questions submitted for plebiscite, all the registered
who has been a resident of the barrio during the six months members of the barrio assembly can vote as long as they are 18 years of age
immediately preceding the election, duly registered in the list of voters or above; and that only those who are 21 years of age or over and can read
kept by the barrio secretary, who is not otherwise disqualified, may and write, can vote in the elections of barrio officials.
vote or be a candidate in the barrio elections.
Otherwise there was no sense in extending membership in the barrio assembly
The following persons shall not be qualified to vote: to those who are at least 18 years of age, whether literate or not. Republic Act
No. 3590 could simply have restated Section 4 of Republic Act No. 2370, the
old Barrio Charter, which provided that only those who are 21 and above can
a. Any person who has been sentenced by final judgment to
be members of the barrio assembly.
suffer one year or more of imprisonment, within two years
after service of his sentence;
Counsels Salonga and Taada as well as all the petitioners in L-36165 and
two of the petitioners in L-36164 participated in the enactment of Republic Act
b. Any person who has violated his allegiance to the Republic
No. 3590 and should have known the intendment of Congress in expanding
of the Philippines; and
the membership of the barrio assembly to include all those 18 years of age The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto
and above, whether literate or not. Amoranto could be utilized as the basis for the extrapolation of the Citizens'
Assemblies in all the other provinces, cities and municipalities in all the other
If Congress in the exercise of its ordinary legislative power, not as a constituent provinces, cities and municipalities, and the affirmative votes in the Citizens'
assembly, can include 18-year olds as qualified electors for barrio plebiscites, Assemblies resulting from such extrapolation would still constitute a majority
this prerogative can also be exercised by the Chief Executive as delegate of of the total votes cast in favor of the 1973 Constitution.
the Constitutional Convention in regard to the plebiscite on the 1973
Constitution. As claimed by petitioners in L-36165, against the certification of the
Department of Local Government and Community Development that in Rizal
As heretofore stated, the statement by the President in Presidential there were 1,126,000 Yes votes and 100,310 No votes, the certification of
Proclamation No. 1102 that the 1973 Constitution was overwhelmingly ratified Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes votes against
by the people through the Citizens' Assemblies in a referendum conducted 292,530 No votes. In Cavite province, there were 249,882 Yes votes against
from January 10 to 15, 1973, should be accorded the presumption of 12,269 No votes as disclosed in Annex 1-A of respondents' Compliance (the
correctness; because the same was based on the certification by the Secretary certification by the Department of Local Government and Community
of the Department of Local Government and Community Development who Development), while the alleged certification of Governor Lino Bocalan of
tabulated the results of the referendum all over the country. The accuracy of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such a ratio is
such tabulation and certification by the said Department Secretary should extended by way of extrapolation to the other provinces, cities and towns of
likewise be presumed; because it was done in the regular performance of his the country, the result would still be an overwhelming vote in favor of the 1973
official functions aside from the fact that the act of the Department Secretary, Constitution.
as an alter ego of the President, is presumptively the act of the President
himself unless the latter disapproves or reprobates the same (Villena vs. The alleged certification by Governor Lino Bocalan of Cavite, is not true;
Secretary of Interior, 67 Phil. 451 ). The truth of the certification by the because in his duly acknowledged certification dated March 16, 1973, he
Department Secretary and the Chief Executive on the results of the states that since the declaration of martial law and up to the present time, he
referendum, is further strengthened by the affidavits and certifications of has been under house arrest in his residence in Urdaneta Village, Makati,
Governor Isidro Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon Rizal; that he never participated in the conduct of the Citizens' Assemblies on
City and Councilor Eduardo T. Parades of Quezon City. January 10 15, 1973 in the province of Cavite; that the acting chairman and
coordinator of the Citizens' Assemblies at that time was Vice-Governor
The procedure for the ratification of the 1937 amendment on woman suffrage, Dominador Camerino; and that he was shown a letter for his signature during
the 1939 amendment to the ordinance appended to the 1935 Constitution, the the conduct of the Citizens' Assemblies, which he did not sign but which he
1940 amendments establishing the bicameral Congress, creating the referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated
Commission on Elections and providing for two consecutive terms for the March 20, 1973).
President, and the 1947 parity amendment, cannot be invoked; because those
amendments were proposed by the National Assembly as expressly Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973
authorized by Article V of the 1935 Constitution respecting woman suffrage stating that on January 15, 1973, he caused the preparation of a letter
and as a constituent assembly in all the other amendments aforementioned addressed to Secretary Jose Roo of the Department of Local Government
and therefore as such, Congress had also the authority to prescribe the and Community Development showing the results of the referendum in Pasay
procedure for the submission of the proposed amendments to the 1935 City; that on the same day, there were still in any Citizens' Assemblies holding
Constitution. referendum in Pasay City, for which reason he did not send the aforesaid letter
pending submittal of the other results from the said Citizens' Assemblies; and
In the cases at bar, the 1973 Constitution was proposed by an independent that in the afternoon of January 15, 1973, he indorsed the complete certificate
Constitutional Convention, which as heretofore discussed, has the equal of results on the referendum in Pasay City to the Office of the President (Annex
power to prescribe the modality for the submission of the 1973 Constitution to 5-Rejoinder of Sol. Gen. dated March 20, 1973).
the people for ratification or delegate the same to the President of the
Republic. Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay
City also issued an affidavit dated March 15, 1973 stating that a certain Atty.
Delia Sutton of the Salonga Law Office asked him for the results of the
referendum; that he informed her that he had in his possession unsigned coming from Governor Lino Bocalan dated January 15, 1973 and marked
copies of such results which may not be considered official as they had then "Rejoinder Annex Cavite" addressed to the President of the Philippines
no knowledge whether the original thereof had been signed by the mayor; and through the Secretary of the Department of Local Government and Community
that in spite of his advice that said unsigned copies were not official, she Development and another unsigned letter reportedly from Mayor Pablo Cuneta
requested him if she could give her the unofficial copies thereof, which he gave dated January 15, 1973 and marked "Rejoinder Annex Pasay City" addressed
in good faith (Annex C-Rejoinder to the Sol. Gen.). to the Secretary of the Department of Local Government and Community
Development; that both xerox copies of the unsigned letters contain figures
There were 118,010 Yes votes as against 5,588 No votes in the Citizens' showing the results of the referendum of the Citizens' Assemblies in those
Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). The areas; and that the said letters were not received by her office and that her
fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer records do not show any such documents received by her office (Annex 2-
Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far Rejoinder of the Sol. Gen.).
as we know, there has been no Citizens' Assembly meeting in our Area,
particularly in January of this year," does not necessarily mean that there was Thus it would seem that petitioners in L-36165 have attempted to deceive this
no such meeting in said barrio; for she may not have been notified thereof and Court by representing said unsigned letters and/or certificates as duly signed
as a result she was not able to attend said meeting. Much less can it be a basis and/or containing the complete returns of the voting in the Citizens'
for the claim that there was no meeting at all in the other barrios of Quezon Assemblies.
City. The barrio captain or the secretary of the barrio assembly could have
been a credible witness. The observation We made with respect to the discrepancy between the
number of Yes votes and No votes contained in the summary report of
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Governor Rodriguez of Rizal as well as those contained in the alleged report
Ratification and Coordinating Council, certified on March 12, 1973 that as such of Governor Lino Bocalan of Cavite who repudiated the same as not having
chairman he was in charge of the compilation and tabulation of the results of been signed by him for he was then under house arrest, on the one hand, and
the referendum among the Citizens' Assemblies in Quezon City based on the the number of votes certified by the Department of Local Government and
results submitted to the Secretariat by the different Citizens' Assemblies; but Community Development, on the other, to the effect that even assuming the
many results of the referendum were submitted direct to the national agencies correctness of the figures insisted on by counsel for petitioners in L-36165, if
having to do with such activity and all of which he has no knowledge, they were extrapolated and applied to the other provinces and cities of the
participation and control (Annex 4 Rejoinder of the Sol. Gen.). country, the Yes votes would still be overwhelmingly greater than the No votes,
applies equally to the alleged discrepancy between the figures contained in
Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973 the certification of the Secretary of the Department of Local Government and
that he prepared a letter to the President dated January 15, 1973 informing Community Development and the figures furnished to counsel for petitioners
him of the results of the referendum in Rizal, in compliance with the instruction in L-36165 concerning the referendum in Camarines Sur, Bataan and Negros
of the National Secretariat to submit such letter 2 or 3 days from January 10 Occidental.
to show the trend of voting in the Citizens' Assemblies; that the figures 614,157
and 292,530 mentioned in said letter were based on the certificates of results The fact that the referendum in the municipality of Pasacao, Camarines Sur,
in his possession as of January 14, 1973, which results were made the basis shows that there were more votes in favor of the plebiscite to be held later than
of the computation of the percentage of voting trend in the province; that his those against, only serve to emphasize that there was freedom of voting
letter was never intended to show the final or complete result in the referendum among the members of the Citizens' Assemblies all over the country during
in the province as said referendum was then still going on from January 14- the referendum from January 10 to 15, 1973 (Annex-6 Camarines Sur to
17, 1973, for which reason the said letter merely stated that it was only a Rejoinder of Petitioners in L-36165). If there was no such freedom of choice,
"summary result"; and that after January 15, 1973, he sent to the National those who wanted a plebiscite would not outnumber those against holding
Secretariat all the certificates of results in 26 municipalities of Rizal for final such plebiscite.
tabulation (Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the
Lydia M. Encarnacion, acting chief of the Records Section, Department of "strong manifestation of approval of the new Constitution by almost 97% by
Local Government and Community Development, issued a certificate dated the members of the Citizens' Assemblies in Camarines Sur" (Annex-
March 16, 1973 that she was shown xerox copies of unsigned letters allegedly Camarines Sur to Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the members Salonga is not a qualified statistician, which all the more impairs his credibility.
of the Citizens' Assemblies voted overwhelmingly in favor of the new Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter
Constitution despite the fact that the second set of questions including the dated March 16, 1973 address to the Secretary of the Department of Local
question "Do you approve of the new Constitution?" was received only on Government and Community Development, refutes the said computation of
January 10. Provincial Governor Pascual stated that "orderly conduct and Professor Benjamin R. Salonga, thus:
favorable results of the referendum" were due not only to the coordinated
efforts and cooperation of all teachers and government employees in the area 1) I do not quite understand why (Problem 1) all qualified registered
but also to the enthusiastic participation by the people, showing "their voters and the 15-20-year-old youths (1972) will have to be estimated
preference and readiness to accept this new method of government to people in order to give a 101.9% estimate of the percentage participation of
consultation in shaping up government policies." (Annex-Bataan to Rejoinder the "15-20 year old plus total number of qualified voters" which does
of Petitioners in L-36165). not deem to answer the problem. This computation apparently fails to
account for some 5.6 million persons "21 years old and over" who
As heretofore stated, it is not necessary that voters ratifying the new were not registered voters (COMELEC), but who might be qualified to
Constitution are registered in the book of voters; it is enough that they are participate at the Citizen's Assembly.
electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A
744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in the 2) The official population projection of this office (medium assumption)
referendum in certain localities may exceed the number of voters actually for "15 year olds and over" as of January 1, 1973 is 22.506 million. If
registered for the 1971 elections, can only mean that the excess represents total number of participants at the Citizens' Assembly Referendum
the qualified voters who are not yet registered including those who are at least held on January 10-15, 1973 was 16.702 million, participation rate will
15 years of age and the illiterates. Although ex-convicts may have voted also therefore be the ratio of the latter figure to the former which gives
in the referendum, some of them might have been granted absolute pardon or 74.2%.
were sentenced to less than one year imprisonment to qualify them to vote
(Sec. 201, 1971 Rev. Election Code). At any rate, the ex-convicts constitute a
3) 1 cannot also understand c-2 "Solution to Problem 11." The
negligible number, discounting which would not tilt the scale in favor of the
"difference or implied number of 15-20 year olds" of 5,039,906 would
negative votes. represent really not only all 15-year olds and over who participated at
the Citizens' Assembly but might not have been registered voters at
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs the time, assuming that all the 11,661,909 registered voted at Citizens'
to the Liberal Party, stated in his letter dated March 13, 1973 that he does not Assembly. Hence, the "estimate percentage participation of 15-20
"feel authorized by the proper authorities to confirm or deny the data" years olds" of 105.6% does not seem to provide any meaningful
concerning the number of participants, the Yes votes and No votes in the information.
referendum on the new Constitution among the members of the Citizens'
Assemblies in Caloocan City, does not necessarily give rise to the inference
To obtain the participation rate of "15-20 years old" one must divide
that Mayor Samson of Caloocan City is being intimidated, having been recently
the number in this age group, which was estimated to be 4.721 million
released from detention; because in the same letter of Mayor Samson, he
as of January 1, 1973 by the population of "15 years old and over" for
suggested to counsel for petitioners in L-36165 that he can secure "the true the same period which was estimated to be 22.506 million, giving
and legitimate results of the referendum" from the Office of the President 21.0%.
(Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not
learned and eminent counsel heed such suggestion?
In Problem III, it should be observed that registered voters also include
names of voters who are already dead. It cannot therefore be
Counsel for petitioners in L-36165, to sustain their position, relies heavily on assumed that all of them participated at the Citizens' Assembly. It can
the computation of the estimated turnover in the Citizens' Assemblies therefore be inferred that "a total number of persons 15 and over
referendum on January 10 to 15, 1973 by a certain Professor Benjamin R.
unqualified/disqualified to vote" will be more than 10,548,197 and
Salonga, of the Mapua Institute of Technology, ostensibly a close relative of
hence the "difference or implied number of registered voters that
former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165
participated" will be less than 6,153,618.
(Annex M-as amended, to Consolidated Rejoinder of petitioners in L-36165 to
the Notes of Arguments and Memorandum of respondents). Professor
I have reservations on whether an "appropriate number of qualified or obey the law. But before martial law was proclaimed, many individuals fear
voters that supposedly voted" could be meaningfully estimated. such sanctions of the law because of lack of effective equal enforcement or
implementation thereof in brief, compartmentalized justice and extraneous
5) The last remark will therefore make the ratio (a) [Solution to pressures and influences frustrated the firm and just enforcement of the laws.
Problem] more than 1.71 and that for (b), accordingly, will also be less The fear that is generated by martial law is merely the fear of immediate
than 36.8%." (Annex F Rejoinder). execution and swift enforcement of the law and therefore immediate infliction
of the punishment or sanction prescribed by the law whenever it is
From the foregoing analysis of the Director of Census and Statistics as of transgressed during the period of martial law. This is not the fear that affects
January 21, 1973, the official population projection for 15-year olds and over the voters' freedom of choice or freedom to vote for or against the 1973
Constitution. Those who cringe in fear are the criminals or the law violators.
is 22,506,000. If 16,702,000 voted in the referendum, the participation ratio
Surely, petitioners do not come under such category.
would be 74.2% of 22,506,000.
(7) Petitioners likewise claim that open voting by viva voce or raising of hands
If the registered electors as of the election of November 8, 1971 numbered
11,661,909, the difference between 16,702,000 who participated in the violates the secrecy of the ballot as by the election laws. But the 1935
Constitution does not require secret voting. We search in vain for such
referendum and the registered electors of 11,661,909 for the November 8,
guarantee or prescription in said organic law. The Commission on Elections
1971 elections, is 5,040,091, which may include not only the 15-year olds and
under the 1940 Amendment, embodied as Article X is merely mandated to
above but below 21 but also the qualified electors who were not registered
insure "free, orderly and honest election." Congress, under its plenary law-
before the November 8, 1971 elections as well as illiterates who are 15 years
old and above but below 21. making authority, could have validly prescribed in the election law open voting
in the election of public officers, without trenching upon the Constitution. Any
objection to such a statute concerns its wisdom or propriety, not its legality or
Moreover, in the last Presidential election in November, 1969, We found that constitutionality. Secret balloting was demanded by partisan strife in elections
the incumbent President obtained over 5,000,000 votes as against about for elective officials. Partisanship based on party or personal loyalties does not
3,000,000 votes for his rival LP Senator Sergio Osmea, Jr., garnering a generally obtain in a plebiscite on proposed constitutional amendments or on
majority of from about 896,498 to 1,436,118 (Osmea, Jr. vs. Marcos, a new Constitution. We have seen even before and during martial law that
Presidential Election Contest No. 3, Jan. 8, 1973). voting in meetings of government agencies or private organizations is usually
done openly. This is specially true in sessions of Congress, provincial boards,
The petitioners in all the cases at bar cannot state with justification that those city councils, municipal boards and barrio councils when voting on national or
who voted for the incumbent President in 1969 did not vote in favor of the 1973 local issues, not on personalities.
Constitution during the referendum from January 10 to 15, 1973. It should also
be stressed that many of the partisans of the President in the 1969 Presidential Then again, open voting was not a universal phenomenon in the Citizens'
elections, have several members in their families and relatives who are Assemblies. It might have been true in certain areas, but that does not
qualified to participate in the referendum because they are 15 years or above necessarily mean that it was done throughout the country.
including illiterates, which fact should necessarily augment the number of
votes who voted for the 1973 Constitution.
The recent example of an open voting is the last election on March 3, 1973 of
the National Press Club officers who were elected by acclamation presided
(6) It is also urged that martial law being the rule of force, is necessarily over by its former president, petitioner Eduardo Monteclaro in L-36236 (see
inconsistent with freedom of choice, because the people fear to disagree with Bulletin Today, p. 8, March 3, 1973 issue). There can be no more hardboiled
the President and Commander-in-Chief of the Armed Forces of the Philippines group of persons than newspapermen, who cannot say that voting among
and therefore cannot voice views opposite to or critical of the position of the them by acclamation was characterized by fear among the members of the
President on the 1973 Constitution and on the mode of its ratification. National Press Club.
It is also claimed or urged that there can be no free choice during martial law Moreover, petitioners would not be willing to affirm that all the members of the
which inevitably generates fear in the individual. Even without martial law, the citizenry of this country are against the new Constitution. They will not deny
penal, civil or administrative sanction provided for the violation of ordinarily that there are those who favor the same, even among the 400,000 teachers
engenders fear in the individual which persuades the individual to comply with
among whom officers of the Department of Education campaigned for the for this purpose. He has zeroed in on areas which have been widely
ratification of the new Constitution. recognized as prime sources of the nation's difficulties land
tenancy, official corruption, tax evasion and abuse of oligarchic
Not one of the petitioners can say that the common man farmer, laborer, economic power. Clearly, he knows the targets. What is not yet certain
fisherman, lowly employee, jeepney driver, taxi driver, bus driver, pedestrian, is how accurate have been his shots. Nevertheless, there is marked
salesman, or salesgirl does not want the new Constitution, or the reforms public support for his leadership and tangible alternatives have not
provided for therein. been forthcoming. That would suggest that he may not be striking too
far from the mark.
(8) Petitioners likewise claim that there was no sufficient publicity given to the
new Constitution. This is quite inaccurate; because even before the election in The United States business community in Manila seems to have been
November, 1970 of delegates to the Constitutional Convention, the proposed re-assured by recent developments ... . (Emphasis supplied.)
reforms were already discussed in various forums and through the press as
well as other media of information. Then after the Constitutional Convention Petitioners cannot safely assume that all the peaceful citizens of the country,
convened in June, 1971, specific reforms advanced by the delegates were who constitute the majority of the population, do not like the reforms stipulated
discussed both in committee hearings as well as in the tri-media the press, in the new Constitution, as well as the decrees, orders and circulars issued to
radio and television. Printed materials on the proposed reforms were circulated implement the same. It should be recalled, as hereinbefore stated, that all
by their proponents. From June, 1971 to November 29, 1972, reforms were these reforms were the subject of discussion both in the committee hearings
openly discussed and debated except for a few days after the proclamation of and on the floor of the Constitutional Convention, as well as in public forums
martial law on September 21, 1972. From the time the Constitutional sponsored by concerned citizens or civic organizations at which Con-Con
Convention reconvened in October, 1972 until January 7, 1973, the provisions delegates as well as other knowledgeable personages expounded their views
of the new Constitution were debated and discussed in forums sponsored by thereon and in all the media of information before the proclamation of martial
private organizations universities and debated over the radio and on television. law on September 21, 1972. This is the reason why the Constitutional
The Philippines is a literate country, second only to Japan in the Far East, and Convention, after spending close to P30 million during the period from June 1,
more literate perhaps than many of mid-western and southern states of the 1971 to November 29, 1972, found it expedient to accelerate their proceedings
American Union and Spain. Many residents in about 1,500 towns and 33,000 in November, 1972 because all views that could possibly be said on the
barrios of the country have radios. Even the illiterates listened to radio proposed provisions of the 1973 Constitution were already expressed and
broadcasts on and discussed the provisions of the 1973 Constitution. circulated. The 1973 Constitution may contain some unwise provisions. But
this objection to such unwise or vague provisions, as heretofore stated, refers
As reported by the eminent and widely read columnist, Teodoro Valencia in to the wisdom of the aforesaid provisions, which issue is not for this Court to
his column in Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood decide; otherwise We will be substituting Our judgment for the judgment of the
producer director (Tora, Tora, Tora) went around the country doing a 30- Constitutional Convention and in effect acting as a constituent assembly.
minute documentary on the Philippines for American television stated that
what impressed him most in his travel throughout the country was the general VI
acceptance of the New Society by the people which he saw in his 6-week travel
from Aparri to Jolo." PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE
POWERS DURING MARTIAL LAW.
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily
Express, March 3, and Sunday Express, March 4), Secretary of the United The position of the respondent public officers that undermartial law, the
States Senate, who conducted a personal survey of the country as delegate President as Commander-in-Chief is vested with legislative powers, is
of Senator Mike Mansfield, Chairman, Committee on US-Philippine relations, sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83
states: Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs. Styer (75
Phil. 563, 571-72). The trial of General Kuroda was after the surrender of
Martial law has paved the way for a re-ordering of the basic social Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no
structure of the Philippines. President Marcos has been prompt and more martial law in the Philippines.
sure-footed in using the power of presidential decree under martial law
... Consequently, in the promulgation and enforcement of Executive secessionists, dissidents as well as subversives, martial law may restrict such
Order No. 68, the President of the Philippines has acted in conformity judicial function until the danger to the security of the state and of the people
with the generally accepted principles and policies of international law shall have been decimated.
which are part of our Constitution.
The foregoing view appears to be shared by Rossiter when he stated:
The promulgation of said executive order is an exercise by the
President of his powers as Commander in Chief of all our armed Finally, this strong government, which in some instances
forces, as upheld by this Court in the case of Yamashita vs. Styver (L- might become an outright dictatorship, can have no other
129, 42 Off. Gaz., 664) when we said purposes than the preservation of the independence of the
state, the maintenance of the existing constitutional order, and
"War is not ended simply because hostilities have ceased. the defense of the political and social liberties of the people. It
After cessation of armed hostilities, incidents of war may is important to recognize the true and limited ends of any
remain pending which should be disposed of as in time of war. practical application of the principle of constitutional
"An important incident to a conduct of war is the adoption dictatorship. Perhaps the matter may be most clearly stated
measures by the military command not only to repel and in this way: the government of a free state is proceeding on
defeat the enemies but to seize and subject to disciplinary its way and meeting the usual problems of peace and normal
measures those enemies who in their attempt to thwart or times within the limiting framework of its established
impede our military effort have violated the law of war." (Ex constitutional order. The functions of government are
parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power parceled out among a number of mutually independent offices
to create a military commission for the trial and punishment of and institutions; the power to exercise those functions is
war criminals is an aspect of waging war. And, in the language circumscribed by well-established laws, customs, and
of a writer, a military commission "has jurisdiction so long as constitutional prescriptions; and the people for whom this
the technical state of war continues. This includes the period government was instituted are in possession of a lengthy
of an armistice, or military occupation, up to the effective date catalogue of economic, political, and social rights which their
of treaty of peace, and may extend beyond, by treaty leaders recognize as inherent and inalienable. A severe crisis
agreement." (Cowles, Trial of War Criminals by Military arises the country is invaded by a hostile power, or a
Tribunals, American Bar Association Journal, June, 1944). dissident segment of the citizenry revolts, or the impact of a
world-wide depression threatens to bring the nation's
Consequently, the President as Commander-in-Chief is fully economy in ruins. The government meets the crisis by
empowered to consummate this unfinished aspect of war, namely the assuming more powers and respecting fewer rights. The
trial and punishment of war criminals, through the issuance and result is a regime which can act arbitrarily and even
enforcement of Executive Order No. 68. (83 Phil. 177-178; emphasis dictatorially in the swift adaption of measures designed to
supplied). save the state and its people from the destructive effects of
the particular crisis. And the narrow duty to be pursued by this
Chief Justice Stone of the United States Supreme Court likewise appears to strong government, this constitutional dictatorship? Simply
this and nothing more: to end the crisis and restore normal
subscribe to this view, when, in his concurring opinion in Duncan vs.
times. The government assumes no power and abridges no
Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise of
right unless plainly indispensable to that end; it extends no
the power which resides in the executive branch of the government to preserve
order and insure the public safety in times of emergency, when other branches further in time than the attainment of that end; and it makes
of the government are unable to function, or their functioning would itself no alteration in the political, social and economic structure of
threaten the public safety." (Emphasis supplied). There is an implied the nation which cannot be eradicated with the restoration of
recognition in the aforesaid definition of martial law that even in places where normal times. In short, the aim of constitutional dictatorship is
the complete restoration of the status quo ante bellum. This
the courts can function, such operation of the courts may be affected by martial
historical fact does not comport with philosophical theory, that
law should their "functioning ... threaten the public safety." It is possible that
there never has been a perfect constitutional dictatorship, is
the courts, in asserting their authority to pass upon questions which may
an assertion that can be made without fear of contradiction.
adversely affect the conduct of the punitive campaign against rebels,
But this is true of all institutions of government, and the radical reforms essential to the elimination of the causes of rebellious,
principle of constitutional dictatorship remains eternally valid insurgent or subversive conspiracies and the consequent dismantling of the
no matter how often and seriously it may have been violated rebellious, insurgent or subversive apparatus.
in practice. (Constitutional Dictatorship, 1948 ed., by Clinton
L. Rossiter, p. 7; emphasis supplied.) Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as
Proclamation No. 1102 is indispensable to the effectuation of the reforms
Finally, Rossiter expressly recognizes that during martial law, the Chief within the shortest possible time to hasten the restoration of normalcy.
Executive exercises legislative power, whether of temporary or permanent
character, thus: "Must the government be too strong for the liberties of the people; or must it
be too weak to maintain its existence?" That was the dilemma that vexed
The measures adopted in the prosecution of a constitutional President Lincoln during the American Civil War, when without express
dictatorship should never be permanent in character or effect. authority in the Constitution and the laws of the United States, he suspended
Emergency powers are strictly conditioned by their purpose and this one basic human freedom the privilege of the writ of habeas corpus in
purpose is the restoration of normal conditions. The actions directed order to preserve with permanence the American Union, the Federal
to this end should therefore be provisional. For example, measures of Constitution of the United States and all the civil liberties of the American
a legislative nature which work a lasting change in the structure of the people. This is the same dilemma that presently confronts the Chief Executive
state or constitute permanent derogations from existing law should not of the Republic of the Philippines, who, more than the Courts and Congress,
be adopted under an emergency enabling act, at least not without the must, by express constitutional mandate, secure the safety of our Republic
positively registered approval of the legislature. Permanent laws, and the rights as well as lives of the people against open rebellion, insidious
whether adopted in regular or irregular times, are for parliaments to subversion secession. The Chief Executive announced repeatedly that in
enact. By this same token, the decisions and sentences of choosing to proclaim martial law, the power expressly vested in him by the
extraordinary courts should be reviewed by the regular courts after the 1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our national
termination of the crisis. and individual survival in peace and freedom, he is in effect waging a peaceful,
democratic revolution from the center against the violent revolution and
But what if a radical act of permanent character, one working lasting subversion being mounted by the economic oligarchs of the extreme right, who
changes in the political and social fabric, is indispensable to the resist reforms to maintain their economic hegemony, and the communist
successful prosecution of the particular constitutional rebels a Maoist oriented secessionists of the extreme left who demand swift
dictatorship? The only answer can be: it must be resolutely taken and institution of reforms. In the exercise of his constitutional and statutory powers,
openly acknowledged. President Lincoln found it necessary to to save the state and to protect the citizenry against actual and threatened
proceed to the revolutionary step of emancipation in aid of his assaults from insurgents, secessionists and subversives, doctrinaire concepts
conservative purpose of preserving the Union; as a constitutional and principles, no matter how revered they may be by jurisprudence and time,
dictator he had a moral right to take this radical action. Nevertheless, should not be regarded as peremptory commands; otherwise the dead hand
it is imperative that any action with such lasting effects should of the past will regulate and control the security and happiness of the living
eventually receive the positive approval of the people or of their present. A contrary view would be to deny the self-evident proposition that
representatives in the legislature. (P. 303, emphasis supplied). constitutions and laws are mere instruments for the well-being, peace, security
and prosperity of the country and its citizenry. The law as a means of social
control is not static but dynamic. Paraphrasing Mr. Justice Frankfurter, the
From the foregoing citations, under martial law occasioned by severe crisis
Constitution is neither a printed finality nor the imprisonment of the past, but
generated by revolution, insurrection or economic depression or dislocation,
the enfolding of the future. In the vein of Mr. Justice Holmes, the meaning of
the government exercises more powers and respects fewer rights in order "to
the words of the Constitution is not to be determined by merely opening a
end the crisis and restore normal times." The government can assume
additional powers indispensable to the attainment of that end the complete dictionary. Its terms must be construed in the context of the realities in the life
restoration of peace. In our particular case, eradication of the causes that of a nation it is intended to serve. Because experience may teach one
incited rebellion and subversion as secession, is the sine qua non to the generation to doubt the validity and efficacy of the concepts embodied in the
existing Constitution and persuade another generation to abandon them
complete restoration of normalcy. Exercise of legislative power by the
entirely, heed should be paid to the wise counsel of some learned jurists that
President as Commander in Chief, upon his proclamation of martial law, is
justified because, as he professes, it is directed towards the institution of in the resolution of constitutional questions like those posed before Us
the blending of idealism and practical wisdom or progressive legal realism Hence, even the scholar, who advances academic opinions unrelated to
should be applied (see Alexander M. Bickel, the Supreme Court and the Idea factual situations in the seclusion of his ivory tower, must perforce submit to
of Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency the inexorable law of change in his views, concepts, methods and techniques
for human betterment" and constitutional law "is applied politics using the word when brought into the actual arena of conflict as a public functionary face
in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; to face with the practical problems of state, government and public
emphasis supplied). Justice Brandeis gave utterance to the truth that "Our administration. And so it is that some learned jurists, in the resolution of
Constitution is not a straight jacket. It is a living organism. As such, it is capable constitutional issues that immediately affect the lives, liberties and fortunes of
of growth or expansion and adaptation to new conditions. Growth implies the citizens and the nation, recommend the blending of idealism with practical
changes, political, economic and social." (Brandeis Papers, Harvard Law wisdom which legal thinkers prefer to identify as progressive legal realism. The
School; emphasis supplied). Harvard Professor Thomas Reed Powell national leader, who wields the powers of government, must and has to
emphasizes "practical wisdom," for "the logic of constitutional law is the innovate if he must govern effectively to serve the supreme interests of the
common sense of the Supreme Court." (Powell, the Validity of State people. This is especially true in times of great crises where the need for a
Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112, leader with vision, imagination, capacity for decision and courageous action is
138-139, cited in Bickel's Opus, supra; emphasis supplied). greater, to preserve the unity of people, to promote their well-being, and to
insure the safety and stability of the Republic. When the methods of rebellion
The eternal paradox in this finite world of mortal and fallible men is that nothing and subversion have become covert, subtle and insidious, there should be a
is permanent except change. Living organisms as well as man-made recognition of the corresponding authority on the part of the Commander-in-
institutions are not immutable. Civilized men organize themselves into a State Chief of the Armed Forces to utilize all the available techniques to suppress
only for the purpose of serving their supreme interest their welfare. To the peril to the security of the government and the State.
achieve such end, they created an agency known as the government. From
the savage era thru ancient times, the Middle Ages, the Dark Ages and the Over a century and a half ago, Thomas Jefferson, one of the founding fathers
Renaissance to this era of sophisticated electronics and nuclear weaponry, of the American Constitution and former President of the United States, who
states and governments have mutated in their search for the magic instrument personifies the progressive liberal, spoke the truth when he said that some
for their well-being. It was trial and error then as it is still now. Political men "ascribe men of the preceding age a wisdom more than human, and
philosophies and constitutional concepts, forms and kinds of government, had suppose what they did to be beyond amendment. ... But I know also, that laws
been adopted, overturned, discarded, re-adopted or modified to suit the needs and institutions must go hand in hand with the progress of the human mind.
of a given society at a particular given epoch. This is true of constitutions and As that becomes more developed, more enlightened, as new discoveries are
laws because they are not "the infallible instruments of a manifest destiny." No made, new truths disclosed and manners and opinions change, with the
matter how we want the law to be stable, it cannot stand still. As Mr. Justice change of circumstances, institutions must also advance, and keep pace with
Holmes aptly observed, every "constitution is an experiment as all life is an the times." (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989).
experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not
logic, but experience." In the pontifical tones of Mr. Justice Benjamin Nathan The wisdom of the decision of the Chief Executive can only be judged in the
Cardozo, "so long as society is inconstant, there can be no constancy in law," perspective of history. It cannot be adequately and fairly appraised within the
and "there will be change whether we will it or not." As Justice Jose P. Laurel present ambience, charged as it is with so much tension and emotion, if not
was wont to say, "We cannot, Canute-like, command the waves of progress to partisan passion. The analytical, objective historians will write the final verdict
halt." in the same way that they pronounced judgment on President Abraham
Lincoln who suspended the privilege of the writ of habeas corpuswithout any
Thus, political scientists and jurists no longer exalt with vehemence a constitutional or statutory authority therefor and of President Franklin Delano
"government that governs least." Adherents there are to the poetic dictum of Roosevelt who approved the proclamation of martial law in 1941 by the
Alexander Pope: "For forms of government let fools contest; whatever is best governor of Hawaii throughout the Hawaiian territory. President Lincoln not
administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In only emancipated the Negro slaves in America, but also saved the Federal
between, the shades vary from direct democracy, representative democracy, Republic of the United States from disintegration by his suspension of the
welfare states, socialist democracy, mitigated socialism, to outright privilege of the writ of habeas corpus, which power the American Constitution
communism which degenerated in some countries into totalitarianism or and Congress did not then expressly vest in him. No one can deny that the
authoritarianism. successful defense and preservation of the territorial integrity of the United
States was due in part, if not to a great extent, to the proclamation of martial
law over the territory of Hawaii main bastion of the outer periphery or the nullify an act of a coordinate body or to command performance by the head of
outpost of the American defense perimeter in the Pacific which protected such a co-ordinate body of his functions..
the United States mainland not only from actual invasion but also from aerial
or naval bombardment by the enemy. Parenthetically, the impartial observer Mystifying is the posture taken by counsels for petitioners in referring to the
cannot accurately conclude that the American Supreme Court acted with political question doctrine almost in mockery as a magic formula which
courage in its decision in the cases of Ex parte Milligan and Duncan vs. should be disregarded by this Court, forgetting that this magic formula
Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided constitutes an essential skein in the constitutional fabric of our government,
on April 3, 1866, and opinion delivered on December 17, 1866) after the lifting which, together with other basic constitutional precepts, conserves the unity of
of the proclamation suspending the privilege of the writ of habeas corpus, long our people, strengthens the structure of the government and assures the
after the Civil War and the Second World ended respectively on April 9 or 26, continued stability of the country against the forces of division, if not of
18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on anarchy.
September 2, 1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p. 799). Was
the delay on the part of the American Supreme Court in deciding these cases Moreover, if they have a quorum, the senators can meet anywhere. Validity of
against the position of the United States President in suspending the the acts of the Senate does not depend on the place of session; for the
privilege of the writ of habeas corpus in one case and approving the
Constitution does not designate the place of such a meeting. Section 9 of
proclamation of martial law in the other deliberate as an act of judicial
Article VI imposes upon Congress to convene in regular session every year on
statesmanship and recognition on their part that an adverse court ruling during
the 4th Monday of January, unless a different date is fixed by law, or on special
the period of such a grave crisis might jeopardize the survival of the Federal
session called by the President. As former Senator Arturo Tolentino, counsel
Republic of the United States in its life-and-death struggle against an
for respondents Puyat and Roy in L-36165, stated, the duty to convene is
organized and well armed rebellion within its own borders and against a addressed to all members of Congress, not merely to its presiding officers. The
formidable enemy from without its territorial confines during the last global fact that the doors of Congress are padlocked, will not prevent the senators
armageddon?
especially the petitioners in L-36165 if they are minded to do so, from
meeting elsewhere at the Sunken Gardens, at the Luneta Independence
VIII Grandstand, in any of the big hotels or theaters, in their own houses, or at the
Araneta Coliseum, which is owned by the father-in-law of petitioner Gerardo
DOCTRINE OF SEPARATION OF POWERS PRECLUDES Roxas in L-36165.
MANDAMUS AGAINST SENATORS.
However, a session by the Senate alone would be purely an exercise in futility,
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat for it cannot validly meet without the lower House (Sec. 10[5], Art. VI, 1935
and Jose Roy to convene the Senate of the Philippines even on the Constitution). Hence, this petition by five former senators formandamus in L-
assumption that the 1935 Constitution still subsists; because pursuant to the 36165 is useless.
doctrine of separation of powers under the 1935 Constitution, the processes
of this Court cannot legally reach a coordinate branch of the government or its And as pointed out by former Senator Arturo Tolentino, counsel for
head. This is a problem that is addressed to the Senate itself for resolution; for respondents Puyat and Roy, mandamus will lie only if there is a law imposing
it is purely an internal problem of the Senate. If a majority of the senators can on the respondents the duty to convene the body. The rule imposing such a
convene, they can elect a new Senate President and a new Senate President duty invoked by petitioners in L-36165 is purely an internal rule of the Senate;
Pro Tempore. But if they have no quorum, those present can order the arrest it is not a law because it is not enacted by both Houses and approved by the
of the absent members (Sec. 10[2], Art. VI, 1935 Constitution). If this fails, then President.
there is no remedy except an appeal to the people. The dictum ubi jus, ubi
remedium, is not absolute and certainly does not justify the invocation of the
The Constitutional provision on the convening of Congress, is addressed to
power of this Court to compel action on the part of a co-equal body or its the individual members of the legislative body (Sec. 9, Art. VI of 1935
leadership. This was emphasized with sufficient clarity by this Court in the
Constitution).
1949 case of Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the
distinguished counsels for the petitioners in L-36164 and L-36165 are familiar.
We stress that the doctrine of separation of powers and the political nature of IX
the controversy such as this, preclude the interposition of the Judiciary to
TO NULLIFY PROCLAMATION NO. 1102 AND 1973 CONSTITUTION general welfare and the preservation of the State itself, even as he reserves
REQUIRES EIGHT OR TEN VOTES OF to himself certain rights which constitute limitations on the powers of
SUPREME COURT. government. But when there is an inevitable clash between an exertion of
governmental authority and the assertion of individual freedom, the exercise
The petitioners in L-36164 and L-36236 specifically pray for a declaration that of which freedom imperils the State and the civilized society to which the
the alleged ratification of the 1973 Constitution is null and void and that the individual belongs, there can be no alternative but to submit to the superior
said 1973 Constitution be declared unenforceable and inoperative. right of the government to defend and preserve the State. In the language of
Mr. Justice Holmes often invoked by herein petitioners "when it comes
As heretofore stated, Proclamation No. 1102 is an enactment of the President to a decision involving its (state life, the ordinary rights of individuals must yield
to what he (the President) deems the necessities of the moment. Public danger
as Commander-in-Chief during martial law as directly delegated to him by
warrants the substitution of executive process for judicial process. (See Keely
Section 10(2) of Article VII of the 1935 Constitution.
vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with
regard to killing men in the actual clash of arms. And we think it is obvious,
A declaration that the 1973 Constitution is unenforceable and inoperative is although it was disputed, that the same is true of temporary detention to
practically deciding that the same is unconstitutional. The proposed prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed.,
Constitution is an act of the Constitutional Convention, which is co-equal and 411, 417).
coordinate with as well as independent of either Congress or the Chief
Executive. Hence, its final act, the 1973 Constitution, must have the same
The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom
category at the very least as the act of Congress itself.
with order and security for all, that should be the shibboleth; for freedom cannot
be enjoyed in an environment of disorder and anarchy.
Consequently, the required vote to nullify Proclamation No. 1102 and the 1973
Constitution should be eight (8) under Section 10 of Article VIII of the 1935
The incumbent Chief Executive who was trying to gain the support for his
Constitution in relation to Section 9 of the Judiciary Act or Republic Act No.
reform program long before September 21, 1972, realized almost too late that
296, as amended, or should be ten (10) under Section 2(2) of Article X of the
1973 Constitution. Should the required vote of eight (8) or ten (10), as the case he was being deceived by his partymates as well as by the opposition, who
promised him cooperation, which promises were either offered as a bargaining
may be, for the declaration of invalidity or unconstitutionality be not achieved,
leverage to secure concessions from him or to delay the institution of the
the 1973 Constitution must be deemed to be valid, in force and operative.
needed reforms. The people have been victimized by such bargaining and
dilly-dallying. To vert a terrifying blood bath and the breakdown of the Republic,
X the incumbent President proclaimed martial law to save the Republic from
being overrun by communists, secessionists and rebels by effecting the
ARTICLE OF FAITH desired reforms in order to eradicate the evils that plague our society, which
evils have been employed by the communists, the rebels and secessionists to
WE yield to no man as devotees of human rights and civil liberties. Like exhort the citizenry to rise against the government. By eliminating the evils,
Thomas Jefferson, We swear "eternal hostility towards any form of tyranny the enemies of the Republic will be decimated. How many of the petitioners
over the mind of man" as well as towards bigotry and intolerance, which are and their counsels have been utilizing the rebels, secessionists and
anathema to a free spirit. But human rights and civil liberties under a communists for their own personal or political purposes and how many of them
democratic or republican state are never absolute and never immune to are being used in turn by the aforesaid enemies of the State for their own
restrictions essential to the common weal. A civilized society cannot long purposes?
endure without peace and order, the maintenance of which is the primary
function of the government. Neither can civilized society survive without the If the petitioners are sincere in their expression of concern for the greater mass
natural right to defend itself against all dangers that may destroy its life, of the populace, more than for their own selves, they should be willing to give
whether in the form of invasion from without or rebellion and subversion from the incumbent Chief Executive a chance to implement the desired reforms.
within. This is the first law of nature and ranks second to none in the hierarchy The incumbent President assured the nation that he will govern within the
of all values, whether human or governmental. Every citizen, who prides framework of the Constitution and if at any time, before normalcy is restored,
himself in being a member or a civilized society under an established the people thru their Citizens' Assemblies, cease to believe in his leadership,
government, impliedly submits to certain constraints on his freedom for the he will step down voluntarily from the Presidency. But if, as apprehended by
the petitioners, he abuses and brutalizes the people, then to the battlements The petitions were not given due course immediately but were referred to the
we must go to man the ramparts against tyranny. This, it is believed, he knows Solicitor General as counsel for the respondents for comment, with three
only too well; because he is aware that he who rides the tiger will eventually members of the Court, including the undersigned, voting to dismiss them
end inside the tiger's stomach. He who toys with revolution will be swallowed outright. The comments were considered motions to dismiss which were set
by that same revolution. History is replete with examples of libertarians who for hearing and extensively argued. Thereafter both parties submitted their
turned tyrants and were burned at stake or beheaded or hanged or guillotined notes and memoranda on their oral arguments.
by the very people whom they at first championed and later deceived. The
most bloody of such mass executions by the wrath of a wronged people, was I.
the decapitation by guillotine of about 15,000 Frenchmen including the leaders
of the French revolution, like Robespierre, Danton, Desmoulins and Marat. He
The issues raised for determination, on which the resolution of the Motion to
is fully cognizant of the lessons of history.
Dismiss hinges, are as follows:
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED. 1. Is the question presented political and, hence, beyond the competence of
this Court to decide, or is it justiciable and fit for judicial determination?
ESGUERRA, J., concurring:
2. Was the new Constitution of November 30, 1972, ratified in accordance with
These petitions seek to stop and prohibit the respondents Executive Officers the amending process prescribed by Article XV of the 1935 Constitution?
from implementing the Constitution signed on November 30, 1972; in L-36165,
to compel respondents Gil Puyat and Jose J. Roy, President and President
3. Has the new Constitution been accepted and acquiesced in by the Filipino
Pro-Tempore, respectively, of the Senate under the 1935 Constitution, to
people?
convene the Senate in regular session which should have started on January
22, 1973; to nullify Proclamation No. 1102 of the President, issued on January
17, 1973, which declared the ratification of the Constitution on November 30, 4. Is the new Constitution actually in force and effect?
1972, by the Filipino people, through the barangays or Citizens Assemblies
established under Presidential Decree No. 86 issued on December 31, 1972, 5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners
which were empowered under Presidential Decree No. 86-A, issued on entitled to the reliefs prayed for?
January 5, 1973, to act in connection with the ratification of said Constitution.
II.
Grounds for the petitions are as follows:
The pivotal question in these cases is whether the issue raised is highly
1. That the Constitutional Convention was not a free forum for the making of a political and, therefore, not justiciable. I maintain that this Court should abstain
Constitution after the declaration of Martial Law on September 21, 1972. from assuming jurisdiction, but, instead, as an act of judicial statesmanship,
should dismiss the petitions. In resolving whether or not the question
2. The Convention was not empowered to incorporate certain provisions in the presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary
1972 Constitution because they are highly unwise and objectionable and the so as to arrive at a logical conclusion. For after the acceptance of a new
people were not sufficiently informed about them. Constitution and acquiescence therein by the people by putting it into practical
operation, any question regarding its validity should be foreclosed and all
debates on whether it was duly or lawfully ushered into existence as the
3. The President had no authority to create and empower the Citizens'
organic law of the state become political and not judicial in character.
Assemblies to ratify the new Constitution at the referendum conducted in
connection therewith, as said assemblies were merely for consultative
purposes, and The undisputed facts that led to the issuance of Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and
dissenting opinions in the Plebiscite cases decided on January 22, 1973, and
4. The provisions of Article XV of the 1935 Constitution prescribing the manner
need not be repeated here.
of amending the same were not duly observed.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential upon it the jurisdiction to declare the Constitution or any part thereof null and
Decrees Nos. 86 and 86-A, claiming that the ratification of the new Constitution void? It is the height of absurdity and impudence for a court to wage open war
pursuant to the said decrees is invalid and of no effect. Presidential Decree against the organic act to which it owes its existence. The situation in which
No. 86 organized the barangays or Citizens Assemblies composed of all this Court finds itself does not permit it to pass upon the question whether or
citizens at least fifteen years of age, and through these assemblies the not the new Constitution has entered into force and has superseded the 1935
proposed 1972 Constitution was submitted to the people for ratification. Constitution. If it declares that the present Constitution has not been validly
Proclamation No. 1102 of the President announced or declared the result of ratified, it has to uphold the 1935 Constitution as still the prevailing organic
the referendum or plebiscite conducted through the Citizens Assemblies, and law. The result would be too anomalous to describe, for then this Court would
that 14,976,561 members thereof voted for the ratification of the new have to declare that it is governed by one Constitution or the 1935 Constitution,
Constitution and 743,869 voted against it. Petitioners assail these two acts of and the legislative and executive branches by another or the 1972
the President as unauthorized and devoid of legal effect. Constitution.
But looking through the veneer of judicial conformity with which the petitions If it declares that the 1972 Constitution is now operative, how can it exercise
have been adroitly contrived, what is sought to be invalidated is the new judicial discretion in these cases when it would have no other choice but to
Constitution itself the very framework of the present Government since uphold the new Constitution as against any other one? In the circumstances it
January 17, 1973. The reason is obvious. The Presidential decrees set up the would be bereft of judicial attributes as the matter would then be not meet for
means for the ratification and acceptance of the new Constitution and judicial determination, but one addressed to the sovereign power of the people
Proclamation No. 1102 simply announced the result of the referendum or who have already spoken and delivered their mandate by accepting the
plebiscite by the people through the Citizens Assemblies. The Government fundamental law on which the government of this Republic is now functioning.
under the new Constitution has been running on its tracks normally and To deny that the new Constitution has been accepted and actually is in
apparently without obstruction in the form of organized resistance capable of operation would be flying in the face of reason and pounding one's bare head
jeopardizing its existence and disrupting its operation. Ultimately the issue is against a veritable stone wall or a heavily reinforced concrete, or simply
whether the new Constitution may be set aside by this Court. But has it the "kicking the deadly pricks" with one's bare foot in an effort to eliminate the
power and authority to assume such a stupendous task when the result of such lethal points.
invalidation would be to subject this nation to divisive controversies that may
totally destroy the social order which the Government under the new When a Constitution has been in operation for sometime, even without popular
Constitution has been admirably protecting and promoting under Martial Law? ratification at that, submission of the people thereto by the organization of the
That the new Constitution has taken deep root and the people are happy and government provided therein and observance of its prescriptions by public
contended with it is a living reality which the most articulate critics of the new officers chosen thereunder, is indicative of approval. Courts should be slow in
order cannot deny. 95 out of 108 members of the House of Representatives nullifying a Constitution claimed to have been adopted not in accordance with
have opted to serve in the interim National Assembly provided for under the constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W.
new Constitution. 15 out of 24 Senators have done likewise. The members of 522; Taylor vs Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34
the Congress did not meet anymore last January 22, 1973, not because they F 204, 207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347].
were really prevented from so doing but because of no serious effort on their
parts to assert their offices under the 1935 Constitution. In brief, the Legislative In Miller vs. Johnson, supra, the Court said:
Department under the 1935 Constitution is a thing of the past. The Executive
Department has been fully reorganized; the appointments of key executive
officers including those of the Armed Forces were extended and they took an ... But it is a case where a new constitution has been formed
oath to support and defend the new Constitution. The courts, except the and promulgated according to the forms of law. Great
Supreme Court by reason of these cases, have administered justice under the interests have already arisen under it; important rights exist
new constitution. All government offices have dealt with the public and by virtue of it; persons have been convicted of the highest
performed their functions according to the new Constitution and laws crimes known to the law, according to its provisions; the
promulgated thereunder. political power of the government has in many ways
recognized it; and, under such circumstances, it is our duty to
treat and regard it as a valid constitution, and now the organic
If the real purpose of the petitions is to set aside the new Constitution, how can law of our state. We need not consider the validity of the
this Court justify its assumption of jurisdiction when no power has ... conferred amendments made after the convention reassembled. If the
making of them was in excess of its power, yet as the entire pages 22-25 of the Comments of the Solicitor General, dated February 3,
instrument has been recognized as valid in the manner 1973.)
suggested, it would be equally an abuse of power by the
judiciary, and violative of the rights of the people, who can Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees
and properly should remedy the matter, if not to their liking, Nos. 86 and 86-A by this Court would smack of plain political meddling which
if it were to declare the instrument or a portion invalid, and is described by the United States Supreme Court as "entering a political
bring confusion and anarchy upon the state. (Emphasis thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it would be
supplied) the part of wisdom for this Court to adopt the proper attitude towards political
upheavals and realize that the question before Us is political and not fit for
In Smith vs. Good, supra, the Court said: judicial determination. For a political question is one entrusted to the people
for judgment in their sovereign capacity (Taada vs. Cuenco, G.R. No. L-
It is said that a state court is forbidden from entering upon such an 10520, Feb. 28,1967; 100 Phil. 1101), or to a co-equal and coordinate branch
inquiry when applied to a new constitution, and not an amendment, of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito,
because the judicial power presupposes an established government, 78 Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No.
and if the authority of that government is annulled and overthrown, the 4638, May 8, 1931). A case involves a political question when there would be
power of its courts is annulled with it; therefore, if a state court should "the impossibility of undertaking independent resolutions without expressing a
enter upon such an inquiry, come to the conclusion that the lack of respect due to coordinate branches of government", or when there is
government under which it acted had been displaced by an opposing "the potentiality of embarrassment from multifarious pronouncements by
government, it would cease to be a court, and it would be incapable of various departments on one question."
pronouncing a judicial decision upon the question before it; but, if it
decides at all, it must necessarily affirm the existence of the To preserve the prestige and eminence that this Court has long enjoyed as the
government under which it exercises its judicial powers. (Emphasis "ultimate organ of the "Supreme Law of the Land" in that vast range of legal
supplied) problems often strongly entangled in popular feeling on which this Court must
pronounce", let us harken to the following admonition of Justice Frankfurter in
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed. his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
581, 598 (1849) where it was held:
The Court's authority possessed neither of the purse nor the sword
Judicial power presupposes an established government capable of ultimately rests on sustained public confidence in its moral sanction.
enacting laws and enforcing their execution, and appointing judges to Such feeling must be nourished by the Court's complete detachment,
expound and administer them. The acceptance of the judicial office is in fact and appearance, from political entanglements and abstention
a recognition of the authority of government from which it is derived. from injecting itself into the clash of political forces in political
And if the authority of the government is annulled and overthrown, the settlement. ..." (Emphasis supplied)
power of its courts and other officers is annulled with it. And if a State
court should enter upon the inquiry proposed in this case, and should The people have accepted and submitted to a Constitution to replace the 1935
come to conclusion that the government under which it acted had been Constitution. The new organic law is now in the plenitude of its efficacy and
put aside and displaced by an opposing government it would cease to vigor. We are now living under its aegis and protection and only the cynics will
be a court, and be incapable of pronouncing a judicial decision upon deny this. This Court should not in the least attempt to act as a super-
the question it undertook to try. If it decides at all as a court, it legislature or a super-board of canvassers and sow confusion and discord
necessarily affirms the existence and authority of the government among our people by pontificating there was no valid ratification of the new
under which it is exercising judicial power. Constitution. The sober realization of its proper role and delicate function and
its consciousness of the limitations on its competence, especially situations
The foreign relations of the Republic of the Philippines have been normally like this, are more in keeping with the preservation of our democratic tradition
conducted on the basis of the new Constitution and no state with which we than the blatant declamations of those who wish the Court to engage in their
maintain diplomatic relations has withdrawn its recognition of our government. brand of activism and would not mind plunging it into the whirlpool of passion
(For particulars about executive acts done under the new Constitution, see and emotion in an effort to capture the intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions. charged with the special duty of determining the limitations which the law
places upon all official actions 4. In the case of Gonzales v. Commission on
ZALDIVAR, J., concurring and dissenting: Elections 5, this Court ruled that the issue as to whether or not a resolution of
Congress acting as a constituent assembly violates the Constitution is not a
political question and is therefore subject to judicial review. In the case
In these five cases, the main issue to be resolved by Court is whether or not
of Avelino v. Cuenco 6, this Court held that the exception to the rule that courts
the Constitution proposed by the Constitutional Convention of 1971 had been
will not interfere with a political question affecting another department is when
ratified in accordance with the provisions of Article XV of the 1935 Constitution.
In the plebiscite cases, which were decided by this Court on January 22, such political question involves an issue as to the construction and
1973 1, I held the view that this issue could be properly resolved by this Court, interpretation of the provision of the constitution. And so, it has been held that
the question of whether a constitution shall be amended or not is a political
and that it was in the public interest that this Court should declare then whether
question which is not in the power of the court to decide, but whether or not
or not the proposed Constitution had been validly ratified. The majority of this
the constitution has been legally amended is a justiciable question. 7
Court, however, was of the view that the issue was not squarely raised in those
cases, and so the Court, as a body, did make any categorical pronouncement
on the question of whether or not the Constitution proposed by the 1971 My study on the subject of whether a question before the court is political or
Convention was validly ratified. I was the only one who expressed the opinion judicial, based on decisions of the courts in the United States where, after
that the proposed Constitution was not validly ratified and therefore "it should all, our constitutional system has been patterned to a large extent made me
not be given force and effect." arrive at the considered view that it is in the power of this Court, as the ultimate
interpreter of the Constitution, to determine the validity of the proposal, the
The Court is now called upon to declare, and to inform the people of this submission, and the ratification of any change in the Constitution. Ratification
country, whether or not that proposed Constitution had been validly ratified or non-ratification of a constitutional amendment is a vital element in the
procedure to amend the constitution, and I believe that the Court can inquire
and had come into effect.
into, and decide on, the question of whether or not an amendment to the
constitution, as in the present cases, has been ratified in accordance with the
The Solicitor General, however, contends that this Court has no jurisdiction to requirements prescribed in the Constitution that was amended. And so, in the
resolve the issue that we have mentioned because that issue is a political cases now before Us, I believe that the question of whether or not the
question that cannot be decided by this Court. This contention by the Solicitor Constitution proposed by the 1971 Constitutional Convention had been validly
General is untenable. A political question relates to "those questions which ratified or not is a justiciable question.
under the Constitution are to be decided by the people in their sovereign
capacity or in regard to which full discretionary authority has been delegated
to the legislative, or to the executive, branch of the government. 2 The courts The Chief Justice, in his opinion, has discussed lengthily the subject on
have the power to determine whether the acts of the executive are authorized whether or not, the cases, before Us involve a political, or a judicial, question.
I fully concur with his conclusion that the question involved in these cases is
by the Constitution and the laws whenever they are brought before the court
justiciable.
in a judicial proceeding. The judicial department of the government exercises
a sort of controlling, or rather restraining, power over the two other
departments of the government. Each of the three departments, within its On the question now of whether or not the Constitution proposed by the 1971
proper constitutional sphere, acts independently of the other, and restraint is Constitutional Convention has been validly ratified, I am reproducing herein
only placed on one department when that sphere is actually transcended. pertinent portions of my dissenting opinion in the plebiscite cases:
While a court may not restrain the executive from committing an unlawful act,
it may, when the legality of such an act is brought before it in a judicial The ratification of the Constitution proposed by the 1971 Constitutional
proceeding, declare it to be void, the same as it may declare a law enacted by Convention must be done in accordance with the provisions of Section
the legislature to be unconstitutional. 3 It is a settled doctrine that every officer 1, Article XV of the 1935 Constitution of the Philippines, which reads:
under a constitutional government must act according to law and subject to its
restrictions, and every departure therefrom, or disregard thereof, must subject "Section 1. The Congress in joint session assembled by a vote of three
him to the restraining and controlling power of the people, acting through the fourths of all the Members of the Senate and of the House of
agency of the judiciary. It must be remembered that the people act through the Representatives voting separately, may propose amendments to the
courts, as well as through the executive or the legislature. One department is Constitution or call a convention for that purpose. Such amendments
just as representative as the other, and judiciary is the department which is
shall be valid as part of this Constitution when approved by a majority Congress acting as a constituent assembly by authority of
of the votes cast at an election at which the amendments are Section 1, Article XV of the present Constitution ... ."
submitted to the people for their ratification."
xxx xxx xxx
It is in consonance with the abovequoted provision of the 1935
Constitution that on March 16, 1967, the Congress of the Philippines "As to matters not related to its internal operation and the
Resolution No. 2 calling a convention to propose amendments to the performance of its assigned mission to propose amendments
Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads to the Constitution, the Convention and its officers and
as follows: members are all subject to all the provisions of the existing
Constitution. Now we hold that even as to its latter task of
"Section 7. The amendments proposed by the Convention proposing amendments to the Constitution, it is subject to the
shall be valid and considered part of the Constitution when provisions of Section 1 of Article XV."
approved by a majority of the votes cast in an election at which
they are submitted to the people for their ratification pursuant In Proclamation No. 1102, issued on January 17, 1973, the President
to Article XV of the Constitution. of the Philippines certified that as a result of the voting before the
barangays (Citizens Assemblies) 14,976,561 members of the
It follows that from the very resolution of the Congress of the barangays voted for the adoption of the proposed Constitution, as
Philippines which called for the 1971 Constitutional Convention, there against 743,869 who voted for its rejection, and on the basis of the
was a clear mandate that the amendments proposed by the 1971 overwhelming majority of the votes cast by the members of all the
Convention, in order to be valid and considered part of the barangays throughout the Philippines, the President proclaimed that
Constitution, must be approved by majority of the votes cast in an the Constitution proposed by the 1971 Convention has been ratified
election at which they are submitted to the people for the ratification and has thereby come into effect.
as provided in the Constitution.
It is very plain from the very wordings of Proclamation No. 1102 that
This Court, in the case of Tolentino vs. Commission Elections, L- the provisions of Section 1 of Article XV of the Constitution of 1935
35140, October 16, 1971 (41 SCRA 715), speaking through Mr. were not complied with. It is not necessary that evidence be produced
Justice Barredo, said: before this Court to show that no elections were held in accordance
with the provisions of the Election Code. Proclamation No. 1102
"The Constitutional Convention of 1971, as any other unequivocally states that the proposed Constitution of 1972 was voted
convention of the same nature,owes its existence and all its upon by the barangays. It is very clear, therefore, that the voting held
authority and power from the existing Constitution of the in these barangays is not the election contemplated in the provisions
Philippines. This Convention has not been called by the of Section 1, Article XV, of the 1935 Constitution. The election
people directly as in the case of a revolutionary convention contemplated in said constitutional provision is an election held in
which drafts the first Constitution of an entirely new accordance with the provisions of the election law, where only the
government born of either a war of liberation from a mother qualified and registered voters of the country would cast their votes,
country or of revolution against an existing government or of where official ballots prepared for the purpose are used, where the
a bloodless seizure of power a la coup d'etat. As to such kind voters would prepare their ballots in secret inside the voting booths in
of conventions, it is absolutely true that the convention is the polling places established in the different election precincts
completely without restraint and omnipotent all wise, and it as throughout the country, where the election is conducted by election
to such conventions that the remarks of Delegate Manuel inspectors duly appointed in accordance with the election law, where
Roxas of the Constitutional Convention of 1934 quoted by the votes are canvassed and reported in a manner provided for in the
Senator Pelaez refer. No amount of rationalization can belie election law. It was this kind of election that was held on May 14, 1935,
the fact that the current convention came into being only when the Constitution of 1935 was ratified; on April 30, 1937, when
because it was called by a resolution of a joint session of the amendment to the Constitution providing for Women's Suffrage
was ratified; on June 18, 1940, when the 1940 Amendments to the
Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, v. Brown, Com. P1., 159 N.E. 2d 807, 808 cited in 29 C.J.S.
1967 when the amendments to the Constitution to increase the 13 at footnote 6.5).
number of Members of the House of Representatives and to allow the
Members of Congress to run in the elections for Delegates to the "... the statutory method whereby qualified voters or electors
Constitutional Convention of 1971 were rejected. pass on various public matters submitted to them the
election of officers, national, state, county, township the
I cannot see any valid reason why the practice or procedure in the passing on various other questions submitted for their
past, in implementing the constitutional provision requiring the holding, determination." (29 C.J.S. 13, citing Iowa-Illinois Gas & Elec.
of an election to ratify or reject an amendment to the Constitution, has Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358).
not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention. "Election" is expression of choice by voters of body politic.
(Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words
It is my view that the President of the Philippines cannot by decree and Phrases, Permanent Edition, p. 234).
order the ratification of the proposed 1972 Constitution thru a voting in
the barangays and make said result the basis for proclaiming the "The right to vote may be exercised only on compliance with
ratification of the proposed constitution. It is very clear, to me, that such statutory requirements as have been set by the
Proclamation No. 1102 was issued in complete disregard or in legislature." (People ex rel. Rago v. Lipsky, 63 N.E. 2d 642,
violation, of the provisions of Section 1 of Article X of the 1935 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11
Constitution. Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied).
Proclamation No. 1102 mentions, furthermore, that on the question as In this connection I herein quote the pertinent provisions of the
to whether or not the people would still like a plebiscite to be called to Election Code of 1971:
ratify the new Constitution, 14,298,814 members of the barangays
answered that there was no need for a plebiscite but that the vote of "Sec. 2. Applicability of this Act. All elections of public officers
the barangays should be considered a vote in a plebiscite. It would
except barrio officials and plebiscites shall be conducted in the
thus appear that the barangays assumed the power to determine
manner provided by this Code."
whether a plebiscite as ordained in the Constitution be held or not.
Indeed, the provision of Section 1, Article XV of the Constitution was
completely disregarded. "Sec 99. Necessity of registration to be entitled to vote. In order that
a qualified voter may vote in any regular or special election or in any
plebiscite, he must be registered in the permanent list of voters for the
The affirmative votes cast in the barangays are not the votes
city, municipality or municipal district in which he resides: Provided,
contemplated in Section 1 of Article XV of the 1935 Constitution. The
that no person shall register more than once without first applying for
votes contemplated in said constitutional provision are votes obtained cancellation of his previous registration." (Emphasis supplied).
through the election processes as provided by law. (Please see also Sections 100-102, Election Code of 1971, R.A. No.
6388)
"An election is the embodiment of the popular will, the
expression of the sovereign power of the people. In common
It is stated in Proclamation No. 1102 that the voting was done by the
parlance, an election is the act of casting and receiving the members of citizens assemblies who are 15 years of age or over.
ballots, counting them, and making the return." (Hontiveros Under the provision of Section I of Article V of the 1935 Constitution,
vs. Altavas, 24 Phil. 632, 637).
the age requirement to be a qualified voter is 21 years or over.
It is said that in a democracy, the will of the people is the supreme law. "The theory that a favorable vote by the electorate, however
Indeed, the people are sovereign, but the will of the people must be unanimous, on a proposal to amend a constitution, may cure,
expressed in a manner as the law and the demands a well-ordered render innocuous, all or any antecedent failures to observe
society require. The rule of law must prevail even over the apparent commands of that Constitution in respect of the formulation or
will of the majority of the people, if that will had not been expressed, submission of proposed amendments thereto, does not
or obtained, in accordance with the law. Under the rule of law, public prevail in Alabama, where the doctrine of the stated theory
questions must be decided in accordance with the Constitution and was denied, in obvious effect, by the pronouncement 60 years
the law. This is specially true in the case of adoption of a constitution ago of broad, wholesome constitutional principles in Collier v.
or in the ratification of an amendment to the Constitution. Frierson, supra, as quoted in the original opinion, ante. The
people themselves are bound by the Constitution; and, being
The following citations are, to me, very relevant in the effort to so bound, are powerless, whatever their numbers, to change
determine whether the proposed Constitution of 1972 had been validly or thwart its mandates, except through the peaceful means of
ratified, or not: a constitutional convention, or of an amendment according to
the mode therein prescribed, or through the exertion of the
"When it is said that "the people" have the right to alter or original right of revolution. "The Constitution may be set aside
amend the constitution, it must not be understood that term by revolution, but it can only be amended in the way it
provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky.
necessarily includes all the inhabitants of the state. Since the
783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et al., 87 So.
question of the adoption or rejection of a proposed new
375, 385, 387, On Rehearing).
constitution or constitutional amendment must be answered a
vote, the determination of it rests with those who, by existing
constitution, are accorded the right of suffrage. But the "The fact that a majority voted for the amendment, unless the
qualified electors must be understood in this, as in many other vote was taken as provided by the Constitution, is not
cases, as representing those who have not the right to sufficient to make a change in that instrument. Whether a
participate in the ballot. If a constitution should be abrogated proposed amendment has been legally adopted is a judicial
and a new one adopted, by the whole mass of people in a question, for the court must uphold and enforce the
state acting through representatives not chosen by the Constitution as written until it is amended in the way which it
"people" in political sense of the term, but by the general body provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25
of the populace, the movement would be extra-legal." (BIack's L.R.A. 560;McConaughty v. State, 106 Minn. 409, 119 N.W.
Constitutional Law, Second Edition, pp. 47-48). 408; Oakland Paving Company v. Hilton, 69 Cal. 499, 11 Pac.
3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St.
Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, could no longer be a candidate. Monsale nevertheless proceeded with
104). his candidacy. The boards of inspectors in Miagao, however, did not
count the votes cast for Monsale upon the ground that the votes cast
"Provisions of a constitution regulating its own amendment, ... for him were stray votes, because he was considered as having no
are not merely directory, but are mandatory; and a strict certificate of candidacy. On the other hand, the boards of inspectors
observance of every substantial mandatory; and a strict credited Nico with 2,291 votes, and Nico was proclaimed elected.
observance of every substantial requirement is essential to Monsale filed a protest against the election of Nico in the Court of First
the validity of the proposed amendment. These provisions are Instance of Iloilo. In the count of the ballots during the proceedings in
as binding on the people as on the legislature, and the former the trial court, it appeared that Monsale had obtained 2,877 votes
are powerless by vote of acceptance to give legal sanction to while Nico obtained 2,276 votes, or a margin of 601 votes in favor of
an amendment the submission of which was made in Monsale. The Court of First Instance of Iloilo decided the election
disregard of the limitations contained in the constitution." (16 protest in favor of Monsale. Upon appeal by Nico, this Court reversed
C.J.S. 35-36. cited in Graham v. Jones, 3 So. 2d 761, 782). the decision of the lower court. This Court declared that because
Monsale withdrew his certificate of candidacy, his attempt to revive it
"It is said that chaos and confusion in the government affairs by withdrawing his withdrawal of his certificate of candidacy did not
restore the effectiveness of his certificate of candidacy, and this Court
of the State will result from the Court's action in declaring the
declared Nico the winner in spite of the fact that Monsale had obtained
proposed constitutional amendment void. This statement is
more votes than he.
grossly and manifestly inaccurate. If confusion and chaos
should ensue, it will not be due to the action of the Court but
will be the result of the failure of the drafters joint resolution to We have cited this Monsale case to show that the will of the majority
observe, follow and obey the plain essential provisions of the of the voters would not be given effect, as declared by this Court, if
Constitution. Furthermore, to say that, the Court disregards its certain legal requirements have not been complied with in order to
sworn duty to enforce the Constitution, chaos and confusion render the votes valid and effective to decide the result of an election.
will result, is an inherently weak argument in favor of the
alleged constitutionality of the proposed amendment. It is And so, in the cases now before this Court, the fact that the voting in
obvious that, if the Court were to countenance the violations the citizens assemblies (barangays) is not the election that is provided
of the sacramental provisions Constitution, those who would for in the 1935 Constitution for the ratification of the amendment to the
thereafter desire to violate it disregard its clear mandatory Constitution, the affirmative votes cast in those assemblies can not be
provisions would resort to the scheme of involving and made the basis for declaring the ratification of the proposed 1972
confusing the affairs of the State then simply tell the Court that Constitution, in spite of the fact that it was reported that 14,976,561
it was powerless to exercise one of its primary functions by members of the citizens assemblies voted for the adoption as against
rendering the proper decree to make the Constitution 743,869 for the rejection, because the votes thus obtained were not in
effective." (Graham v. Jones, 3 So. 2d. 761, 793-794). accordance with the provisions of Section 1 of Article XV of the 1935
Constitution of the Philippines. The rule of law mast be upheld.
In our jurisprudence I find an instance where this Court did not allow
the will of the majority to prevail, because the requirements of the law My last observation: One of the valid grounds against the holding of
were not complied with. In the case of Monsale v. Nico, 83 Phil. 758, the plebiscite on January 15, 1973, as provided in Presidential Decree
Monsale and Nico were both candidates for the office of Municipal No. 73, is that there is no freedom on the part of the people to exercise
Mayor of Miagao, Iloilo, in the elections of November 11, 1947. their right of choice because of the existence of martial law in our
Monsale had duly filed his certificate of candidacy before the country. The same ground holds true as regards to the voting of the
expiration of the period for the filing of the same. However, on October barangays on January 10 to 15, 1973. More so, because by General
10, 1947, after the period for the filing of the certificate of candidacy, Order No. 20, issued on January 7, 1973, the President of the
Monsale withdrew his certificate of candidacy. But on November 7, Philippines ordered "that the provisions of Section 3 of Presidential
1947 Monsale attempted to revive his certificate of candidacy by Decree No. 73 in so far as they allow free public discussion of the
withdrawing the withdrawal of certificate of candidacy. The proposed constitution, as well as my order of December 17, 1972
Commission on Elections, November 8, 1947, ruled that Monsale temporarily suspending the effects of Proclamation No. 1081 for the
purpose of free and open debate on the proposed constitution, be government, necessarily points to the enfranchised citizen as a particle of
suspended in the meantime." It is, therefore, my view that voting in the popular sovereignty and as the ultimate source of the established authority."
barangays on January 10, 1973 was not free, and so this is one added And in the case of Abanil v. Justice of the Peace of Bacolod, 11 this Court said:
reason why the results of the voting in the barangays should not be "In the scheme of our present republican government, the people are allowed
made the basis for proclamation of the ratification of the proposed to have a voice therein through the instrumentality of suffrageto be availed of
Constitution. by those possessing certain prescribed qualifications. The people, in clothing
a citizen with the elective franchise for the purpose of securing a consistent
It is my view, therefore, that Proclamation No. 1102 repugnant to the and perpetual administration of the government they ordain, charge him with
1935 Constitution, and so it is invalid, and should not be given effect. the performance of a duty in the nature of a public trust, and in that
The Constitution of 1972 proposed by the 1971 Constitutional respect constitute him a representative of the whole people. This duty requires
Convention should be considered as not yet ratified by the people of that the privilege thus bestowed exclusively for the benefit of the citizen or
this Republic, and so it should not be given force and effect. class of citizens professing it, but in good faith and with an intelligent zeal for
the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S.
It is urged by the Solicitor General, however, that the voting in the citizens 588)..." There is no question, therefore, that when we talk of sovereign people,
assemblies was a substantial compliance with the provisions of Article XV of what is meant are the people who act through the duly qualified and registered
voters who vote during an election that is held as provided in the Constitution
the 1935 Constitution. The Solicitor General maintains that the primary thrust
or in the law.
of the provision of Article XV of the 1935 Constitution is that "to be valid,
amendments must gain the approval of the majority recognition of the
democratic postulate that sovereign resides in the people." It is not disputed The term "election" as used in Section 1 of Article XV of the 1935 Constitution
that in a democratic sovereignty resides in the people. But the should be construed along with the term "election" as used in the Provisions
term "people" must be understood in its constitutional meaning, and they are of Section 4 of the Philippine Independence Act of the Congress of the United
"those persons who are permitted by the Constitution to exercise the elective States, popularly known as the Tydings-McDuffie Law (Public Act No. 127).
franchise." 8 Thus, in Section 2 of Article VII of the 1935 Constitution, it is Said Section 4 of the Tydings-McDuffie Law provides as follows:
provided that "the President shall hold his office during a term of four years
and, together with the Vice-President chosen for the same term, shall be Section 4. After the President of the United States certified that the
elected by direct vote of the people..." Certainly under that constitutional constitution conforms with the provisions of this act, it shall be
provision, the "people" who elect directly the President and the Vice-President submitted to the people of the Philippine Islands for their ratification or
are no other than the persons who, under the provisions of the same rejection at an election to he held within months after the date of such
Constitution, are granted the right to vote. In like manner the provision in certification, on a date to be fixed by the Philippine Legislature at which
Section 1 of Article II of the 1935 Constitution which says "Sovereignty resides election, the qualified voters of the Philippine Islands shall have an
in the peopleand all government authority emanates from them", the "people" opportunity to vote directly or against the proposed constitution and
who exercise the sovereign power are no other than the persons who have the ordinances append thereto. Such election shall be held in such
right to vote under the Constitution. In the case of Garchitorena vs. Crescini 9, manner as may prescribed by the Philippine Legislature to which the
this Court, speaking through Mr. Justice Johnson, said, "In democracies, the return of the election shall be made. The Philippine Legislature shall
people, combined, represent the sovereign power of the State. Their sovereign certify the result to the Governor-General of the Philippine Islands,
authority is expressed through the ballot, of the qualified voters, in duly together with a statement of the votes cast, and a copy of said
appointed elections held from time to time, by means of which they choose constitution ordinances. If a majority of the votes cast shall be for the
their officials for definite fixed periods, and to whom they entrust, for the time constitution, such vote shall be deemed an expression of the will of
being, as their representatives, the exercise of the powers of government." In the people of the Philippine Independence, and the Governor-General
the case of Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice shall, within thirty days after receipt of the certification from the
Laurel, said, "As long as popular government is an end to be achieved and Philippine Legislature, issue a proclamation for the election of officers
safeguarded, suffrage, whatever may be the modality and form devised, must of the government of the Commonwealth of the Philippine Islands
continue to be the means by which the great reservoir of power must be provided for in the Constitution...
emptied into the receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal. It can safely be said, therefore, that when the framers of the 1935 Constitution
Republicanism, in so far as it implies the adoption of a representative type of used, the word "election" in Section I Article XV of the 1935 Constitution they
had no other idea in mind except the elections that were periodically held in their option to serve in the interim National Assembly only one them took his
the Philippines for the choice of public officials prior to the drafting of the 1935 oath of office; and of the 92 members of the House of Representatives who
Constitution, and also the "election" mentioned in the Independence Act at opted to serve in the interim National Assembly, only 22 took their oath of
which "the qualified voters of the Philippine Islands shall have an opportunity office. The fact that only one Senator out of 24, and only 22 Representative
to vote directly for or against the proposed constitution..." It is but logical to out of 110, took their oath of office, is an indication that only a small portion of
expect that the framers of the 1935 Constitution would provide a mode of the members of Congress had manifested the acceptance of the new
ratifying an amendment to that Constitution similar to the mode of ratifying the Constitution. It is in the taking of the oath of office where the affiant says that
original Constitution itself. he swears to "support and defend the Constitution" that the acceptance of the
Constitution is made manifest. I agree with counsel petitioners in L-36165
It is clear therefore, that the ratification or any amendment to the 1935 (Gerardo Roxas, et al. v. Alejandro Melchor, et al.) when he said that the
Constitution could only be done by holding an election, as the term "election" members of Congress who opted to serve in the interim National Assembly did
was understood, and practiced, when the 1935 Constitution as drafted. The only ex abundante cautela, or by way of a precaution, making sure, that in the
alleged referendum in the citizens assemblies participated in by persons event the new Constitution becomes definitely effective and the interim
aged 15 years or more, regardless of whether they were qualified voters or National Assembly convened, they can participate in legislative work in the
not, voting by raising their hands, and the results of the voting reported by the capacity as duly elected representatives of the people, which otherwise they
barrio or ward captain, to the municipal mayor, who in turn submitted the report could not do if they did not manifest their option to serve, and that option had
to the provincial Governor, and the latter forwarding the reports to the to be made within 30 day from January 17, 1973, the date when Proclamation
Department of Local Governments, all without the intervention of the No. 110 was issued. Of course, if the proposed Constitution does not become
Commission on Elections which is the constitutional body which has exclusive effective, they continue to be members of Congress under the 1935
charge of the enforcement and administration of all laws, relative to the Constitution. Let it be considered that the members of the House of
conduct of elections was not only a non-substantial compliance with the Representatives were elected in 1969 to serve a term which will yet expire on
provisions of Section 1 of Article XV of the 1935 Constitution but a downright December 31, 1973. Whereas, of the Senators who opted to serve in the
violation of said constitutional provision. It would be indulging in sophistry to interim National Assembly, the term of some of them will yet expire on
maintain that the voting in the citizens assemblies amounted to a substantial December 31, 1973, some on December 31, 1975, and the rest on December
compliance with the requirements prescribed in Section 1 of Article XV of the 31, 1977. Let if be noted that 9 Senators did not opt to serve in the interim
1935 Constitution. National Assembly, and 18 members of the House of Representatives also did
not opt to serve in the interim National Assembly.
It is further contended by the Solicitor General, that even if the Constitution
proposed by the 1971 Constitutional Convention was not ratified in accordance Neither can it be said that the people have accepted the new Constitution. I
with the provisions of Section 1 of Article XV of the 1935 Constitution, the fact cannot, in conscience, accept the reported affirmative votes in the citizens
is that after the President of the Philippines had issued Proclamation No. 1102 assemblies as a true and correct expression by the people of their approval,
declaring that the said proposed Constitution "has been ratified by or acceptance, of the proposed Constitution. I have my serious doubts
overwhelming majority of all the votes cast by the members of all the regarding the freedom of the people to express their views regarding the
barangays (citizens assemblies) throughout the Philippines and had thereby proposed Constitution during the voting in the citizens assemblies, and I have
come into effect" the people have accepted the new Constitution. What also my serious doubts regarding the truthfulness and accuracy of the reports
appears to me, however, is that practically it is only the officials and employees of the voting in the citizens assemblies. This doubt has been engendered in
under the executive department of the Government who have been performing my mind after a careful examination and study of the records of these cases,
their duties apparently in observance of the provisions of the new Constitution. particularly with respect to the reports of the voting in the citizens assemblies.
It could not be otherwise, because the President of the Philippines, who is the Perhaps, it may be said that the people, or the inhabitants of this country, have
head of the executive department, had proclaimed that the new Constitution acquiesced to the new Constitution, in the sense that they have continued to
had come into effect, and his office had taken the steps to implement the live peacefully and orderly under the government that has been existing since
provisions of the new Constitution. True it is, that some 92 members of the January 17, 1973 when it was proclaimed that the new Constitution came into
House of Representatives and 15 members of the Senate, of the Congress of effect. But what could the people do? In the same way that the people have
the Philippines had expressed their option to serve in the interim National lived under martial law since September 23, 1972, they also have to live under
Assembly that is provided for in Section 2 of Article XVII of the proposed the government as it now exists, and as it has existed since the declaration of
Constitution. It must be noted, however, that of the 15 senators who expressed martial law on September 21, 1972, regardless of what Constitution is
operative whether it is the 1935 Constitution or the new Constitution. the Americans, and which has become part of our social and political fabric, is
Indeed, there is nothing that the people can do under the circumstances still a reality.
actually prevailing in our country today circumstances, known to all, and
which I do not consider necessary to state in this opinion. I cannot agree, The views that I have expressed in this opinion are inspired by a desire on my
therefore, with my worthy colleagues in the Court who hold the view that the part to bring about stability in democratic and constitutional system in our
people have accepted the new Constitution, and that because the people have country. I feel that if this Court would give its imprimatur to the ratification of
accepted it, the new Constitution should be considered as in force, regardless the proposed Constitution, as announced in Proclamation No. 1102, it being
of the fact that it was not ratified in accordance with the provisions of Section very clear that the provisions of Section 1 of Article XV of the 1935 Constitution
1 of Article XV of the 1935 Constitution. had not been complied with, We will be opening the gates for a similar
disregard of the Constitution in the future. What I mean is that if this Court now
It is my honest view that the Constitution proposed by the 1971 Constitutional declares that a new Constitution is now in force because the members of the
Convention has not come into effect. I do not say, however, that the proposed citizens assemblies had approved the said new Constitution, although that
Constitution is invalid. To me, the validity of the proposed Constitution is not approval was not in accordance with the procedure and the requirements
in issue in the cases before Us. What the petitioners assail is not the validity prescribed in the 1935 Constitution, it can happen again in some future time
of the proposed Constitution but the validity of Presidential Proclamation No. that some amendments to the Constitution may be adopted, even in a manner
1102 which declares the proposed Constitution as having been ratified and contrary to the existing Constitution and the law, and then said proposed
has come into effect. It being my considered view that the ratification of the amendment is submitted to the people in any manner and what will matter is
proposed Constitution, as proclaimed in Proclamation No. 1102, is not in that a basis is claimed that there was approval by the people. There will not
accordance with the provisions of Section 1 of Article XV, of the 1935 be stability in our constitutional system, and necessarily no stability in our
Constitution, I hold that Proclamation No. 1102 is invalid and should not be government. As a member of this Court I only wish to contribute my humble
given force and effect. Their proposed Constitution, therefore, should be efforts to prevent the happening of such a situation in the future.
considered as not yet validly ratified, and so it is not in force. The proposed
Constitution may still be submitted to a plebiscite in conformity with Section 1 It appearing to me that the announced ratification of the proposed Constitution
of Article XV of the 1935 Constitution. Incidentally, I must state that the through the voting in the citizens assemblies is a clear violation of the 1935
Constitution is still in force, and this Court is still functioning under the 1935 Constitution, what I say in this opinion is simply an endeavor on my part to be
Constitution. true to my oath of office to defend and support the 1935 Constitution. I am
inspired by what the great jurist and statesman, Jose P. Laurel, said:
I sincerely believe that the proposed Constitution may still be submitted to the
people in an election or plebiscite held in accordance with the provisions of Let our judges be as it were the vestal keepers of the purity and
Section 1 of Article XV of the 1935 Constitution. In fact, as we have adverted sanctity of our Constitution, and the protection and vindication of
to in this opinion, this was the mandate of Congress when, on March 16, 1967, popular rights will be safe and secure in their reverential guardianship.
it passed Resolution No. 2 calling a convention to propose amendments to the
1935 Constitution. The Court may take judicial notice of the fact that the
I only wish to help prevent, if I can, democracy and the liberties of our people
President of the Philippines has reassured the nation that the government of
from vanishing in our land, because, as Justice George Sutherland of the U.
our Republic since the declaration of martial law is not a revolutionary S. Supreme Court said:
government, and that he has been acting all the way in consonance with his
powers under the Constitution. The people of this Republic has reason to be
happy because, according to the President, we still have a constitutional (t)he saddest epitaph which can be carved in memory of a vanished
government. It being my view that the 1935 Constitution is still in force, I liberty is that it was lost because its possessors failed to stretch forth
believe Congress may still convene and pass a law calling for an election at a saving hand while yet there was time.
which the Constitution proposed by the 1971 Constitutional Convention will be
submitted to the people their ratification or rejection. A plebiscite called I concur fully with the personal views expressed by the Chief Justice in the
pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to opinion that he has written in these cases. Along with him, I vote to deny the
our people that we still have in our country the Rule of Law and that the motion to dismiss and give due course to the petitions in these cases.
democratic system of government that has been implanted in our country by
FERNANDO, J., dissenting:
No question more momentous, none impressed with such transcendental present demand but what may lie ahead in the unexplored and unknown vistas
significance is likely to confront this Court in the near or distant future as that of the future. It must guard against the pitfall of lack of understanding of the
posed by these petitions. For while the specific substantive issue is the validity dominant forces at work to seek a better life for all, especially those suffering
of Presidential Proclamation No. 1102, an adverse judgment may be fraught from the pangs of poverty and disease, by a blind determination to adhere to
with consequences that, to say the least, are far-reaching in its implications. the status quo. It would be tragic, and a clear case of its being recreant to its
As stressed by respondents, "what petitioners really seek to invalidate is the trust, if the suspicion can with reason be entertained that its approach amounts
new Constitution." 1 Strict accuracy would of course qualify such statement that merely to a militant vigilantism that is violently opposed to any form of social
what is in dispute, as noted in the opinion of the Chief Justice, goes only as far change. It follows then that it does not suffice that recourse be had only to what
as the validity of its ratification. It could very well be though that the ultimate passes for scholarship in the law that could be marred by inapplicable erudition
outcome is not confined within such limit, and this is not to deny that under its and narrow legalism. Even with due recognition, such factors, however, I
aegis, there have been marked gains in the social and economic sphere, but cannot, for reasons to be set more lengthily and in the light of the opinion of
given the premise of continuity in a regime under a fundamental law, which the Chief Justice, reach the same result as the majority of my brethren. For, in
itself explicitly recognizes the need for change and the process for bringing it the last analysis, it is my firm conviction that the institution of judicial review
about, 2 it seems to me that the more appropriate course is this Court to give speaks too clearly for the point to be missed that official action, even with due
heed to the plea of petitioners that the most serious attention be paid to their allowance made for the good faith that invariably inspires the step taken, has
submission that the challenged executive act fails to meet the test of to face the gauntlet of a court suit whenever there is a proper case with the
constitutionality. Under the circumstances, with regret and with due respect for appropriate parties.
the opinion of my brethren, I must perforce dissent. It would follow therefore
that the legal position taken by the Chief Justice as set forth with his usual 1. Respondents are acting in the soundest constitutional tradition when, at the
lucidity and thoroughness has, on the whole, my concurrence, subject, of outset, they would seek a dismissal of these petitions. For them, the question
course, to reservations insofar as it contains views and nuances to which I raised is political and thus beyond the jurisdiction of this Court. Such an
have in the past expressed doubts. Nonetheless, I feel that a brief expression approach cannot be indicted for unorthodoxy. It is implicit in the concept of the
of the reasons for the stand I take would not be amiss. rule of law that rights belong to the people and the government possesses
powers only. Essentially then, unless such an authority may either be
In coping with its responsibility arising from the function of judicial review, this predicated on express or implied grant in the Constitution or the statutes, an
Court is not expected to be an oracle given to utterances of eternal verities, exercise thereof cannot survive an inquiry as to its validity. Respondents
but certainly it is more than just a keen but passive observer of the through Solicitor-General Mendoza would deny our competence to proceed
contemporary scene. It is, by virtue of its role under the separation of powers further. It is their view, vigorously pressed and plausibly asserted, that since
concept, involved not necessarily as a participant in the formation of what is involved is not merely the effectivity of an amendment but the actual
government policy, but as an arbiter of its legality. Even then, there is realism coming into effect of a new constitution, the matter is not justiciable. The
in what Lerner did say about the American Supreme Court as "the focal point immediate reaction is that such a contention is to be tested in the light of the
of a set of dynamic forces which [could play] havoc with the landmarks of the fundamental doctrine of separation of powers that it is not only the function but
American state and determine the power configuration of the day." 3 That is the solemn duty of the judiciary to determine what the law is and to apply it in
why there is this caveat. In the United States as here, the exercise of the power cases and controversies that call for decision. 7 Since the Constitution pre-
of judicial review is conditioned on the necessity that the decision of a case or eminently occupies the highest rung in the hierarchy of legal norms, it is in the
controversy before it so requires. To repeat, the Justices of the highest tribunal judiciary, ultimately this Tribunal, that such a responsibility is vested. With the
are not, as Justice Frankfurter made clear, "architects of policy. They can 1935 Constitution containing, as above noted, an explicit article on the subject
nullify the policy of others, they are incapable of fashioning their own solutions of amendments, it would follow that the presumption to be indulged in is that
for social problems." 4 Nonetheless, as was stressed by Professors Black 5 and the question of whether there has been deference to its terms is for this Court
Murphy, 6 a Supreme Court by the conclusion it reaches and the decision it to pass upon. What is more, the Gonzales, 8 Tolentino 9 and Planas 10 cases
renders does not merely check the coordinate branches, but also by its speak unequivocally to that effect. Nor is it a valid objection to this conclusion
approval stamps with legitimacy the action taken. Thus in affirming that what was involved in those cases was the legality of the submission and
constitutional supremacy, the political departments could seek the aid of the not ratification, for from the very language of the controlling article, the two vital
judiciary. For the assent it gives to what has been done conduces to its support steps are proposal and ratification, which as pointed out in Dillon v.
in a regime where the rule of law holds sway. In discharging such a role, this Gloss, 11 "cannot be treated as unrelated acts, but as succeeding steps in a
Court must necessarily take in account not only what the exigent needs of the single endeavor." 12Once an aspect thereof is viewed as judicial, there would
be no justification for considering the rest as devoid of that character. It would required before the conclusion is warranted that the matter at issue is beyond
be for me then an indefensible retreat, deriving no justification from judicial cognizance, a political question being raised.
circumstances of weight and gravity, if this Court were to accede to what is
sought by respondents and rule that the question before us is political. 2. The submission of respondents on this subject of political question,
admittedly one of complexity and importance, deserves to be pursued further.
On this point, it may not be inappropriate to refer to a separate opinion of mine They would derive much aid and comfort from the writings of both Professor
in Lansang v. Garcia. 13 Thus: "The term has been made applicable to Bickel 18 of Yale and Professor Freund 19 of Harvard, both of whom in turn are
controversies clearly non-judicial and therefore beyond its jurisdiction or to an unabashed admirers of Justice Brandeis. Whatever be the merit inherent in
issue involved in a case appropriately subject to its cognizance, as to which their lack of enthusiasm for a more active and positive role that must be played
there has been a prior legislative or executive determination to which by the United States Supreme Court in constitutional litigation, it must be
deference must be paid. It has likewise been employed loosely to characterize judged in the light of our own history. It cannot be denied that from the well
a suit where the party proceeded against is the President or Congress, or any nigh four decades of constitutionalism in the Philippines, even discounting an
branch thereof. If to be delimited with accuracy, "political questions" should almost similar period of time dating from the inception of American sovereignty,
refer to such as would under the Constitution be decided by the people in their there has sprung a tradition of what has been aptly termed as judicial activism.
sovereign capacity or in regard to full discretionary authority is vested either in Such an approach could be traced to the valedictory address before the 1935
the President or Congress. It is thus beyond the competence of the judiciary Constitutional Convention of Claro M. Recto. He spoke of the trust reposed in
to pass upon. Unless clearly falling within the formulation, the decision reached the judiciary in these words: "It is one of the paradoxes of democracy that the
by the political branches whether in the form of a congressional act or an people at times place more confidence in instrumentalities of the State other
executive order could be tested in court. Where private rights are affected, the than those directly chosen by them for the exercise of their sovereignty." 20 It
judiciary has no choice but to look into its validity. It is not to be lost sight of would thus appear that even then this Court was expected not to assume an
that such a power comes into play if there be an appropriate proceeding that attitude of timidity and hesitancy when a constitutional question is posed.
may be filed only after each coordinate branch has acted. Even when the There was the assumption of course that it would face up to such a task,
Presidency or Congress possesses plenary powers, its improvident exercise without regard to political considerations and with no thought except that of
or the abuse thereof, if shown, may give rise to a justiciable controversy. For discharging its trust. Witness these words Justice Laurel in an early landmark
the constitutional grant of authority is usually unrestricted. There are limits to case, People v. Vera, 21 decided in 1937: "If it is ever necessary for us to make
what may be done and how it is to be accomplished. Necessarily then, the vehement affirmance during this formative period of political history, it is that
courts in the proper exercise of judicial review could inquire into the question we are independent of the Executive no less than of the Legislative department
of whether or not either of the two coordinate branches has adhered to what of our government independent in the performance of our functions,
is laid down by the Constitution. The question thus posed is judicial rather than undeterred by any consideration, free from politics, indifferent to popularity,
political." 14 The view entertained by Professor Dodd is not too dissimilar. For and unafraid of criticism in the accomplishment of our sworn duty as we see it
him such a term "is employed to designate certain types of functions and as we understand it." 22 The hope of course was that such assertion of
committed to the political organs of government (the legislative and executive independence impartiality was not mere rhetoric. That is a matter more
departments, or either of them) and not subject to judicial appropriately left to others to determine. It suffices to stake that what elicits
investigation." 15 After a thorough study of American judicial decisions, both approval on the part of our people of a judiciary ever alert to inquire into alleged
federal and state, he could conclude: "The field of judicial nonenforceability is breaches of the fundamental law is the realization that to do so is merely to do
important, but is not large when contrasted with the whole body of written what is expected of it and that thereby there is no invasion of spheres
constitutional texts. The exceptions from judicial enforceability fall primarily appropriately belonging to the political branches. For it needs to be kept in kind
within the field of public or governmental interests." 16 Nor was Professor always that it can act only when there is a suit with proper parties before it,
Weston's formulation any different. As was expressed by him: "Judicial wherein rights appropriate for judicial enforcement are sought to be vindicated.
questions, in what may be thought the more useful sense, are those which the Then, too, it does not approach constitutional questions with dogmatism or
sovereign has set to be decided in the courts. Political questions, similarly, are apodictic certainty nor view them from the shining cliffs of perfection. This is
those which the sovereign has entrusted to the so-called political departments not to say though that it is satisfied with an empiricism untroubled by the search
of government or has reserved to be settled by its own extra-governmental for jural consistency and rational coherence. A balance has to be struck. So
action." 17 What appears undeniable then both from the standpoint of juridical realism requires. Once allowance made that for all its care and
Philippine as well as American decisions is the care and circumspection circumspection this Court manned by human beings fettered by fallibility,
nonetheless earnestly and sincerely striving to do right, the public acceptance
of its vigorous pursuit of the task of assuring that the Constitution be obeyed " 29 Professor Konefsky, like Dean Rostow, could not accept characterization
is easy to understand. It has not in the past shirked its responsibility to of judicial review as undemocratic. Thus his study of Holmes and Brandeis,
ascertain whether there has been compliance with and fidelity to constitutional the following appears: "When it is said that judicial review is an undemocratic
requirements. Such is the teaching of a host of cases from Angara v. Electoral feature of our political system, it ought also to be remembered that architects
Commission 23 to Planas v. Commission on Elections. 24 It should continue to of that system did not equate constitutional government with unbridled majority
exercise its jurisdiction, even in the face of a plausible but not sufficiently rule. Out of their concern for political stability and security for private rights, ...,
persuasive insistence that the matter before it is political. they designed a structure whose keystone was to consist of barriers to the
untrammeled exercise of power by any group. They perceived no contradiction
Nor am I persuaded that the reading of the current drift in American legal between effective government and constitutional checks. To James Madison,
scholarship by the Solicitor-General and his equally able associates presents who may legitimately be regarded as the philosopher of the Constitution, the
the whole picture. On the question of judicial review, it is not a case of black scheme of mutual restraints was the best answer to what he viewed as the
and white; there are shaded areas. It goes too far, in my view, if the perspective chief problem in erecting a system of free representative government: 'In
is one of dissatisfaction, with its overtones of distrust. This expression of framing a government which is to be administered by men over men, the great
disapproval has not escaped Dean Rostow of Yale, who began one of his most difficulty lies in this: you must first enable the government to control the
celebrated legal essays. The Democratic Character of Judicial Review, thus: governed; and in the next place oblige it to control itself.' " 30
"A theme of uneasiness, and even of guilt, colors the literature about judicial
review. Many of those who have talked, lectured, and written about the There is thus an inevitability to the flowering of judicial review. Could it be that
Constitution have been troubled by a sense that judicial review is the tone of discontent apparent in the writings of eminent authorities on the
undemocratic." 25 He went on to state: "Judicial review, they have urged, is an subject evince at the most fears that the American Supreme Court might
undemocratic shoot on an otherwise respectable tree. It should be cut off, or overstep the bounds allotted to the judiciary? It cannot be a denial of the fitness
at least kept pruned and inconspicuous." 26 His view was precisely the of such competence being vested in judges and of their being called upon to
opposite. Thus: "The power of constitutional review, to be exercised by some fulfill such a trust whenever appropriate to the decision of a case before them.
part of the government, is implicit in the conception of a written constitution That is why it has been correctly maintained that notwithstanding the absence
delegating limited powers. A written constitution would promote discord rather of any explicit provision in the fundamental law of the United States
than order in society if there were no accepted authority to construe it, at the Constitution, that distinguished American constitutional historian, Professor
least in case of conflicting action by different branches of government or of Corwin, could rightfully state that judicial review "is simply incidental to the
constitutionally unauthorized governmental action against individuals. The power of courts to interpret the law, of which the Constitution is part, in
limitation and separation of powers, if they are to survive, require a procedure connection with the decision of cases." 31 This is not to deny that there are
for independent mediation and construction to reconcile the inevitable disputes those who would place the blame or the credit, depending upon one's
over the boundaries of constitutional power which arise in the process of predilection, on Marshall's epochal opinion in Marbury v. Madison. 32 Curtis
government." 27 More than that, he took pains to emphasize: "Whether another belonged to that persuasion. As he put it: "The problem was given no answer
method of enforcing the Constitution could have been devised, the short by the Constitution. A hole was left where the Court might drive in the peg of
answer is that no such method developed. The argument over the judicial supremacy, if it could. And that is what John Marshall did." 33 At any
constitutionality of judicial review has long since been settled by history. The rate there was something in the soil of American juristic thought resulting in
power and duty of the Supreme Court to declare statutes or executive action this tree of judicial power so precariously planted by Marshall striking deep
unconstitutional in appropriate cases is part of the living Constitution. 'The roots and showing wonderful vitality and hardiness. It now dominates the
course of constitutional history,' Mr. Justice Frankfurter recently remarked, American legal scene. Through it, Chief Justice Hughes, before occupying that
'has cast responsibilities upon the Supreme Court which it would be exalted position, could state in a lecture: "We are under a Constitution, but the
"stultification" for it to evade.' " 28 Nor is it only Dean Rostow who could point Constitution is what the judges say it is ... ." 34 The above statement is more
Frankfurter, reputed to belong to the same school of thought opposed to than just an aphorism that lends itself to inclusion in judicial anthologies or bar
judicial activism, if not its leading advocate during his long stay in the United association speeches. It could and did provoke from Justice Jackson, an
States Supreme Court, as one fully cognizant of the stigma that attaches to a exponent of the judicial restraint school of thought, this meaningful query: "The
tribunal which neglects to meet the demands of judicial review. There is a Constitution nowhere provides that it shall be what the judges say it is. How,
statement of similar importance from Professor Mason: "In Stein v. New did it come about that the statement not only could be but could become
York Frankfurter remarked, somewhat self-consciously perhaps, that the 'duty current as the most understandable comprehensive summary of American
of deference cannot be allowed imperceptibly to slide into abdication.' Constitutional law?"35 It is no wonder that Professor Haines could pithily and
succinctly sum up the place of the highest American tribunal in the scheme of doctrine of political questions ought to be very sharply confined to where the
things in this wise: "The Supreme Court of the United States has come to be functional reasons justify it and that in a give involving its expansion there
regarded as the unique feature of the American governmental system." 36 Let should be careful consideration also of the social considerations which may
me not be misunderstood. There is here no attempt to close one's eyes to a militate against it. The doctrine has a certain specious charm because of its
discernible tendency on the part of some distinguished faculty minds to look nice intellectualism and because of the fine deference it permits to expertise,
askance at what for them may be inadvisable extension of judicial authority. to secret knowledge, and to the prerogatives of others. It should not be allowed
For such indeed is the case as reflected in two leading cases of recent to grow as a merely intellectual plant." 47
vintage, Baker v. Carr, 37 decided in 1962 and Powell v. MacCormack, 38 in
1969, both noted in the opinion of the Chief Justice. The former disregarded It is difficult for me at least, not to be swayed by appraisal, coming from such
the warning of Justice Frankfurter in Colegrove v. Green 39 about the impeccable sources of the worth and significance of judicial review in the
American Supreme Court declining jurisdiction on the question of United States. I cannot resist the conclusion then that the views advanced on
apportionment as to do so would cut very deep into the very being of this subject by distinguished counsel for petitioners, with Senators Lorenzo M.
Congress." 40 For him, the judiciary "ought not to enter this political thicket." Taada and Jovito Salonga at the van, rather than the advocacy of the
Baker has since then been followed; it has spawned a host of cases. 41 Powell, Solicitor-General, possess the greater weight and carry persuasion. So much
on the question of the power of a legislative body to exclude from its ranks a then for the invocation of the political question principle as a bar to the exercise
person whose qualifications are uncontested, for many the very staple of what of our jurisdiction.
is essentially political, certainly goes even further than the authoritative
Philippine decision of Vera v. Avelino, 42 It does look then that even in the
3. That brings me to the issue of the validity of the ratification. The crucial point
United States, the plea for judicial self-restraint, even if given voice by those
that had to be met is whether Proclamation No. 1102 manifests fidelity to the
competent in the field of constitutional law, has fallen on deaf ears. There is in explicit terms of Article XV. There is, of course, the view not offensive to reason
the comments of respondents an excerpt from Professor Freund quoting from that a sense of the realities should temper the rigidity of devotion to the strict
one of his essays appearing in a volume published in 1968. It is not without
letter of the text to allow deference to its spirit to control. With due recognition
interest to note that in another paper, also included therein, he was less than of its force in constitutional litigation, 48 if my reading of the events and the
assertive about the necessity for self-restraint and apparently mindful of the
process that led to such proclamation, so clearly set forth in the opinion of the
claims of judicial activism. Thus: "First of all, the Court has a responsibility to Chief Justice, is not inaccurate, then it cannot be confidently asserted that
maintain the constitutional order, the distribution of public power, and the there was such compliance. It would be to rely on conjectural assumptions that
limitations on that power." 43 As for Professor Bickel, it has been said that as
did founder on the rock of the undisputed facts. Any other conclusion would,
counsel for the New York Times in the famous Vietnam papers case, 44 he was
for me, require an interpretation that borders on the strained. So it has to be if
less than insistent on the American Supreme Court exercising judicial self-
one does not lose sight of how the article on amendments is phrased. A word,
restraint. There are signs that the contending forces on such question, for
to paraphrase Justice Holmes may not be a crystal, transparent and
some an unequal contest, are now quiescent. The fervor that characterized unchanged, but it is not, to borrow from Learned Hand, that eminent jurist, a
the expression of their respective points of view appears to have been rubber band either. It would be unwarranted in my view then to assert that the
minimized. Not that it is to be expected that it will entirely disappear,
requirements of the 1935 Constitution have been met. There are American
considering how dearly cherished are, for each group, the convictions, decisions, 49 and they are not few in number, which require that there be
prejudices one might even say, entertained. At least what once was fitly
obedience to the literal terms of the applicable provision. It is understandable
characterized as the booming guns of rhetoric, coming from both directions,
why it should be thus. If the Constitution is the supreme law, then its mandate
have been muted. Of late, scholarly disputations have been centered on the must be fulfilled. No evasion is tolerated. Submission to its commands can be
standards that should govern the exercise of the power of judicial review. In shown only if each and every word is given meaning rather than ignored or
his celebrated Holmes lecture in 1959 at the Harvard Law School, Professor
disregarded. This is not to deny that a recognition conclusive effect attached
Wechsler advocated as basis for decision what he termed neutral principles of
to the electorate manifesting its will to vote affirmatively on the amendments
constitutional law. 45 It has brought forth a plethora of law review articles, the
proposed poses an obstacle to the judiciary being insistent on the utmost
reaction ranging from guarded conformity to caustic criticism. 46 There was, to
regularity. Briefly stated, substantial compliance is enough. A great many
be sure, no clear call to a court in effect abandoning the responsibility American State decisions may be cited in support of such a doctrine. 50
incumbent on it to keep governmental agencies within constitutional channels.
The matter has been put in temperate terms by Professor Frank thus: "When
allowance has been made for all factors, it nevertheless seems to me that the Even if the assumption be indulged in that Article XV is not phrased in terms
too clear to be misread, so that this Court is called upon to give meaning and
perspective to what could be considered words of vague generality, pregnant Rome, it is no doubt true, as McIver pointed out, that only with the recognition
with uncertainty, still whatever obscurity it possesses is illumined when the of the nation as the separate political unit in public law is there the juridical
light of the previous legislation is thrown on it. In the first Commonwealth recognition of the people composing it "as the source of political
Act, 51 submitting to the Filipino people for approval or disapproval certain authority." 64From them, as Corwin did stress, emanate "the highest possible
amendments to the original ordinance appended to the 1935 Constitution, it embodiment of human will," 65 which is supreme and must be obeyed. To avoid
was made that the election for such purpose was to "be conducted in any confusion and in the interest of clarity, it should be expressed in the
conformity with the provisions of the Election Code insofar as the same may manner ordained by law. Even if such is not the case, however, once it is
be applicable." 52 Then came the statute, 53 calling for the plebiscite on the manifested, it is to be accepted as final and authoritative. The government
three 1940 amendments providing for the plebiscite on the three 1930 which is merely an agency to register its commands has no choice but to
amendments providing for a bicameral Congress or a Senate and a House of submit. Its officials must act accordingly. No agency is exempt such a duty,
Representatives to take the place of a unicameral National not even this Court. In that sense, the lack of regularity in the method employed
Assembly, 54 reducing the term of the President to four years but allowing his to register its wishes is fatal in its consequences. Once the fact of acceptance
re-election with the limitation that he cannot serve more than eight consecutive by people of a new fundamental law is made evident, the judiciary is left with
years, 55 and creating an independent Commission on Elections. 56 Again, it no choice but to accord it recognition. The obligation to render it obeisance
was expressly provided that the election "shall be conducted in conformity with falls on the courts as well.
the provisions of the Election Code in so far as the same may be
applicable." 57 The approval of the present parity amendment was by virtue of There are American State decisions that enunciate such a doctrine. While
a Republic Act 58 which specifically made applicable the then Election certainly not controlling, they are not entirely bereft of persuasive significance.
59
Code. There is a similar provision in the In Miller v. Johnson, 66 decided in 1892, it was set forth in the opinion of Chief
legislation, 60 which in cotemplation of the 1971 Constitutional Convention, saw Justice Holt that on May 3, 1890, an act was passed in Kentucky, providing for
to it that there be an increase in the membership of the House of the calling of a convention for the purpose of framing a new constitution and
Representatives a maximum of one hundred eighty and assured the eligibility the election of delegates. It provided that before any form of constitution made
of senators and representatives to become members of such constituent body by them should become operative, it should be submitted to the vote of the
without forfeiting their seats, as proposed amendments to be voted on in the state and ratified by a majority of those voting. The constitution then in force
1967 elections. 61 That is the consistent course of interpretation followed by authorized the legislature, the preliminary steps having been taken, to call a
the legislative branch. It is most persuasive, if not controlling. The restraints convention "for the purpose of readopting, amending, or changing" it contained
thus imposed would set limits to the Presidential action taken, even on the no provision giving the legislature the power to require a submission of its work
assumption that either as an agent of the Constitutional Convention or under to a vote of the people. The convention met in September, 1890. By April,
his martial law prerogatives, he was not devoid of power to specify the mode 1891, it completed a draft of a constitution, submitted it to a popular vote, and
of ratification. On two vital points, who can vote and how they register their will, then adjourned until September following. When the convention reassembled,
Article XV had been given a definitive construction. That is why I fail to see the delegates made numerous changes in instrument. As thus amended, it
sufficient justification for this Court affixing the imprimatur of its approval on was promulgated by the convention of September 28, 1891, as the new
the mode employed for the ratification of the revised Constitution as reflected constitution. An action was brought to challenge its validity. It failed in the lower
in Proclamation No. 1102. court. In affirming such judgment dismissing the action, Chief Justice Holt
stated: "If a set of men, not selected by the people according to the forms of
4. Nor is the matter before us solely to be determined by the failure to comply law, were to formulate an instrument and declare it the constitution, it would
with the requirements of Article XV. Independently of the lack of validity of the undoubtedly be the duty of the courts to declare its work a nullity. This would
ratification of the new Constitution, if it be accepted by the people, in whom be revolution, and this the courts of the existing government must resist until
sovereignty resides according to the Constitution, 62 then this Court cannot they are overturned by power, and a new government established. The
refuse to yield assent to such a political decision of the utmost gravity, convention, however, was the offspring of law. The instrument which we are
conclusive in its effect. Such a fundamental principle is meaningless if it does asked to declare invalid as a constitution has been made and promulgated
not imply, to follow Laski, that the nation as a whole constitutes the "single according to the forms of law. It is a matter of current history that both the
center of ultimate reference," necessarily the possessor of that "power that is executive and legislative branches of the government have recognized its
able to resolve disputes by saying the last word." 63 If the origins of the validity as a constitution, and are now daily doing so. ... While the judiciary
democratic polity enshrined in the 1935 Constitution with the declaration that should protect the rights of the people with great care and jealousy, because
the Philippines is a republican state could be traced back to Athens and to this is its duty, and also because; in times of great popular excitement, it is
usually their last resort, yet it should at the same time be careful not to overstep whether such indeed was the result. This is no more than what the courts do
the proper bounds of its power, as being perhaps equally dangerous; and in election cases. There are other factors to bear in mind. The fact that the
especially where such momentous results might follow as would be likely in President so certified is well-nigh conclusive. There is in addition the evidence
this instance, if the power of the judiciary permitted, and its duty requires, the flowing from the conditions of peace and stability. There thus appears to be
overthrow of the work of the convention." 67In Taylor v. Commonwealth, 68 a conformity to the existing order of things. The daily course of events yields
1903 decision, it was contended that the Virginia Constitution reclaimed in such a conclusion. What is more, the officials under the 1935 Constitution,
1902 is invalid as it was ordained and promulgated by the convention without including practically all Representatives and a majority of the Senators, have
being submitted for ratification or rejection by the people. The Court rejected signified their assent to it. The thought persists, however, that as yet sufficient
such a view. As stated in the opinion of Justice Harrison: "The Constitution of time has not elapsed to be really certain.
1902 was ordained and proclaimed by a convention duly called by direct vote
of the people of the state to revise and amend the Constitution of 1869. The Nor is this all. There is for me an obstacle to the petitions being dismissed for
result of the work of the convention has been recognized, accepted, and acted such ascertainment of popular will did take place during a period of martial law.
upon as the only valid Constitution of the state by the Governor in swearing It would have been different had there been that freedom of debate with the
fidelity to it and proclaiming it, as directed thereby; by the Legislature in its least interference, thus allowing a free market of ideas. If it were thus, it could
formal official act adopting a joint resolution, July 15, 1902, recognizing the be truly said that there was no barrier to liberty of choice. It would be a clear-
Constitution ordained by the convention which assembled in the city of cut decision either way. One could be certain as to the fact of the acceptance
Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by of the new or of adherence to the old. This is not to deny that votes are cast
the individual oaths of members to support it, and by enforcing its provisions; by individuals with their personal concerns uppermost in mind, worried about
and the people in their primary capacity by peacefully accepting it and their immediate needs and captive to their existing moods. That is inherent in
acquiescing in it, by registering as voters under it to the extent of thousands any human institution, much more so in a democratic polity. Nor is it open to
throughout the state, and by voting, under its provisions, at a general election any valid objection because in the final analysis the state exists for the
for their representatives in the Congress of the United States. The Constitution individuals who in their collectivity compose it. Whatever be their views, they
having been thus acknowledged and accepted by the office administering the are entitled to respect. It is difficult for me, however, at this stage to feel secure
government and by the people of the state, and there being no government in in the conviction that they did utilize the occasion afforded to give expression
existence under the Constitution of 1869 opposing or denying its validity, we to what was really in their hearts. This is not to imply that such doubt could not
have no difficulty in holding that the Constitution in question, which went into be dispelled by evidence to the contrary. If the petitions be dismissed however,
effect at noon on the 10th day of July, 1902, is the only rightful, valid, and then such opportunity is forever lost.
existing Constitution of this state, and that to it all the citizens of Virginia owe
their obedience and loyal allegiance." 69
5. With the foregoing legal principles in mind, I find myself unable to join the
ranks of my esteemed brethren who vote for the dismissal of these petitions. I
It cannot be plausibly asserted then that premises valid in law are lacking for cannot yield an affirmative response to the plea of respondents to consider the
the claim that the revised Constitution has been accepted by the Filipino matter closed, the proceedings terminated once and for all. It is not an easy
people. What is more, so it has been argued, it is not merely a case of its being decision to reach. It has occasioned deep thought and considerable soul-
implied. Through the Citizens Assemblies, there was a plebiscite with the result searching. For there are countervailing considerations that exert a compulsion
as indicated in Proclamation No. 1102. From the standpoint of respondents not easy to resist. It can be asserted with truth, especially in the field of social
then, they could allege that there was more than just mere acquiescence by and economic rights, that with the revised Constitution, there is an auspicious
the sovereign people. Its will was thus expressed formally and unmistakably. beginning for further progress. Then too it could resolve what appeared to be
It may be added that there was nothing inherently objectionable in the informal the deepening contradictions of political life, reducing at times governmental
method followed in ascertaining its preference. Nor is the fact that Filipinos of authority to near impotence and imparting a sense of disillusionment in
both sexes above the age of fifteen were given the opportunity to vote to be democratic processes. It is not too much to say therefore that there had indeed
deplored. The greater the base of mass participation, the more there is fealty been the revision of a fundamental law to vitalize the very values out of which
to the democratic concept. It does logically follow likewise that such democracy grows. It is one which has all the earmarks of being responsive to
circumstances being conceded, then no justifiable question may be raised. the dominant needs of the times. It represents an outlook cognizant of the
This Court is to respect what had thus received the people's sanction. That is tensions of a turbulent era that is the present. That is why for some what was
not for me though whole of it. Further scrutiny even then is not entirely done represented an act of courage and faith, coupled with the hope that the
foreclosed. There is still an aspect that is judicial, an inquiry may be had as to solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had Even with full realization then that the approach pursued is not all that it ought
commanded a majority, there is not, while these lawsuits are being further to have been and the process of reasoning not without its shortcomings, the
considered, the least interference, with the executive department. The basic premises of a constitutional democracy, as I understand them and as set
President in the discharge of all his functions is entitled to obedience. He forth in the preceding pages, compel me to vote the way I did.
remains commander-in-chief with all the constitutional powers it implies. Public
officials can go about their accustomed tasks in accordance with the revised TEEHANKEE, J., dissenting:
Constitution. They can pursue even the tenor of their ways. They are free to
act according to its tenets. That was so these past few weeks, even petitions The masterly opinion of the Chief Justice wherein he painstakingly deals with
were filed. There was not at any time any thought of any restraining order. So the momentous issues of the cases at bar in all their complexity commands
it was before. That is how things are expected to remain even if the motions to
my concurrence.
dismiss were not granted. It might be asked though, suppose the petitions
should prevail? What then? Even so, the decision of this Court need not be
executory right away. Such a disposition of a case before this Court is not I would herein make an exposition of the fundamental reasons and
novel. That was how it was done in the Emergency Powers Act considerations for my stand.
controversy. 70 Once compliance is had with the requirements of Article XV of
the 1935 Constitution, to assure that the coming force of the revised charter is The unprecedented and precedent-setting issue submitted by petitioners for
free from any taint of infirmity, then all doubts are set at rest. the Court's resolution is the validity and constitutionality of Presidential
Proclamation No. 1102 issued on January 17, 1973, certifying and proclaiming
For some, to so view the question before us is to be caught in a web of that the Constitution proposed by the 1971 Constitutional Convention "has
unreality, to cherish illusions that cannot stand the test of actuality. What is been ratified by an overwhelming majority of all the votes cast by the members
more, it may give the impression of reliance on what may, for the practical man of all the Barangays (Citizens Assemblies) throughout the Philippines, and has
of affairs, be no more than gossamer distinctions and sterile refinements thereby come into effect."
unrelated to events. That may be so, but I find it impossible to transcend what
for me are the implications of traditional constitutionalism. This is not to assert More specifically, the issue submitted is whether the purported ratification of
that an occupant of the bench is bound to apply with undeviating rigidity the proposed Constitution by means of the Citizens Assemblies has
doctrines which may have served their day. He could at times even look upon substantially complied with the mandate of Article XV of the existing
them as mere scribblings in the sands to be washed away by the advancing Constitution of 1935 that duly proposed amendments thereto, in toto or parts
tides of the present. The introduction of novel concepts may be carried only so thereof, "shall be valid as part of this Constitution when approved by
far though. As Cardozo put the matter: "The judge, even when he is free, is a majority of the votes cast at an election at which the amendments
still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, are submitted to thepeople for their ratification." 1
roaming at will in pursuit of his own ideal of beauty or of goodness. He is to
draw his inspiration from consecrated principles. He is not to yield to A necessary corollary issue is whether the purported ratification of the
spasmodic sentiment, to vague and unregulated benevolence. He is to proposed Constitution as signed on November 30, 1972 by the 1971
exercise a discretion informed by tradition, methodized by analogy, disciplined Constitutional Convention may be said also to have substantially complied with
by system, and subordinated to "the primordial necessity of order in the social its own mandate that "(T)his Constitution shall take immediately upon
life." Wide enough in all conscience is the field of discretion that its ratification by a majority of the votes castin a plebiscite called for the
remains." 71 Moreover what made it difficult for this Court to apply settled purpose and except as herein provided, shall supersede the Constitution of
principles, which for me have not lost their validity, is traceable to the fact that Nineteen hundred and thirty-five and all amendments thereto." 2
the revised Constitution was made to take effect immediately upon ratification.
If a period of time were allowed to elapse precisely to enable the judicial power Respondents contend that "(A)lthough apparently what is
to be exercised, no complication would have arisen. Likewise, had there been sought to be annulled is Proclamation No. 1102, what
only one or two amendments, no such problem would be before us. That is petitioners really seek to invalidate is the new Constitution",
why I do not see sufficient justification for the orthodoxies of constitutional law and their actions must be dismissed, because:
not to operate.
"the Court may not inquire into the validity of the procedure
for ratification" which is "political in character" and that "what
is sought to be invalidated is not an act of the President but of Convention and the other departments of the government. It must be
the people; added that ... they are no less binding upon the people." 7
"(T)he fact of approval of the new Constitution by an In the same Tolentino case, this Court further proclaimed that "as
overwhelming majority of the votes cast asdeclared and long as any amendment is formulated and submitted under the aegis
certified in Proclamation No. 1102 is conclusive on the courts; of the present Charter, any proposal for such amendment which is not
in conformity with the letter, spirit and intent of the Charter for effecting
"Proclamation No. 1102 was issued by the President in the amendments, cannot receive the sanction of this Court." 8
exercise of legislative power under martial law. ...
Alternatively, or contemporaneously, he did so as "agent" of As continues to be held by a majority of this Court, proposed
the Constitutional Convention;" amendments to the Constitution "should be ratified in only one way,
that is, in an election or plebiscite held in accordance with law and
"alleged defects, such as absence of secret voting, participated in only by qualified and duly registered voters" 9 and under
enfranchisement of persons less than 21 years, non the supervision of the Commission on Elections. 10
supervision (by) the Comelec are matters not required by
Article XV of the 1935 Constitution"; (sic) Hence, if the Court declares Proclamation 1102 null and void
because on its face, the purported ratification of the proposed
"after ratification, whatever defects there might have been Constitution has not faithfully nor substantially observed nor complied
in the procedure are overcome andmooted (and muted) by with the mandatory requirements of Article XV of the (1935)
the fact of ratification"; and Constitution, it would not be "invalidating" the proposed new
Constitution but would be simply declaring that the announced fact of
ratification thereof by means of the Citizens Assemblies referendums
"(A)ssuming finally that Article XV of the 1935 Constitution
does not pass the constitutional test and that the proposed new
was not strictly followed, the ratification of the new
Constitution has not constitutionally come into existence.
Constitution must nonetheless be respected. For the
procedure outlined in Article XV wasnot intended to be
exclusive of other procedures, especially one which Since Proclamation 1102 is acknowledged by respondent to be
contemplates popular and direct participation of the citizenry "plainly merely declaratory" of the disputed fact of ratification, they
... ." 3 cannot assume the very fact to be established and beg the issue by
citing the self-same declaration as proof of the purported ratification
therein declared.
To test the validity of respondents' submittal that the Court, in annulling
Proclamation No. 1102 would really be "invalidating the new Constitution", the
terms and premises of the issues have to be defined. What complicates the cases at bar is the fact that the proposed 1972
Constitution was enforced as having immediately taken effect upon the
issuance on January 17, 1973 of Proclamation 1102 and the question of
Respondents themselves assert that "Proclamation No. 1102 ... is
plainly merely declaratory of the fact that the 1973 Constitution has whether "confusion and disorder in government affairs would (not) result" from
been ratified and has come into force. 4 a judicial declaration of nullity of the purported ratification is raised by the
Solicitor-General on behalf of respondents.
The measure of the fact of ratification is Article XV of the 1935
A comparable precedent of great crisis proportions is found in the Emergency
Constitution. This has been consistently held by the Court in
Powers cases, 11 wherein the Court in its Resolution of September 16, 1949
the Gonzales: 5 and Tolentino 6 cases.
after judgment was initially not obtained on August 26, 1949 for lack of the
required six (6) votes, finally declared in effect that the pre-war emergency
In the Tolentino case, this Court emphasized "that the provisions of powers delegated by Congress to the President, under Commonwealth Act
Section 1 of Article XV of the Constitution, dealing with the procedure 671 in pursuance of Article VI, section 26 of the Constitution, had ceased and
or manner of amending the fundamental law are binding upon the
became inoperative at the latest in May, 1946 when Congress met in its first million for the holding of the 1949 national elections. After rehearsing, he
regular session on May 25, 1946. further voted to also declare null and void the last two executive orders
appropriating funds for the 1949 budget and elections, completing the
Then Chief Justice Manuel V. Moran recited the great interests and important "sufficient majority" of six against four dissenting justices "to pronounce a valid
rights that had arisen under executive orders "issued in good faith and with the judgment on that matter." 13
best of intentions by three successive Presidents, and some of them may have
already produced extensive effects on the life of the nation" in the same Then Chief Justice Moran, who penned the Court's majority resolution,
manner as may have arisen under the bona fide acts of the President now in explained his vote for annulment despite the great difficulties and possible
the honest belief that the 1972 Constitution had been validly ratified by means "harmful consequences" in the following passage, which bears re-reading:
of the Citizens Assemblies referendums and indicated the proper course
and solution therefor, which were duly abided by and confusion and disorder However, now that the holding of a special session of Congress for
as well as harm to public interest and innocent parties thereby avoided as the purpose of remedying the nullity of the executive orders in question
follows: appears remote and uncertain, I am compelled to, and do hereby, give
my unqualified concurrence in the decision penned by Mr. Justice
Upon the other hand, while I believe that the emergency powers had Tuason declaring that these two executive orders were issued without
ceased in June 1945, I am not prepared to hold that all executive authority of law.
orders issued thereafter under Commonwealth Act No. 671, areper
se null and void. It must be borne in mind that these executive orders While in voting for a temporary deferment of the judgment I was moved
had been issued in good faith and with the best of intentions by three by the belief that positive compliance with the Constitution by the other
successive Presidents, and some of them may have already produced branches of the Government, which is our prime concern in all these
extensive effects in the life of the nation. We have, for instance, cases, would be effected, and indefinite deferment will produce the
Executive Order No. 73, issued on November 12, 1945, appropriating opposite result because it would legitimize a prolonged or permanent
the sum of P6,750,000 for public works; Executive Order No. 86, evasion of our organic law. Executive orders which are, in our opinion,
issued on January 7, 1946, amending a previous order regarding the repugnant to the Constitution, would be given permanent life, opening
organization of the Supreme Court; Executive Order No. 89, issued on the way or practices which may undermine our constitutional structure.
January 1, 1946, reorganizing Courts of First Instance; Executive
Order No. 184, issued on November 19, 1948, controlling rice and
The harmful consequences which, as I envisioned in my concurring
palay to combat hunger; and other executive orders appropriating
opinion, would come to pass should the said executive orders be
funds for other purposes. The consequences of a blanket
immediately declared null and void are still real. They have not
nullification of all these executive orders will be
disappeared by reason of the fact that a special session of Congress
unquestionably serious and harmful. And I hold that before nullifying
is not now forthcoming. However, the remedy now lies in the hands of
them, other important circumstances should be inquired into, as for
the Chief Executive and of Congress, for the Constitution vests in the
instance, whether or not they have been ratified by Congress
former the power to call a special session should the need for one
expressly or impliedly, whether their purposes have already been
arise, and in the latter, the power to pass a valid appropriations act.
accomplished entirely or partially, and in the last instance, to what
extent; acquiescence of litigants; de facto officers; acts and contracts
of parties acting in good faith; etc. It is my opinion that each executive That Congress may again fail to pass a valid appropriations act is a
order must be viewed in the light of its peculiar circumstances, and, if remote possibility, for under the circumstances it fully realizes its great
necessary and possible, nullifying it, precautionary measures should responsibility of saving the nation from breaking down; and
be taken to avoid harm to public interest and innocent parties. 12 furthermore, the President in the exercise of his constitutional powers
may, if he so desires, compel Congress to remain in special session
till it approves the legislative measures most needed by the country.
Initially, then Chief Justice Moran voted with a majority of the Court to grant
the Araneta and Guerrero petitions holding null and void the executive orders
on rentals and export control but to defer judgment on the Rodriguez and Democracy is on trial in the Philippines, and surely it will emerge
Barredo petitions for judicial declarations of nullity of the executive orders victorious as a permanent way of life in this country, if each of the great
appropriating the 1949-1950 fiscal year budget for the government and P6 branches of the Government, within its own allocated sphere,
complies with its own constitutional duty, uncompromisingly and strict perhaps, even rigid stand that the Constitution is a "superior
regardless of difficulties. paramount law, unchangeable by ordinary means" save in the particular mode
and manner prescribed therein by the people, who, in Cooley's words, so "tied
Our Republic is still young, and the vital principles underlying its up (not only) the hands of their official agencies, but their own hands as
organic structure should be maintained firm and strong, hard as the well" 18 in the exercise of their sovereign will or a liberal and flexible stand that
best of steel, so as to insure its growth and development along solid would consider compliance with the constitutional article on the amending
lines of a stable and vigorous democracy. 14 process as merely directory rather than mandatory.
The late Justice Pedro Tuason who penned the initial majority judgment The first choice of a strict stand, as applied to the cases at bar, signifies that
(declaring null and void the rental and export control executive orders) likewise the Constitution may be amended in toto or otherwise exclusively "by approval
observed that "(T)he truth is that under our concept of constitutional by a majority of the votes cast an election at which the amendments are
government, in times of extreme perils more than in normal circumstances 'the submitted to the people for their ratification", 19 participated
various branches, executive, legislative, and judicial,' given the ability to act, in only by qualified and duly registered voters twenty-one years of age or
are called upon 'to perform the duties discharge the responsibilities committed over 20 and duly supervised by the Commission on Elections, 21 in accordance
to respectively.' " 15 with the cited mandatory constitutional requirements.
It should be duly acknowledged that the Court's task of discharging its duty The alternative choice of a liberal stand would permit a disregard of said
and responsibility has been considerably lightened by the President's public requirements on the theory urged by respondents that "the procedure outlined
manifestation of adherence to constitutional processes and of working within in Article XV was not intended to be exclusive of other procedures especially
the proper constitutional framework as per his press conference of January one which contemplates popular and direct participation of the
20,1973, wherein he stated that "(T)he Supreme Court is the final arbiter of the citizenry", 22 that the constitutional age and literacy requirements and other
Constitution. It can and will probably determine the validity of this Constitution. statutory safeguards for ascertaining the will of the majority of the people may
I did not want to talk about this because actually there is a case pending before likewise be changed as "suggested, if not prescribed, by the people (through
the Supreme Court. But suffice it to say that I recognize the power of the the Citizens Assemblies) themselves", 23 and that the Comelec is
Supreme Court. With respect to appointments, the matter falls under a general constitutionally "mandated to oversee ... elections (of public officers)
provision which authorizes the Prime Minister to appoint additional members and not plebiscites." 24
to the Supreme Court. Until the matter of the new Constitution is decided, I
have no intention of utilizing that power." 16 To paraphrase U.S. Chief Justice John Marshall who first declared in the
historic 1803 case of Marbury vs. Madison 25 the U.S. Supreme Court's power
Thus, it is that as in an analogous situation wherein the state Supreme Court of judicial review and to declare void laws repugnant to the Constitution, there
of Mississippi held that the questions of whether the submission of the is no middle ground between these two alternatives. As Marshall expounded
proposed constitutional amendment of the State Constitution providing for an it: "(T)he Constitution is either a superior paramount law, unchangeable by
elective, instead of an appointive, judiciary and whether the proposition was in ordinary means, or it is on a level with ordinary legislative acts, and, like other
fact adopted, were justifiable and not political questions, we may echo the acts, alterable when the legislature shall please to alter it. If the former part of
words therein of Chief Justice Whitfield that "(W)e do not seek a jurisdiction the alternative be true, then a legislative act, contrary to the Constitution, is not
not imposed upon us by the Constitution. We could not, if we would, escape law; if the latter part be true, then written constitutions are absurd attempts on
the exercise of that jurisdiction which the Constitution has imposed upon us. the part of a people, to limit a power, in its own nature, illimitable."
In the particular instance in which we are now acting, our duty to know what
the Constitution of the state is, and in accordance with our oaths to support As was to be restated by Justice Jose P. Laurel a century and a third later in
and maintain it in its integrity, imposed on us a most difficult and embarrassing the 1936 landmark case of Angara vs. Electoral Commission, 26 "(T)he
duty, one which we have not sought, but one which, like all others, must be Constitution sets forth in no uncertain language the restrictions and limitations
discharged." 17 upon governmental powers and agencies. If these restrictions and limitations
are transcended it would be inconceivable if the Constitution had not provided
In confronting the issues at bar, then, with due regard for my colleagues' for a mechanism by which to direct the course of government along
contrary views, we are faced with the hard choice of maintaining a firm and constitutional channels, for then the distribution of powers would be mere
verbiage, the bill of rights mere expressions of sentiment, and the principles of
good government mere political apothegms. Certainly, the limitations of good others with purportedly more laudable objectives may take advantage of the
government and restrictions embodied in our Constitution are real as they precedent and continue the destruction of the Constitution, making those who
should be in any living Constitution." laid down the precedent of justifying deviations from the requirements of the
Constitution the victims of their own folly." 31
Justice Laurel pointed out that in contrast to the United States Constitution,
the Philippine Constitution as "a definition of the powers of government" placed 2. This Court held in Tolentino that:
upon the judiciary the great burden of "determining the nature, scope and
extent of such powers" and stressed that "when the judiciary mediates to ... as to matters not related to its internal operation and the
allocate constitutional boundaries, it does not assert any superiority over the performance of its assigned mission to propose amendments to the
other departments ... but only asserts the solemn and sacred obligation Constitution, the Convention and its officers and members
entrusted to it by the Constitution to determine conflicting claims of authority are allsubject to all the provisions of the existing Constitution. Now We
under the Constitution and to establish for the parties in an actual controversy hold that even as to its latter task of proposing amendments to the
the rights which the instrument secures and guarantees to them." Constitution, it is subject to the provisions of Section 1 of Article XV.
This must be so, because it is plain to Us that the framers of the
II Constitution took care that the process of amending the same
should not be undertaken with the same ease and facility in changing
Marshall was to utter much later in the equally historic 1819 case of McCulloch an ordinary legislation. Constitution making is the most valued power,
vs. Maryland 27 the "climactic phrase," 28 "we must never forget that it is second to none, of the people in a constitutional democracy such as
a constitution we are expounding," termed by Justice Frankfurter as "the the one our founding fathers have chosen for this nation, and which
single most important utterance in the literature of constitutional law most we of the succeeding generations generally cherish. And because the
important because most comprehensive and comprehending." 29 This Constitution affects thelives, fortunes, future and every other
enduring concept to my mind permeated to this Court's exposition and conceivable aspect of the lives of all the people within the country and
rationale in the hallmark case of Tolentino, wherein we rejected the those subject to its sovereignty, every degree of care is taken in
contentions on the Convention's behalf "that the issue ... is a political question preparing and drafting it. A constitution worthy of the people for
and that the Convention being a legislative body of the highest order is deliberation and study. It is obvious that correspondingly,any
sovereign, and as such, its acts impugned by petitioner are beyond the control amendment of the Constitution is of no less importance than the whole
of Congress and the Courts." 30 Constitution itself, and perforce must be conceived and prepared with
as much care and deliberation. From the very nature of things, the
This Court therein made its unequivocal choice of strictly drafters of an original constitution, as already observed earlier,
requiring faithful (which really includes substantial) compliance with operate without any limitations, restraints or inhibitions save those that
the mandatory requirements of the amending process. they may impose upon themselves. This is not necessarily true of
subsequent conventions called to amend the original constitution.
Generally, the framers of the latter see to it that their handiwork is not
1. In denying reconsideration of our judgment of October 16, 1971 prohibiting lightly treated and as easily mutilated or changed, not only for reasons
the submittal in an advance election of 1971 Constitutional Convention's purely personal but more importantly, because written constitutions
Organic Resolution No. 1 proposing to amend Article V, section 1 of the are supposed to be designed so as to last for some time, if not for
Constitution by lowering the voting age to 18 years (vice 21 years) 30a "without ages, or for, at least, as long as they can be adopted to the needs and
prejudice to other amendments that will be proposed in the future ... on other exigencies of the people, hence, they must be insulatedagainst
portions of the amended section", this Court stated that "the constitutional precipitate and hasty actions motivated by more or less passing
provision in question (as proposed) presents no doubt which may be resolved political moods or fancies. Thus, as a rule, the original constitutions
in favor of respondents and intervenors. We do not believe such doubt can carry with them limitations and conditions, more or less
exist only because it is urged that the end sought to be achieved is to stringent, made so by the people themselves, in regard to the process
be desired. Paraphrasing no less than the President of Constitutional of their amendment. And when such limitations or conditions are so
Convention of 1934, Claro M. Recto, let those who would put aside, invoking incorporated in the original constitution, it does not lie in the delegates
grounds at best controversial, any mandate of the fundamental law purportedly of any subsequent convention to claim that they may ignore and
in order to attain some laudable objective bear in mind that someday somehow
disregard such conditions because they are powerful and omnipotent is no submission within the meaning of the word as intended by the
as their original counterparts. 32 framers of the Constitution. What the Constitution in effect directs is
that the government, in submitting an amendment for ratification,
3. This Court in Tolentino likewise formally adopted the doctrine of proper should put every instrumentality or agency within its structural
submission first advanced in Gonzales vs. Comelec 33, thus: framework to enlighten the people, educate them with respect to their
act of ratification or rejection. For as we have earlier stated, one thing
is submission and another is ratification. There must be fair
We are certain no one can deny that in order that a plebiscite for the
submission, intelligent consent or rejection. 36
ratification of an amendment to the Constitution may be validly held, it
must provide the voter not only sufficient time but ample basisfor
an intelligent appraisal of the nature of amendment per se as well as They stressed further the need for undivided attention, sufficient
its relation to the other parts of the Constitution with which it has to information and full debate, conformably to the intendment of Article XV,
form a harmonious whole. In the context of the present state of things, section 1 of the Constitution, in this wise:
where the Convention hardly started considering the merits of
hundreds, if not thousands, proposals to amend the existing A number of doubts or misgivings could conceivably and logically
Constitution, to present to people any single proposal or a few of them assail the average voter. Why should the voting age be lowered at all,
cannot comply with this requirement. We are of the opinion that the in the first place? Why should the new voting age be precisely 18
present Constitution does not contemplate in Section 1 of Article XV a years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the
plebiscite or "election" wherein the people are in the dark as to frame 18-year old as mature as the 21-year old, so that there is no need of
of reference they can base their judgment on. We reject the an educational qualification to entitle him to vote? In this age of
rationalization that the present Constitution is a possible frame of permissiveness and dissent, can the 18-year old be relied upon to vote
reference, for the simple reason that intervenors themselves are with judiciousness when the 21-year old, in the past elections, has not
stating the sole purpose of the proposed amendment is to enable the performed so well? If the proposed amendment is voted down by the
eighteen year olds to take part in the election for the ratification of the people, will the Constitutional Convention insist on the said
Constitution to be drafted by the Convention. In brief, under the amendment? Why is there an unseemly haste on the part of the
proposed plebiscite, there can be, in the language of Justice Sanchez, Constitutional Convention in having this particular proposed
speaking for the six members of the Court in Gonzales, supra, 'no amendment ratified at this particular time? Do some of the members
proper submission.' " 34 of the Convention have future political plans which they want to begin
to subserve by the approval this year of this amendment? If this
4. Four other members of the Court 35 in a separate concurrence in Tolentino, amendment is approved, does it thereby mean that the 18-year old
expressed their "essential agreement" with Justice Sanchez' separate opinion should not also shoulder the moral and legal responsibilities of the 21-
in Gonzales on the need for "fair submission (and) intelligent rejection" as year old? Will he be required to compulsory military service under the
"minimumrequirements that must be met in order that there can be a proper colors? Will the contractual consent be reduced to 18 years? If I vote
submission to the people of a proposed constitutional amendment" thus: against the amendment, will I not be unfair to my own child who will
be 18 years old, come 1973?
... amendments must be fairly laid before the people for their blessing
or spurning. The people are not to be mere rubber stamps. They are The above are just samplings from here, there and everywhere
not to vote blindly. They must be afforded ample opportunity to mull from a domain (of searching questions) the bounds of which are not
over the original provisions, compare them with the proposed immediately ascertainable. Surely, many more questions can be
amendments, and try to reach a conclusion as the dictates of their added to the already long litany. And the answers cannot except as
conscience suggest, free from the incubus of extraneous or possibly the questions are debated fully, pondered upon purposefully, and
insidious influences. We believe the word "submitted" can only mean accorded undivided attention.
that the government, within its maximum capabilities, should strain
every effort to inform every citizen of the provisions to be amended, Scanning the contemporary scene, we say that the people are not,
and the proposed amendments and the meaning, nature and effects and by election time will not be,sufficiently informed of the meaning,
thereof. By this, we are not to be understood as saying that, if one nature and effects of the proposed constitutional amendment. They
citizen or 100 citizens or 1,000 citizens cannot be reached, then there have not been afforded ample time to deliberate thereon
conscientiously. They have been and are effectively distracted from On the premature submission of a partial amendment proposal,
a full and dispassionate consideration of the merits and demerits of with a "temporary provisional or tentative character": "... a partial
the proposed amendment by their traditional pervasive involvement in amendment would deprive the voters of the context which is usually
local elections and politics. They cannot thus weigh in tranquility the necessary for them to make a reasonably intelligent appraisal of the
need for and the wisdom proposed amendment. 37 issue submitted for their ratification or rejection. ... Then, too, the
submission to a plebiscite of a partial amendment, without adefinite
5. This Court therein dismissed the plea of disregarding mandatory frame of reference, is fraught with possibilities which may jeopardize
requirements of the amending process "in favor of allowing the sovereign the social fabric. For one thing, it opens the door to wild speculations.
people to express their decision on the proposed amendments" as It offers ample opportunities for overzealous leaders and members of
"anachronistic in the real constitutionalism and repugnant to the essence of opposing political camps to unduly exaggerate the pros and cons of
the rule of law," in the following terms: the partial amendment proposed. In short, it is apt to breed false
hopes and create wrong impressions. As a consequence, it is bound
to unduly strain the people's faith in the soundness and validity of
... The preamble of the Constitution says that the Constitution has
been ordained by the 'Filipino people, imploring the aid of Divine democratic processes and institutions.
Providence.' Section 1 of Article XV is nothing than a part of the
Constitution thus ordained by the people. Hence, in construing said On the plea to allow submission to the sovereign people of the
section, We must read it as if thepeople had said, 'This Constitution "fragmentary and incomplete" proposal, although inconsistent with the
may be amended, but it is our will that the amendment must letter and spirit of the Constitution: "The view, has, also, advanced that
beproposed and submitted to Us for ratification only in the manner the foregoing considerations are not decisive on the issue before Us,
herein provided.' ... Accordingly, the real issue here cannot be whether inasmuch as thepeople are sovereign, and the partial amendment
or not the amending process delineated by the present Constitution involved in this case is being submitted to them. The issue before Us
may be disregarded in favor of allowing the sovereign people to is whether or not said partial amendment may be validly submitted to
express their decision on the proposed amendments, if only because the people for ratification "in a plebiscite coincide with the local
it is evident that the very idea of departing from the fundamental law elections in November 1971," and this particular issue will not be
is anachronistic in the realm of constitutionalism and repugnant to the submitted to the people. What is more, the Constitution
essence of the rule of law; rather, it is whether or not the provisional does not permit its submission to the people. The question sought to
nature of the proposed amendment and themanner of its be settled in the scheduled plebiscite is whether or not the people are
submission to the people for ratification or rejection conform with in favor of the reduction of the voting age.
the mandate of the people themselves in such regard, as expressed
in, the Constitution itself. 38 On a "political" rather than "legalistic" approach: "Is this approach
to the problem too "legalistic?" This term has possible connotations. It
6. This Court, in not heeding the popular clamor, thus stated its position: "(I)t may mean strict adherence to the law, which in the case at bar is
would be tragic and contrary to the plain compulsion of these perspectives, if the Supreme Law of the land. On point, suffice it to say that, in
the Court were to allow itself in deciding this case to be carried astray by compliance with the specific man of such Supreme Law, the members
considerations other than the imperatives of the rule of law and of the of the Supreme Court taken the requisite "oath to support and defend
applicable provisions of the Constitution. Needless to say, in a larger measure the Constitution." ... Then, again, the term "legalistic" may be used to
than when it binds other departments of the government or any other official suggest inversely that the somewhat strained interpretation of the
or entity, the Constitution imposes upon the Court the sacred duty to give Constitution being urged upon this Court be toleratedor, at least,
meaning and vigor to the Constitution, by interpreting and construing its overlooked, upon the theory that the partial amendment on voting age
provisions in appropriate cases with the proper parties and by striking down is badly needed and reflects the will of the people, specially the youth.
any act violative thereof. Here, as in all other cases, We are resolved This course of action favors, in effect, adoption of a political approach,
to discharge that duty. 39 inasmuch as the advisability of the amendment and an appraisal of
the people's feeling thereon political matters. In fact, apart from the
7. The Chief Justice, in his separate opinion in Tolentino concurring with this obvious message of the mass media, and, at times, of the pulpit, the
Court has been literally bombarded with scores of handwritten letters,
Court's denial of the motion for reconsideration, succinctly restated this Court's
position on the fundamentals, as follows: almost all of which bear the penmanship and the signature of girls, as
well as letterhead of some sectarian educational institutions, generally Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he
stating that the writer is 18 years of age and urging that she or he be primary purpose for the submission of the proposed amendment lowering the
allowed to vote. Thus, the pressure of public opinion has brought to voting age to the plebiscite on November 8, 1971 is to enable the youth 18 to
bear heavily upon the Court for a reconsideration of its decision in the 20 years who comprise more than three (3) million of our population to
case at bar. participate in the ratification of the new Constitution in so far as "to allow young
people who would be governed by the Constitution to be given a say on what
As above stated, however, the wisdom of the amendment and kind of Constitution they will have" is a laudable end, ... those urging the vitality
the popularity thereof are political questions beyond our province. In and importance of the proposed constitutional amendment and its approval
fact, respondents and the intervenors originally maintained that We ahead of the complete and final draft of the Constitution must seek a valid
have no jurisdiction to entertain the petition herein, upon the ground solution to achieve it in a manner sanctioned by the amendatory process
that the issue therein raised is a political one. Aside from the absence ordained by our people in the present Constitution" 41 so that there may be
of authority to pass upon political question, it is obviously improper "submitted, not piece-meal, but by way of complete and final amendments as
and unwise for the bench to develop into such questions owing to the an integrated whole (integrated either with the subsisting Constitution or with
danger of getting involved in politics, more likely of a partisan nature, the new proposed Constitution)..."
and, hence, of impairing the image and the usefulness of courts of
justice as objective and impartial arbiters of justiciable controversies. 9. The universal validity of the vital constitutional precepts and principles
above-enunciated can hardly be gainsaid. I fail to see the attempted distinction
Then, too, the suggested course of action, if adopted, would constitute of restricting their application to proposals for amendments of particular
a grievous disservice to the people and the very Convention itself. provisions of the Constitution and not to so-called entirely new Constitutions.
Indeed, the latter and the Constitution it is in the process of drafting Amendments to an existing Constitution presumably may be only of certain
stand essentially for the Rule of Law. However, as the Supreme Law parts or in toto, and in the latter case would rise to an entirely new Constitution.
of the land, a Constitution would not be worthy of its name, and the Where this Court held in Tolentino that "any amendment of the Constitution is
Convention called upon to draft it would be engaged in a futile of no less importance than the whole Constitution itself and perforce must be
undertaking, if we did not exact faithful adherence to the fundamental conceived and prepared with as much care and deliberation", it would appeal
tenets set forth in the Constitution and compliance with its provisions that the reverse would equally be true; which is to say, that the adoption of a
were not obligatory. If we, in effect, approved, consented to or even whole new Constitution would be of no less importance than any particular
overlooked a circumvention of said tenets and provisions, because of amendment and therefore the necessary care and deliberation as well as the
the good intention with which Resolution No. 1 is animated, the Court mandatory restrictions and safeguards in the amending process ordained by
would thereby become theJudge of the good or bad intentions of the the people themselves so that "they (may) be insulated against precipitate and
Convention and thus be involved in a question essentially political in hasty actions motivated by more or less passing political moods or fancies"
nature. must necessarily equally apply thereto.
This is confirmed by the plea made in the motions for reconsideration III
in favor of the exercise of judicial statesmanship in deciding the
present case. Indeed, "politics" is the word commonly used to 1. To restate the basic premises, the people provided in Article XV of the
epitomize compromise, even with principles, for the sake of political Constitution for the amending processonly "by approval by a majority of the
expediency or the advancement of the bid for power of a given political votes cast at an election at which the (duly proposed) amendments are
party. Upon the other hand, statesmanship is the expression usually submitted to the people for their ratification."
availed of to refer to high politics or politics on the highest level. In any
event, politics, political approach, political expediency and The people ordained in Article V, section 1 that only those thereby
statesmanship are generally associated, and often identified, with the enfranchised and granted the right of suffrage may speak the "will of the body
dictum that "the end justifies the means." I earnestly hope that the politic", viz, qualified literate voters twenty one years of age or over with one
administration of justice in this country and the Supreme Court, in year's residence in the municipality where they have registered.
particular, will adhere to or approve or indorse such dictum." 40
The people, not as yet satisfied, further provided by amendment duly approved As was also ruled by the U.S. Supreme Court, "... While the people are thus
in 1940 in accordance with Article XV, for the creation of the source of political power, their governments, national and state, have been
an independent Commission on Elections with "exclusive charge" for the limited by constitutions, and they have themselves thereby set bounds to their
purpose of "insuring free, orderly and honest elections" and ascertaining the own power, as against the sudden impulse of mere majorities." 44
true will of the electorate and more, as ruled by this Court in Tolentino, in
the case of proposed constitutional amendments, insuring proper From the text of Article XV of our Constitution, requiring approval of
submission to the electorate of such proposals. 42 amendment proposals "by a majority of thevotes cast at an election at which
the amendments are submitted to the people for their ratification", it seems
2. A Massachussets case 43 with a constitutional system and provisions obvious as above-stated that "people" as therein used must be considered
analogous to ours, best defined the uses of the term "people" as a body synonymous with "qualified voters" as enfranchised under Article V, section 1
politic and "people" in the political sense who are synonymous with the of the Constitution since only "people" who are qualified voters can exercise
qualified voters granted the right to vote by the existing Constitution and who the right of suffrage and cast their votes.
therefore are "the sole organs through which the will of the body politic can be
expressed." 3. Sound constitutional policy and the sheer necessity of adequate safeguards
as ordained by the Constitution and implementing statutes to ascertain and
It was pointed out therein that "(T)he word 'people' may have somewhat record the will of the people in free, orderly and honest elections supervised
varying significations dependent upon the connection in which it is used. In by the Comelec make it imperative that there be strict adherence to the
some connections in the Constitution it is confined to citizens and means the constitutional requirements laid down for the process of amending in toto or in
same as citizens. It excludes aliens. It includes men, women and children. It part the supreme law of the land.
comprehends not only the sane, competent, law-abiding and educated, but
also those who are wholly or in part dependents and charges upon society by Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for
reason of immaturity, mental or moral deficiency or lack of the common the holding of barrio plebiscites thus: "SEC. 6. Plebiscite. A plebiscite may
essentials of education. All these persons are secured fundamental be held in the barrio when authorized by a majority vote of the members
guarantees of the Constitution in life, liberty and property and the pursuit of present in the barrio assembly, there being a quorum, or when called by at
happiness, except as these may be limited for the protection of society." least four members of the barrio council: Provided, however, That no plebiscite
shall be held until after thirty days from its approval by either body, and such
In the sense of "body politic (as) formed by voluntary association of individuals" plebiscite has been given the widest publicity in the barrio, stating the date,
governed by a constitution and common laws in a "social compact ... for the time and place thereof, the questions or issues to be decided, action to be
common good" and in another sense of "people" in a "practical sense" for taken by the voters, and such other information relevant to the holding of the
"political purposes" it was therein fittingly stated that in this sense, "people" plebiscite." 46
comprises many who, by reason of want of years, of capacity or of the
educational requirements of Article 20 of the amendments of the Constitution, As to voting at such barrio plebiscites, the Charter further requires that
can have no voice in any government and who yet are entitled to all the "(A)ll duly registered barrio assembly members qualified to vote may vote in
immunities and protection established by the Constitution. 'People' in this the plebiscite. Voting procedures may be made either in writing as in regular
aspect is coextensive with the body politic. But it is obvious that 'people' cannot elections, and/or declaration by the voters to the board of election tellers." 47
be used with this broad meaning of political signification. The 'people' in this
connection means that part of the entire body of inhabitants who under the
The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite
Constitution are intrusted with the exercise of the sovereign power and the
may be called to decide on the recall of any member of the barrio council. A
conduct of government. The 'people' in the Constitution in a practical
plebiscite shall be called to approve any budgetary, supplemental
sense means those who under the existing Constitution possess the right to
appropriations or special tax ordinances" and the required majority vote is
exercise the elective franchise and who, while that instrument remains in force specified: "(F)or taking action on any of the above enumerated measures,
unchanged, will be the sole organs through which the will of the body
majority vote of all the barrio assembly members registered in the list of the
politic can beexpressed. 'People' for political purposes must be
barrio secretary is necessary." 48
considered synonymous with qualified voters.' "
The qualifications for voters in such barrio plebiscites and elections of barrio the (1935) Constitution was not observed, the cases at bar need not reach the
officials 49 comply with the suffrage qualifications of Article V, section 1 of the stage of answering the host of questions, raised by petitioners against the
Constitution and provide that "(S)EC. 10. Qualifications of Voters and procedure observed by the Citizens Assemblies and the reported referendum
Candidates. Every citizen of the Philippines, twenty one years of age or results since the purported ratification is rendered nugatory by virtue of such
over, able to read and write, who has been a resident of the barrio during the non-observance.
six months immediately preceding the election, duly registered in the list of
voters by the barrio secretary, who is not otherwise disqualified, may vote or 5. Finally, as to respondents' argument that the President issued Proclamation
be a candidate in the barrio elections." 50 1102 "as "agent" of the Constitutional Convention" 55 under Resolution No.
5844 approved on November 22, 1973, and "as agent of the Convention the
IV President could devise other forms of plebiscite to determine the will of the
majority vis-a-vis the ratification of the proposed Constitution." 56
1. Since it appears on the face of Proclamation 1102 that the mandatory
requirements under the above-cited constitutional articles have not been The minutes of November 22, 1972, of the Convention, however, do not at all
complied with and that no election or plebiscite for ratification as therein support this contention. On the contrary, the said minutes fully show that the
provided as well as in section 16 of Article XVII of the proposed Constitution Convention's proposal and "agency" was that the President issue a decree
itself 51 has been called or held, there cannot be said to have been a valid precisely calling a plebiscite for the ratification of the proposed new
ratification. Constitution on an appropriate date, under the charge of the Comelec, and
with a reasonable period for an information campaign, as follows:
2. Petitioners raised serious questions as to the veracity and genuineness of
the reports or certificates of results purportedly showing unaccountable 12. Upon recognition by the Chair, Delegate Duavit moved for
discrepancies in seven figures in just five provinces 52 between the reports as the approval of the resolution, the resolution portion of which
certified by the Department of Local Governments and the reports as directly read as follows:
submitted by the provincial and city executives, which latter reports
respondents disclaimed inter alia as not final and complete or as not "RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971
signed; 53 whether the reported votes of approval of the proposed Constitution Constitutional Convention propose to President Ferdinand E.
conditioned upon the non-convening of the interim National Assembly Marcos that a decree be issued calling a plebiscite for the
provided in Article XVII, section 1 thereof, 54 may be considered as valid; the ratification of the proposed New Constitution on such
allegedly huge and uniform votes reported; and many others. appropriate date as he shall determine and providing for the
necessary funds therefor, and that copies of this resolution as
3. These questions only serve to justify and show the basic validity of the approved in plenary session be transmitted to the President
universal principle governing written constitutions that proposed amendments of the Philippines and the Commission on Elections for
thereto or in replacement thereof may be ratified only in the particular mode or implementation."
manner prescribed therein by the people. Under Article XV, section 1 of our
Constitution, amendments thereto may be ratified only in the one way therein He suggested that in view of the expected approval of the final draft of
provided, i.e. in an election or plebiscite held in accordance with law and duly the new Constitution by the end of November 1972 according to the
supervised by the Commission on Elections, and which is participated in only Convention's timetable, it would be necessary to lay the groundwork
by qualified and duly registered voters. In this manner, the safeguards for the appropriate agencies of the government to undertake the
provided by the election code generally assure the true ascertainment of the necessary preparation for the plebiscite.
results of the vote and interested parties would have an opportunity to thresh
out properly before the Comelec all such questions in pre-proclamation xxx xxx xxx
proceedings.
12.2 Interpellating, Delegate Pimentel (V.) contended that the
4. At any rate, unless respondents seriously intend to question the very
resolution was unnecessary because section 15, Article XVII on the
statements and pronouncements in Proclamation 1102 itself which shows on Transitory Provision, which had already been approved on second
its face, as already stated, that the mandatory amending process required by and third readings, provided that the new constitution should be
ratified in a plebiscite called for the purpose by the incumbent 13. Delegate Ozamiz then moved to close the debate and proceed to
President. Delegate Duavit replied that the provision referred to the period of amendment.
did notinclude the appropriation of funds for the plebiscite and that,
moreover, the resolution was intended to serve formal notice to 13.1 Floor Leader Montejo stated that there were no reservations to
the President and the Commission on Elections to initiate the amend the resolution.
necessary preparations.
13.2 Delegate Ozamiz then moved for the previous question.
xxx xxx xxx Submitted to a vote, the motion was approved.
12.4 Interpellating, Delegate Madarang suggested that a reasonable Upon request of the Chair, Delegate Duavit restated the resolution for
period for an information campaign was necessary in order to properly voting.
apprise the people of the implications and significance of the new
charter. Delegate Duavit agreed, adding that this was precisely why 14.1. Delegate Ordoez moved for nominal voting. Submitted to a
the resolution was modified to give the President the discretion to
vote, the motion was lost.
choose the most appropriate date for the plebiscite.
14.2. Thereupon, the Chair submitted the resolution to a vote. It was
12.5 Delegate Laggui asked whether a formal communication to the approved by a show of hands.57
President informing him of the adoption of the new Constitution would
not suffice considering that under Section 15 of the Transitory
Provisions, the President would be duty-bound to call a plebiscite for I, therefore, vote to deny respondents' motion to dismiss and to give due
its ratification. Delegate Duavit replied in the negative, adding that the course to the petitions.
resolution was necessary to serve notice to the proper authorities
to prepare everything necessary for the plebiscite. Promulgated: June 4, 1973 *
12.6 In reply to Delegate Britanico, Delegate Duavit stated that ANTONIO, J., concurring:
the mechanics for the holding of theplebiscite would be laid down by
the Commission on Elections in coordination with the President. In conformity with my reservation, I shall discuss the grounds for my
concurrence.
12.7 Delegate Catan inquired if such mechanics for the plebiscite
could include a partial lifting of martial law in order to allow the people I
to assemble peaceably to discuss the new Constitution. Delegate
Duavit suggested that the Committee on Plebiscite and Ratification It is my view that to preserve the independence of the State, the maintenance
could coordinate with the COMELEC on the matter. of the existing constitutional order and the defense of the political and social
liberties of the people, in times of a grave emergency, when the legislative
12.8 Delegate Guzman moved for the previous question. The Chair branch of the government is unable to function or its functioning would itself
declared that there was one more interpellant and that a prior threaten the public safety, the Chief Executive may promulgate measures
reservation had been made for the presentation of such a motion. legislative in character, for the successful prosecution of such objectives. For
the "President's power as Commander- in-chief has been transformed from a
1.8a Delegate Guzman withdrew his motion. simple power of military command to a vast reservoir of indeterminate powers
in time of emergency. ... In other words, the principal canons of constitutional
12.9 Delegate Astilla suggested in his interpellation that there was interpretation are ... set aside so far as concerns both the scope of the national
actually no need for such a resolution in view of the provision of power and the capacity of the President to gather unto himself all
section 15, Article XVII on the Transitory Provisions. Delegate Duavit constitutionally available powers in order the more effectively to focus them
disagreed, pointing out that the said provision did not provide for the upon the task of the hour." (Corwin, The President: Office & Powers, pp. 317,
funds necessary for the purpose. 318, [1948]).
1. The proclamation of martial rule, ushered the commencement of a crisis of Lincoln "assert for the President", according to Corwin, "an initiative of
government in this country. In terms of power, crisis government in a indefinite scope and legislative in effect in meeting the domestic aspects of a
constitutional democracy entails the concentration of governmental power. war emergency." (Corwin, The President: Office & Powers, p. 280 [1948]). The
"The more complete the separation of powers in a constitutional system, the facts of the civil war have shown conclusively that in meeting the domestic
more difficult, and yet the more necessary" according to Rossiter, "will be their problems as a consequence of a great war, an indefinite power must be
fusion in time of crisis... The power of the state in crisis must not only be attributed to the President to take emergency measures. The concept of
concentrated and expanded, it must be freed from the normal system of "emergency" under which the Chief Executive exercised extraordinary powers
constitutional and legal limitations. One of the basic features of emergency underwent correlative enlargement during the first and second World Wars.
powers is the release of the government from the paralysis of constitutional From its narrow concept as an "emergency" in time of war during the Civil War
restraints" (Rossiter, Constitutional Dictatorship, p. 290). and World War I, the concept has been expanded in World War II to include
the "emergency" preceding the war and even after it. "The Second World War"
It is clearly recognized that in moments of peril the effective action of the observed Corwin and Koenig, was the First World War writ large, and the
government is channeled through the person of the Chief Executive. "Energy quasi-legislative powers of Franklin Roosevelt as "Commander-in-Chief in
in the executive," according to Hamilton, "is essential to the protection of the wartime"... burgeoned correspondingly. The precedents were there to be sure,
community against foreign attacks ... to the protection of property against those most of them from the First World War, but they proliferated amazingly. What
irregular and high-handed combinations which sometimes interrupt the is more, Roosevelt took his first step toward war some fifteen months before
ordinary course of justice; to the security of liberty against the enterprises and our entrance into shooting war. This step occurred in September, 1940, when
assaults of ambition, of faction, and of anarchy." (The Federalist, Number 70). he handed over fifty so-called overage destroyers to Great Britain. The truth
"The entire strength of the nation", said Justice Brewer in the Debs case (158 is, they were not overage, but had been recently reconditioned and
U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the land the recommissioned. ... Actually, what President Roosevelt did was to take over
full and free exercise of all national powers and the security of all rights for the nonce Congress's power to dispose of property of the United
entrusted by the constitution to its care." The marshalling and employment of States (Article IV, Section 3) and to repeal at least two statutes." (Corwin &
the "strength of the nation" are matters for the discretion of the Chief Executive. Koenig, The Presidency Today, New York University Press, 1956; sf Corwin,
The President's powers in time of emergency defy precise definition since their The President: Office and Powers, 1948.)
extent and limitations are largely dependent upon conditions and
circumstances. The creation of public offices is a power confided by the constitution to
Congress. And yet President Wilson, during World War I on the basis of his
2. The power of the President to act decisively in a crisis has been grounded powers under the "Commander-in-Chief" clause created "offices" which were
on the broad conferment upon the Presidency of the Executive power, with the copied in lavish scale by President Roosevelt in World War II. In April 1942,
added specific grant of power under the "Commander-in-Chief" clause of the thirty-five "executive agencies" were purely of Presidential creation. On June
constitution. The contours of such powers have been shaped more by a long 7, 1941 on the basis of his powers as "Commander-in-Chief", he issued an
line of historical precedents of Presidential action in times of crisis, rather than executive order seizing the North American Aviation plant of Inglewood,
judicial interpretation. Lincoln wedded his powers under the "commander-in- California, where production stopped as a consequence of a strike. This was
chief" clause with his duty "to take care that the laws be faithfully executed," to justified by the government as the exercise of presidential power growing out
justify the series of extraordinary measures which he took the calling of of the "duty constitutionally and inherently resting upon the President to exert
volunteers for military service, the augmentation of the regular army and navy, his civil and military as well as his moral authority to keep the defense efforts
the payment of two million dollars from unappropriated funds in the Treasury of the United States a going concern" as well as "to obtain supplies for which
to persons unauthorized to receive it, the closing of the Post Office to Congress has appropriated money, and which it has directed the President to
"treasonable correspondence", the blockade of southern ports, the suspension obtain." On a similar justification, other plants and industries were taken over
of the writ of habeas corpus, the arrest and detention of persons "who were by the government. It is true that in Youngstown Sheet & Tube vs. Sawyer
represented to him" as being engaged in or contemplating "treasonable (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of
practices" all this for the most part without the least statutory authorization. the United States did not sustain the claims that the President could, as the
Those actions were justified by the imperatives of his logic, that the President Nation's Chief Executive and Commander-in-Chief of the armed forces, validly
may, in an emergency thought by him to require it, partially suspend the order the seizure of most of the country's steel mills. The Court however did
constitution. Thus his famous question: "Are all laws but one to be unexecuted, not face the naked question of the President's power to seize steel plants in
and the Government itself go to pieces lest that one be violated?" The actions the absence of any congressional enactment or expressions of policy. The
majority of the Court found that this legislative occupation of the field made the war," but the 'war after the war.' Indeed, in the economic crisis from which
untenable the President's claim of authority to seize the plants as an exercise the New Deal may be said to have issued, the nation was confronted in the
of inherent executive power or as Commander-in-Chief. Justice Clark, in his opinion of the late President with an 'emergency greater than war'; and in
concurrence to the main opinion of the Court, explicitly asserted that the sustaining certain of the New Deal measures the Court invoked the justification
President does possess, in the absence of restrictive legislation, a residual or of 'emergency.' In the final result constitutional practices of wartime have
resultant power above or in consequence of his granted powers, to deal with moulded the Constitution to greater or less extent for peacetime as well, seem
emergencies that he regards as threatening the national security. The same likely to do so still more pronouncedly under fresh conditions of crisis."
view was shared with vague qualification by Justices Frankfurter and Jackson, (Corwin, Ibid. p. 318.)
two of the concurring Justices. The three dissenting Justices, speaking
through Chief Justice Vinson, apparently went further by quoting with approval The same view was expressed by Rossiter thus:
a passage extracted from the brief of the government in the case of United
States vs. Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where
The second crisis is rebellion, when the authority of a constitutional
the court sustained the power of the President to order withdrawals from the
government is resisted openly by large numbers of citizens who are
public domain not only without Congressional sanction but even contrary to engaged in violent insurrection against enforcement of its laws or are
Congressional statutes. bent on capturing it illegally or destroying it altogether. The third crisis,
one recognized particularly in modern times as sanctioning
It is evident therefore that the Steel Seizure Case, cannot be invoked as an emergency action by constitutional governments, iseconomic
authority to support the view that the President in times of a grave crisis does depression. The economic troubles which plagued all the countries of
not possess a residual power above or in consequence of his granted powers, the world in the early thirties involved governmental methods of an
to deal with emergencies that he regards as threatening the national security. unquestionably dictatorial character in many democracies. It was
The lesson of the Steel Seizure case, according to Corwin and Koenig, thereby acknowledged that an economic existence as a war or a
"Unquestionably ... tends to supplement presidential emergency power to rebellion. And these are not the only cases which have justified
adopt temporary remedial legislation when Congress has been, in the extraordinary governmental action in nations like the United States.
judgment of the President, unduly remiss in taking cognizance of and acting Fire, flood, drought, earthquake, riots, great strikes have all been dealt
on a given situation." (Corwin and Koenig, The Presidency Today, New York with by unusual and of dictatorial methods. Wars are not won by
University Press, 1956). debating societies, rebellions are not suppressed by judicial
injunctions, reemployment of twelve million jobless citizens will not be
The accumulation of precedents has thus built up the presidential power under effected through a scrupulous regard for the tenets of free enterprise,
emergency conditions to "dimensions of executive prerogative as described hardships caused by the eruptions of nature cannot be mitigated
by John Locke, of a power to wit, to fill needed gaps in the law, or even to letting nature take its course. The Civil War, the depression of 1933
supersede it so far as may be requisite to realize the fundamental law of nature and the recent global conflict were not and could not have been
and government, namely, that as much as may be all the members of society successfully resolved by governments similar to those of James
are to be preserved." (Corwin and Koenig, The Presidency Today). Buchanan, William Howard Taft, or Calvin Coolidge. (Rossiter,
Constitutional Dictatorship Crisis of Government in the Modern
In the light of the accumulated precedents, how could it be reasonably argued Democracies, p. 6 [1948).
therefore, that the President had no power to issue Presidential Decree Nos.
86 and 86-A as well as Proclamation No. 1102, since these measures were II
considered indispensable to effect the desired reforms at the shortest time
possible and hasten the restoration of normalcy? It is unavailing for petitioners We are next confronted with the insistence of Petitioners that the referendum
to contend that we are not faced by an actual "shooting war" for today's in question not having been done inaccordance with the provisions of existing
concept of the emergency which justified the exercise of those powers has of election laws, which only qualified voters who are allowed to participate, under
necessity been expanded to meet the exigencies of new dangers and crisis the supervision of the Commission on Elections, the new Constitution, should
that directly threaten the nation's continued and constitutional existence. For therefore be a nullity. Such an argument is predicated upon an assumption,
as Corwin observed: "... today the concept of 'war' as a special type of that Article XV of the 1935 Constitution provides the method for the revision of
emergency warranting the realization of constitutional limitations tends to the constitution, and automatically apply in the final approval of such proposed
spread, as it were, in both directions, so that there is not only "the war before new Constitution the provisions of the election law and those of Article V and
X of the old Constitution. We search in vain for any provision in the old charter re McConaughy (119 N.E. 408) relied upon in one of the dissenting opinions
specifically providing for such procedure in the case of a total revision or a involved in the application of the provisions of the state Constitution of
rewriting of the whole constitution. Minnesota which clearly prescribed in detail the procedure under which the
Constitution may be amended or revised. 2 This is not true with our
1. There is clearly a distinction between revision and amendment of an existing Constitution. In the case of revision there are no "standards meet for judicial
constitution. Revision may involve a rewriting of the whole constitution. The judgment." 3
act of amending a constitution, on the other hand, envisages a change of only
specific provisions. The intention of an act to amend is not the change of the The framers of our Constitution were free to provide in the Constitution the
entire constitution but only the improvement of specific parts of the existing method or procedure for the revision or rewriting of the entire constitution, and
constitution of the addition of provisions deemed essential as a consequence if such was their intention, they could and should have so provided. Precedents
of new constitutions or the elimination of parts already considered obsolete or were not wanting. The constitutions of the various states of the American
unresponsive to the needs of the times. 1 The 1973 Constitution is not a Union did provide for procedures for their amendment and methods for
mere amendment to the 1935 Constitution. It is a completely new fundamental their revision. 4
charter embodying new political, social and economic concepts.
Certainly We cannot, under the guise of interpretation, modify, revise, amend,
According to an eminent authority on Political Law, "The Constitution of the remodel or rewrite the 1935 Charter. To declare what the law is, or has been,
Philippines and that of the United States expressly provide merely for methods is a judicial power, but to declare what the law shall be is not within Our judicial
of amendment. They are silent on the subject of revision. But this is not a fatal competence and authority.
omission. There is nothing that can legally prevent a convention from actually
revising the Constitution of the Philippines or of the United States even were Upon the other hand, since our fundamental charter has not provided the
such conventions called merely for the purpose of proposing and submitting method or procedure for the revision or complete change of the Constitution,
amendments to the people. For in the final analysis, it is the approval of the it is evident that the people have reserved such power in themselves. They
people that gives validity to any proposal of amendment or revision." (Sinco, decided to exercise it not through their legislature, but through a Convention
Philippine Political Law, p. 49). expressly chosen for that purpose. The Convention as an independent and
sovereign body has drafted not an amendment but a completely new
Since the 1935 Constitution does not specifically provide for the method or Constitution, which decided to submit to the people for approval, not through
procedure for the revision or for the approval of a new constitution, should it an act of Congress, but by means of decrees to be promulgated by the
now be held, that the people have placed such restrictions on themselves that President. In view of the inability of Congress to act, it was within the
they are not disabled from exercising their right as the ultimate source of constitutional powers of the President, either as agent of the Constitutional
political power from changing the old constitution which, in their view, was not Convention, or under his authority under martial law, to promulgate the
responsive to their needs and in adopting a new charter of government to necessary measures for the ratification of the proposed new Constitution. The
enable them to rid themselves from the shackles of traditional norms and to adoption the new Charter was considered as a necessary basis for all the
pursue with new dynamism the realization of their true longings and reforms set in motion under the new society, to root out the causes of unrest.
aspirations, except in the manner and form provided by Congress for previous The imperatives of the emergency underscored the urgency of its adoption.
plebiscites? Was not the expansion of the base of political participation, by the The people in accepting such procedure and in voting overwhelmingly for the
inclusion of the youth in the process of ratification who after all constitute the approval of the new Constitution have, in effect, ratified the method and
preponderant majority more in accord with the spirit and philosophy of the procedure taken. "When the people adopt completely revised or new
constitution that political power is inherent in the people collectively? As clearly constitution," said the Court in Wheeler v. Board of Trustees (37 SE 2nd 322,
expounded by Justice Makasiar, in his opinion, in all the cases cited where the 326-330), "the framing or submission of the instrument is not what gives it
Courts held that the submission of the proposed amendment was illegal due binding force and effect. The fiat of the people, and only the fiat of the people,
to the absence of substantial compliance with the procedure prescribed by the can breathe life into a constitution."
constitution, the procedure prescribed by the state Constitution, is so detailed,
that specified the manner in which such submission shall be made, This has to be so because, in our political system, all political power is inherent
the persons qualified to vote for the same, the date of election and other in the people and free governments are founded on their authority and
definite standards, from which the court could safely ascertain whether or not instituted for their benefit. Thus Section 1 of Article II of the 1935 Constitution
the submission was in accordance with the Constitution. Thus the case of In declares that: "Sovereignty resides in the people and all government authority
emanate from them." Evidently the term people refers to the "Martial law has paved the way for a re-ordering of the basic social structure
entire citizenry and not merely to the electorate, for the latter is only a fraction of the Philippines" reported Frank Valeo to the United States Senate.
of the people and is only an organ of government for the election of "President Marcos has been prompt and sure-footed in using the power of
government officials. presidential decree under martial law for this purpose. He has zeroed in on
areas which have been widely recognized as prime sources of the nation's
III difficulties land tenancy, official corruption, tax evasion and abuse of
oligarchic economic power. Clearly he knows his targets ... there is marked
public support for his leadership..." (Bulletin Today, March 3 and 4, 1973)..
The more compelling question, however is: Has this Court the authority to
nullify an entire Constitution that is already effective as it has been accepted
and acquiesced in by the people as shown by their compliance with the decree In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April
promulgated thereunder, their cooperation in its implementation, and is now 11 issue of The New York Times:
maintained by the Government that is in undisputed authority and dominance?
During his first Presidential term (1965-1969), Mr. Marcos was
Of course it is argued that acquiescence by the people can be deduced from discouraged by the failure of legislators to approve urgently needed
their acts of conformity, because under a regime of martial law the people are reforms. He found his second term further frustrated by spread riots,
bound to obey and act in conformity with the orders of the President, and has a Maoist uprising in Luzon and a much more serious Moslem
absolutely no other choice. The flaw of this argument lies in its application of insurrection in the southern islands from Mindanao across the Sulu
a mere theoretical assumption based on the experiences of other nations on archipelago to the frontier regions of Malaysia and Indonesia. Manila
an entirely different factual setting. Such an assumption flounders on the rock claims this war is Maoist-coordinated.
of reality. It is true that as a general rule martial law is the use of military forces
to perform the functions of civil government. Some courts have viewed it as a Mr. Marcos has now in effect taken all the reins of power and makes
military regime which can be imposed in emergency situations. In other words, no promise as to when he will relinquish them. But, while fettering a
martial rule exists when the military rises superior to the civil power in the free press, terminating Congress and locking up some opponents
exercise of some or all the functions of government. Such is not the case in (many of whom were later amnestied), he has hauled the Philippines
this country. The government functions thru its civilian officials. The supremacy out of stagnation.
of the civil over the military authority is manifest. Except for the imposition of
curfew hours and other restrictions required for the security of the State, the Sharecropping is being ended as more than three million acres of
people are free to pursue their ordinary concerns. arable land are redistributed with state funds. New roads have been
started. The educational system is undergoing revision, a corruption
In short, the existing regime in this Country, does not contain the oppressive is diminished. In non-communist Asia it is virtually impossible to wholly
features, generally associated with a regime of Martial law in other countries. end it and this disagreeable phenomenon still reaches very high.
"Upon the other hand the masses of our people have accepted it, because of
its manifold blessings. The once downtrodden rice tenant has at long last been Mr. Marcos, an imaginative, gifted man, hopes to reshape society by
emancipated a consummation devoutly wished by every Philippine creating an agrarian middle-class to replace the archaic sharecropper-
President since the 1930's. The laborer now holds his head high because his absentee landlord relationship. He is even pushing for a birth control
rights are amply protected and respected." * A new sense of discipline has program with the tacit acceptance of the Catholic Church. He has
swiftly spread beyond the corridors of government into the social order. started labor reforms and increased wages. (Daily Express, April 15,
Responding to the challenges of the New Society, the people have turned in 1973)
half a million loose firearms, paid their taxes on undeclared goods and income
in unprecedented numbers and amount, lent their labors in massive As explained in this writer's opinion of April 24, 1973 on the "Constancia" and
cooperation in land reform, in the repair of dikes, irrigation ditches, roads
"Manifestation" of counsel for petitioners:
and bridges, in reforestation, in the physical transformation of the environment
to make ours a cleaner and greener land. "The entire country is turning into
one vast garden growing food for the body, for thought and for the soul." * More The new Constitution is considered effective "if the norms created in
important the common man has at long last been freed from the incubus of conformity with it are by and large applied and obeyed. As soon as the old
fear. Constitution loses its effectiveness and the new Constitution has become
effective, the acts that appear with the subjective meaning of creating or The diversity of views contained in the opinions of the members of this Court,
applying legal norms are no longer interpreted by presupposing the old basic in the cases at bar, cannot be a case on "right" or "wrong" views of the
norm, but by presupposing the new one. The statutes issued under the old Constitution. It is one of attitudes and values. For there is scarcely any
Constitution and not taken over are no longer regarded as valid, and the principle, authority or interpretation which has not been countered by the
organs authorized by the old Constitution no longer competent." (Kelsen, Pure opposite. At bottom, it is the degree of one's faith in the nation's leadership
Theory of Law, [1967].) and in the maturity of judgment of our people.
The essentially political nature of the question is at once made manifest by IN VIEW OF THE FOREGOING, the dismissal of these five cases, and
understanding that in the final analysis, what is assailed is not merely the the conclusion of this Court in its judgment of March question becomes
validity of Proclamation No. 1102 of the President, which is merely declaratory wholly moot except for this consideration, that, when the judges as
of the fact of approval or ratification, but the legitimacy of the government. It is individuals or as a body of individuals come to decide which king or
addressed more to the framework and political character of this Government which constitution they will support and assert to represent, it may
which now functions under the new Charter. It seeks to nullify a Constitution often be good judgment for them to follow the lead of the men who as
that is already effective. a practical matter are likely to be looked to by the people as more
representative of themselves and conversely are likely to be more
In such a situation, We do not see how the question posed by petitioners could directly in touch with popular sentiment. If, however, the judges hold
be judicially decided. "Judicial power presupposes an established government too strong views of their own to be able to take this course, they may
capable of enacting laws and enforcing their execution, and of appointing follow their own leads at their own hazard. No question of law is
judges to expound and administer them. If it decides at all as a court, it involved. (Political Questions, 38 Harvard Law Review [1924-25], pp.
necessarily affirms the existence and authority of the government under which 305-309.)
it is exercising judicial power." (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed.
598.) 31, 1973 are fully justified.
In other words, where a complete change in the fundamental law has been Barredo, Makasiar and Esguerra, JJ., concur.
effected through political action, the Court whose existence is affected by such
change is, in the words of Mr. Melville Fuller Weston, "precluded from passing APPENDIX TO OPINION (G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
upon the fact of change by a logical difficulty which is not to be PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY PROVIDING
surmounted." 5 Such change in the organic law relates to the existence of a FOR AMENDMENT AND REVISION @
prior point in the Court's "chain of title" to its authority and "does not relate
merely to a question of the horizontal distribution of powers." 6 It involves in
1. Alaska (1959) Art. XIII. Amendment and Revision.
essence a matter which "the sovereign has entrusted to the so-called political
departments of government or has reserved to be settled by its own extra
governmental action." 7 Sec. 1. Amendments. Amendments to this constitution may be proposed by a
two-thirds vote of each house of the legislature. The secretary of state shall
prepare a ballot title and proposition summarizing each proposed amendment,
The non-judicial character of such a question has been recognized in
and shall place them on the ballot for the next statewide election. If a majority
American law. "From its earliest opinions this Court has consistently of the votes cast on the proposition favor the amendment, it becomes effective
recognized," said Justice Frankfurter, in his illuminating dissent in Baker v.
thirty days after the certification of the election returns by the secretary of state.
Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies
which do not lend themselves to judicial standards and judicial remedies. To
classify the various instances as "political questions" is rather a form of stating Sec. 2. Convention. The legislature may call constitutional conventions at any
this conclusion than revealing of analysis ... The crux of the matter is that time.
courts are not fit instruments of decision where what is essentially at stake is
the composition of those large contests of policy traditionally fought out in non- Sec. 3. Call by referendum. If during any ten-year period a constitutional
judicial forums, by which governments and the actions of governments are convention has not been held, the secretary of state shall place on the ballot
made and unmade." for the next general election the question: "Shall there be a Constitutional
Convention?" If a majority of the votes cast on the question are in the negative,
the question need not be placed on the ballot until the end of the next ten-year shall call to his assistance the Controller, Treasurer, and Secretary of State,
period. If a majority of the votes cast on the question are in the affirmative, and compare the returns so certified to him; and it shall be the duty of the
delegates to the convention shall be chosen at the next regular statewide Executive to declare, by his proclamation, such Constitution, as may have
election, unless the legislature provides for the election of the election been ratified by a majority of all the votes cast at such special election, to be
delegates at a special election. The secretary of state shall issue the call for the Constitution of the State of California.
the convention. Unless other provisions have been made by law, the call shall
conform as nearly as possible to the act calling the Alaska Constitutional 3. Colorado (1876) Art. XIX. Amendments.
Convention of 1955, including, but not limited to, number of members, districts,
election and certification of delegates, and submission and ratification Sec. 1. Constitutional convention; how called. The general assembly may at
of revisions and ordinances. ... .
any time be a vote of two-thirds of the members elected to each house,
recommend to the electors of the state, to vote at the next general election for
Sec. 4. Powers. Constitutional conventions shall have plenary power to amend or against a convention to revise, alter and amend this constitution; and if a
or revise the constitution, subject only to ratification by the people. No call for majority of those voting on the question shall declare in favor of such
a constitutional convention shall limit these powers of the convention. convention, the general assembly shall, at the next session, provide for the
calling thereof. The number of members of the convention shall be twice that
2. California (1879) Art. XVIII. Amending and Revising the Constitution. of the senate and they shall be elected in the same manner, at the same
places, and in the same districts. The general assembly shall, in the act calling
Sec. 1. Constitutional amendments. Any amendment or amendments to this the convention, designate the day, hour and place of its meeting; fix the pay of
Constitution may be proposed in the Senate or Assembly, and if two-thirds of its members and officers, and provide for the payment of the same, together
all the members elected to each of the houses shall vote in favor thereof, such with the necessary expenses of the convention. Before proceeding, the
proposed amendment or amendments shall be entered in their Journals, with members shall take an oath to support the constitution of the United States,
the yeas and nays taken thereon; and it shall be the duty of the Legislature to and of the state of Colorado, and to faithfully discharge their duties as
submit such proposed amendment or amendments to the people in such members of the convention. The qualifications of members shall be the same
manner, and at such time, and after such publication as may be deemed as of members of the senate; and vacancies occurring shall be filled in the
expedient. Should more amendments than one be submitted at the same manner provided for filling vacancies in the general assembly.
election they shall be so prepared and distinguished, by numbers or otherwise, Said convention shall meet within three months after such election and
that each can be voted on separately. If the people shall approve and ratify prepare such revisions, alterations or amendments to the constitution as may
such amendment or amendments, or any of them, by a majority of the qualified be deemed necessary; which shall be submitted to the electors for their
electors voting thereon such amendment or amendments shall become a part ratification or rejection at an election appointed by the convention for that
of this constitution. purpose, not less than two nor more than six months after adjournment thereof;
and unless so submitted and approved by a majority of the electors voting at
Sec. 2. Constitutional convention. Whenever two-thirds of the members the election, no such revision, alteration or amendment shall take effect.
elected to each branch of the Legislature shall deem it necessary to revise this
Constitution, they shall recommend to the electors to vote at the next general Sec. 2. Amendments to constitution; how adopted. Any amendment or
for or against a Convention for that purpose, and if a majority of the electors amendments to this constitution may be proposed in either house of the
voting at such election on the proposition for a Convention shall vote in favor general assembly, and if the same shall be voted for by two-thirds of all the
thereof, the Legislature shall, at its next session, provide by law for calling the members elected to each house, such proposed amendment or amendments,
same. The Convention shall consist of a number of delegates not to exceed together with the ayes and noes of each house hereon, shall be entered in full
that of both branches of the Legislature, who shall be chosen in the same on their respective journals; the proposed amendment or amendments shall
manner, and have the same qualifications, as Members of the Legislature. The be published with the laws of that session of the general assembly, and the
delegates so elected shall meet within three months after their election at such secretary of state shall also cause the said amendment or amendments to be
place as the Legislature may direct. At a special election to be provided for by published in full in not more than one newspaper of general circulation in each
law, the Constitution that may be agreed upon by such Convention shall be county, for four successive weeks previous to the next general election for
submitted to the people for their ratification or rejection, in such manner as the members of the general assembly; and at said election the said amendment
Convention may determine. The returns of such election shall, in such manner or amendments shall be submitted to thequalified electors of the state for their
as the Convention shall direct, be certified to the Executive of the State, who
approval or rejection, and such as are approved by a majority of those voting of the elections, returns and qualifications of its members. Whenever there
thereon shall become part of this constitution. shall be a vacancy in the office of delegate from any district or county by reason
of failure to elect, ineligibility, death, resignation or otherwise, a writ of election
Provided, that if more than one amendment be submitted at any general to fill such vacancy shall be issued by the Governor, and such vacancy shall
election, each of said amendments shall be voted upon separately and votes be filled by the qualified electors of such district or county.
thereon cast shall be separately counted the same as though but one
amendment was submitted. But the general assembly shall have no power to 5. Florida (1887) Art. XVII. Amendments.
propose amendments to more than six articles of this constitution at the same
session. Sec. 1. Method of amending constitution. Either branch of the Legislature, at
any regular session, or at any special or extra-ordinary session thereof called
4. Delaware (1897) Art. XVI. Amendments and Conventions. for such purpose either in the governor's original call or any amendment
thereof, may propose the revision or amendment of any portion or portions of
Sec. 1. Proposal of constitutional amendments in general assembly; this Constitution. Any such revision or amendment may relate to one subject
procedure. Any amendment or amendments to this Constitution may be or any number of subjects, but no amendment shall consist of more than one
proposed in the Senate or House of Representatives; and if the same shall be revised article of the Constitution.
agreed to by two-thirds of all the members elected to each House, such
proposed amendment or amendments shall be entered on their journals, with If the proposed revision or amendment is agreed to by three-fifths of the
the yeas and nays taken thereon, and the Secretary of State shall cause such members elected to each house, it shall be entered upon their respective
proposed amendment or amendments to be published three months before journals with the yeas and nays and published in one newspaper in each
the next general election in at least three newspapers in each County in which county where a newspaper is published for two times, one publication to be
such newspaper shall be published; and if in the General Assembly next after made not earlier than ten weeks and the other not later than six weeks,
the said election such proposed amendment or amendments shall upon yea immediately preceding the election at which the same is to be voted upon, and
and nay vote be agreed to by two-thirds of all the members elected to each thereupon submitted to the electors of the State for approval or rejection at the
House, the same shall thereupon become part of the Constitution. next general election, provided, however, that
such revision or amendment may be submitted for approval or rejection in a
Sec. 2. Constitutional conventions; procedure; compensation of delegates; special election under the conditions described in and in the manner provided
quorum; powers and duties; vacancies. The General Assembly by a two-thirds by Section 3 of Article XVII of the Constitution. If a majority of the electors
vote of all the members elected to each House may from time to time provide voting upon the amendment adopt such amendment the same shall become
for the submission to the qualified electors of the State at the general election a part of this Constitution.
next thereafter the question, "Shall there be a Convention to revise the
Constitution and amend the same?;" and upon such submission, if a majority Sec. 2. Method of revising constitution. If at any time the Legislature, by a vote
of those voting on said question shall decide in favor of a Convention for such of two-thirds of all the members of both Houses, shall determine that
purpose, the General Assembly at its next session shall provide for the election a revision of this Constitution is necessary, such determination shall be
of delegates to such convention at the next general election. Such Convention entered upon their respective Journals, with yea's and nay's thereon. Notice
shall be composed of forty-one delegates, one of whom shall be chosen from of said action shall be published weekly in one newspaper in every county in
each Representative District by the qualified electors thereof, and two of whom which a newspaper is published, for three months preceding the next general
shall be chosen from New Castle County, two from Kent County and two from election of Representatives, and in those countries where no newspaper is
Sussex County by the qualified electors thereof respectively. The delegates published, notice shall be given by posting at the several polling precincts in
so chosen shall convene at the Capital of the State on the first Tuesday in such counties for six weeks next preceding said election. The electors at said
September next after their election. Every delegate shall receive for his election may vote for or against the revision in question. If a majority of the
services such compensation as shall be provided by law. A majority of the electors so voting be in favor of revision, the Legislature chosen at such
Convention shall constitute a quorum for the transaction of business. The election shall provide by law for a Convention to revise the Constitution, said
Convention shall have the power to appoint such officers, employees and Convention to be held within six months after the passage of such law. The
assistants as it may be deem necessary, and fix their compensation, and Convention shall consist of a number equal to the membership of the House
provide for the printing of its documents, journals, debates and proceedings. of Representatives, and shall be apportioned among the several counties in
The Convention shall determine the rules of its proceedings, and be the judge the same manner as members of said House.
6. Idaho (1890) Art. XIX. Amendments. members of the legislature voting thereon shall ratify and approve such
amendment or amendments, the same shall become part of the constitution.
Sec. 1. How amendments may be proposed. Any amendment or amendments
to this Constitution may be proposed in either branch of the legislature, and if Sec. 4. General revision; convention; procedure. At the Biennial Spring
the same shall be agreed to by two-thirds of all the members of each of the Election to be held in the year 1961, in each sixteenth year thereafter and at
two houses, voting separately, such proposed amendment or amendments such times as may be provided by law, the question of a General Revisionof
shall, with the yeas and nays thereon, be entered on their journals, and it shall the Constitution shall be submitted to the Electors qualified to vote for
be the duty of the legislature to submit such amendment or amendments to members of the Legislature. In case a majority of the Electors voting on the
the electors of the state at the next general election, and cause the same to question shall decide in favor of a Convention for such purpose, at an Election
be published without delay for at least six consecutive weeks, prior to said to be held not later than four months after the Proposal shall have been
election, in not less than one newspaper of the general circulation published certified as approved, the Electors of each House of Representatives District
in each county; and if a majority of the electors shall ratify the same, such as then organized shall Elect One Delegate for each Electors of each
amendment or amendments shall become a part of this Constitution. Senatorial District as then organized shall Elect One Delegate for each State
Senator to which the District is entitled. The Delegates so elected shall
Sec. 3. Revision or amendments by convention. Whenever two-thirds of the convene at the Capital City on the First Tuesday in October next succeeding
members elected to each branch of the legislature shall deem it necessary to such election, and shall continue their sessions until the business of the
call a convention to revise or amend this Constitution, they shall recommend convention shall be completed. A majority of the delegates elected shall
to the electors to vote at the next general election, for or against a convention, constitute a quorum for the transaction of business. ... Noproposed
and if a majority of all the electors voting at said election shall have voted for constitution or amendment adopted by such convention shall be submitted to
a convention, the legislature shall at the next session provide by law for calling the electors for approval as hereinafter provided unless by the assent of a
the same; and such convention shall consist of a number of members, not less majority of all the delegates elected to the convention, the yeas and nays being
than double the number of the most numerous branch of the legislature. entered on the journal. Any proposed constitution or amendments adopted by
such convention shall be submitted to the qualified electors in the manner
7. Iowa (1857) Art. X. Amendments to the Constitution. provided by such convention on the first Monday in April following the final
adjournment of the convention; but, in case an interval of at least 90 days shall
not intervene between such final adjournment and the date of such election.
Sec. 3. Convention. At the general election to be held in the year one thousand Upon the approval of such constitution or amendments by a majority of the
eight hundred and seventy, and in each tenth year thereafter, and also at such qualified electors voting thereon such constitution or amendments shall take
times as the General Assembly may, by law, provide, the question, "Shall there effect on the first day of January following the approval thereof.
be a Convention to revise the Constitution, and amend the same?" shall be
decided by the electors qualified to vote for members of the General Assembly;
9. Minnesota (1857) Art. XIV. Amendments to the Constitution.
and in case a majority of the electors so qualified, voting at such election, for
and against such proposition, shall decide in favor of a Convention for such
purpose, the General Assembly, at its next session, shall provide by law for Sec. 1. Amendments to constitution; majority vote of electors voting makes
the election of delegates to such Convention. amendment valid. Whenever a majority of both houses of the legislature shall
deem it necessary to alter or amend this Constitution, they may proposed such
alterations or amendments, which proposed amendments shall be published
8. Michigan (1909) Art. XVII. Amendments and Revision.
with the laws which have been passed at the same session, and said
amendments shall be submitted to the people for their approval or rejection at
Sec. 1. Amendments to constitution; proposal by legislature; submission to any general election, and if it shall appear, in a manner to be provided by law,
electors. Any amendment or amendments to this constitution may be proposed that a majority of all the electors voting at said election shall have voted for
in the senate or house of representatives. If the same shall be agreed to by and ratified such alterations or amendments, the same shall be valid to all
2/3 of the members elected to each house, intents and purposes as a part of this Constitution. If two or more alterations
such amendment or amendments shall be entered on the journals, or amendmentsshall be submitted at the same time, it shall be so regulated
respectively, with the yeas and nays taken thereon; and the same shall be that the voters shall vote for or against each separately.
submitted to the electors at the next spring or autumn election thereafter, as
the legislature shall direct; and, if a majority of the electors qualified to vote for
Sec. 2. Revision of constitution. Whenever two-thirds of the members elected for calling a Convention to be holden within six months after the passage of
to each branch of the legislature shall think it necessary to call a convention to such law, and such Convention shall consist of a number of Members not less
revise this Constitution, they shall recommend to the electors to vote at the that of both branches of the legislature. In determining what is a majority of the
next general election for members of the legislature, for or against a electors voting such election, reference shall be had to the highest number of
convention; and if a majority of all the electors voting at said election shall have vote cast at such election for the candidates of any office or on any question.
voted for a convention, the legislature shall, at their next session, provide by
law for calling the same. The convention shall consist of as many members as 11. New Hamspire (1784)
the House of Representatives, who shall be chosen in the same manner, and
shall meet within three months after their election for the purpose aforesaid. Art. 99. Revision of constitution provided for. It shall be the duty of the
selectmen, and assessors, of the several towns and places in this state, in
Sec. 3. Submission to people of revised constitution drafted at convention. Any warning the first annual meetings for the choice of senators, after the expiration
convention called to revise this constitution shall submit any revision thereof of seven years from the adoption of this constitution, as amended, to insert
by said convention to the people of the State of Minnesota for their approval expressly in the warrant this purpose, among the others for the meeting, to wit,
or rejection at the next general election held not less than 90 days after the to take the sense of the qualified voters on the subject of a revision of the
adoption of such revision, and, if it shall appear in the manner provided by constitution; and, the meeting being warned accordingly, and not otherwise,
law that three-fifths of all the electors voting on the question shall have voted the moderator shall take the sense of the qualified voters present as to the
for and ratified such revision, the same shall constitute a new constitution of necessity of a revision; and a return of the number of votes for and against
the State of Minnesota. Without such submission and ratification, said revision such necessity, shall be made by the clerk sealed up, and directed to the
shall be of no force or effect. Section 9 of Article IV of the Constitution shall general court at their then next session; and if, it shall appear to the general
not apply to election to the convention. court by such return, that the sense of the people of the state has taken, and
that, in the opinion of the majority of the qualified voters in the state, present
10. Nevada (1864) Art. 16. Amendments. and voting at said meetings, there is a necessity for a revision of the
constitution, it shall be the duty of the general court to call a convention for that
Sec. 1. Constitutional amendments; procedure. Any amendment or purpose, otherwise the general court shall direct the sense of the people to be
amendments to this Constitution may be proposed in the Senate or Assembly; taken, and then proceed in the manner before mentioned. The delegates to be
and if the same shall be agreed to by a Majority of all the members elected to chosen in the same manner, and proportioned, as the representatives to the
each of the two houses, such proposed amendment or amendments shall be general court; provided that no alterations shall be made in this constitution,
entered on their respective journals, with the Yeas and Nays taken thereon, before the same shall be laid before the towns and unincorporated places, and
and referred to the Legislature then next to be chosen, and shall be published approved by two thirds of the qualified voters present and voting on the
for three months next preceding the time of making such choice. And if in the subject.
Legislature next chosen as aforesaid, such proposed amendment or
amendments shall be agreed to by a majority of all the members elected to 12. Oklahoma (1907) Art. XXIV. Constitutional Amendments.
each house, then it shall be the duty of the Legislature to submit such proposed
amendment or amendments to the people, in such manner and at such time Sec. 1. Amendments proposed by legislature; a submission to vote.
as the Legislature shall prescribe; and if the people shall approve and ratify Any amendment or amendments to this Constitution may be proposed in either
such amendment or amendments by a majority of the electors qualified to vote branch of the Legislature, and if the same shall be agreed to by a majority of
for members of the Legislature voting thereon, such amendment or all the members elected to each of the two houses, such proposed amendment
amendments shall become a part of the Constitution. or amendments shall, with yeas and nays thereon, be entered in their journals
and referred by the Secretary of State to the people for their approval or
Sec. 2. Convention for revision of constitution; procedure. If at any time the rejection, at the next regular general election, except when the Legislature, by
Legislature by a vote of two-thirds of the Members elected to each house, shall a two-thirds vote of each house, shall order a special election for that purpose.
determine that it is necessary to cause a revision of this entire Constitution they If a majority of all the electors voting at such election shall vote in favor of any
shall recommend to the electors at the next election for Members of the amendment thereto, it shall thereby become a part of this Constitution.
Legislature, to vote for or against a convention, and if it shall appear that a
majority of the electors voting at such election, shall have voted in favor of
calling a Convention, the Legislature shall, at its next session provide by law
If two or more amendments are proposed they shall be submitted in such propose amendments to this Constitution, or to propose a new Constitution,
manner that electors may vote for or against them separately. unless the law providing for such convention shall first be approved by the
people on a referendum vote at a regular general election. This article shall
No proposal for the amendment or alteration of this Constitution which is not be construed to impair the right of the people to amend this Constitution
submitted to the voters shall embrace more than one general subject and the by vote upon an initiative petition therefor.
voters shall vote separately for or against each proposal submitted; provided,
however, that in the submission of proposals for the amendment of this Sec. 2. Method of revising constitution. (1) In addition to the power to amend
Constitution by articles, which embrace one general subject, each proposed this Constitution granted by section 1, Article IV, and section 1 of this Article,
article shall be deemed a single proposals or proposition a revision of all or part of this Constitution may be proposed in either house of
the Legislative Assembly and, if the proposed revision is agreed to by at least
Sec. 2. Constitutional convention to propose amendments or new constitution. two-thirds of all the members of each house, the proposed revision shall, with
No convention shall be called by the Legislature to propose alterations, the yeas and nays thereon, be entered in their journals and referred by the
revisions, or amendments to this Constitution, or to propose a new Secretary of State to the people for their approval or rejection, notwithstanding
Constitution, unless the law providing for such convention shall first be section 1, Article IV of this Constitution, at the next regular state-wide primary
approved by the people on a referendum vote at a regular or special election, election, except when the Legislative Assembly orders a special election for
and any amendments, alterations, revisions, or new Constitution, proposed by that purpose. A proposed revision may deal with more than one subject and
such convention, shall be submitted to the electors of the State at a general or shall be voted upon as one question. The votes for and against the proposed
special election and be approved by a majority of the electors voting thereon, revision shall be canvassed by the Secretary of State in the presence of the
before the same shall become effective Provided, That the question of such Governor and, if it appears to the Governor that the majority of the votes cast
proposed convention shall be submitted to the people at least once in every in the election on the proposed revision are in favor of the proposed revision,
twenty years. he shall, promptly following the canvass, declare, by his proclamation, that the
proposed revision has received a majority of votes and has been adopted by
13. Oregon (1859) Art. XVII. Amendments and Revisions. the people as the Constitution of the State of Oregon, as the case may be.
The revisionshall be in effect as the Constitution or as a part of this Constitution
from the date of such proclamation.
Sec. 1. Method of amending constitution. Any amendment or amendments to
this Constitution may be proposed in either branch of the legislative assembly,
14. Utah (1896) Art. 23. Amendments.
and if the same shall be agreed to by a majority of all the members elected to
each of the two houses, such proposed amendment or amendments shall, with
the yeas and nays thereon, be entered in their journals and referred by the Sec. 1. Amendments; method of proposal and approval. Any amendments to
secretary of state to the people for their approval or rejection, at the next his Constitution may be proposed in either house of the Legislature, and if two-
regular election, except when the legislative assembly shall order a special thirds of all the members elected of the two houses, shall vote in favor thereof,
election for that purpose. If a majority of the electors voting on any such such proposed amendment or amendments shall be entered on their
amendment shall vote in favor thereof, it shall thereby become a part of this respective journals with the yeas and nays taken thereon; and the Legislature
Constitution. The votes for and against such amendment, or amendments, shall cause the same to be published in at least one newspaper in every county
severally, whether proposed by the legislative assembly or by initiative petition, of the State, where a newspaper is published, for two months immediately
shall be canvassed by the secretary of state in the presence of the governor, preceding the next general election, at which time the said amendment or
and if it shall appear to the governor that the majority of the votes cast at said amendments shall be submitted to the electors of the State, for their approval
election on said amendment, or amendments, severally, are cast in favor or rejection, and if a majority of the electors voting thereon shall approve the
thereof, it shall be his duty forthwith after such canvass, by his proclamation, same, such amendment or amendments shall become part of this Constitution.
to declare the said amendment, or amendments, severally, having received If two or more amendments are proposed, they shall be so submitted as to
said majority of votes to have been adopted by the people of Oregon as part enable the electors to vote on each of them separately.
of the Constitution thereof, and the same shall be in effect as a part of the
Constitution from the date of such proclamation. When two or more Sec. 2. Revision of the Constitution by convention. Whenever two-thirds of the
amendments shall be submitted in the manner aforesaid to the voters of this members, elected to each branch of the Legislature, shall deem it necessary
state at the same election, they shall be so submitted that each amendment to call a convention to revise or amend this Constitution, they shall recommend
shall be voted on separately. No convention shall be called to amend or to the electors to vote at the next general election, for or against a convention,
and, if a majority of all the electors, voting at such election, shall vote for a TABIOS, petitioners,
convention. The Legislature, at its next session, shall provide by law for calling vs.
the same. The convention shall consist of not less than the number of THE NATIONAL TREASURER and the COMMISSION ON
members in both branches of the Legislature. ELECTIONS, respondents.
Sec. 1. Procedure for amendments. Any amendment or amendments to this The challenge in these two prohibition proceedings against the validity of three
Constitution may be proposed in either branch of the legislature, and, if the Batasang Pambansa Resolutions1 proposing constitutional amendments,
same shall be agreed to by two-thirds of all the members of the two houses, goes further than merely assailing their alleged constitutional infirmity.
voting separately, such proposed amendment or amendments shall, with the Petitioners Samuel Occena and Ramon A. Gonzales, both members of the
yeas and nays thereon, be entered on their journals, and it shall be the duty of Philippine Bar and former delegates to the 1971 Constitutional Convention that
the legislature to submit such amendment or amendments to the electors of framed the present Constitution, are suing as taxpayers. The rather
the state at the next general election, in at least one newspaper of general unorthodox aspect of these petitions is the assertion that the 1973 Constitution
circulation, published in each county, and if a majority of the electors shall ratify is not the fundamental law, the Javellana 2 ruling to the contrary
the same, such amendment or amendments shall become a part of this notwithstanding. To put it at its mildest, such an approach has the arresting
constitution. charm of novelty but nothing else. It is in fact self defeating, for if such were
indeed the case, petitioners have come to the wrong forum. We sit as a Court
Sec. 2. How voted for. If two or more amendments are proposed, they shall be duty-bound to uphold and apply that Constitution. To contend otherwise as
submitted in such manner that the electors shall vote for or against each of was done here would be, quite clearly, an exercise in futility. Nor are the
them separately. arguments of petitioners cast in the traditional form of constitutional litigation
any more persuasive. For reasons to be set forth, we dismiss the petitions.
Sec. 3. Constitutional convention; provision for. Whenever two-thirds of the
members elected to each branch of the legislature shall deem it necessary to The suits for prohibition were filed respectively on March 6 3 and March 12,
call a convention to revise or amend this constitution, they shall recommend 1981. 4 On March 10 and 13 respectively, respondents were required to
to the electors to vote at the next general election for or against a convention, answer each within ten days from notice. 5 There was a comment on the part
and if a majority of all the electors voting at such election shall have voted for of the respondents. Thereafter, both cases were set for hearing and were duly
a convention, the legislature shall at the next session provide by a law for argued on March 26 by petitioners and Solicitor General Estelito P. Mendoza
calling the same; and such convention shall consist of a number of members, for respondents. With the submission of pertinent data in amplification of the
not less than double that of the most numerous branch of the legislature. oral argument, the cases were deemed submitted for decision.
Sec. 4. New constitution. Any constitution adopted by such convention shall It is the ruling of the Court, as set forth at the outset, that the petitions must be
have no validity until it has been submitted to and adopted by the people. dismissed.
G.R. No. L-56350 April 2, 1981 1. It is much too late in the day to deny the force and applicability of the 1973
Constitution. In the dispositive portion of Javellana v. The Executive
Secretary, 6 dismissing petitions for prohibition and mandamus to declare
SAMUEL C. OCCENA, petitioner,
invalid its ratification, this Court stated that it did so by a vote of six 7 to four. 8 It
vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE then concluded: "This being the vote of the majority, there is no further judicial
obstacle to the new Constitution being considered in force and effect." 9 Such
NATIONAL TREASURER, THE DIRECTOR OF PRINTING, respondents.
a statement served a useful purpose. It could even be said that there was a
need for it. It served to clear the atmosphere. It made manifest that, as of
G.R. No. L-56404 April 2, 1981 January 17, 1973, the present Constitution came into force and effect. With
such a pronouncement by the Supreme Court and with the recognition of the
RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS- cardinal postulate that what the Supreme Court says is not only entitled to
IMBONG, RAY ALLAN T. DRILON, NELSON B. MALANA and GIL M.
respect but must also be obeyed, a factor for instability was removed. Constitution and has been intensively and extensively discussed at
Thereafter, as a matter of law, all doubts were resolved. The 1973 Constitution the Interim Batasang Pambansa, as well as through the mass media, it cannot,
is the fundamental law. It is as simple as that. What cannot be too strongly therefore, be said that our people are unaware of the advantages and
stressed is that the function of judicial review has both a positive and a disadvantages of the proposed amendment." 17
negative aspect. As was so convincingly demonstrated by Professors
Black 10 and Murphy, 11 the Supreme Court can check as well as legitimate. In (2) Petitioners would urge upon us the proposition that the amendments
declaring what the law is, it may not only nullify the acts of coordinate branches proposed are so extensive in character that they go far beyond the limits of the
but may also sustain their validity. In the latter case, there is an affirmation that authority conferred on the Interim Batasang Pambansa as Successor of
what was done cannot be stigmatized as constitutionally deficient. The mere the Interim National Assembly. For them, what was done was to revise and
dismissal of a suit of this character suffices. That is the meaning of the not to amend. It suffices to quote from the opinion of Justice Makasiar,
concluding statement in Javellana. Since then, this Court has invariably speaking for the Court, in Del Rosario v. Commission on Elections 18 to dispose
applied the present Constitution. The latest case in point is People v. of this contention. Thus: "3. And whether the Constitutional Convention will
Sola, 12 promulgated barely two weeks ago. During the first year alone of the only propose amendments to the Constitution or entirely overhaul the present
effectivity of the present Constitution, at least ten cases may be cited. 13 Constitution and propose an entirely new Constitution based on an Ideology
foreign to the democratic system, is of no moment; because the same will be
2. We come to the crucial issue, the power of the Interim Batasang Pambansa submitted to the people for ratification. Once ratified by the sovereign people,
to propose amendments and how it may be exercised. More specifically as to there can be no debate about the validity of the new Constitution. 4. The fact
the latter, the extent of the changes that may be introduced, the number of that the present Constitution may be revised and replaced with a new one ...
votes necessary for the validity of a proposal, and the standard required for a is no argument against the validity of the law because 'amendment' includes
proper submission. As was stated earlier, petitioners were unable to the 'revision' or total overhaul of the entire Constitution. At any rate, whether
demonstrate that the challenged resolutions are tainted by unconstitutionality. the Constitution is merely amended in part or revised or totally changed would
become immaterial the moment the same is ratified by the sovereign
(1) The existence of the power of the Interim Batasang Pambansa is people." 19 There is here the adoption of the principle so well-known in
indubitable. The applicable provision in the 1976 Amendments is quite explicit. American decisions as well as legal texts that a constituent body can propose
Insofar as pertinent it reads thus: "The Interim Batasang Pambansa shall have anything but conclude nothing. 20 We are not disposed to deviate from such a
the same powers and its Members shall have the same functions, principle not only sound in theory but also advantageous in practice.
responsibilities, rights, privileges, and disqualifications as the interim National
Assembly and the regular National Assembly and the Members thereof."14 One (3) That leaves only the questions of the vote necessary to propose
of such powers is precisely that of proposing amendments. The 1973 amendments as well as the standard for proper submission. Again, petitioners
Constitution in its Transitory Provisions vested the Interim National Assembly have not made out a case that calls for a judgment in their favor. The language
with the power to propose amendments upon special call by the Prime Minister of the Constitution supplies the answer to the above questions.
by a vote of the majority of its members to be ratified in accordance with the The Interim Batasang Pambansa, sitting as a constituent body, can propose
Article on Amendments. 15 When, therefore, theInterim Batasang Pambansa, amendments. In that capacity, only a majority vote is needed. It would be an
upon the call of the President and Prime Minister Ferdinand E. Marcos, met indefensible proposition to assert that the three-fourth votes required when it
as a constituent body it acted by virtue Of such impotence Its authority to do sits as a legislative body applies as well when it has been convened as the
so is clearly beyond doubt. It could and did propose the amendments agency through which amendments could be proposed. That is not a
embodied in the resolutions now being assailed. It may be observed requirement as far as a constitutional convention is concerned. It is not a
parenthetically that as far as petitioner Occena is Concerned, the question of requirement either when, as in this case, the Interim Batasang Pambansa
the authority of the Interim Batasang Pambansa to propose amendments is exercises its constituent power to propose amendments. Moreover, even on
not new. In Occena v. Commission on Elections, 16 filed by the same petitioner, the assumption that the requirement of three- fourth votes applies, such
decided on January 28, 1980, such a question was involved although not extraordinary majority was obtained. It is not disputed that Resolution No. 1
directly passed upon. To quote from the opinion of the Court penned by Justice proposing an amendment allowing a natural-born citizen of the Philippines
Antonio in that case: "Considering that the proposed amendment of Section 7 naturalized in a foreign country to own a limited area of land for residential
of Article X of the Constitution extending the retirement of members of the purposes was approved by the vote of 122 to 5; Resolution No. 2 dealing with
Supreme Court and judges of inferior courts from sixty-five (65) to seventy (70) the Presidency, the Prime Minister and the Cabinet, and the National
years is but a restoration of the age of retirement provided in the 1935 Assembly by a vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the
amendment to the Article on the Commission on Elections by a vote of 148 to Prime Minister after the organization of the Interim Batasang Pambansa as
2 with 1 abstention. Where then is the alleged infirmity? As to the requisite provided for in Amendment No. 3 of the 1976 Amendments, I am constrained
standard for a proper submission, the question may be viewed not only from to dissent from the majority decision of dismissal of the petitions.
the standpoint of the period that must elapse before the holding of the
plebiscite but also from the standpoint of such amendments having been I had held in Sanidad that the transcendental constituent power to propose
called to the attention of the people so that it could not plausibly be maintained and approve amendments to the Constitution as well as to set up the
that they were properly informed as to the proposed changes. As to the period, machinery and prescribe the procedure for the ratification of the amendments
the Constitution indicates the way the matter should be resolved. There is no proposals has been withheld by the Constitution from the President (Prime
ambiguity to the applicable provision: "Any amendment to, or revision of, this Minister) as sole repository of executive power and that so long as the regular
Constitution shall be valid when ratified by a majority of the votes cast in a National Assembly provided for in Article VIII of the Constitution had not come
plebiscite which shall be held not later than three months after the approval of to existence and the proposals for constitutional amendments were now
such amendment or revision." 21 The three resolutions were approved by deemed necessary to be discussed and adopted for submittal to the people,
the InterimBatasang Pambansa sitting as a constituent assembly on February strict adherence with the mandatory requirements of the amending process as
5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of the plebiscite provided in the Constitution must be complied with. This means, under the
is set for April 7, 1981. It is thus within the 90-day period provided by the prevailing doctrine of Tolentino vs. Comelec 4 that the proposed amendments
Constitution. Thus any argument to the contrary is unavailing. As for the people to be valid must come from the constitutional agency vested with the
being adequately informed, it cannot be denied that this time, as in the cited constituent power to do so, i.e. in the Interim National Assembly provided in
1980 Occena opinion of Justice Antonio, where the amendment restored to the Transitory Article XVII which would then have to be convened and not from
seventy the retirement age of members of the judiciary, the proposed the executive power as vested in the President (Prime Minister) from whom
amendments have "been intensively and extensively discussed at such constituent power has been withheld.
the Interim Batasang Pambansa, as well as through the mass media, [ so that
] it cannot, therefore, be said that our people are unaware of the advantages 2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine
and disadvantages of the proposed amendment [ s ]." 22
of Tolentino, the October 1976 constitutional amendments which created the
Interim Batasang Pambansa in lieu of the Interim National Assembly were
WHEREFORE, the petitions are dismissed for lack of merit. No costs. invalid since as ruled by the Court therein, constitutional provisions on
amendments "dealing with the procedure or manner of amending the
Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro fundamental law are binding upon the Convention and the other departments
and Melencio-Herrera, JJ., concur. of the government (and) are no less binding upon the people" and "the very
Idea of deparcing from the fundamental law is anachronistic in the realm of
Abad Santos, J., is on leave. constitutionalism and repugnant to the essence of the rule of law." The
proposed amendments at bar having been adopted by the Interim Batasang
Separate Opinions Pambansa as the fruit of the invalid October, 1976 amendments must
necessarily suffer from the same Congenital infirmity.
TEEHANKEE, J., dissenting:
3. Prescinding from the foregoing and assuming the validity of the proposed
amendments, I reiterate my stand inSanidad that the doctrine of fair and proper
I vote to give due course to the petitions at bar and to grant the application for submission firs enunciated by a simple majority of six Justices (of an eleven
a temporary restraining order enjoining the plebiscite scheduled for April 7, member Court prior to the 1973 Constitution which increased the official
1981. composition of the Court to fifteen) in Gonzales vs. Comelec 5 and
subsequently officially adopted by the required constitutional two-thirds
1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the majority vote of the Court (of eight votes, then) in Tolentino is fully applicable
invalidity of the October 1976 amendments proposals to the 1973 Constitution in the case at bar. The three resolutions proposing complex, complicated and
for not having been proposed nor adopted in accordance with the mandatory radical amendments of our very structure of government were considered and
provisions thereof, as restated by me in Hidalgo vs. Marcos 2 and De la Llana approved by the Interim Batasang Pambansa sitting as a constituent assembly
vs. Comelec 3 , questioning the validity of the December 17, 1977 referendum on February 27, 1981. It set the date of the plebiscite for thirty-nine days later
exercise as to the continuance in office as incumbent President and to be on April 7, 1981 which is totally inadequate and far short of the ninety-day
period fixed by the Constitution for submittal to the people to "sufficiently inform THE LAND TENURE ADMINISTRATION, THE SOLICITOR GENERAL and
them of the amendments to be voted upon, to conscientiously deliberate THE AUDITOR GENERAL,respondents-appellants.
thereon and to express their will in a genuine manner." 6
Araneta, Mendoza and Papa for petitioner-appellee.
4. "The minimum requirements that must be met in order that there can be a
proper submission to the people of a proposed constitutional amendment" as Besa, Aguilar and Gancia, Office of the Solicitor General Felix V. Makasiar,
stated by retired Justice Conrado V. Sanchez in his separate opinion Assistant Solicitor General Frine' C. Zaballero, Solicitor Rosalio A. de Leon
inGonzales bears repeating as follows: "... we take the view that the words and Special Attorney Magno B. Pablo for respondents-appellants.
'submitted to the people for their ratification,' if construed in the light of the
nature of the Constitution a fundamental charter that is legislation direct from RESOLUTION
the people, an expression of their sovereign will is that it can only be
amended by the people expressing themselves according to the procedure
ordained by the Constitution. Therefore, amendments must be fairly laid before FERNANDO, J.:
the people for their blessing or spurning. The people are not to be mere rubber
stamps. They are not to vote blindly. They must be afforded ample opportunity From our decision of February 18, 1970, reversing the judgment of the lower
to mull over the original provisions, compare them with the proposed court holding that Republic Act No. 2616 as amended is unconstitutional,
amendments, and try to reach a conclusion as the dictates of their conscience printed motion for reconsideration was filed by petitioner-appellee on March
suggest, free from the incubus of extraneous or possibly insidious influences. 31, 1970 reiterating its arguments as to its alleged invalidity for being violative
We believe the word 'submitted' can only mean that the government, within its of the due process and equal protection guarantees. On May 27, 1970, a
maximum capabilities, should strain every short to inform every citizen of the detailed opposition to such a motion for reconsideration was filed by the
provisions to be amended, and the proposed amendments and the meaning, Solicitor General, the Honorable Felix Q. Antonio, on behalf of respondents-
nature and effects thereof. ... What the Constitution in effect directs is that the appellants. Then came a rejoinder of petitioner, on June 15, 1970, to the
government, in submitting an amendment for ratification, should put every pleading of the Solicitor General. The motion for reconsideration is thus ripe
instrumentality or agency within its structural framework to enlighten the for determination. With due recognition of the vigor and earnestness with which
people, educate them with respect to their act of ratification or rejection. For, petitioner argued its motion, based on what it considered to be our applicable
as we have earlier stated, one thing is submission and another is ratification. decisions, the Court cannot grant the same. Our decision stands.
There must be fair submission, intelligent consent or rejection. If with all these
safeguards the people still approve the amendments no matter how prejudicial 1. It was a unanimous Court that could not locate a constitutional infirmity
it is to them, then so be it. For the people decree their own fate." vitiating Republic Act No. 2616 directing the expropriation of the Tatalon Estate
in Quezon City. There are points of differences in the three written opinions,
Justice Sanchez therein ended the passage with an apt citation that "... The but there is none as to the challenged legislative act being invulnerable on the
great men who builded the structure of our state in this respect had the mental grounds therein asserted to justify its sought for nullification. While, to repeat,
vision of a good Constitution voiced by Judge Cooley, who has said 'A good petitioner apparently remains unconvinced, standing fast on the contentions to
Constitution should be beyond the reach of temporary excitement and popular which it would seek to impart greater plausibility, still the intent of the framers
caprice or passion. It is needed for stability and steadiness; it must yield to the of the Constitutional Convention, as shown not only by the specific provisions
thought of the people; not to the whim of the people, or the thought evolved in allowing the expropriation of landed estates, but also by the social justice
excitement, or hot blood, but the sober second thought, which alone if the provision as reflected in our decisions, save possibly Republic vs.
government is to be safe, can be allowed efficacy ... Changes in government Baylosis, 1preclude a favorable action on the impassioned plea of petitioner for
are to be feard unless benefit is certain.' As Montaign says: 'All great mutation a reconsideration of our decision. At any rate, petitioner-appellee can take
shake and disorder a state. Good does not necessarily succeed evil; another comfort in the separate opinion of Justice Teehankee, with which four other
evil may succeed and a worse."' members of the Court, including the Chief Justice, are in agreement, to enable
it to raise questions, the answers to which, if its view would be sustained, would
G.R. No. L-21064 June 30, 1970 certainly afford sufficient protection to what it believes to be an unconstitutional
infringement on its property rights.
J. M. TUASON & CO., INC., petitioner-appellee,
vs.
2. It may not be amiss to make more explicit and categorical what was held in soon start expropriation proceedings even if no sufficient funds were
our opinion that Section 4 of Republic Act No. 2616 prohibiting a suit for appropriated to provide compensation to the owner and even if it was not in a
ejectment proceedings or the continuance of one already commenced even in position to take possession of the estate, and so the owner contested the
the absence of expropriation proceedings, is unconstitutional, as held attempt invoking its rights under the Constitution. And this Court upheld the
in Cuatico v. Court of Appeals. 2Greater emphasis likewise should be laid on contention of the owner by declaring the attempt unconstitutional." 5
our holding that while an inaccuracy apparent on the face of the challenged
statute as to the ownership of the Tatalon Estate does not suffice to call for its The conclusion that inevitably was called for is worded thus: "It is, therefore,
invalidity, still to erase even a fanciful doubt on the matter, the statement imperative that we declare, as we now do, that Section 4 of Republic Act No.
therein found in Section 1 of the Act that in addition to petitioner-appellee, 3453 which prohibits the filing of an ejectment proceeding, or the continuance
Gregorio Araneta & Co., Inc. and Florencio Deudor, et al. are included, cannot of one that has already been commenced, even in the absence of
be understood as conferring on any juridical or natural persons, clearly not expropriation proceedings offends our Constitution and, hence, is
entitled thereto, dominical rights over such property in question. unenforceable." 6
3. In the aforesaid decision of Cuatico v. Court of Appeals, reference was What we said then, we reaffirm now, as was indeed evident in our decision
made to the amendatory Act, Republic Act No. 3453 to Section 4 as it originally sought to be reconsidered but perhaps not given the importance which, in the
was worded in Republic Act No. 2616, the amendment consisting of the opinion of petitioner-appellee, it was entitled to. Nothing in our decision can be
following: "Upon approval of this amendatory Act, no ejectment proceedings taken to detract in any wise from the binding force and effect of the Cuatico
shall be instituted or prosecuted against the present occupants of any lot in ruling which declared unconstitutional Section 4 of Republic Act No. 3453.
said Tatalon Estate, and no ejectment proceedings already commenced shall
be continued, and such lot or any portion thereof shall not be sold by the 4. We likewise ruled that the mistake imputed to Congress in apparently
owners of said estate to any person other than the present occupant without
recognizing the rights of ownership in entities or individuals not possessed of
the consent of the latter given in a public instrument." 3 The question before
the same could not invalidate the challenged statute. In the same way, it
the, Court, according, to the opinion penned by Justice Bautista Angelo, was:
cannot be made the basis for non-existent rights of ownership to the property
"Are the provisions embodied in the amendatory Act which prescribe that upon
in question. It is in that sense that, as noted in our decision, no fear need be
approval of said Act no ejectment proceedings shall be instituted or prosecuted entertained that thereby the petitioner-appellee would be adversely affected.
against any occupant of any lot in the Tatalon Estate, or that no ejectment
The government certainly would not pay to a party other than the owner the
proceedings already commenced shall be continued, constitutional and valid
claim for just compensation which, under the Constitution, it is required to
such that it may be said that the Court of Appeals abused its discretion in
meet. Neither, then can any party who is not in that situation have any standing
denying the petitions for suspension filed by petitioners.?" 4
whatsoever. This much is beyond dispute. To repeat, the apprehension
entertained by petitioner-appellee, perhaps indicative of it, excess of caution,
Then came this portion of the opinion: "This is not the first time that this Court is without legal foundation.
has been called upon to pass upon the validity of a provision which places a
landowner in the situation of losing his dominical rights over the property
WHEREFORE, the motion for the reconsideration of our decision of February
without due process or compensation. We refer to the provisions of Republic
18, 1970, filed by petitioner-appellee, is denied.
Act 2616 before they were amended by Republic Act No. 3453. Note that, as
originally provided, Republic Act No. 2616 prohibited the institution of an
ejectment proceeding against any occupant of any lot in the Tatalon Estate or Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro,
the continuance of one that hasalready been commenced after the Teehankee and Barredo, JJ., concur.
expropriation proceedings shall have been initiated and during the pendency
of the same. On the surface this provision would appear to be valid if the same G.R. No. 78059 August 31, 1987
is carried out in the light of the provisions of our Constitution relative to cases
of eminent domain, for in that case the rights of the owner of the property to ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA,
be expropriated are protected. But then an attempt came to circumvent that JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M.
provision in an effort to safeguard or protect the interest of some occupants of RESURRECCION, petitioners,
the land, which reached this Court for adjudication, as when some occupants vs.
attempted to block their ejectment upon the plea that the government would HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the
Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC That as being OIC Governor of the Province of Rizal and in the
Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO, performance of my duties thereof, I among others, have signed as I
REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA, did sign the unnumbered memorandum ordering the replacement of
ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents. all the barangay officials of all the barangay(s) in the Municipality of
Taytay, Rizal;
MELENCIO-HERRERA, J.:
That the above cited memorandum dated December 1, 1986 was
An original action for Prohibition instituted by petitioners seeking to enjoin signed by me personally on February 8,1987;
respondents from replacing them from their respective positions as Barangay
Captain and Barangay Councilmen of Barangay Dolores, Municipality of That said memorandum was further deciminated (sic) to all concerned
Taytay, Province of Rizal. the following day, February 9. 1987.
As required by the Court, respondents submitted their Comment on the FURTHER AFFIANT SAYETH NONE.
Petition, and petitioner's their Reply to respondents' Comment.
Pasig, Metro Manila, March 23, 1987.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon
was elected Barangay Captain and the other petitioners Angel S. Salamat, Before us now, petitioners pray that the subject Memoranda of February 8,
Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. 1987 be declared null and void and that respondents be prohibited from taking
Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal over their positions of Barangay Captain and Barangay Councilmen,
under Batas Pambansa Blg. 222, otherwise known as the Barangay Election respectively. Petitioners maintain that pursuant to Section 3 of the Barangay
Act of 1982. Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years
which shall commence on June 7, 1982 and shall continue until their
On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum successors shall have elected and shall have qualified," or up to June 7, 1988.
antedated December 1, 1986 but signed by respondent OIC Governor It is also their position that with the ratification of the 1987 Constitution,
Benjamin Esguerra on February 8, 1987 designating respondent Florentino G. respondent OIC Governor no longer has the authority to replace them and to
Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The designate their successors.
designation made by the OIC Governor was "by authority of the Minister of
Local Government." On the other hand, respondents rely on Section 2, Article III of the Provisional
Constitution, promulgated on March 25, 1986, which provided:
Also on February 8, 1987, respondent OIC Governor signed a Memorandum,
antedated December 1, 1986 designating respondents Remigio M. Tigas, SECTION 2. All elective and appointive officials and employees under
Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita L. the 1973 Constitution shall continue in office until otherwise provided
Tolentino as members of the Barangay Council of the same Barangay and by proclamation or executive order or upon the designation or
Municipality. appointment and qualification of their successors, if such appointment
is made within a period of one year from February 25,1986.
That the Memoranda had been antedated is evidenced by the Affidavit of
respondent OIC Governor, the pertinent portions of which read: By reason of the foregoing provision, respondents contend that the terms of
office of elective and appointive officials were abolished and that petitioners
xxx xxx xxx continued in office by virtue of the aforequoted provision and not because their
term of six years had not yet expired; and that the provision in the Barangay
That I am the OIC Governor of Rizal having been appointed as such Election Act fixing the term of office of Barangay officials to six (6) years must
on March 20, 1986; be deemed to have been repealed for being inconsistent with the aforequoted
provision of the Provisional Constitution.
Examining the said provision, there should be no question that petitioners, as Contrary to the stand of respondents, we find nothing inconsistent between
elective officials under the 1973 Constitution, may continue in office but should the term of six (6) years for elective Barangay officials and the 1987
vacate their positions upon the occurrence of any of the events mentioned. 1 Constitution, and the same should, therefore, be considered as still operative,
pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:
Since the promulgation of the Provisional Constitution, there has been no
proclamation or executive order terminating the term of elective Barangay Sec. 3. All existing laws, decrees, executive orders, proclamations
officials. Thus, the issue for resolution is whether or not the designation of letters of instructions, and other executive issuances not inconsistent,
respondents to replace petitioners was validly made during the one-year with this Constitution shall remain operative until amended, repealed
period which ended on February 25, 1987. or revoked.
Considering the candid Affidavit of respondent OIC Governor, we hold that WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on
February 8, 1977, should be considered as the effective date of replacement February 8, 1987 designating respondents as the Barangay Captain and
and not December 1,1986 to which it was ante dated, in keeping with the Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal, are
dictates of justice. both declared to be of no legal force and effect; and (2) the Writ of Prohibition
is granted enjoining respondents perpetually from proceeding with the
But while February 8, 1987 is ostensibly still within the one-year deadline, the ouster/take-over of petitioners' positions subject of this Petition. Without costs.
aforequoted provision in the Provisional Constitution must be deemed to have
been overtaken by Section 27, Article XVIII of the 1987 Constitution reading. SO ORDERED.
SECTION 27. This Constitution shall take effect immediately upon its Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla,
ratification by a majority of the votes cast in a plebiscite held for the Bidin and Cortes, JJ., concur.
purpose and shall supersede all previous Constitutions.
Separate Opinions
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that
date, therefore, the Provisional Constitution must be deemed to have been TEEHANKEE, CJ., concurring:
superseded. Having become inoperative, respondent OIC Governor could no
longer rely on Section 2, Article III, thereof to designate respondents to the The main issue resolved in the judgment at bar is whether the 1987
elective positions occupied by petitioners. Constitution took effect on February 2, 1987, the date that the plebiscite for its
ratification was held or whether it took effect on February 11, 1987, the date
Petitioners must now be held to have acquired security of tenure specially its ratification was proclaimed per Proclamation No. 58 of the President of the
considering that the Barangay Election Act of 1982 declares it "a policy of the Philippines, Corazon C. Aquino.
State to guarantee and promote the autonomy of the barangays to ensure their
fullest development as self-reliant communities. 2 Similarly, the 1987
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that
Constitution ensures the autonomy of local governments and of political
by virtue of the provision of Article XVIII, Section 27 of the 1987 Constitution
subdivisions of which the barangays form a part, 3 and limits the President's
that it "shall take effect immediately upon its ratification by a majority of the
power to "general supervision" over local governments. 4 Relevantly, Section
votes cast in a plebiscite held for the purpose," the 1987 Constitution took
8, Article X of the same 1987 Constitution further provides in part: effect on February 2, 1987, the date of its ratification in the plebiscite held on
that same date.
Sec. 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years ...
The thrust of the dissent is that the Constitution should be deemed to "take
effect on the date its ratification shall have been ascertained and not at the
Until the term of office of barangay officials has been determined by law, time the people cast their votes to approve or reject it." This view was actually
therefore, the term of office of six (6) years provided for in the Barangay proposed at the Constitutional Commission deliberations, but was withdrawn
Election Act of 1982 5 should still govern. by its proponent in the face of the "overwhelming" contrary view that the
Constitution "will be effective on the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional Commission talk of all previous Constitutions, necessarily it includes "AND THEIR
fully supports the Court's judgment. It shows that the clear, unequivocal and AMENDMENTS."
express intent of the Constitutional Conunission in unanimously approving (by
thirty-five votes in favor and none against) the aforequoted Section 27 of MR. DAVIDE. With that explanation, l will not insist on the second. But,
Transitory Article XVIII of the 1987 Constitution was that "the act of ratification Madam President, may I request that I be allowed to read the second
is the act of voting by the people. So that is the date of the ratification" and that amendment so the Commission would be able to appreciate the
"the canvass thereafter [of the votes] is merely the mathematical confirmation change in the first.
of what was done during the date of the plebiscite and the proclamation of the
President is merely the official confirmatory declaration of an act which was MR. MAAMBONG. Yes, Madam President, we can now do that.
actually done by the Filipino people in adopting the Constitution when they
cast their votes on the date of the plebiscite."
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION
SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE
The record of the deliberations and the voting is reproduced hereinbelow: 1
COMPLETION OF THE CANVASS BY THE COMMISSION ON
ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, may we now put to a vote the
original formulation of the committee as indicated in Section 12, unless
MR. MAAMBONG. Madam President, after conferring with our
there are other commissioners who would like to present
chairman, the committee feels that the second proposed amendment
amendments.
in the form of a new sentence would not be exactly necessary and the
committee feels that it would be too much for us to impose a time
MR. DAVIDE. Madam President. frame on the President to make the proclamation. As we would recall,
Madam President, in the approved Article on the Executive, there is a
THE PRESIDENT. Commissioner Davide is recognized. provision which says that the President shall make certain that all laws
shall be faithfully complied. When we approve this first sentence, and
MR. DAVIDE. May I propose the following amendments. it says that there will be a proclamation by the President that the
Constitution has been ratified, the President will naturally comply with
the law in accordance with the provisions in the Article on the
On line 2, delete the words "its ratification" and in lieu thereof insert
Executive which we have cited. It would be too much to impose on the
the following-. "THE PROCLAMATION BY THE PRESIDENT THAT
IT HAS BEEN RATIFIED." And on the last line, after "constitutions," President a time frame within which she will make that declaration. It
would be assumed that the President would immediately do that after
add the following: "AND THEIR AMENDMENTS."
the results shall have been canvassed by the COMELEC.
MR. MAAMBONG. Just a moment, Madam President. If
Commissioner Davide is going to propose an additional sentence, the Therefore, the committee regrets that it cannot accept the second
committee would suggest that we take up first his amendment to the sentence which the Gentleman is proposing, Madam President.
first sentence as originally formulated. We are now ready to comment
on that proposed amendment. MR. DAVIDE. I am prepared to withdraw the same on the assumption
that there will be an immediate proclamation of the results by the
The proposed amendment would be to delete the words "its ratification President.
and in lieu thereof insert the words "THE PROCLAMATION BY THE
PRESIDENT THAT IT HAS BEEN RATIFIED." And the second MR. MAAMBONG. With that understanding, Madam President.
amendment would be: After the word "constitutions," add the words"
AND THEIR AMENDMENTS," MR. DAVIDE. I will not insist on the second sentence.
The committee accepts the first proposed amendment. However, we FR. BERNAS. Madam President.
regret that we cannot accept the second proposed amendment after
the word "constitutions" because the committee feels that when we
THE PRESIDENT. Commissioner Bernas is recognized. MR. MAAMBONG. In other words, it would not depend on the actual
issuance of the results by the Commission on Elections which will be
FR. BERNAS. I would ask the committee to reconsider its acceptance doing the canvass? That is immaterial Madam President
of the amendment which makes the effectivity of the new Constitution
dependent upon the proclamation of the President. The effectivity of FR. BERNAS. It would not, Madam President, because "ratification" is
the Constitution should commence on the date of the ratification, not the act of saying "yes" is done when one casts his ballot.
on the date of the proclamation of the President. What is confusing, I
think, is what happened in 1976 when the amendments of 1976 were MR. MAAMBONG. So it is the date of the plebiscite itself, Madam
ratified. In that particular case, the reason the amendments of 1976 President?
were effective upon the proclamation of the President was that the
draft presented to the people said that the amendment will be effective
FR. BERNAS. Yes, Madam President.
upon the proclamation made by the President. I have a suspicion that
was put in there precisely to give the President some kind of leeway
on whether to announce the ratification or not. Therefore, we should MR. MAAMBONG. With that statement of Commissioner Bernas, we
not make this dependent on the action of the President since this will would like to know from the proponent, Commissioner Davide, if he is
be a manifestation of the act of the people to be done under the insisting on his amendment.
supervision of the COMELEC and it should be the COMELEC who
should make the announcement that, in fact, the votes show that the MR. DAVIDE. Madam President, I am insisting on the amendment
Constitution was ratified and there should be no need to wait for any because I cannot subscribe to the view of Commissioner Bernas, that
proclamation on the part of the President. the date of the ratification is reckoned from the date of the casting of
the ballots. That cannot be the date of reckoning because it is a
MR. MAAMBONG. Would the Gentleman answer a few clarificatory plebiscite all over the country. We do not split the moment of casting
questions? by each of the voters. Actually and technically speaking, it would be
all right if it would be upon the announcement of the results of the
canvass conducted by the COMELEC or the results of the plebiscite
FR. BERNAS. Willingly, Madam President.
held all over the country. But it is necessary that there be a body which
will make the formal announcement of the results of the plebiscite. So
MR. MAAMBONG. The Gentleman will agree that a date has to be it is either the President or the COMELEC itself upon the completion
fixed as to exactly when the Constitution is supposed to be ratified. of the canvass of the results of the plebiscite, and I opted for the
President.
FR. BERNAS. I would say that the ratification of the Constitution is on
the date the votes were supposed to have been cast. xxx xxx xxx
MR. MAAMBONG. Let us go to the mechanics of the whole thing, MR. NOLLEDO. Madam President.
Madam President. We present the Constitution to a plebiscite, the
people exercise their right to vote, then the votes are canvassed by
THE PRESIDENT. Commissioner Nolledo is recognized.
the Commission on Elections. If we delete the suggested amendment
which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT
HAS BEEN RATIFIED," what would be, in clear terms, the date when MR. NOLLEDO. Thank you, Madam President. I beg to disagree with
the Constitution is supposed to be ratified or not ratified, as the case Commissioner Davide. I support the stand of Commissioner Bernas
may be? because it is really the date of the casting of the "yes" votes that is the
date of the ratification of the Constitution The announcement merely
confirms the ratification even if the results are released two or three
FR. BERNAS. The date would be the casting of the ballots. if the days after. I think it is a fundamental principle in political law, even in
President were to say that the plebiscite would be held, for instance, civil law, because an announcement is a mere confirmation The act of
on January 19, 1987, then the date for the effectivity of the new ratification is the act of voting by the people. So that is the date of the
Constitution would be January 19, 1987.
ratification. If there should be any need for presidential proclamation, MR. MAAMBONG. In other words, the President may or may not make
that proclamation will merely confirm the act of ratification. the proclamation whether the Constitution has been ratified or not.
Thank you, Madam President. FR. BERNAS. I would say that the proclamation made by the
President would be immaterial because under the law, the
THE PRESIDENT. Does Commissioner Regalado want to contribute? administration of all election laws is under an independent
Commission on Elections. It is the Commission on Elections which
MR. REGALADO. Madam President, I was precisely going to state the announces the results.
same support for Commissioner Bernas, because the canvass
thereafter is merely the mathematical confirmation of what was done MR. MAAMBONG. But nevertheless, the President may make the
during the date of the plebiscite and the proclamation of the President proclamation.
is merely the official confirmatory declaration of an act which was
actually done by the Filipino people in adopting the Constitution when FR. BERNAS. Yes, the President may. And if what he says contradicts
they cast their votes on the date of the plebiscite. what the Commission on Elections says, it would have no effect. I
would only add that when we say that the date of effectivity is on the
MR. LERUM. Madam President, may I be recognized. day of the casting of the votes, what we mean is that the Constitution
takes effect on every single minute and every single second of that
day, because the Civil Code says a day has 24 hours.So that even if
THE PRESIDENT. Commissioner Lerum is recognized.
the votes are cast in the morning, the Constitution is really effective
from the previous midnight.
MR. LERUM. I am in favor of the Davide amendment because we
have to fix a date for the effectivity of the Constitution. Suppose the
announcement is delayed by, say, 10 days or a month, what happens So that when we adopted the new rule on citizenship, the children of
to the obligations and rights that accrue upon the approval of the Filipino mothers or anybody born on the date of effectivity of the 1973
Constitution, which is January 17, 1973, are natural-born citizens, no
Constitution? So I think we must have a definite date. I am, therefore,
matter what time of day or night.
in favor of the Davide amendment.
MR. MAAMBONG. Madam President. MR. MAAMBONG. Could we, therefore, safely say that whatever date
is the publication of the results of the canvass by the COMELEC
retroacts to the date of the plebiscite?
THE PRESIDENT. Commissioner Maambong is recognized.
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With the theory of the Commissioner, would there
be a necessity for the Commission on Elections to declare the results
MR. MAAMBONG. I thank the Commissioner.
of the canvass?
FR. BERNAS. There would be because it is the Commission on MR. GUINGONA. Madam President.
Elections which makes the official announcement of the results.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. MAAMBONG. My next question which is the final one is: After the
Commision on Elections has declared the results of the canvass, will MR. GUINGONA. Mention was made about the need for having a
there be a necessity for the President to make a proclamation of the definite date. I think it is precisely the proposal of Commissioner
results of the canvass as submitted by the Commission on Elections? Bernas which speaks of the date (of ratification that would have a
definite date, because there would be no definite date if we depend
upon the canvassing by the COMELEC.
FR. BERNAS. I would say there would be no necessity, Madam
President.
Thank you, MR. DAVIDE. In view of the explanation and overwhelming tyranny of
the opinion that it will be effective on the very day of the plebiscite, I
THE PRESIDENT. Commissioner Concepcion is recognized. am withdrawing my amendment on the assumption that any of the
following bodies the Office of the President or the COMELEC will
make the formal announcement of the results.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite, MR. RAMA. Madam President, we are now ready to vote on the
be it the COMELEC or the President, would announce that a majority original provision as stated by the committee.
of the votes cast on a given date was in favor of the Constitution. And
that is the date when the Constitution takes effect, apart from the fact MR. MAAMBONG. The committee will read again the formulation
that the provision on the drafting or amendment of the Constitution indicated in the original committee report as Section 12.
provides that a constitution becomes effective upon ratification by a
majority of the votes cast, although I would not say from the very This Constitution shall take effect immediately upon its ratification by
beginning of the date of election because as of that time it is a majority of the votes cast in a plebiscite called for the purpose and
impossible to determine whether there is a majority. At the end of the shall supersede all previous Constitutions.
day of election or plebiscite, the determination is made as of that time-
the majority of the votes cast in a plebiscite held on such and such a We ask for a vote, Madam President.
date. So that is the time when the new Constitution will be considered
ratified and, therefore, effective.
VOTING
It shall be noted that under Resolution No. 21, dated December 18, 1979, the
Since 1973, moreover, we have invariably reckoned the effectivity of the
proposed amendment shall take effect on the date the incumbent
Constitution as well as the amendments thereto from the date it is proclaimed
ratified. President/Prime Minister shall proclaim its ratification.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the
Ratification in the Plebiscite of April 7, 1981 of the Amendments to the
and effect on January 17, 1973, the date Proclamation No. 1102, "Announcing
Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them
the Ratification by the Filipino People of the Constitution Proposed by the 1971
Constitutional Convention," was issued, although Mr. Justice, now Chief Therefore Effective and in Full Force and Effect." The Proclamation, in
Justice, Teehankee would push its effectivity date further to April 17, 1973, the declaring the said amendments duly approved, further declared them
date our decision in Javellana v. Executive Secretary, 3 became final. And this "[e]ffective and in full force and in effect as of the date of this Proclamation," It
shall be noted, in this connection, that under Resolutions Nos. I and 2 of the
was so notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus:
Batasang Pambansa, Third Regular Session, Sitting as a Constituent
Assembly, which parented these amendments, the same:
SEC. 16. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite called for the
. . .shall become valid as part of the Constitution when approved by a
purpose and, except as herein provided, shall supersede the
majority of the votes cast in a plebiscite to be held pursuant to Section
Constitution of nineteen-hundred and thirty- five and all amendments
2, Article XVI of the Constitution.
thereto.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino
On October 27, 1976, then President Marcos promulgated Proclamation no.
People, for Ratification or Rejection, the Amendment to the Constitution of the
1595, proclaiming the ratification of the 1976 amendments submitted in the
plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that. Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent
Assembly, in its Resolutions Numbered Three, Two, and One, and to
Appropriate Funds Therefore," provides, as follows:
By virtue-of the powers vested in me by law, I hereby proclaim all the
amendments embodied in this certificate as duly ratified by the Filipino people
SEC. 7. The Commission on Elections, sitting en banc, shad canvass
in the referendum- plebiscite held Oct. 16-17, 1976 and are therefore effective
and proclaim the result of the plebiscite using the certificates
and in full force and effect as of this date.
submitted to it, duly authenticated and certified by the Board of
Canvassers of each province or city.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the
Plebiscite of January 27, 1984, of the Amendments to the Constitution
Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 any way weaken this dissent. As I stated, the remark was said in passing-we
and 113." It states that the amendments: did not resolve the case on account of a categorical holding that the 1987
Constitution came to life on February 2, 1987. In any event, if we did, I now
....are therefore effective and in full force and effect as of the date of call for its re-examination.
this Proclamation.
I am therefore of the opinion, consistent with the views expressed above, that
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and the challenged dismissals done on February 8, 1987 were valid, the 1987
112 and Section 9, Batas Blg. 643), which states, that: Constitution not being then as yet in force.
The proposed amendments shall take effect on the date the President G.R. No. 77853 January 22, 1990
of the Philippines shall proclaim that they have been ratified by a
majority of the votes cast in the plebiscite held for the purpose, but not MARINA PORT SERVICES, INC., petitioner,
later than three months from the approval of the amendments. vs.
HON. CRESENCIO R. INIEGO, LABOR ARBITER, NATIONAL LABOR
albeit Resolutions Nos. 105, 111, and 113 provide, that: RELATIONS COMMISSION, MANILA AND ASSOCIATED SKILLED AND
TECHNICAL EMPLOYEES UNION-PTGWO, MARCELINO JOSE, JR. and
RAMON DEQUINIA, respondents.
These amendments shall be valid as a part of the Constitution when
approved by a majority of the votes cast in an election/plebiscite at
which it is submitted to the people for their ratification pursuant to David and Gascon for petitioner.
Section 2 of Article XVI of the Constitution, as amended.
Pedro A. Lopez for private respondents.
That a Constitution or amendments thereto take effect upon proclamation of
their ratification and not at the time of the plebiscite is a view that is not peculiar PARAS, J.:
to the Marcos era.
Before Us is a petition for certiorari with preliminary injunction and/or
The Resolution of Both Houses (of Congress) in Joint Session on the March restraining order which seeks among others to prevent the respondent
11, 1947 plebiscite called pursuant to Republic Act No. 73 and the Resolution Honorable Labor Arbiter from further proceeding with the execution of the
of Both Houses (of Congress) adopted on September 18, 1946, was adopted questioned judgment in NLRC Case No. 1-166-86, entitled "Associated Skilled
on April 9,1947. The April 9, 1947 Resolution makes no mention of a and Technical Employees Union-PTGWO, and Marcelino Jose, Jr. and Ramon
retroactive application. Dequinia vs. Metro Port Service Inc., (MPSI for short) and Gregorio L. Lim,
General Manager," for lack of jurisdiction.
Accordingly, when the incumbent President (Mrs. Corazon C. Aquino)
proclaimed on February 11, 1987, at Malacanang Palace: The facts of the case are as follows:
... that the Constitution of the Republic of the Philippines adopted by The petitioner, MARINA Port Services, Inc., (MARINA for brevity) is a domestic
the Constitutional Commission of 1986, including the Ordinance corporation duly organized and existing by virtue of the laws of the Philippines
appended thereto, has been duly ratified by the Filipino people and is and duly registered with the Securities and Exchange Commission on July 9,
therefore effective and in full force and effect. 4 1986 as evidenced by its certificate of registration, with offices at the South
Harbor, Port Area, Manila and has been the present arrastre operator at the
the 1987 Constitution, in point of fact, came into force and effect, I hold that it South Harbor, Port Area, Manila since July 21, 1986.
took effect at no other time.
The respondent Hon. Cresencio R. Iniego is a Labor Arbiter of the NLRC-NCR
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in Manila who rendered the questioned decision against the herein petitioner in
passing, that the new Charter was ratified on February 2, 1987, does not in the NLRC Case No. 1-166-86. The respondent Union is a labor organization
duly registered with the Bureau of Labor Relations, M.O.L.E. and is the The respondent Labor Arbiter deliberately and capriciously acted without or in
complainant Union in NLRC-NCR Case No. 1-166-86 pending before the excess of his jurisdiction and/or gravely abused his discretion amounting to
NLRC-NCR, Manila and is the collective representative of the individual lack of jurisdiction in rendering his decision against the petitioner (MARINA)
complainants, Marcelino Jose, Jr., and Ramon Dequinia, now co-respondents which was not a party at all in this case before him.
in this petition.
Secondly, respondent Labor Arbiter violated due process by not giving
The records of the case will show that: MARINA an opportunity to be heard.
On January 14,1986, a complaint entitled, "Associated Skilled & Technical Finally, petitioner claims that certiorari is the proper remedy for the Labor
Employees Union-PTGWO, and Marcelino Jose, Jr., and Ramon Dequinia, Arbiter never acquired jurisdiction over it.
complainants vs. Metro Port Service Inc. (MPSI for brevity) and Gregorio L.
Lim, General Manager, Respondents" was filed with the National Labor This Court is convinced MARINA never had a chance to defend itself, not
Relations Commission, National Capital Region, Manila and the same was having been furnished any notice, summons, or pleadings in the case, except
docketed as NLRC-NCR Case No. 1-166-86. the assailed decision. But despite this fact, it is clear from the "contract to
operate the arrastre service in the South Harbor" as awarded by the Philippine
On May 28,1986, the complainants submitted with the NLRC their position Ports Authority to petitioner MARINA Port Services, Inc., that:
paper. Thereafter, on April 28, 1986 the respondents Metro Port Services, Inc.
and Gregorio L. Lim filed their corresponding position papers. 7. Labor and personnel of previous operator, except those
positions of trust and confidence, shall be absorbed by
Pending hearing of the instant case, the contract of the Metro Port Services, grantee. Labor or employees benefits provided for under
Inc. as operator of the Arrastre Service in the South Harbor, was cancelled by existing CBA shall likewise be honored.
the Philippine Ports Authority due to gross violation of the terms and conditions
of the management contract and poor management. Said contract to operate xxx xxx xxx
the arrastre service in South Harbor, Manila, was awarded by the Philippine
Ports Authority to the MARINA Port Services, Inc. with the condition that it shall
14. Grantee shall be responsible for all obligations, liabilities
absorb all the employees and shall be liable for all benefits provided for under
or claims arising out of any transactions or undertakings in
the existing Collective Bargaining Agreement.
connection with their cargo handling operations as of the
actual date of transfer thereof to grantee. (Annex E-1, p.
After exchanges of pleadings and arguments by and between the parties in 37. Rollo)
this NLRC Case No. 1-166-86, more specifically on February 17, 1987, a
decision was rendered by the respondent Labor Arbiter Cresencio R. Iniego,
When the words and language of documents are clear and plain or
which was received by the petitioner on March 25, 1987. The dispositive readily understandable by an ordinary reader thereof, there is
portion of said decision states: absolutely no room for interpretation or construction anymore
(Leveriza vs. Intermediate Appellate Court, 157 SCRA 282). And
WHEREFORE, in view of the foregoing circumstances, judgment is therefore, when said contract was accepted by the grantee-petitioner,
hereby rendered ordering the Metro Port Services and the MARINA it had stepped in the shoes of its predecessor. Accordingly, petitioner
Port Services, Inc. to pay the backwages of the complainants jointly had bound itself to whatever judgment that awaited MPSI in the labor
and severally to be reckoned from the expiration of their sixty (60) days case.
suspension. The MARINA Port Services, Inc., is hereby ordered to
absorb or reinstate the complainants to their former positions (p.
WHEREFORE, the petition is hereby DISMISSED. The February 17, 1987
43, Rollo).
decision of respondent Labor Arbiter is AFFIRMED, insofar as it concerns and
affects the petitioner herein.
The petitioner assails the decision as follows:
SO ORDERED.
Melencio-Herrera, Padilla and Regalado, JJ., concur. and Technical Employees Union-PTGWO, and Marcelino Jose, Jr. and Ramon
Dequinia vs. Metro Port Service Inc., (MPSI for short) and Gregorio L. Lim,
Sarmiento J., took no part. General Manager," for lack of jurisdiction.
The petitioner, MARINA Port Services, Inc., (MARINA for brevity) is a domestic
corporation duly organized and existing by virtue of the laws of the Philippines
and duly registered with the Securities and Exchange Commission on July 9,
1986 as evidenced by its certificate of registration, with offices at the South
Harbor, Port Area, Manila and has been the present arrastre operator at the
South Harbor, Port Area, Manila since July 21, 1986.
David and Gascon for petitioner. Pending hearing of the instant case, the contract of the Metro Port Services,
Inc. as operator of the Arrastre Service in the South Harbor, was cancelled by
Pedro A. Lopez for private respondents. the Philippine Ports Authority due to gross violation of the terms and conditions
of the management contract and poor management. Said contract to operate
PARAS, J.: the arrastre service in South Harbor, Manila, was awarded by the Philippine
Ports Authority to the MARINA Port Services, Inc. with the condition that it shall
Before Us is a petition for certiorari with preliminary injunction and/or absorb all the employees and shall be liable for all benefits provided for under
restraining order which seeks among others to prevent the respondent the existing Collective Bargaining Agreement.
Honorable Labor Arbiter from further proceeding with the execution of the
questioned judgment in NLRC Case No. 1-166-86, entitled "Associated Skilled
After exchanges of pleadings and arguments by and between the parties in When the words and language of documents are clear and plain or
this NLRC Case No. 1-166-86, more specifically on February 17, 1987, a readily understandable by an ordinary reader thereof, there is
decision was rendered by the respondent Labor Arbiter Cresencio R. Iniego, absolutely no room for interpretation or construction anymore
which was received by the petitioner on March 25, 1987. The dispositive (Leveriza vs. Intermediate Appellate Court, 157 SCRA 282). And
portion of said decision states: therefore, when said contract was accepted by the grantee-petitioner,
it had stepped in the shoes of its predecessor. Accordingly, petitioner
WHEREFORE, in view of the foregoing circumstances, judgment is had bound itself to whatever judgment that awaited MPSI in the labor
hereby rendered ordering the Metro Port Services and the MARINA case.
Port Services, Inc. to pay the backwages of the complainants jointly
and severally to be reckoned from the expiration of their sixty (60) days WHEREFORE, the petition is hereby DISMISSED. The February 17, 1987
suspension. The MARINA Port Services, Inc., is hereby ordered to decision of respondent Labor Arbiter is AFFIRMED, insofar as it concerns and
absorb or reinstate the complainants to their former positions (p. affects the petitioner herein.
43, Rollo).
SO ORDERED.
The petitioner assails the decision as follows:
Melencio-Herrera, Padilla and Regalado, JJ., concur.
The respondent Labor Arbiter deliberately and capriciously acted without or in
excess of his jurisdiction and/or gravely abused his discretion amounting to Sarmiento J., took no part.
lack of jurisdiction in rendering his decision against the petitioner (MARINA)
which was not a party at all in this case before him. G.R. No. L-49 November 12, 1945
Secondly, respondent Labor Arbiter violated due process by not giving WILLIAM F. PERALTA, petitioner,
MARINA an opportunity to be heard. vs.
THE DIRECTOR OF PRISONS, respondent.
Finally, petitioner claims that certiorari is the proper remedy for the Labor
Arbiter never acquired jurisdiction over it. William F. Peralta in his own behalf.
Office of the Solicitor General Taada for respondent.
This Court is convinced MARINA never had a chance to defend itself, not City Fiscal Mabanag as amicus curiae.
having been furnished any notice, summons, or pleadings in the case, except
the assailed decision. But despite this fact, it is clear from the "contract to FERIA, J.:
operate the arrastre service in the South Harbor" as awarded by the Philippine
Ports Authority to petitioner MARINA Port Services, Inc., that:
Petitioner-defendant, a member of the Metropolitan Constabulary of Manila
charged with the supervision and control of the production, procurement and
7. Labor and personnel of previous operator, except those
distribution of goods and other necessaries as defined in section 1 of Act No.
positions of trust and confidence, shall be absorbed by
9 of the National Assembly of the so-called Republic of the Philippines, was
grantee. Labor or employees benefits provided for under prosecuted for the crime of robbery as defined and penalized by section 2 (a)
existing CBA shall likewise be honored. of Act No. 65 of the same Assembly. He was found guilty and sentenced to life
imprisonment, which he commenced to serve on August 21, 1944, by the Court
xxx xxx xxx of Special and Exclusive Criminal Jurisdiction, created in section 1 of
Ordinance No. 7 promulgated by the President of the so-called Republic of the
14. Grantee shall be responsible for all obligations, liabilities Philippines, pursuant to the authority conferred upon him by the Constitution
or claims arising out of any transactions or undertakings in and laws of the said Republic. And the procedure followed in the trial was the
connection with their cargo handling operations as of the summary one established in Chapter II of Executive Order No. 157 of the
actual date of transfer thereof to grantee. (Annex E-1, p. Chairman of the Executive Commission, made applicable to the trial violations
37. Rollo) of said Act No. 65 by section 9 thereof and section 5 of said Ordinance No. 7.
The petition for habeas corpus is based on the ground that the Court of Special nor of the provision of section 1 (1) of the same Article that no person shall be
and Executive Criminal Jurisdiction created by Ordinance No. 7 "was a political deprived of life, liberty, or property without due process of law.
instrumentality of the military forces of the Japanese Imperial Army, the aims
and purposes of which are repugnant to those aims and political purposes of The features of the summary procedure adopted by Ordinance No. 7, assailed
the Commonwealth of the Philippines, as well as those of the United States of by the petitioner and the Solicitor General as impairing the constitutional rights
America, and therefore, null and void ab initio," that the provisions of said of an accused are: that court may interrogate the accused and witnesses
Ordinance No. 7 are violative of the fundamental laws of the Commonwealth before trial in order to clarify the points in dispute; that the refusal of the
of the Philippines and "the petitioner has been deprived of his constitutional accused to answer the questions may be considered unfavorable to him; that
rights"; that the petitioner herein is being punished by a law created to serve if from the facts admitted at the preliminary interrogatory it appears that the
the political purpose of the Japanese Imperial Army in the Philippines, and defendant is guilty, he may be immediately convicted; and that the sentence
"that the penalties provided for are much (more) severe than the penalties of the sentence of the court is not appealable, except in case of death penalty
provided for in the Revised Penal Code." which cannot be executed unless and until reviewed and affirmed by a special
division of the Supreme Court composed of three Justices.
The Solicitor General, in his answer in behalf of the respondent, states that, in
his own opinion, for the reasons expressed in his brief in the case of People of Before proceeding further, and in order to determine the law applicable to the
the Philippines, plaintiff-appellant, vs. Benedicto Jose y Santos, defendant- questions involved in the present case, it is necessary to bear in mind the
appellee, G. R. No. L-22 (p. 612, post), the acts and proceedings taken and nature and status of the government established in these Islands by the
had before the said Court of Special and Exclusive Criminal Jurisdiction which Japanese forces of occupation under the designation of Republic of the
resulted in the conviction and imprisonment of the herein petitioner, should Philippines.
now be denied force and efficacy, and therefore the petition for habeas
corpus should be granted. The reasons advanced by the Solicitor General in
In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp.
said brief and in his reply memorandum in support of his contention are, that 113, 127, ante), recently decided, this Court, speaking through the Justice who
the Court of Special and Exclusive Criminal Jurisdiction created, and the
pens this decision, held:
summary procedure prescribed therefor, by said Ordinance No. 7 in
connection with Executive Order No. 157 of the Chairman of the Executive
Commission are tinged with political complexion; that the procedure In view of the foregoing, it is evident that the Philippines Executive
prescribed in Ordinance No. 7 does not afford a fair trial, violates the Commission, which was organized by Order No. 1, issued on January
Constitution of the Commonwealth, and impairs the Constitutional rights of 23, 1942, by the Commander of the Japanese forces, was a civil
accused persons under their legitimate Constitution. And he cites, in support government established by the military forces of occupation and
of this last proposition, the decisions of the Supreme Court of the United States therefore a de facto government of the second kind. It was not different
in the cases of Texas vs. White (7 Wall., 700, 743); Horn vs. Lockart (17 Wall., from the government established by the British in Castine, Maine, or
570, 581); United States vs. Home Insurance Co. (22 Wall., 99, 104); by the United States in Tanpico, Mexico. As Halleck says, "the
Sprott vs.United States (20 Wall., 459). government established over an enemy's territory during the military
occupation may exercise all the powers given by the laws of war to the
conqueror over the conquered, and is subject to all restrictions which
The City Fiscal of Manila appeared before this Court as amicus curiae. In his
that code imposes. It is of little consequence whether such
memorandum he submits that the petition for habeas corpus be denied on the
government be called a military or civil government. Its character is
following grounds: That the Court of Special and Exclusive Criminal
the same and the source of its authority the same. In either case it is
Jurisdiction and the Acts, Ordinances and Executive Orders, creating it are not
a government imposed by the laws of war and so far as it concerns
of a political complexion, for said Court was created, and the crimes and
the inhabitants of such territory or the rest of the world those laws
offenses placed under its jurisdiction were penalized heavily, in response to
alone determine the legality or illegality of its acts." (vol. 2 p. 466.) The
an urgent necessity, according to the preamble of Ordinance No. 7; that the fact that the Philippine Executive Commission was a civil and not a
right to appeal in a criminal case is not a constitutional right; and that the military government and was run by Filipinos and not by Japanese
summary procedure established in said Ordinance No. 7 is not violative of the
nationals is of no consequence.
provision of Article III, section 1 (18) of the Constitution of the Commonwealth,
to the effect that no person shall be compelled to be a witness against himself,
And speaking of the so-called Republic of the Philippines in the same decision, and such only, as it chose to recognize and impose. And Oppenheim, in his
this Court said: Treatise on International Law, says that, in carrying out the administration over
the occupied territory and its inhabitants, "the (belligerent) occupant is totally
The so-called Republic of the Philippines, apparently established and independent of the constitution and the laws of the territory, since occupation
organized as a sovereign state independent from any other is an aim of warfare, and the maintenance and safety of his forces, and the
government by the Filipino people, was, in truth and reality, a purpose of war, stand in the foreground of his interest and must be promoted
government established by the belligerent occupant or the Japanese under all circumstances or conditions. (Vol. II, Sixth Edition, Revised, 1944, p.
forces of occupation. It was of the same character as the Philippine 342.)
Executive Commission, and the ultimate source of its authority was
the same the Japanese military authority and government. As The doctrine laid down in the decisions of the Supreme Court of the United
General MacArthur stated in his proclamation of October 23, 1944, a States (in the cases of Texas vs.White, 7 Wall., 700; Horn vs. Lockart, 17 Wall.,
portion of which has been already quoted, "under enemy duress, a so- 570; Williams vs. Bruffy, 96 U. S., 176 United States vs. Home Insurance Co.,
called government styled as the 'Republic of the Philippines' was 20 Wall., 249; Sprott vs. United States, 20 Wall., 459, and others) that the
established on October 14, 1943, based upon neither the free judicial and legislative acts of the Confederate States which impaired the rights
expression of the peoples" will nor the sanction of the Government of of the citizens under the Constitution of the United States or of the States, or
the United States.' Japan had no legal power to grant independence were in conflict with those constitutions, were null and void, is not applicable
to the Philippines or transfer the sovereignty of the United States to, to the present case. Because that doctrine rests on the propositions that "the
or recognize the latent sovereignty of the Filipino people, before its concession (of belligerency) made to the Confederate Government . . .
military occupation and possession of the Islands had matured into an sanctioned no hostile legislation . . . and it impaired in no respect the rights of
absolute and permanent dominion or sovereignty by a treaty of peace loyal and citizens as they existed at the commencement of hostilities"
or other means recognized in the law of nations. (Williams vs. Bruffy, supra);that the Union is perpetual and indissoluble, and
the obligation of allegiance to the to the estate and obedience to her laws and
As the so-called Republic of the Philippines was a de facto government of the the estate constitution, subject to the Constitution of the United States,
second kind (of paramount force), as the government established in Castine, remained unimpaired during the War of Secession (Texas vs. White, supra)
Maine, during its occupation by the British forces and as that of Tampico, and that the Confederate States "in most, if not in all instances, merely
Mexico, occupied during the war with that the country by the United State transferred the existing state organizations to the support of a new and
Army, the question involved in the present case cannot be decided in the light different national head. the same constitution, the same laws for the protection
of the Constitution of the Commonwealth Government; because the belligerent of the property and personal rights remained and were administered by the
occupant was totally independent of the constitution of the occupied territory same officers." (Sprott vs. United States, supra). In fine, because in the case
in carrying out the administration over said territory; and the doctrine laid down of the Confederate States, the constitution of each state and that of the United
by the Supreme Court of the United States in the cases involving the validity States or the Union continued in force in those states during the War of
of judicial and legislative acts of the Confederate States, considered as de Secession; while the Constitution of the Commonwealth Government was
factogovernments of the third kind, does not apply to the acts of the so-called suspended during the occupation of the Philippines by the Japanese forces of
Republic of the Philippines which is a de facto government of paramount force. the belligerent occupant at regular war with the United States.
The Constitution of the so-called Republic of the Philippines can neither be
applied, since the validity of an act of a belligerent occupant cannot be tested The question which we have to resolve in the present case in the light of the
in the light of another act of the same occupant, whose criminal jurisdiction is law of nations are, first, the validity of the creation of the Court of Special and
drawn entirely from the law martial as defined in the usages of nations. Exclusive Criminal Jurisdiction, and of the summary procedure adopted for
that court; secondly, the validity of the sentence which imprisonment during
In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court of the Japanese military occupation; and thirdly, if they were then valid, the effect
the United States held that, by the military occupation of Castine, Maine, the on said punitive sentence of the reoccupation of the Philippines and the
sovereignty of the United States in the territory was, of course, suspended, restoration therein of the Commonwealth Government.
and the laws of the United States could no longer be rightfully enforced there
or be obligatory upon the inhabitants who remained and submitted to the (1) As to the validity of the creation of the Court of Special and Exclusive
belligerent occupant. By the surrender the inhabitants passed under a Criminal Jurisdiction by Ordinance No. 7, the only factor to be considered is
temporary allegiance to the British government, and were bound by such laws, the authority of the legislative power which promulgated said law or ordinance.
It is well established in International Law that "The criminal jurisdiction The only restrictions or limitations imposed upon the power of a belligerent
established by the invader in the occupied territory finds its source neither in occupant to alter the laws or promulgate new ones, especially the criminal law
the laws of the conquering or conquered state, it is drawn entirely form the as well as the laws regarding procedure, so far as it is necessary for military
law martial as defined in the usages of nations. The authority thus derived can purposes, that is, for his control of the territory and the safety and protection
be asserted either through special tribunals, whose authority and procedure is of his army, are those imposed by the Hague Regulations, the usages
defined in the military code of the conquering state, or through the ordinary established by civilized nations, the laws of humanity and the requirements of
courts and authorities of the occupied district." (Taylor, International Public public conscience. It is obvious that the summary procedure under
Law, p. 598.) The so-called Republic of the Philippines, being a governmental consideration does not violate those precepts. It cannot be considered as
instrumentality of the belligerent occupant, had therefore the power or was violating the laws of humanity and public conscience, for it is less
competent to create the Court of Special and Exclusive Criminal Jurisdiction. objectionable, even from the point of view of those who are used to the
No question may arise as to whether or not a court is of political complexion, accusatory system of criminal procedure than the procedural laws based on
for it is mere a governmental agency charged with the duty of applying the law the semi-inquisitorial or mixed system prevailing in France and other countries
to cases falling within its jurisdiction. Its judgments and sentences may be of in continental Europe.
political complexion, or not depending upon the nature or character of the law
so applied. There is no room for doubt, therefore, as to the validity of the (2) The validity of the sentence rendered by the Court of Special and Exclusive
creation of the court in question. Criminal Jurisdiction which imposes life imprisonment upon the herein
petitioner, depends upon the competence or power of the belligerent occupant
With respect to the Summary procedure adopted by Ordinance No. 7, and to promulgate Act No. 65 which punishes the crime of which said petitioner
followed in the trial of the case which resulted in the conviction of the herein was convicted.
petitioner, there is also no question as to the power or competence of the
belligerent occupant to promulgate the law providing for such procedure. For Westlake says that Article XLIII, Section III, of the Hague Conventions of 1907
"the invader deals freely with the relations of the inhabitants of the occupied "indicates that the laws to be enforced by the occupant consist of, first, the
territory towards himself . . . for his security also, he declares certain acts, not territorial law in general, as that which stands to the public order and social
forbidden by the ordinary laws of the country, to be punishable; and he so far and commercial life of the district in a relation of mutual adaptation, so that any
suspends the laws which guard personal liberty as is required for the summary needless displacement of it would defeat the object which the invader is
punishment of any one doing such acts." (Hall's International Law, seventh enjoined to have in view, and secondly, such variations of the territorial law as
ed., p. 5000). A belligerent "occupant may where necessary, set up military may be required by real necessity and are not expressly prohibited by any of
courts instead of the ordinary courts; and in case, and in so far as, he admits the rules which will come before us. Such variations will naturally be greatest
the administration of justice by the ordinary courts, he may nevertheless, so in what concerns the relation of the communities and individuals within the
far as is necessary for military purposes, or for the maintenance of public order district to the invading army and its followers, it being necessary for the
and safety temporarily alter the laws, especially the Criminal Law, on the basis protection of the latter, and for the unhindered prosecution of the war by them,
of which justice is administered as well as the laws regarding procedure." that acts committed to their detriment shall not only lose what justification the
(Oppenheim's International Law, Vol. II, sixth edition, 1944, p.349.) territorial law might give them as committed against enemies, but shall be
repressed more severely than the territorial law would repress acts committed
No objection can be set up to the legality of its provisions in the light of the against fellow subjects. Indeed the entire relation between the invaders and
precepts of our Commonwealth Constitution relating to the rights of accused the invaded, so far as it may fall within the criminal department whether by the
under that Constitution, because the latter was not in force during the period intrinsic nature of the acts done or in consequence of the regulations made by
of the Japanese military occupation, as we have already stated. Nor may said the invaders, may be considered as taken out of the territorial law and referred
Constitution be applied upon its revival at the time of the re-occupation of the to what is called martial law." (Westlake, International Law, Part II, War, p. 96.)
Philippines by virtue of the principle of postliminium because "a constitution
should operate prospectively only, unless the words employed show a clear According to Hyde (International Law, Vol. II, p. 386), the term "martial law," in
intention that it should have a retrospective effect" (Cooley's Constitutional so far as it is used to describe any fact in relation to belligerent occupation,
Limitations, seventh edition, page 97, and cases quoted and cited in the does not refer to a particular code or system of law, or to a special agency
footnote), especially as regards laws of procedure applied to cases already entrusted with its administration. The term merely signifies that the body of law
terminated completely. actually applied, having the sanction of military authority, is essentially martial.
All law, by whomsoever administered, in an occupied district martial law; and
it is none the less so when applied by civil courts in matters devoid of special take judicial notice, that the Imperial Japanese Army had depended mostly for
interest to the occupant. The words "martial law" are doubtless suggestive of their supply upon the produce of this country.
the power of the occupant to share the law as he sees fit; that is, to determine
what shall be deemed lawful or unlawful acts, to establish tests for ascertaining The crimes penalized by Act No. 65 as well as the crimes against national
the guilt of offenders, to fix penalties, and generally to administer justice security and the law of nations, to wit: treason, espionage, inciting war,
through such agencies as the found expedient. violation of neutrality, correspondence with hostile country, flight to enemy's
country, piracy; and the crimes against public order, such as rebellion, sedition
And the United States Rules of Land Warfare provide that the belligerent and disloyalty, illegal possession of firearms and other, penalized by
occupant may promulgate such new laws and regulations as military necessity Ordinance No. 7 and placed under jurisdiction of the Court of Special and
demands, and in this class will be included those laws which come into being Exclusive Criminal Jurisdiction are all of a political complexion, because the
as a result of military rule; that is, those which establish new crimes and acts constituting those offenses were punished, as are all political offenses,
offenses incident to a state of war and are necessary for the control of the for public rather than private reasons, and were acts in aid or favor of the
country and the protection of the army, for the principal object of the occupant enemy and against the welfare, safety and security of the belligerent occupant.
is to provide for the security of the invading army and to contribute to its support While it is true that these offenses, when committed against the
and efficiency and the success of its operations. (Pub. 1940, pp. 76, 77.) Commonwealth or United States Government, are defined and also penalized
by the territorial law Revised Penal Code, they became inapplicable as crimes
From the above it appears clear that it was within the power and competence against the occupier upon the occupation of the Islands by the Japanese
of the belligerent occupant to promulgate, through the National Assembly of forces. And they had to be taken out of the territorial law and made punishable
the so-called Republic of the Philippines, Act No. 65 of the said Assembly, by said Ordinance No. 7, for they were not penalized before under the Revised
which penalizes the crimes of robbery and other offenses by imprisonment Penal Code when committed against the belligerent occupant or the
ranging from the maximum period of the imprisonment prescribed by the laws government established by him in these Island. They are also considered by
and ordinances promulgated by the President of the so-called Republic as some writers as war crimes in a broad sense. In this connection Wheaton
minimum, to life imprisonment or death as maximum. Although these crimes observes the following:
are defined in the Revised Penal Code, they were altered and penalized by
said Act No. 65 with different and heavier penalties, as new crimes and "Of 'war crimes' the number is naturally indefinite, depending as they do on the
offenses demanded by military necessity, incident to a state of war, and acts from time to time ordered to be done or forbidden to be done in the martial
necessary for the control of the country by the belligerent occupant, the law proclamation or regulations of the invading or occupying commander.
protection and safety of the army of occupation, its support and efficiency, and Thus, in the Anglo-Boer war, the British military authorities proclaimed the
the success of its operations. following to be offenses against their martial law; Being in possession of
arms, ammunition, etc.; traveling without a permit; sending prohibited goods;
They are not the same ordinary offenses penalized by the Revised Penal holding meetings other than those allowed; using seditious language;
Code. The criminal acts penalized by said Act No. 65 are those committed spreading alarmist reports; overcharging for goods; wearing uniforms without
by persons charged or connected with the supervision and control of the due authority; going out of doors between certain hours; injuring military
production, procurement and distribution of foods and other necessaries; and animals or stores; being in possession, without a permit, of horses, vehicles,
the penalties imposed upon the violators are different from and much heavier cycles, etc.; hindering those in execution of military orders; trespassing on
than those provided by the Revised Penal Code for the same ordinary crimes. defense works. Such offenses, together with several others, were specified in
The acts penalized by said Act were taken out of the territorial law or Revised the Japanese regulations made in the Russo-Japanese war." (Wheaton's
Penal Code, and referred to what is called martial law by international jurists, International Law, War, seventh edition, 1944, p. 242.)
defined above by Hyde, in order, not only to prevent food and other
necessaries from reaching the "guerrillas" which were harassing the It is, therefore, evident that the sentence rendered by the Court of Special and
belligerent occupant from every nook and corner of the country, but also to Exclusive Criminal Jurisdiction against the petitioner, imposing upon him the
preserve the food supply and other necessaries in order that, in case of penalty of life imprisonment, was good and valid, since it was within the
necessity, the Imperial Japanese forces could easily requisition them, as they admitted power or competence of the belligerent occupant to promulgate the
did, and as they had the right to do in accordance with the law of nations for law penalizing the crime of which petitioner was convicted.
their maintenance and subsistence (Art. LII, Sec. III, Hague Conventions of
1907). Especially taking into consideration the fact, of which this court may
(3) The last question is the legal effect of the reoccupation of the Philippines obliged to execute his commands. (Westlake, International Law, Part II, War,
and restoration of the Commonwealth Government; that is whether or not, by pp. 97, 98.)
the principle of postliminy, the punitive sentence which petitioner is now
serving fell through or ceased to be valid from that time. And Wheaton, who, as above stated, considers as war crimes such offenses
as those penalized in Ordinance No. 7 and Act No. 65, says: "In general, the
In order to resolve this last question, it is not necessary to enter into an cast of the occupant possess legal validity, and under international law should
elaborate discussion on the matter. It is sufficient to quote the opinion on the not be abrogated by the subsequent government. But this rule does not
subject of several international jurists and our recent decision in the case ofCo necessarily apply to acts that exceed the occupant's power (e.g., alienation of
Kim Cham vs. Valdez Tan Keh and Dizon, supra. the domains of the State or the sovereign), to sentences for 'war
treason' and 'war crimes,' to acts of a political character, and to those that
Hall, commenting on the effect of the principle of postliminy upon sentences of beyond the period of occupation. When occupation ceases, no reparation is
the tribunals continued or created by the belligerent occupant, opines "that legally due for what has already been carried out." (Wheaton's International
judicial acts done under this control, when they are not of a political Law, supra, p. 245.)
complexion, administrative acts so done, to the extent that they take effect
during the continuance of his control, and the various acts done during the We have already held in our recent decision in the case of Co Kim Cham vs.
same time by private persons under the sanction of municipal law, remain Valdez Tan Keh and Dizon, supra, that all judgments of political complexion of
good. . . . Political acts on the other hand fall through as of course, whether the courts during the Japanese regime, ceased to be valid upon the
they introduce any positive change into the organization of the country, or reoccupation of the islands by virtue of the principle or right of postliminium.
whether they only suspend the working of that already in existence. The Applying that doctrine to the present case, the sentence which convicted the
execution also of punitive sentences ceases as of course when they have had petitioner of a crime of a political complexion must be considered as having
reference to acts not criminal by the municipal law of the state, such for ceased to be valid ipso facto upon the reoccupation or liberation of the
example as acts directed against the security or control of the invader." (Hall's Philippines by General Douglas MacArthur.
International Law, seventh edition, p. 518.)
It may not be amiss to say in this connection that it is not necessary and proper
Westlake, speaking of the duration of the validity of punitive sentences for to invoke the proclamation of General Douglas MacArthur declaring null and
offenses such as the one in question, which is within the admitted power or void all laws, among them Act No. 65, of the so-called Republic of the
competence of the belligerent occupant to punish, says that: "To the extent to Philippines under which petitioner was convicted, in order to give retroactive
which the legal power of the occupant is admitted he can make law for the effect to the nullification of said penal act and invalidate sentence rendered
duration of his occupation. Like any other legislator he is morally subject to the against petitioner under said law, a sentence which, before the proclamation,
duty of giving sufficient notice of his enactments or regulations, not indeed so had already become null and of no effect.
as to be debarred from carrying out his will without notice, when required by
military necessity and so far as practically carrying out his will can be We therefore hold that the punitive sentence under consideration, although
distinguished from punishment, but always remembering that to punish for good and valid during the military occupation of the Philippines by the
breach of a regulation a person who was justifiably ignorant of it would be Japanese forces, ceased to be good and valid ipso facto upon the
outrageous. But the law made by the occupant within his admitted power, reoccupation of these Island and the restoration therein of the Commonwealth
whether morally justifiable or not, will bind any member of the occupied Government.
population as against any other member of it, and will bind as between them
all and their national government, so far as it produces an effect during the In view of all the foregoing, the writ of habeas corpus prayed for is hereby
occupation. When the occupation comes to an end the authority of the national
granted and it is ordered that the petitioner be released forthwith, without
government is restored, either by the progress of operations during the war or pronouncement as to costs. So ordered.
by the conclusion of a peace, no redress can be had for what has been actually
carried out but nothing further can follow from the occupant's legislation. A
prisoner detained under it must be released, and no civil right conferred by it Jaranilla, Pablo and Bengzon, JJ., concur.
can be further enforced. The enemy's law depends on him for enforcement as Moran, C.J., concurs in the result.
well as for enactment. The invaded state is not subject to the indignity of being
Separate Opinions
OZAETA, J., concurring: Section 2 confers upon the court mentioned in section 1 exclusive jurisdiction
also to try the following crimes as defined in the Revised Penal Code: crimes
Amidst the forest of opinions that have cropped up in this case it would seem against national security and the law of nations, crimes against public order,
unnecessary to plant an additional tree. To justify our effort lest we seem brigandage, arson and other crimes involving destruction, illegal detention
intent to bring coal to Newcastle we ought to state that the following opinion committed by private individuals and kidnapping of minors; and illegal
had been prepared before the others were tendered. It has been impossible possession of firearms, as defined in an executive order. Section 3 provides
for the Court to reconcile and consolidate the divergent views of its members for the appointment of one judge of first instance to preside over the court
although they arrive at practically the same result. above mentioned and of a special prosecutor in each special court. Section 4
authorizes the court to impose a longer term of imprisonment than that fixed
by law, or imprisonment for life or death where not already fixed by law, for the
Accused of robbery in the Court of Special and Exclusive Criminal Jurisdiction
crimes and offenses mentioned in section 2. The remaining sections read as
of Manila, the petitioner was found guilty and sentenced to life imprisonment.
follows:
He commenced to serve the sentence on August 21, 1944. He now petitions
this Court for the writ of habeas corpus, alleging that Ordinance No. 7, by which
the Court of Special and Exclusive Criminal Jurisdiction was created and which SEC. 5. The trial of the cases arising sections 1 and 2 hereof shall be
was promulgated on March 8, 1944, by the President of the "Republic of the started within two days after the filing of the corresponding information,
Philippines," was null and void ab initio. The Solicitor General, answering the shall be summary in procedure, and shall aim at their expeditious and
petition on behalf of the respondent Director of Prisons, expressed the opinion prompt disposition. Technicalities shall be avoided and all measures
that "the acts and proceedings taken and before the said Court of Special and calculated to serve this end shall be taken by the trial judge. Said
Exclusive Criminal Jurisdiction which resulted in the conviction and cases shall be decided within four days after the same are submitted
imprisonment of the herein prisoner should now be denied force and efficacy," for decision. The summary procedure provided in Act No. 65 insofar
and recommended "that the writ of habeas corpusprayed for be granted and as not inconsistent with the provisions of this Ordinance, shall govern
that the City Fiscal be instructed to prepare and file the corresponding the trial of the cases enumerated in said sections 1 and 2 hereof.
information for robbery against the petitioner herein in the Court of First
Instance of Manila." SEC. 6. The decisions of the special courts herein created shall be
final except where the penalty imposed is death, in which case the
The case was argued before us on September 21 and 22, 1945, by the First records of the particular case shall be elevated en consulta to a special
Assistant Solicitor General on behalf of the respondent and the City Fiscal division of the Supreme Court composed of the three members to be
as amicus curiae the former impugning and the latter sustaining the validity designated by the President of the Republic of the Philippines. The
of said Ordinance No. 7. Section 1 of the ordinance in question reads as clerk of each special court, upon the promulgation of a decision
follows: imposing the death penalty, shall immediately forward the records of
the case to the special division of the Supreme Court herein created,
which shall decide the case within fifteen days from the receipt of the
SECTION 1. There is hereby created in every province and city
records thereof.
throughout the Philippines one or more courts of special criminal
jurisdiction as the President of the Republic of the Philippines may
determine upon recommendation of the Minister of Justice, which SEC. 7. The interest of public safety so requiring it, the privileges of
courts shall have exclusive jurisdiction to try and determine crimes and the writ of habeas corpus are hereby suspended with respect to
offenses penalized by Act No. 65 entitled "An Act imposing heavier persons accused of, or under investigations for, any of the crimes and
penalties for crimes involving robbery, bribery, falsification, frauds, offenses enumerated in sections 1 and 2 hereof.
illegal exactions and transactions, malversation of public funds and
infidelity as defined in the Revised Penal Code and violations of food SEC. 8. All laws, rules or orders, or parts thereof, inconsistent with the
control laws, when committed by public officers and employees, and provisions hereof, are hereby repealed or modified accordingly.
for similar offenses when committed by private individuals or entities,
and providing for a summary procedure for the trial of such offenders." SEC. 9. This Ordinance shall take effect immediately upon its
promulgation.
The summary procedure provided in Act No. 65 of the "Republic," as referred dispute, and the trial shall be limited to the latter, unless the judge, for
to in section 5 above quoted, is in turn that established by Chapter II of special reasons, otherwise directs.
Executive Order No. 157 of the Chairman of the Philippine Executive
Commission, dated May 18, 1943. Under said procedure (section 17) "search (e) Unjustified absence of an accused who has been released on bail,
warrants may be issued by the court or by any prosecuting officer, authorizing or of his representative shall not be a ground for interrupting the
peace officers to search for and seize any articles or objects described in the proceedings or attacking the validity of the judgment.
warrant, including those which may be regarded as evidence of an offense
under this Order even if such articles or objects are not included among those The provisions of Rules 115 to 117 of the Rules of Court shall be
described in section 2, Rule 122, of the Rules of Court." Section 18 reads as suppletory to the foregoing insofar as they are not in conflict therewith.
follows:
The records shows that during their existence the courts of special and
SEC. 18. The accused or his representative may be examined by the
exclusive criminal jurisdiction created by the ordinance in question convicted
court, and with the permission of the court, by the fiscal or other and sentenced a total of 94 individuals, 55 of whom had been prosecuted for
prosecuting officer as to any matters favorable or unfavorable to him illegal possession of firearms and 15 for robbery; and that of the 94 convicts
or his principal; and either may apply to the judge for the examination
only 3, including the herein petitioner, remain in confinement, 21 having
of the co-accused or the representative of the latter in matters related
escaped, 37 having been released, and 33 having died.
to the defense of the accused. Statements made by the accused, his
co-accused, or the representative of the accused or a person acting in
a similar capacity, irrespective of the circumstances under which they In synthesis, the argument of the Solicitor General is as follows: Acts of the
were made, shall be admissible in evidence if material to the issue. military occupant which exceed his power tested by the criterion set forth in
article 43 of the Hague Regulations, are null and without effect as against the
legitimate government. (Wheaton's International Law, 7th ed., p. 245.) Acts in
Section 21 provides for the summary trial in the following manner:
furtherance or support of rebellion against the United States, or intended to
defeat the just rights of citizens, and other Acts of like nature, must, in general,
Such trials shall be conducted according to the following rules: be regarded as invalid and void. (Texas vs. White, 74 U. S., 733; 19 Law. ed.,
240.) Judicial or legislative acts in the insurrectionary states were valid where
(a) After arraignment and plea, the court shall immediately cause to they were not hostile in their purpose or mode of enforcement to the authority
be explained to the accused the facts constituting the offenses with of the national government, and did not impair the rights of citizens under the
which he is charged, and the judge shall interrogate the accused and Constitution. (Horn vs. Lockhart, 17 Wall., 570-581; 21 Law. ed., 660.) All the
the witnesses as to the facts and circumstances of the case in order enactment of the de factolegislatures in the insurrectionary states during the
to clarify the points in dispute and those which are admitted. war, which were not hostile to the Union or to the authority of the General
Government and which were not in conflict with the Constitution of the United
(b) Refusal of the accused to answer any questions made or allowed States, or of the states, have the same validity as if they had been enactments
by the court may be considered unfavorable to him. of legitimate legislatures. (United States vs. The Home Insurance Co., 22
Wall., 99-104; 22 Law. ed., 818.) Tested by these principles of international
(c) Except for justifiable reasons, the accused shall not be allowed to law, Ordinance No. 7 must be declared void (1) because it favored the forces
of occupation and the civilian Japanese inasmuch as it provided an
plead and assert defenses that are inconsistent with each other.
excessively heavy penalty for the summary trial of possession of firearms and
violations of food control regulations and (2) because it impaired the rights of
(d) If from the facts admitted at the preliminary interrogation, it should citizens under the Constitution inasmuch as the procedure therein prescribed
appear that the accused is guilty of the crime charged in the withdrew the privilege of the accused against self-incrimination and his right to
information, or in any other information, or in any other information, or appeal to the Supreme Court even where the penalty imposed was life
in any other information subsequently filed by the prosecuting officer, imprisonment or death.
a sentence of conviction may be immediately rendered against the
accused. Otherwise, the judge shall dictate an order distinctly
specifying the facts admitted by the accused and those which are in In substance, the City Fiscal argues that the heavier penalty for the illegal
possession of firearms than that fixed by the Administrative Code was not
directed toward the suppression of underground activities against the United States. The decisions of the Supreme Court of the United States
Japanese army, and the rigid enforcement of the food control measures was declaring invalid Acts of a rebel state or of the Confederacy which were in
not intended to insure the procurement of supplies by said army, because in furtherance or support of rebellion against the United States or which impaired
any event the Japanese military occupant freely exercised the power to go the rights of citizens under the Constitution, rest on the proposition that the
after and punish his enemies directly without recurring to the agencies of the Union is perpetual and indissoluble and that the obligations of allegiance to
"Republic," for there were even cases where the offenders were already in the the state, and obedience to her laws, subject to the Constitution of the United
hands of the police or courts of the "Republic" but they were unceremoniously States, remained unimpaired during the War of Secession. (See
taken from said agencies by the Japanese military police and punished or Texas vs. White, 74 U.S., 700; 19 Law. ed., 227, 237; William vs. Bruffy, 96
liquidated by it at Fort Santiago or elsewhere; and as regards food control, the U.S., 176; 24 Law. ed. 716.) Obviously, that proposition does not hold true with
Japanese forces did not have any need of the measures or agencies respect to a de facto government established by the enemy in an invaded and
established by the "Republic" because the Japanese forces themselves occupied territory in the course of a war between two independent nations.
commandeered what they needed or sent out their own agents to purchase it Such territory is possessed temporarily so possessed temporarily by lawful
for them at prices even much higher than those fixed by the "Republic"; that government at war with the country of which the territory so possessed is a
the procedure prescribed afforded a fair trial and did not violate any part, and during that possession the obligations of the inhabitants to their
fundamental rights; that the military occupant was not in duty bound to respect country are suspended, although not abrogated (United States vs. Rice, 4
the constitution and the laws of the occupied territory; that he could abrogate Wheat., 253; Fleming vs. Page 9 How., 614; Baldy vs. Hunter, 171 U.S., 388;
all of them and promulgate new ones if he so chose; that the cases cited by 43 Law. ed., 208, 210.) In the case of Williams vs. Bruffy, supra, the court,
the Solicitor General are not applicable because they deal with the validity of speaking though Mr. Justice Field, observed: "The rule stated by Vattel, that
acts and processes of the governments of the rebel states during the Civil War the justice of the cause between two enemies being by law of nations reputed
and are based upon the indissolubility of the Union; that the validity or nullity to be equal, whatsoever is permitted to the one in virtue of war is also permitted
of the ordinance in question should be judged in the light of the provisions of to the other, applies only to cases of regular war between independent nations.
the Constitution and the laws of the "Republic" and of generally accepted It has no application to the case of a war between an established government
principles of international law; that even assuming that it should be judged by and insurgents seeking to withdraw themselves from its jurisdiction or to
the standard or the Constitution of the Commonwealth, the ordinance satisfies overthrow its authority. The court further stated that the concession of
all the requirements of said Constitution; that the right to appeal in a criminal belligerent rights made to the Confederate Government sanctioned no hostile
case is not a constitutional but a purely statutory right which may be granted legislation and impaired in no respect the rights loyal citizens as they had
or withheld at the pleasure of the state; and, finally, that the supposed invalidity existed at the commencement of hostilities.
of the sentence imposed against the petitioner cannot be raised by habeas
corpus. On the other hand, in a war between independent nations "the rights of the
occupant as a law-giver have broad scope." He many "suspend the existing
There is no question that in virtue of that of the proclamation of General laws and promulgate new ones when the exigencies of the military service
MacArthur of October 23, 1944 (41 Off. Gaz., 147, 148), Ordinance No. 7 is demand such action. According to the Rules of Land Warfare he will naturally
no longer of any force and effect since the restoration of the Government of alter or suspend all laws of a political nature as well as a political privileges,
the Common wealth of the Philippines. The question before us is whether said and laws which affect the welfare and safety of his command." (Hyde on
ordinance ever acquired any force and effect or was null and void ab initio. International Law, vol. 2, p. 367.) It will be seen then that in a war between
independent nation the army of occupation has the right to enact laws and take
Invoking decisions of the Supreme Court of the United States in cases measures hostile to its enemy, for its purpose was to harass and subdue the
involving the validity of Acts of the Confederacy and of a rebel state as a de latter; and it is not bound to respect or preserve the rights of the citizens of the
facto government during the Civil War, the Solicitor General maintains that the occupied territory under their Constitution.
ordinance in question was null and void because it impaired the rights of
citizens under the Constitution and because it was hostile in its purpose to the Let us now look into the nature and status of the government styled "Republic
United States and the Commonwealth of the Philippines. of the Philippines "in order to determined the criterion by which the validity of
its enactments should be tested. In the recent case of Co Kim Cham vs. Valdez
The decisions invoked would be applicable if the so-called Republic of the Tan Keh Dizon (G.R. No. L-5, p. 113, ante), this Court speaking through
Philippines should be considered as a government established by the Filipino Justice Feria, had occasion to comment upon the nature of said government
people in rebellion against the Commonwealth and the Sovereignty of the in the following words:
The so-called Republic of the Philippines, apparently established and December 1944 the Japanese military authorities placed the President and the
organized as a sovereign state independent from any other members of his Cabinet under the "protective" custody of the military police,
government by the Filipino people, was, in truth and reality, a and on the 22nd of the month forced them to leave the seat of the government
government established by the belligerent occupant or the Japanese in Manila and hide with them in the mountains. The only measure they did not
forces of occupation. It was of the same character as the Philippines succeed in imposing upon the "Republic" was the conscription of the Filipino
Executive Commission, and the ultimate source of its authority was youth into an army to fight with the Japanese against the United States. So,
the same the Japanese military authority and government. As while in theory and for the purpose of propaganda Japan professed to be a
General McArthur stated in his proclamation of October 23, 1944, a benefactor and liberator of the Filipinos, hoping thereby to secure their willing
portion of which had been already quoted, "under enemy duress a was cooperation in her war efforts, in practice she continued to enslave and
established on October 14, 1943, base upon neither the free oppress the Filipinos, as she saw that the latter remained loyal to the United
expression of the peoples" will nor the sanction of the Government of States. She found that the Filipinos merely feigned cooperation as their only
the United States.' Japan had no legal power to grant independence means of self-preservation and that those who could stay beyond the reach of
to the Philippines or transfer the sovereignty of the United State to, or her army of occupation manifested their hospitality by harassing and attacking
recognize the latent sovereignty of, the Filipino people, before its that army. Thus Japan continued to oppress and tyrannize the Filipinos
military occupation and possession of the Islands had matured into an notwithstanding the former's grant of "independence" to the latter. It would
absolute and permanent dominion or sovereignty by a treaty of peace therefore be preposterous to declare that the "Republic of the Philippines" was
or other means recognized in the law of nations. For it is a well- a government established by the Filipino people in rebellion against the
established doctrine in internal law, recognized in the law, recognized Commonwealth and the sovereignty of the United States.
in Article 45 of the Hague Conventions of 1907 (which prohibits
compulsion of the population of the occupied territory to swear The said government being a mere instrumentality of the Commander in Chief
allegiance to the hostile power), that belligerent occupation, being of the Japanese army as military occupant, the ordinance question
essentially provisional, does not severe to transfer sovereignty over promulgated by the President of the "Republic" must be deemed as an act
the territory controlled although the de jure government is during the emanating from the power or authority of said occupant. The question,
period of occupancy deprived of the power to exercise its rights as therefore, is whether or not it was within the competence of the military
such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United occupant to pass such a law.
Statesvs. Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard, 603;
Downes vs. Bidwell, 182 U.S., 345.) The formation of the Republic of
Article 43 of the Hague Regulations provides as follows:
the Philippines was a scheme contrived by Japan to delude of the
Filipino people into believing in the apparent magnanimity of the
Japanese gesture of transferring or turning over the rights of ART. 43. The authority of the legitimate power having actually passed
governments into the hands of Filipinos. It was established under the into the hands of the occupant, the latter shall take all steps in his
mistaken belief that, by doing so, Japan would secure the cooperation power to reestablish and insure, as far as possible, public order and
or at least the neutrality of the Filipino people in her war against the safety, while respecting, unless absolutely prevented, the laws in force
United States and other allied nations. in the country.
We reaffirmed those statements. To show further the fictitious character of Commenting upon this article, Hyde in his work on International Law, volume
much-propagandized "independence" which Japan purported to grant to the 2, pages 366, 367, 368, says:
Philippines through the establishment of the "Republic", we may add that, as
matter of contemporary history and of common knowledge, in practice the In consequence of his acquisition of the power to control the territory
Japanese military authorities in the Philippines never treated the "Republic of concerned, the occupant enjoys the right and is burdened with the duty
the Philippines" as an independent government after its inauguration. They to take all the measures within his power to restore and insure public
continued to impose their will on its executive officials when their interests so order and safety. In so doing he is given great freedom may be partly
required. The Japanese military police arrested and punished various high due to circumstance that the occupant is obliged to consider as a
officials of said government, including the First Assistant Solicitor General, and principal object the security, support, efficiency and success of his own
paid no attention to the protests and representations made on their behalf by force in a hostile land inhabited by nationals of the enemy. . . .
the President of the "Republic." As a climax of their continual impositions, in
xxx xxx xxx security, efficacy, and success of his military operations, his power is qualified
by the transient character of his administration. He is forbidden "to vary or
The right to legislate is not deemed to be unlimited. According to the suspend laws affecting property and private personal relations, or which
Hague Regulations of 1907, the occupant is called upon to respect, regulate the moral order of the community." Unless absolutely prevented, he
"unless absolutely prevented, the laws in force the ordinary civil and is bound to laws, and civil and criminal, in force in the country.
criminal laws which do not conflict with security of his army or its
support, efficiency, and success." Tested by this criterion, was it within the power or competence of the
Commander in Chief of the Japanese army of occupation of the Philippines to
In the exercise of his powers the commander must be guided by his judgment promulgate Ordinance No. 7? In so far as said ordinance created new court of
and his experience and a high sense of justice. (President McKinley, Order to special criminal jurisdiction we think his power to promulgate and enforce it
the Secretary of War, July 18, 1898, on the occupation of Santiago de Cuba during the occupation cannot be seriously disputed; but in so far as that
by the American forces, Moore, Dig. VII, p. 261.) ordinance varied radically our law of criminal procedure and deprived the
accused of certain rights which our people have always treasured and
Acts of the military occupant which exceed his power tested by the criterion considered inviolate, we are of the that it transcended his power or
competence. We base this opinion upon the following considerations:
set forth in article 43 of the Hague Regulations, are null and without effect as
against the legitimate government. (Wheaton's International Law, 7th ed.
[1944], p. 245.) 1. The occupant was not absolutely prevented from respecting our law of
criminal procedure and the Court of Special and Exclusive Criminal
Hall in his Treatise on Internal Law, (7th edition), discussing the extent of the jurisdiction. The application or nonapplication of said law did not affect the
security, efficacy, and success of his military operations. The crimes over
right of a military occupant, states:
which the said court was vested with jurisdiction were mostly crimes against
property penalized in our Revised Penal Code, which crimes did not affect the
If occupation is merely a phase in military operations, and implies no army of occupation. As to the illegal possession of firearms the City Fiscal
change in the legal position of the invader with respect to the occupied himself, who the validity of the ordinance, informs us that the occupant did not
territory and its inhabitants, the rights which he possesses over them avail himself of said court but punished his enemies direct without recurring to
are those which in the special circumstances represent his general the agencies of the "Republic"; and he further informs us that "as regards food
right to do whatever acts are necessary for the prosecution of his war; control, the Japanese forces did not have any need of the measures or
in other words he has the right of exercising such control, and such agencies established by "Republic", nor did they make use of them.
control only, within the occupied territory as is required for his safety
and the success of his operations. . . . On occupying a country an
2. The summary procedure prescribed in Ordinance No. 7 was inquisitorial,
invader at once invest himself with absolute authority; and the fact of
repugnant to the humanitarian method of administering criminal justice
occupation draws with it as of course the substitution of his will for
adopted by all progressive, democratic, and freedom-loving countries of the
previously existing law whenever such substitution is reasonably
world, and, therefore, devoid of that high sense of justice by which the military
needed, and also the replacement of the actual civil judicial
administration by the military jurisdiction. In its exercise however this occupant must be guided in the exercise of his powers. This concept is, we
ultimate authority is governed by the condition that the invader, having think, borne out by an examination of the following features of said procedure:
only a right to such control as is necessary for his safety and the
success of his operations, must use his power within the limits defined (a) Under the rule of procedure embodied in said ordinance any prosecuting
by the fundamental notion of occupation, and with due reference to its officer may, on his own volition and even without probable cause, issue a
transient character. He is therefore forbidden as a general rule to vary search warrant for the seizure of documents and articles which may be
or suspend laws affecting property and private personal relations, or regarded as evidence of an offense in violation of section 2, Rule 122 of the
which regulate the moral order of the community. . . . (Pages 498, Bill of Rights contained in the Constitution of the Commonwealth, which
499.) guarantees "the right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures," and
prohibits the issuance of warrants except upon probable cause to be
We deduce from the authorities that the power of the occupant is broad and
determined by the judge after examination under oath or affirmation of the
absolute in matters affecting his safety. But in affairs which do not affect the
complainant and the witnesses he may produce.
(b) The trial must be commenced within two days after the filing of the the law of criminal procedure had been followed, he would have had ample
information in violation of section 7, Rule 114, which give the accused at time to reflect and endeavor to unravel the mystery. He could have consulted
least two days after the plea of not guilty within which to prepare fort trial. a lawyer, and he would have been entitled to at least two days after the
information was read to him to investigate the facts and prepare for the trial.
(c) The presumption of innocence in favor of the accused in all criminal At the trial he would not have been required to answer to any proof in his
prosecutions until the contrary is proved, which is likewise guaranteed by the defense until the prosecution had presented its witness, principally the
Bill of Rights, is violated in that, after the arraignment and before the policeman. His lawyer could have cross-examined the policeman and found
presentation of any proof for the prosecution, the accused is interrogated by out from him whether he had any grudge against the accused and how he
the judge as to the facts and circumstances of the case, and if from the facts happened to search the latter's house. From the testimony of the policeman
obtained by such interrogation it should appear (to the judge) that accused is the accused might have been enlightened as to how and by whom the revolver
guilty a sentence of conviction may be immediately rendered against him, was place in his house. Suppose that the policeman should say that his
thereby also depriving him of his right to meet the witnesses face to face and informant as to the presence of the revolver under the bed of the accused was
of his privilege against self-incrimination. a houseboy of the latter, and suppose that houseboy was really the one who
planted the revolver because of some grievance he had against his master but
The City Fiscal justifies this feature of the procedure by giving the following that the latter had not suspected before that his houseboy had any revolver. In
view of the revelation of the policeman he would had been able to investigate
hypothetical case: "In the house of Juan and under his bed a policeman finds
and ascertain that fact. In that he way he could have satisfactory explained
a revolver. Juan is arrested and an information for illegal possession of
how and by whom the revolver was placed under his bed. But under the
firearms is filed against him by the fiscal. He is brought before the judge of the
procedure in question as outlined by the City Fiscal, the accused was of course
corresponding special court for the preliminary interrogatory. He is asked
whether or not he admits that the revolver was found in his house. He answers utterly unable to do that and was consequently doomed to at least six years'
in the affirmative but says that he is not the owner of the revolver and he does imprisonment for a crime he had not committed.
not know how it placed there. Asked whether he knows of anybody who could
have placed the revolver under his bed, he answers that it might have been (d) Section 6 of the Ordinance in question provided: "The decisions of the
place there by a guest who slept on his bed the night previous to its discovery special courts herein created shall be final except where the penalty imposed
by the polices. He is asked to give the name of the guest reffered to and his is death, in which case the records of the particular case shall be elevateden
address, but he refuses to answers. Asked if he has other witnesses to support consulta to a special division of the Supreme Court composed of three
his claim, he answer that he has none. As may be seen, the evidence of guilt members to be designated by the President of the Republic of the Philippines."
is complete, and there being no further evidence to be presented that may Under our law of criminal procedure, which the military occupant was bound
change the result the accused may be then and there sentenced by the court. to respect unless absolutely prevented, all persons accused of any offense
In this case, the conviction of the accused is reasonable and fair, for his refusal have the right to appeal to the Court Appeals or to the Supreme Court. It is
to reveal the identity of his alleged guest may due, either to the fact that there true that as rule that right is statutory and may be withdrawn by the legislature
was no such guest, or that the cause for concealing his identity is worth except in certain cases where the right to appeal is provided in the Constitution
suffering for. Volente non fit injuria." itself, as in the cases involving life imprisonment and death penalty; but the
question here is not whether the legislative department of the legitimate
government has the power to abrogate that right but whether it was within the
But to us that hypothetical case is a good illustration of the injustice of such
procedure. There the accused was convicted not because the prosecution had competence of the military occupant to do so.
proved his guilt but because he was unable to prove his innocence. His inability
to prove who the owner of the revolver was, did not to our mind prove him guilt, (e) In the instant case the penalty imposed upon accused by the special court,
beyond reasonable doubt, under the circumstances. He was accused of illegal after a summary trial was life imprisonment, and he was denied the right to
possession of firearm, an offense punishable under the ordinance in question have that sentence reviewed by the Supreme Court, altho under sub-section
with imprisonment for six to twelve years. He pleaded not guilty, for according 4, section 2, Article VIII of the Constitution of the Commonwealth, he could not
to him the revolver was not his and he did not know how it got into his house. have been deprived by law of that right.
He had no time to investigate and try to find out whether the policeman himself
or some the other person who wished to do him harm had planted it there, ( f ) Section 7 of the Ordinance suspended the privilege of the writ of habeas
sooner was the revolver seized than he was brought before the court and corpus with respect to persons accused of or under investigation for any of the
interrogated about it when he was naturally dazed and in a state of alarm. If crimes and offenses enumerated in sections 1 and 2. The Constitution of the
Commonwealth prohibit the suspension of that privilege except in cases of promulgated in response to "an urgent necessity for waging an immediately
invasion, insurrection, or rebellion when the public safety requires it. The and relentless campaign against certain classes and expediting the trail and
suspension by the ordinance was not motivated by any one of these cases but determination thereof in order to hasten the re-establishment of peace and
by the necessity for waging a campaign against certain classes of crime; other throughout the country and promote a feeling of security among the
martial law was not declared; and the suspension of habeas corpus did not people conducive to the earlier return of normalcy in our national life." We
apply to all persons living in the specified territory (as should have been done concede that the objective of the author of the ordinance was commendable,
if the public safety required such suspension) but only to those accused of or but we think and in this we are supported by the actual result it was
investigated for certain specified crimes or offenses. The result of such partial unattainable thru the means and methods prescribed in said ordinance. Peace
suspension was that persons accused of or under investigation for any of the and order and normalcy could not be restored unless the root cause of their
offenses specified in section 1 and 2 could be held in detention indefinitely, disturbance were eliminated first. That cause was the presence in the country
whereas person accused of or under investigation for crimes other than those of the Japanese army, which wrecked our political, social, and economic
specified, such for example as theft, physical injuries, homicide, murder, and structures, destroyed our means of communication, robbed the people of their
parricide, had the right to demand their release byhabeas corpus after the food, clothing, and medicine and other necessities of life, ejected them from
lapse of six hours. The same discrimination holds true with reference to the their own homes, punished and tortured innocent men and women, and other
other features already noted above, namely, unreasonable searches and wise made life unbearable. The relative rampancy of the crimes mentioned in
seizures, summary trial, denial of the presumption innocence, self- said ordinance was but the effect of that cause. The cornering and hoarding of
incrimination, and denial of the right to appeal. Such discrimination was foodstuffs would not for the scarcity produced by the Japanese army and the
unwarranted and unjust and was contrary to the concept of justice prevailing disruption of our commerce and industries on account of the invasion. The
in all democratic countries, where every person is entitled to the equal possession of firearms was rendered desirable to many person to defend
protection of the laws. themselves against or attack the invader. Robberies and other crimes against
property increased as a resulted of hunger and privation to which the people
3. It is apparent from the foregoing examination of the main features of the were subjected by the rapacity of the Japanese. It was a delusion to expect
ordinance that while the methods thus adopted may not be unusual under peace and normalcy to return without eliminating the cause of their disturbance
totalitarian governments like those of the aggressor nations in the recent global or destruction of the Japanese army in the Philippines an objective to which
war, they are strange and repugnant to the people of the democratic countries the ordinance was not addressed. So, even from the point of view of the
which united together to defeat said aggressors and "to reaffirm faith in Filipino people and not of the Japanese army of occupation, the ordinance in
fundamental human person, in the equal rights of men and women and of question results untenable.
nations large and small, . . . and to promote social progress and better
standards of life in larger freedom." (Preamble Charter for Peace adopted by Having reached the conclusion that the enactment of the procedure embodied
the United Nations at San Francisco, California, June 26, 1945.) The recent in said ordinance for the special court therein created was beyond the
global war was a clash between two antagonistic ways of life, between facism competence of the occupant, inasmuch as that procedure was inseparable
and democracy. It would be strange indeed if his Court, which functions under from the first part of the ordinance which creates the special court and
a democratic government that fought with the other democratic nations in that prescribes the jurisdiction thereof, we are constrained to declare the whole
war, should sanction or approve the way of life, against which that war was ordinance null and void ab initio. Consequently the proceedings in said court
fought and won the cost of million of lives and untold sacrifices. which resulted in the conviction and sentence of the petitioner are also void.
4. The case involves the interpretation not of constitution but of international PARAS, J., concurring in the result:
law, which "is based on usage and opinion"; and "he who in such a case bases
his reasoning on high considerations of morality may succeed in resolving the Charged with robbery, the petitioner herein was found guilty and sentence to
doubt in accordance with humanity and justice." (Principles of International suffer life imprisonment. He commenced to serve the term on August 21, 1944.
Lawrence, 7th ed., pp. 12, 13.) We think the contentions for the petitioner Inasmuch as he was a member of the Metropolitan Constabulary, the basis of
against the validity of the ordinance in question are in accord with humanity the information was Act No. 65, passed during the Japanese sponsored
and justice. Republic of the Philippines and amending certain articles of the Revised Penal
Code. The trial was held by the then existing Court of Special and Exclusive
Before concluding this opinion we deem it pertinent to comment on the remark Criminal Jurisdiction which was authorized to conduct proceedings in a special
of the City Fiscal that, as stated in its preamble, the ordinance in question was manner. Ordinance No. 7 of the "Republic.")
After General of the Army Douglas McArthur had issued the Proclamation the so-called Philippine Republic, and the effect on said proceeding of the
dated October 23, 1944, the Act under which the petitioner was charged and proclamation of General Douglas McArthur, dated October 23, 1944.
convicted stands nullified, and the original provisions of the Revised Penal
Code restored. By virtue of article 22 of the said Code, "Penal laws shall have In said criminal case, herein petitioner was accused of the crime of robbery
a retroactive effect in so far as they favor the person guilty of a felony, who is and sentenced to life imprisonment, on August 21, 1944.
not a habitual criminal, as this term is defined in rule 5 of article 62 of this Code,
although at the time of the publication of such laws a final sentence has been
There can be doubt that the government established in this country by the
pronounced and the convict is serving the same." Commander in Chief of the Japanese Imperial Forces, under the name of the
Philippine Executive Commission, was a de facto government, as already held
In the absence of other details, it may here be assumed that the offense by this Court in civil case G.R. No. L-5 entitled Co Kim Cham vs. Valdez Tan
committed is that defined in article 294, paragraph 5, which provides as Keh and Dizon, decided on September 17, 1945 (p. 133, ante). Said
follows: government possessed all the characteristics of a de facto government as
defined by the Supreme Court of the United States, in the following language:
Any person guilty of robbery with the use of violence against or
intimidation of any person shall suffer: But there is another description of government, called also by
publicists a government de facto, but which might, perhaps, be more
The penalty of prision correccional to prision mayor in its medium aptly denominated a government of paramount force. Its
period in other cases. distinguishing characteristics are (1), that its existence is maintained
by active military power within the territories, and against the rightful
In accordance with the provisions of the Indeterminate Sentence Law (Acts authority of an established and lawful government; and (2), that while
Nos. 4103 and 4225 ), the maximum penalty that can be imposed is six months it exist it must necessarily be obeyed in civil matters by private citizens
of arresto mayor. who, by acts of obedience rendered in submission to such force, do
not become responsible, as wrongdoers, for those acts, though not
This Court has already dismissed cases wherein the defendants were charge warranted by the laws of the rightful government. Actual governments
of this sort are established over districts differing greatly in extent and
with the violation of law in force at the time of the commission and trial of the
conditions. They are usually administered directly by military authority,
crime, after said laws have been repealed by subsequent legislation,
People vs. Moran (Phil., 44 387); People vs. Tamayo (61 Phil., 226 ), and also but they may be administrated, also, by civil authority, supported more
repeatedly released on writs ofhabeas corpus prisoners who, were given the or less directly by military force. (MacLeod vs. United States [1913,]
benefit of subsequent legislation either repealing statute under which they had 229 U. S., 416.)
been convicted or modifying the same by imposing lesser penalties, Escalante
vs. Santos (56 Phil., 483); Directo vs. Director of Prisons (56 Phil., 692). Under a de facto government, the courts of the country, under military
occupation, should be kept open, and whenever practicable, the subordinate
Prisoners who behave well are almost always liberated upon the expiration of officers of the local administration should be allowed to continue in their
the minimum penalty fixed in the judgments of conviction or within a functions, supported by the military force of the invader, because the
responsibility of maintaining peace and public order, and of punishing crime,
reasonable time thereafter. In the present case, there being no information that
falls directly upon the commander in chief of the occupying forces. And in the
the double the period of the minimum penalty that could be imposed upon him,
performance of this duty, he may proclaim martial law (Davis, Elements of
he should be released. As this is the effect of the decision of the majority, I
International Law [3d.], pp. 330-332).
concur in the result.
DE, JOYA, J., concurring: In occupied territory, the conquering power has a right to displace the pre-
existing authority, and to assume to such extent as it may deem proper the
exercise by itself of all the powers and functions of government. It may appoint
The principal question involved in this case is the validity of the judicial all the necessary officers and clothe them with designated powers, according
proceeding held in criminal case No. 66 of the Court of Special and Exclusive to its pleasure. It may prescribe the revenues to be paid, and apply them to its
Criminal Jurisdiction, established in the City of Manila, during Japanese own use or otherwise. It may do anything necessary to strengthen itself and
occupation, under the authority of Ordinance No. 7, issued by the President of
weaken the enemy. There is no limit to the powers that may be exerted in such a general rule, modify the permanent institutions of the country (Hall,
cases, save those which are found in the laws and customs and usages of war International Law, 6th ed., p. 460).
(Cross vs. Harrison, 16 How., 164 ; Leitensdorfer vs. Webb, 20 Id., 176; The
Grapeshot, 9 Wall.[ U.S.], 129; New Orleans vs. Steamship Co., [1874], 20 The Convention Concerning the Laws and Customs of War on Land, adopted
Wall., [ U.S.], 287. at The Hague in 1899, lays down (Arts. 42, 43) definite rules concerning
military authority over the territory of a hostile state. In addition to codifying the
It is generally the better course for the inhabitants of the territory, under military accepted law, it provides that the occupant must respect, unless absolutely
occupation, that they should continue to carry on the ordinary administration prevented, the laws in force in the country.
under the invader; but the latter has no right to force them to do so. If they
decline, his only rights, and it is also his duty, is to replace them by appointees It will thus be readily seen that the municipal law of the invaded state continues
of his own, so far as necessary for maintaining order and the continuance of in force, in so far as it does not affect the hostile occupant unfavorably. The
the daily life of the territory: other purposes, as these of the superior judicial regular courts of the occupied territory continue to act in cases not affecting
offices, can bide their time (Westlake, International Law, Part II, War, 2d ed., the military occupation; and it is not customary for the invader to take the whole
pp. 121-123). administration into his own hands, as it is easier to preserve order through the
agency of the native officials, and also because the latter are more competent
Though the fact of occupation imposes no duties upon the inhabitants of the to administer the laws of the territory; and the military occupant, therefore,
occupied territory, the invader himself is not left equally free. As it is a generally keeps in their posts such of the judicial officers as are willing to serve
consequence of his acts that the regular government of the country is under him, subjecting them only to supervision by the military authorities, or
suspended, he is bound to take whatever means are required for the security by superior civil authorities appointed by him (Young vs. United States, 97 U.
of public order; and as his presence, so long as it is based upon occupation, S., 39; 24 Law. ed., 992; Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed.,
is confessedly temporary, and his rights of control spring only from the 1118; MacLeod vs. United States, 229 U. S., 416; 33 Sup. Ct., 955; 57; Law.
necessity of the case, he is also bound to alter or override the existing laws as ed., 1260; Taylor, International Law, secs. 576, 578; Wilson, International Law,
little as possible (Hall, International Law, 6th ed., 476). pp. 331-337; Hall, International Law, 6th ed. (1909), pp. 464, 465,475,476;
Lawrence, International Law, 7th ed., pp. 421-413; Davis, Elements of
The government established here under the Philippine Executive Commission International Law, 3rd ed., pp. 330-332, 335; Holland, International Law, pp.
was more in consonance with the general practice among civilized nations, in 356-57, 359; Westlake, International Law, Part II, War 2d ed., pp. 121-123).
establishing governments for the maintenance of peace and order and the
administration of justice, in territories of the enemy under military occupation; The judicial proceedings conducted, under the municipal law of the territory,
because said government was of a temporary character. before the court established by the military occupant are general considered
legal and valid, even after the government established by the invader had been
The government subsequently established under the so-called Philippine displaced by the legitimate government of said territory.
Republic, with a new constitution, was also of the nature of a de
facto government, in accordance with International Law, as it was established Thus the judgment rendered by the Confederate courts, during the Civil War,
under the authority of the military occupant and supported by the armed forces merely settling the rights of private parties actually within their jurisdiction, not
of the latter. But it was somewhat different from that established under the tending to defeat the legal rights of citizens of the United States, nor in
Philippine Executive Commission, because the former apparently, at least, furtherance of laws passed in aid of the rebellion, had been declared legal,
had the semblance of permanency, which however, is unusual in the practices valid and binding (Coleman vs.Tennessee, 97 U. S 509., 24 Law. ed., 1118;
among civilized nations, under similar circumstances. Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; 21 Law.
ed., 660; Sprott vs. United States, 20 Wall., 249; 22 Law. ed., 371)
Under military occupation, the original national character of the soil and of the
inhabitants of the territory remains unaltered; and although the invader is When the military forces of the Confederate states were destroyed, their
invested with quasisovereignity, which give him a claim as of right to the government perished, and with it all its enactments. But the legislative acts of
obedience of the conquered population, nevertheless, its exercise is limited by the several States forming the Confederacy stood on a different ground, and
the qualification which has gradually become established, that he must not, as so far as they did not impair or tend to impair the supremacy of the national
authority, or the just rights of citizens under the Federal constitution, they were
considered as legal, valid and binding (Williams vs. Bruffy, 96 U. S., 177; 24 of food provisions, whenever possible, to prevent them from falling into the
Law. ed., 716; Ford vs. Surget, 97 U. S., 594; 24 Law. ed., 1018; United hands of the enemy.
States vs. Ins. Co., 22 Wall. [ U. S.], 99; 22 Law. ed., 816; Ketchum vs. Buckley
[1878], 99 U. S.,188; Johnson vs. Atlantic G. & W. I. Transit Co., 156 U. S., The penalty of twelve years' imprisonment for illegal possession of firearms
618; 15 Sup. Ct., 520). was directed mainly against those underground forces, that had been
receiving arms from the forces of liberation across the seas.
In the later case, the Supreme Court of the United States reaffirmed that the
judicial and legislative acts of the rebellious States, as de facto governments, Violation of food-control laws were included and used as a pretext and
should be respected by the courts, if they were not hostile in their purpose or justification for the seizure and confiscation of food provisions so badly needed
mode of enforcement to the authority of the national government, and did not by the invader.
impair the rights of citizens under the Federal Constitution. (Baldy vs. Hunter,
171 U. S., 388; 18 Sup. Ct., 890; Law. ed., 208.)
And the inclusion under said Ordinance No. 7 of the crime of bribery and other
was used as a cloak to conceal its venom and make said law look innocent.
Under the proclamation of General Douglas MacArthur, dated October 23,
1944, declaring null and void all laws, regulations and processes issued and
By the imposition of excessive penalties , by the denial of the remedy
promulgated by the Philippine Executive Commission and the Philippine of habeas corpus, by compelling the accused to testify against themselves,
Republic, during Japanese occupation, said Ordinance No. 7 promulgated on
and by denying them the right of appeal to the highest court of the land, except
March 8, 1944, creating the Court of Special and Exclusive Criminal where the death penalty was imposed, and by its summary procedure, said
Jurisdiction, ostensibly for the speedy reestablishment of peace and order, and Ordinance No. 7 and the other allied laws impaired and defeated the just and
Executive Commission, prescribing summary rules of procedure, and other
legal rights of Filipino citizens under the Commonwealth Constitution, and the
allied laws, such as Act No. 65 of the puppet republic, prescribing heavier
supremacy of the authority of the legitimate Government. Under said laws, the
penalties, became null and void, once the Japanese armies in the Philippines
persons accused were deprived of liberty without due process of law.
had been defeated, as with them the de facto governments, successively
established under them, perished, and with them all their enactments and
processes of a hostile character. In the language of this Court, "the phrase 'due process of law' used in the
Philippine Bill should receive a comprehensive interpretation, and no
procedure should be treated as unconstitutional which makes due provision
But there are other considerations equally important why judicial proceedings
for the trial of alleged criminal before a court of competent jurisdiction, for
held and conducted before the courts established by said de
bringing the accused into court and notifying him of the cause he is required
facto governments, under laws promulgated by them, should be declared null
to meet, for giving him an opportunity to be heard, for the deliberation and
and void, without violating, in the least, settled principles, judicial precedents
judgement of the court, and for an appeal from such judgement to the highest
or public policy. tribunal" (United States vs.Kennedy, 18 Phil., 122).
Said Ordinance No. 7 adopted as integral parts thereof said Executive Order In their conception, in their purpose and mode of enforcement and execution
No. 157, as well as said Act No. 65 of the National Assembly of the puppet said laws were hostile to the authority of the Commonwealth Government and
republic, prescribing exceptionally heavy penalties for the crimes enumerated
that of the United States of America; as they had been promulgated in
therein.
furtherance of the war aims of the enemy, and they are, therefore, of political
character and complexion.
The principal crimes mentioned in said Ordinance No. 7 and Act No. 65 of the
puppet republic and the other allied laws are illegal possession of firearms, Those repressive laws were aimed at the men and women who had kept the
robbery, violations of food-control laws, falsification malversation and bribery;
faith, and whose heroes and martyrs now lie in graves still unknown and whose
and it was under said laws that herein petitioner was prosecuted and
names remain unsung; but whose heroic efforts and sacrifices have made
sentenced to life imprisonment for the crime robbery.
immortal the legends of Filipino resistance, and made possible our
participation in the councils of free and liberty-loving peoples and nations.
The penalty of life imprisonment or death for robbery was aimed principally at
the underground forces resolute and determined to seize and remove stores
Said laws are contrary to the principles of Democracy, championed by North I. ORDINANCE NO. 7 AND PROCESSES UNDER IT NULLIFIED BY
America, whose gigantic efforts and heroic sacrifices have vindicated human THE OCTOBER PROCLAMATION OF GENERAL MACARTHUR
rights, human dignity and human freedom, and consecrated them anew all
over the earth with the generous blood of her children. They violate the On October 23, 1944, General of the Army Douglas MacArthur, Commander
fundamental principles of Justice for which civilized Mankind stands, under the in Chief of the Philippine-American Forces, which fought in Bataan and later
benign leadership of Totalitarianism and given all the nations of the earth a liberated the whole Philippines, as an aftermath of the liberation, issued a
new birth as well as a new character of freedom, to enable each and everyone proclamation declaring:
to live a nobler and more worthy life and realize the justice and prosperity of
the future. 1. That the Government of the Commonwealth of the Philippines is,
subject to the supreme authority of the Government of the United
For the foregoing reasons, I concur in the dispositive part of the opinion States, the sole and only government having legal and valid
prepared by Mr. Justice Feria. jurisdiction over the people in areas of the Philippines free of enemy
occupation and control;
PERFECTO, J., concurring:
2. That the laws now existing on the statute books of the
On October 21, 1944, petitioner William F. Peralta began to serve, in the Commonwealth of the Philippines and the regulations promulgated
Muntinglupa Prison Camp, a sentence of life imprisonment imposed by the pursuant thereto are in full force and effect and legally binding upon
Court of Special and Exclusive Criminal Jurisdiction, created by Ordinance No. the people in areas of the Philippines free of enemy occupation and
7 issued by President Laurel of the Republic of the Philippines under the control; and
Japanese regime, and now seeks a writ ofhabeas corpus in order that his
liberty may be restored to him, contending that said Ordinance No. 7 was null 3. That all laws, regulations and processes of any other government
and void ab initio because it was of a political complexion and its provisions in the Philippines than that of the said Commonwealth are null and
are violative of the fundamental laws of the Commonwealth of the Philippines. void and without legal effect in areas of the Philippines free of enemy
occupation and control.
Petitioner alleges that sometime in the month of September, 1943, he joined
the Constabulary forces as a private, against his will, and before joining it, he It appears that Ordinance No. 7 in question has been issued under the
was for several times arrested and maltreated as a guerrilla member, he being Japanese regime and that the judicial process under which petitioner has been
then a minor only 17 years old, and that he was prosecuted, not because he sentenced to life imprisonment, having been held in a court not belonging to
committed any crime, but because he joined the guerrilla organization, the Commonwealth of the Philippines but organized and established under the
deserted the Constabulary forces, and followed political and military activities authority of the enemy, became null and void and without effect since October
in open allegiance to the Commonwealth Government and the United States 23, 1944, by virtue of the above-quoted October Proclamation of General
of America. MacArthur.
The Solicitor General, appearing in behalf of respondent Director of Prisons, We have explained at length our position as to the effects of said October
answered the petition agreeing that the acts and proceedings taken and had Proclamation in our dissenting opinion in the case of Co Kim Cham vs. Valdez
before said Court of Special and Exclusive Criminal Jurisdiction should be Tan Keh and Dizon (G. R. No. L-5, 153, ante), and we deem it unnecessary to
denied force and efficacy, and therefore, recommended that the writ prayed repeat what we stated in said opinion.
for be granted.
It is fortunate that all the members of the Supreme Court arrived at a
At the hearing held on September 21, and 22, 1945, there appeared to argue unanimous conclusion as to the absolute nullity of the process under which
the First Assistant Solicitor General, impugning the validity of said Ordinance petitioner is now being held in prison.
No. 7, and the City Fiscal of Manila, as amicus curiae, who sustained the
validity if the said Ordinance and the proceeding by virtue of which petitioner The shocking character of the provisions of Ordinance No. 7 and the
was sentenced to life imprisonment. processes held under it show once more how General MacArthur was
absolutely right and justified in issuing the October Proclamation.
There are indications that more processes held under the Japanese regime II. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST
will come to our knowledge, revealing strong grounds for their annulment, UNREASONABLE SEARCHES AND SEIZURES
justifying, like the process here in question, the wisdom of the decision of
General MacArthur in nullifying in a sweeping manner all judicial processes Section 5 of Ordinance No. 7 provides that cases arising under it shall follow
held during enemy occupation. the summary procedure provided in Act No. 65 of the Laurel Philippine
Republic, which, in turn, is the same as that established by Chapter II of
The October Proclamation is, in keeping with the following official statement of Executive Order No. 157 of the Chairman of the Vargas Philippine Executive
the President of the United States: Commission, dated May 18, 1943.
On the fourteenth of this month, a puppet government was set up in Under said procedure, "search warrants may be issued by the court or by any
the Philippine Islands with Jose P. Laurel, formerly a justice of the prosecuting officer, authorizing peace officers to search for and seize any
Philippine Supreme Court as president. Jorge Vargas, formerly a articles or objects described in the warrant, including those which may be
member of the Philippine Commonwealth Cabinet and Benigno regarded as evidence of an offense under this order even if such articles or
Aquino, also formerly a member of that cabinet, were closely objects are not included among those described in section 2, Rule 122, of the
associated with Laurel in this movement. The first act of the new Rules of Court." This provision is repugnant to the Filipino sense of right in the
puppet regime was to sign a military alliance with Japan. The second matter of warrants of search and seizure, sense of right which has been clearly
act was a hypocritical appeal for American sympathy which was made and definitely stereotyped in the following words of our fundamental law:
in fraud and deceit, and was designed to confuse and mislead the
Filipino people. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizure shall not be
I wish to make it clear that neither the former collaborationist violated, and no warrants shall issue but upon probable cause, to be
"Philippine Executive Commission" nor the present Philippine determined by the judge after examination under oath or affirmation of
Republic has the recognition or sympathy of the Government of the the complaint and witnesses he may produce, and particularly
United States. . . . describing the place to be searched, and the persons or things to be
seized. (Art. III, sec. 1, No. 3, Constitution of the Philippines.)
Our sympathy goes out to those who remain loyal to the United States
and the Commonwealth that great majority of the Filipino people This constitutional provision is violated by the summary, unreasonable, and
who have not been deceived by the promises of the enemy. . . . arbitrary procedure provided under the authority of the ordinance in question:
October 23, 1943 (1) By authorizing "any prosecuting officer" to issue search warrants, when
under our Constitution such search warrants should be issued only by a judge;
SEVELT
(2) By trespassing the limits established by section 2, Rule 122, of the Rules
es
of Court, considered as a necessary element to make the warrant reasonable;
(From U. S. Naval War College, International Law Documents, 1943, (3) By authorizing the search and seizure of articles or objects not described
pp. 93, 94.) in warrant, which is the real meaning of the words "including those which may
be regarded as evidence of an offense under this Ordinance."
Putting aside the October Proclamation, by a mere perusal of the ordinance in
question, we will see immediately how such law and the processes held under III. DISCRIMINATORY AND INIQUITOUS SUSPENSION OF THE
it are incompatible with the fundamental principles and essential safeguards in WRIT OF HABEAS CORPUS
criminal procedure, universally recognized in civilized modern nations and how
such ordinance and processes can only be justified by a retrogressive and Section 7 of Ordinance No. 7 in question provides that "the privileges of the
reactionary mentality developed under the social, cultural, and political writ habeas corpus are hereby suspended with respect to persons accused of,
atmosphere of the era of darkness.
or under investigation for, any of the crimes and offenses enumerated in Under the same section the absence of an accused or of his representative
sections 1 and 2 hereof." "shall not be a ground for interrupting the proceedings or attacking the validity
of the judgment."
This provision is also violative of one of the fundamental guarantees
established in the Constitution of the Philippines, which provides that the writ From the foregoing, it appears:
of habeas corpus may be suspended only in case of "invasion, insurrection, or
rebellion" and only "when the public safety requires it." (1) That the accused may be examined by the court or any prosecuting officer
as to any matters favorable or unfavorable to him;
The privilege of the writ of habeas corpus shall not be suspended
except in cases of invasion, insurrection, or rebellion, when the public (2) That the refusal of the accused to answer may be considered unfavorable
safety requires it, in any of which events the same may be suspended to him;
wherever during such period the necessity for such suspension shall
exist. (Art. III, sec. 1, No. 14, Constitution of the Philippines.) (3) That statements made by the accused, "irrespective of the circumstances
under which they were made" (that is, even under third degree procedure, or
Again, it is evident that the ordinance in question is repugnant to the deep exacted through brutal kempei tortures), shall be admissible in evidence;
sense of right of our people. It is so, not only because it suspends the privilege
of the writ of habeas corpus, without the circumstances which can only justify
(4) That not only the accused, but "his representative" (his lawyer, whose
said suspension, but because it flagrantly violates the fundamental principle of personal security was jeopardized under the Japanese regime), may be
equality before the law, by depriving the accused, in cases falling under the
examined by the court or by the fiscal or other prosecuting officer, as if said
ordinance in question, of the privilege of the writ of habeas corpus, which is
representative or attorney is facing the same criminal prosecution instituted
not denied to the accused in all other cases:
against his client;
No person shall be deprived of life, liberty, or property without due (5) That the statement made by said representative or attorney, although
process of law, nor shall any person be denied the equal protection of
exacted under duress, intimidation, or torture, shall be admissible in evidence;
the laws. (Art. III, sec. 1, No. 1, Constitution of the Philippines.)
(6) That statements made by any person acting in a similar capacity as a
IV. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST representative of the accused which may be a relative or a friend or, even an
SELF- INCRIMINATION
impostor who might pose as a representative to assure the doom of the
accused, "irrespective of the circumstances under which they were made (that
Under section 18 of Executive Order No. 157, above mentioned, "the is, even if made in the absence of the accused, or in the same circumstances
accused or his representative may be examined by the court, and with the under which masked spies decreed the death of innocent citizens pointed by
permission of the court, by the fiscal or other prosecuting officer as to any them during zoning concentrations), shall be admissible in evidence;
matters favorable or unfavorable to him of his principal." (Emphasis ours.)
(7) That trial shall proceed in the absence of the accused;
It is also provided that "statements made by the accused, his co-accused, or
the representative of the accused or a person acting in a similar capacity,
(8) That trial shall proceed in the absence of his attorney or other
irrespective of the circumstances under which they were made shall be
representative.
admissible in evidence if material to the issue." (Emphasis ours.)
It is evident that the procedure established violates the following provisions of
Under section 21 of Executive Order No. 157, after arraignment and plea, "the
our fundamental code:
judge shall interrogate the accused . . . as to facts and circumstances of the
case in order to clarify the points in dispute and those which are admitted." In
the same section it is also provided that "refusal of the accused to answer any In all criminal prosecutions the accused shall be presumed to be
questions made or allowed by the court may be considered unfavorable to innocent until the contrary is proved, and shall enjoy the right to be
him." (Emphasis ours.) heard by himself and counsel, to be informed of the nature and cause
of the accusation against him, to have a speedy and public trial, to V. THE FUNDAMENTAL RIGHT OF APPEAL TRAMPLED UPON
meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses in his behalf. (Art. III, sec. 1, No. In section 6 of Ordinance No. 7, it is provided that "the decision of the special
17, Constitution of the Philippines.) courts herein created shall be final except where the penalty imposed is death,
in which case the records of the particular case shall be elevated en consulta to
No person shall be compelled to be a witness against himself. (Art. III, a special division of the Supreme Court composed of three members to be
sec. 1, No. 18, Idem.) designated by the President of the Republic of the Philippines."
The procedure is so revolving, so nauseating, and so opposed to human This provision is a clear violation of the fundamental right of appeal,
nature, that it takes a real courage to keep our equanimity while we are constitutionally guaranteed to all accused in the Philippines. Under the
compelled to analyze it. Constitution of the Philippines, all accused are entitled to appeal to the
Supreme Court:
It is beyond our comprehension how a man, endowed with reason, could
devise such an execrable system of judicial procedure, which is but a (1) In all cases in which the constitutionality or validity of any treaty, law,
shameless mockery of the administration of justice. ordinance, or executive order or regulations is in question. (Art. VIII, sec. 2,
No. 1, Constitution of the Philippines.)
We must be very careful to retain zealously the constitutional guarantee
against self-incrimination. We must not forget that that constitutional guarantee (2) In all cases involving the legality of any tax, impost, assessment, or toll, or
was acquired as a result of protest against all inquisitorial and third degree any penalty imposed in relation thereto. (Art. VIII, sec 2, No. 2, Idem.)
procedures. We must not forget how, not very long ago, in the thirteen colonies
of America, alleged witches were burned at the stake, as a means of (3) In all cases in which the jurisdiction of any trial court is in issue. (Art. VIII,
compelling them to confess their fantastic compacts with the devil. We must sec. 2, No. 3, Idem.)
not forget how an institution created in the twelfth century was the cause of so
much tortures and sufferings, and that the terroristic menace of its rakes was
(4) In all criminal cases in which the penalty imposed is death or life
abolished in Spain, and therefore in Philippines, only in 1834. imprisonment. (Art. VIII, sec. 2, No. 4, Idem.)
We must not forget that during normal times, under the twentieth century lights, (5) In all cases in which an error or question of law is involved. (Art. VIII, sec.
just before the last global war started, in the United States of America and in 2, No. 5, Idem.)
the Philippines, denunciations of third degree procedures employed by agents
the law were often heard. This very Supreme Court, not only once, had to deal
with cases where such tactics were conclusively proved. Even today, among Before the adoption of the Constitution of the Philippines, it was the prevailing
criminal cases we have under consideration, there is evidence of confessions theory in judicial decisions that the right of appeal is not a fundamental one,
exacted through cruel and brutal means. but it is a mere privilege or mere statutory grant.
No matter what merits can be found, from the theoretical point of view, in the The drafters of our Constitution, taught by the unerring lessons of human
arguments of those who are championing the suppression of the constitutional experience, came to the conclusion that mistake is one of the most irretrievable
guarantee against self-incrimination, the undeniable reality of human human weaknesses.
experience shows conclusively the absolute need of such guarantee if justice
must be served. Even with the existence of such guarantee, there are officers The drafters of our Constitution, therefore, considered it necessary to establish
of the law who cannot resist temptation of using their power to compel, through constitutional guarantees to reduce to its minimum the effects of such innate
third degree methods, innocent or guilty persons to admit involuntarily real or human weakness by providing that the appeal to the highest tribunal of the
imaginary offenses. Let us allow changes tending to nullify the protection land may be enjoyed by any accused, who, under the specific provisions of
against self-incrimination, and no man, however innocent he may be, shall be the Constitution, believed himself to be the victim of a wrong in any inferior
secure in his person, in his liberty, in his honor, in his life. court.
The fact that the provisions of section 2, of Article VIII, of the Constitution, sincerity and attachment to the Constitution is beyond question
instead of stating that the accused shall not be denied of the right of appeal in critics who have accused it of assuming functions of judicial review not
the cases mentioned therein, provide that the Supreme Court may not be intended to be conferred upon it, or of abusing those function to thwart
deprived of its jurisdiction to review, revise, reverse, modify, or affirm on the popular will, and who advocated various remedies taking a wide
appeal, certiorari, or writ of error as the law or the rules of court may provide, range. (Schneiderman vs. United States of America, June 21, 1943.)
final judgments and decrees of inferior courts, in the specified cases, does not
impair nor diminish the fundamental character of the right of appeal of the VI. ABRIDGMENT OF THE CONSTITUTIONAL GUARANTEE OF
accused to the Supreme Court. EQUAL PROTECTION OF THE LAWS
The provisions of section 2, of Article VIII, of the Constitution, have been The constitutional guarantee of equal protection of the laws is evidently
enacted by our Constitutional Convention, not for the benefit and well-being of abridged in the summary procedure in criminal cases under Ordinance No. 7:
the people.
(1) By the fact that the accused therein are victims of search warrants specially
In fact, the Supreme Court is just one of the instrumentalities created by the provided for them, where the guarantees against unreasonableness in search
Constitution in the service of the people. The Supreme Court is not an entity warrants issued against other accused are specially eliminated.
or institution whose rights and privileges must be constitutionally guaranteed.
It is only a means. It is one of the means considered necessary by our
(2) By depriving the accused, under the Ordinance No. 7, the privilege of the
Constitution to better serve the supreme interest of the people. writ of habeas corpus enjoyed by the accused in other cases.
As a matter of fact, the Supreme Court of the United States itself declared that
(3) By depriving the accused, under Ordinance No. 7 of the fundamental right
the elimination of said tribunal is not incompatible with the existence of a
of appeal in all cases, except when sentenced of death is imposed.
government of laws. In a case of denaturalization wherein the Government of
the United States sought to deprive a person of his American citizenship, on
the ground that the 1928 platform of the Communist Party of the United States, (4) By discriminating against the accused, under Ordinance No. 7, where the
to which the respondent belonged, advocated the abolition of the supreme right of appeal is retained for them, that is, in cases where the sentenced
Court, of the Senate and the veto power of the President, and replacement of imposed is death, by entrusting the power to revised said sentence to small
congressional districts with "councils of workers" in which legislative and minority of the Supreme Court, under the Japanese regime, and a minority of
executive powers would be united, the Federal Supreme Court declared: three justices to be specially called out by the President of the Laurel Philippine
Republic, undoubtedly with the evident purpose of the confirmation of the
conviction of the accused, and to make the appeal en consulta just an empty
These would indeed be significant changes in our governmental
gesture to make the situation of the accused more pitiful by lengthening is days
structure changes which it is safe to say are not desired by the
of agony.
majority of the people in this country but whatever our personal
views, as judges we cannot say that person who advocates their
adoption through peaceful and constitutional means is not in fact (5) By placing the accused, in the case in question, under the sword of
attached to the Constitution those institutions are not enumerated Damocles of an unfavorable presumptions, should he refuse to answer any
as necessary in the government's test of "general political philosophy", question that the court or any prosecuting officer might propound to him.
and it is conceivable that "orderly liberty" could be maintained without
them. The Senate has not gone free of criticism and one object of the Under our constitution, no one shall be deprived of the "equal protection of the
Seventeenth Amendment was to make it more responsive to the laws". (Art. III, sec. 1, No. 1, Constitution of the Philippines.)
popular will. The unicameral legislature is not unknown in the country.
It is that this Court has played a large in the unfolding of the VII. THE PRESUMPTION OF INNOCENCE OF THE ACCUSED IN
constitutional plan (sometimes too so in the opinion of some ALL CRIMINAL PROSECUTIONS VIOLATED
observers), but we be arrogant indeed if we presume that a
government of laws, with protection for minority groups would be Since the American flag began to fly over our soil, the fundamental guarantee
impossible without it. Like other agencies of government, this Court at that in all criminal prosecution the accused shall be presumed innocent until
various lines its existence has not escaped the shafts of critics whose
the contrary is proved beyond all reasonable doubt, has been implanted in our For this reason, said ordinance, being violative of international law, was null
country to remain forever. and void ab initio.
That guarantee was consecrated in our Constitution: Under international law, under the most elemental principles of law, the
legitimate government, once restored to its own territory, after expelling the
In all criminal prosecution the accused shall be presumed to be enemy invader, enjoys the absolute freedom of not recognizing or of nullifying
innocent until the contrary is proved, and shall enjoy the right to be any and all acts of the invader, including those internationally legal ones. The
heard by himself and counsel, to be informed of the nature and cause situation is exactly the same as that of the owner of the house who can do
of the accusation against him, to have a speedy and a public trial, to anything in it that pleases him, after expelling the bandit who was able to usurp
meet the witnesses face to face, and to have compulsory process to its possession for a while.
secure the attendance of witnesses in his behalf. (Art. III, sec. 1, No.
17, Constitution of the Philippines.) General McArthur exercised correctly that power by the sweeping nullification
decreed in his October Proclamation.
This guarantee is undoubtedly violated when, in the summary procedure
established by Ordinance No. 7, it is provided that the refusal of the accused But even without the October Proclamation, the judicial process maybe it is
to answer any question, propounded by the court or any officer, "may raise better to say injudicial process which resulted in the imprisonment of
unfavorable presumption against him." petitioner, must be shorn of all effects because it had taken place under the
authority of an ordinance which was null and void ab initio.
If we have to keep democracy in our country, we must be vigilant in upholding
the constitutional principle that all persons shall be presumed to be innocent IX. THE DECISION CONVICTING THE PETITIONER HAVING BEEN
until the contrary is proved beyond all reasonable doubt. RENDERED UNDER FOREIGN AUTHORITY IS UNENFORCEABLE
This principle is the opposite of that prevailing under autocracies, or under The decision by which petitioner William F. Peralta was convicted and is being
facist or totalitarian regimes. During the Japanese occupation all persons who confined for life having been rendered by a tribunal created, functioning, and
might fall under the suspicion of any Japanese or their spies and lackeys, were acting under the authority of a foreign State, the Emperor of the Imperial
presumed to be guilty of any imaginary crime until they were able to convince Government of Japan, is unenforceable.
their victimizers of the contrary, beyond any reasonable doubt. Even then, they
were submitted to preventive tortures and long months of imprisonment, just It has, therefore, the nature of a foreign decision or judgment. For that reason,
in case they might think later of committing any offense against the Japanese it is unenforceable within the Philippines or under the Commonwealth, as we
or their collaborators. have shown in our opinion in the case of Co Kim Cham vs. Valdez Tan Keh
and Dizon (G.R. No. 5, p. 153, ante)
VIII. ORDINANCE NO. 7 VIOLATED THE HAGUE CONVENTION OF
1899 Said decision, having been rendered under Ordinance No. 7, which was null
and void ab initio, carries the same vice as the ordinance under which it was
In the convention concerning the laws and customs of war on land, adopted rendered.
by the Hague in 1899, it is provided that the military occupant must respect the
laws in force in the occupied country, unless absolutely prevented. (Arts. 42 But even admitting arguendo that said decision is valid, because it is so under
and 43.) international law, and is not included in the nullification decreed by General
Douglas MacArthur, still it cannot be enforced, being a foreign decision. A
The provision of the Convention has been flagrantly violated when, under the foreign decision can only be enforced through the institution of an action before
enemy occupation the Laurel Philippine Republic enacted Ordinance No. 7 our tribunals. Even decisions of a court of the United States or of any of its
which suspended our laws, including the fundamental one, by substantially States or territories can be enforced in the Philippines only by the institution of
subverting the judicial procedures in the special criminal cases instituted under an action or special proceeding before our own courts. This theory is confirmed
said ordinance. by sections 47 and 48, Rule 39, of the Rules of Court, which read:
SEC. 47. Effect of record of a court of the United States. The effect Of the 55 prisoners convicted for illegal possession of firearms, 25 died, 23
of a judicial record of a court of the United States or of a court of one were released, and 6 escaped, and this is the reason why only one remains in
of the States or territories of the United States, is the same in the confinement.
Philippines as in the United States, or in the States or territory where
it was made, except that it can only be enforced here by an action or It is striking that so many prisoners died, 25 of those convicted for illegal
special proceeding, and except, also, that the authority of a guardian, possession of firearms, that is, almost 50% of them, 33 of the total of 94
or executor, or administrator does not extend beyond the jurisdiction prisoners committed, or more than one-third of them. This unusual and
of the Government under which he was invested with his authority. shocking percentage of mortality is worth inquiring into and, certainly, cannot
be counted very favorably to judicial proceedings which eventually lead to such
SEC. 48. Effect of foreign judgments. The effect of a judgement of wholesale death, if not outright massacre.
a tribunal of a foreign country, having jurisdiction to pronounce the
judgement, is as follows: The fact that a big number of the prisoners, 21 of them, were able to escape,
was not explained to us. Is it reasonable to surmise, from the ruthless cruelty
(a) In case of a judgement against a specific thing, the judgment is of the proceedings and of the penalties imposed, which exacted from the
conclusive upon the title to the thing; mouth of the First Assistant Solicitor General, who appeared to argue the case
in behalf of the respondent, the adjective "ferocious", that the wardens
(b) In case of a judgement against a person, the judgement is themselves, moved by pity, directly or indirectly helped the escape?
presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title; but the judgement may More than one-third of the prisoners committed by the said courts in
be repelled by evidence of a want of jurisdiction, want of notice to the confinement to the Bureau of Prisons, that is, 33 of them died. May we ask if
party, collusion, fraud, or clear mistake of law or fact. they died because they were executed? Of those who died, one was convicted
of profiteering in rice, one of robbery, one of kidnapping of minor, one of
X. THE STUNNING FACTS REVEALED IN THE REPORT OF THE violation of certain sections of Act No. 66, four of crimes against public order,
DIRECTOR OF PRISONS. and 25 of possession of firearms. If all of them were executed by virtue of
sentences rendered by the courts in question, that fact does not speak very
highly of their proceedings. If the accused died by natural death, there must
At the hearing of this case, respondent Director of Prisons was required to
be something physically or morally fatal in said proceedings.
submit statistical data concerning the number of prisoners and the various
crimes for which they were convicted by the Court of Special and Exclusive
Criminal Jurisdiction. If a tree must be judged by the fruits it bears, how shall we judge proceedings
so deadly, so fatal, so wantonly inhuman as the proceedings had in the special
courts in question?
In submitting said statistical data, the Solicitor General, as counsel for
respondent, calls our attention to the fact that, out of the 92 prisoners
committed by said courts to the Bureau of Prisons for confinement, fifty-five The City Fiscal of Manila exerted great efforts to show that the fact that in the
(55), that is more than one-half, were convicted of illegal possession of proceedings in question "the refusal of the accused to answer any question
firearms, and that only 3 are now actually in confinement serving sentences, made or allowed by the court may be considered unfavorable to him," does
among them the petitioner in this proceeding, thus dissipating the unfounded not violate the constitutional guarantee against self-incrimination. He even
fear entertained by the City Fiscal of Manila, to the effect that a pronouncement goes to the extent of maintaining the theory that such constitutional guarantee
by this Supreme Tribunal that the sentences of the courts in question are null is not essential for the protection of the substantial rights of an accused.
and void, will signify the release of hundreds of criminals, whose liberty and
mixing with society will endanger public peace and order. His argument centered on the alleged freedom of the accused to refuse to
answer any question made or allowed by the court, alleging that, if the accused
Of the other two remaining prisoners serving sentence, one has been chooses to refuse to answer, the court cannot compel him to answer under
committed for evasion of service of sentence, and the other for illegal menace of punishment for contempt or through any other coercive or minatory
possession of firearms. measures.
The City Fiscal seems to labor under the belief that the fact that the silence of XI. THE PETITIONER IS ENTITLED, AS A MATTER OF ABSOLUTE
the accused "may be considered unfavorable to him", is of no consequence at RIGHT, TO IMMEDIATE RELEASE
all.
After showing the absolute nullity of the judicial process under which petitioner
Such belief can logically be entertained alone by ignoring completely the has been convicted to suffer the penalty of life imprisonment, the inevitable
lessons of experience in human conduct. consequence is that he is entitled, as a matter of absolute right, to be
immediately released, so that he can once again enjoy a life of freedom, which
If the refusal to answer can be considered unfavorably to the accused, is not is the natural boon to law-abiding residents of our country, and of which he
that the same as placing him on the hard predicament of choosing between was unjustly deprived through means most abhorrent to human conscience.
testifying self-incriminating and risking the fatal effects of a legal presumption
of guilt? Is not that the same as placing him between the two steel cages of a We must not hesitate for one moment to do our duty in this case. The sooner
dilemma: self-incrimination or presumption of guilt? Is not that the same as we comply with it, the better. The process and judgement under which
placing him between Scylla and Charybdis, between a dagger and a wall? petitioner has been convicted and is now undergoing an unjust imprisonment,
Either way, he will always find himself under the inexorable sword of Damocles is one of the hateful vestiges left in our country by the moral savagery of a
of sure punishment, whether he testifies or refuses to testify. It is not people spiritually perverted and debased. The seriousness of this matter
impossible to open a debate upon the abstract question whether the cannot be viewed with insouciance. We must not lose time to wipe out such
constitutional guarantee against self-incrimination should not remain. But the vestiges if we must protect ourselves against their poisonous effects in our
value of such a moot question, for purposes of this case, is nil. political, social, and cultural patrimony.
The constitutional guarantee had to be adopted as a protest against We must erase those vestiges if we want to keep immune from all germs of
inquisitorial method of the past, when accused and suspects were submitted decay the democratic institutions which are the pride of our people and
to the most brutal torture to compel them to confess real or imaginary crimes. country, under which we are enjoying the blessings of freedom and with which
That past is not far away. It seems that we are still smelling the stench of we hope to assure the well-being and happiness of the unending generations
human flesh burned in the stakes, where suspected witches suffered iniquitous who will succeed us in the enjoyment of the treasures accumulated by a
death. bountiful nature in this Pearl of the Orient.
There is no doubt that the procedure in question shows the purpose of If we allow such vestiges to remain we are afraid that some historian may write
pandering to the most flagitious doctrines in criminal proceedings. The about Philippine democracy, Philippine race, and Philippine culture, what, on
transgressions of the bill of rights in all its phases cannot be hidden even to a ancient art, Hegel said in the "Phenomenology of the Spirit", according to
chela in constitutional law. It is the very negation of the administration of Kohler, the greatest work of genius that the nineteenth century has produced:
justice. Such procedure has absolutely no place in the framework of our
juridical system. We will feel mere whifflers in our professed convictions, The statues set up are corpses in stone, whence the animating soul
principles, and creed, if we should permit ourselves to fall into the weakness has flown; while the hymns of praise are words from which all belief
of abetting it even for a moment, which could only happen once the flambeau has gone. The tables of the gods are bereft of spiritual food and drink,
of reason has ceased completely to burn. No one but the truckling lackeys of and from his games and festivals, man no more receives the joyful
the arrogant enemy could have the servility of applauding the implantation of sense of his unity with the Divine Being. The works of the muse lack
the criminal procedure in question. the force and energy of the Spirit which derived the certainty and
assurance of itself just from the crushing ruin of goods and men. They
All arguments and dissertations are useless to conceal the real fact. Behind are themselves now just what they are for us beautiful fruit broken
and under said criminal process stealthily crawls and trundles the Nippon off the tree, a kindly fate has passed on those works to us, as a maiden
psychosis, like a cobra with fangs overflowing with venom. To ferret it out from might offer such fruit off tree. It is not their actual life as they exist, that
the hole where it lurks, waiting for its victims, and crush its head with one is given us, not the tree that bore them, not the earth and the elements,
hammer blow, is an imperative measure of national self-defense. which constituted their substance, nor the climate that determined
their constitutive character, nor the change of seasons which
controlled the process of their growth. So, too, it is not their living world
that fate preserves and gives us with those works of ancient art, not of the humane, lofty, and dignified ideology that placed said heroes and
the spring and summer of that ethical life in which they bloomed and martyrs among the purest and noblest specimens that humanity produced in
ripened, but the veiled remembrance alone of this reality. all countries, in all time, for all ones and light years to come.
Our sense of national self-preservation compels us, as an imperative duty, not It is with joy and pride that we agree with all our brethren in unanimously
only to restore immediately the petitioner to his personal liberty, but, all granting petitioner the redress he seeks in his petition.
possible means, to obliterate even the memory of the inquisitorial summary
procedure depicted in the present case. HILADO, J., concurring:
Such procedure exhibits either inversion, retroversion, subversion, or I concur in the result, as well as in the reasons stated in the majority opinion
perversion of elemental human concepts. It ignores completely and debases not inconsistent with the views expressed in my dissenting opinion in G. R. No.
the high purposes of a judicial procedure. It represents a hylistic ideology L-5, Co Kim Cham vs. Valdez Tan Keh and Dizon (p. 199, ante).
which proclaims the supremacy of the state force over fundamental human
rights. We must never allow the neck of our people to be haltered by the lethal
However, I would additionally base my conclusion upon broader grounds.
string of that ideology. It is a virus that must be eliminated before it produces
the logical disaster. Such ideology is a cancerous excrescence that must be
sheared, completely extirpated, from the live tissues of our body politic, if the Firstly, I reiterate here by reference the arguments advanced in said dissenting
same must be saved. opinion in additional support of the conclusion that the writ
of mandamus herein sought should be granted. Secondly, the importance and
transcendence of the legal principles involved justify further elaboration.
We cannot understand how any one can justify the summary process in
question under the principles embodied in our Constitution. To profess
attachment to those principles and, at the same time, to accept and justify such From the allegations of the petition herein, it can be deduced that the petitioner
kind of criminal miscarriage of justice, is just sheer hypocrisy. It is a repetition William F. Peralta was a "guerrillero" when he was arrested, tried and
of what Seneca did when, after preaching moral virtues, justified without any convicted; and that he had never voluntarily submitted to the Japanese forces
compunction the act of Nero, the sanguinary Roman Emperor, of murdering in in his civil capacity.
cold blood his own mother. It is reproducing the crooked mentality of
Torquemada, who, upon the pretext of combating and persecuting heresy to No attempt is made in the Solicitor General's answer to controvert the facts
save souls from hell, conceived the diabolical idea of condemning their victims alleged in the petition from which the foregoing deduction flows, and from the
to an advanced version of hell in this life, and among those who suffered under record nothing appears which may tend to gainsay them. Even when he was
the same spirit of intolerance and bigotry which was its very essence are forced temporarily to join the Constabulary, which had been organized under
counted some of the greatest human characters, such as Galileo, Giordano orders of the Japanese Army in the Philippines, he did so against his will.
Bruno, and Girolamo Savonarola. That procedure might find justification in the
thick heads of the Avars, Huns, Vandals, and Teutons, or in the stratified Even granting for the sake of argument, and laying aside for the moment the
mentality of Japanese cullions, but not in a healthy mind of a cultured person reasons to the contrary set forth in my aforesaid dissenting opinion, that the
of modern times. To allow any vestige any vestige of such procedure to remain rules of International Law regarding the power of a belligerent army of
is tantamount to reviving the situation during which our citizens endured occupation to establish a provisional government in an occupied enemy
sleepless nights in constant fear of the hobnail terror stalking in the darkness, territory, are still binding upon the United States and the Commonwealth of the
when their personal security and their life were hanging by the thin of chance. Philippines, yet such rules would not be any avail to bind the herein petitioner
by the laws, regulations, process and other acts of the so-called "Republic of
We wish a way could be found to free completely our people of the sense of the Philippines", under and by virtue of which said petitioner has been
shame, which they cannot help feeling, engendered by members of our race convicted to life imprisonment by the Court of Special and Exclusive Criminal
who justified such abhorrent summary procedure and allowed themselves to Jurisdiction of Manila in Criminal Case No. 66 thereof.
become a party to the execution of a scheme only acceptable to the
undeveloped mentalities of the dark ages. It is a shame that makes our blood If we analyze the different adjudications and treatises which have been cited
boil when we think that countrymen of Father Gomez, of Rizal, of Mabini, could in support of the validity or binding force of the acts of such provisional
accept procedures representing the brutal ideology which is the very opposite governments, which have been variously called de facto governments, or
governments of paramount force, with a view to finding the real ground and conceived and developed the doctrine could not logically have thought of the
philosophical justification for the doctrine therein announced, we will see that army of occupation setting upon a civil government for those who still
reason and that justification are made to consist in the submission of the continued resistance. As to them, further military operations would be
inhabitants upon whom the said acts have been held to be of obligatory or necessary to reduce them to submission, before one could think of civilly
binding force, to the army of occupation. Thus, to cite just a few typical governing them.
examples, we quote the following excerpts from three leading cases decided
by the Supreme Court of the United States: In the Philippines, during the occupation by the Japanese of Manila and certain
other portions of the Archipelago, the overwhelming majority of the people
Excerpts from Thorington vs. Smith (8 Wall. [U. S.], 1; 19 Law. ed., 361) never submitted to the Japanese invaders, and never recognized any legality
in the invasion of their country, and to the very date of liberation refused to
That while it (government of paramount force) exists, it must accept the alleged protection or benefits of the puppet governments of the
necessarily be obeyed in civil matters by private citizens who, by acts "Philippine Executive Commission" and the "Republic of the Philippines." The
of obedience, rendered in submission to such force, do not become majority of our people lived in the provinces, in the farms, hills and other places
responsible, as wrong-doers, for those acts, though not warranted by beyond the effective reach of the Japanese military garrisons. Only a small
the laws of the rightful government (p. 363; Emphasis ours). minority submitted to the invaders for various reasons, such as their having
been caught in Manila or other parts of the Island occupying government
positions, or residing therein without adequate facilities for escaping from or
The authority of the United States over the territory was suspended,
evading said invaders, reasons of ill health, disabling them from living the hard
and the laws of the United States could no longer be rightfully enforced
there, or be obligatory upon the inhabitants who remained and life of the mountains, hills, or country places, and the like.
submitted to the conqueror. (P. 364; Emphasis ours.).
To have bound those of our people who constituted the great majority who
Excerpts from Fleming vs. Page (9 Howard. [U. S.], 603; 13 Law. ed., 276): never submitted to the Japanese oppressors, by the laws, regulations,
processes and other acts of those two puppet governments, would not only
have been utterly unjust and downright illegal, but would have placed them in
While it (Tampico) was occupied by our troops, they were in an the absurd and impossible condition of being simultaneously submitted to two
enemy's country, and not in their own; the inhabitants were still mutually hostile governments, with their respective constitutional and
foreigners and enemies, and owed to the United States nothing more legislative enactments and institutions on the one hand bound to continue
than thesubmission and obedience, sometimes called temporary owing allegiance to the United States and the Commonwealth Government,
allegiance, which is due from a conquered enemy, when and, on the other, to owe allegiance, if only temporary, to Japan. Among them
he surrenders to a force which he is unable to resist. (P. 281; we find the petitioner William F. Peralta. The surrender of the Fil-American
Emphasis ours.) forces in Bataan and Corregidor did not matter so far as this was concerned.
Much less did that surrender obligate all the civil population to submit to the
Excerpts from United States vs. Rice (4 Wheat. [U. S.], 246; 4 Law. ed., 562): Japanese, and obey all their future dictations. If it did, President Roosevelt and
President Osmea would not have so heartily commended the Philippine
The sovereignty of the United States over the territory was, of course, resistance movement and so enthusiastically extolled the firm stand of those
suspended, and the laws of the United States could no longer be who participated therein, in the former's message of October 23, 1943, and in
rightfully enforced there, or be obligatory upon the inhabitants the latter's speech of February 27, 1945, cited in the writer's above mentioned
whoremained and submitted to the conquerors. (P. 564; Emphasis dissenting opinion. If these historic utterances should seem incompatible with
ours.) any provision of the Hague Convention, we should understand from them that
both Presidents must have considered such provision as no longer applicable
It results from the above-quoted pronouncements of the Supreme Court of the to, or binding upon, the United States and the Philippines. Who knows but that
United States that the laws, regulations, processes and other acts of the their attitude was based upon the renunciation of war as an instrument of
government that the occupying belligerent establishes are made binding only national policy by their respective peoples, which renunciation necessarily
and precisely upon those inhabitants from whom obedience could be includes all the "rights" or "powers" which may be claimed to be delivered from
effectively exacted, namely, those who remain within the effective reach of the war so employed? Or else, upon the ground that such provisions does not
occupying forces and submit to them. This is plain common sense. Those who support the wrongful acts of Japan in the Philippines?
Another reason advanced to justify the creation of a provisional civil general reasoning for a convincing argument, unless, indeed, they
government, with its courts and other departments, in occupied enemy settle the question by blows. And International Law in many of its
territory, is the alleged convenience of the civil population. It can immediately details is peculiarly liable to disputes and doubts, because it is based
be asserted in reply that the convenience of the above-mentioned on usage and opinion. He who in such a case bases his reasoning on
overwhelming majority of our people, far from requiring the establishment of high considerations of morality may succeed in resolving the doubt in
such government, was in the very nature of things positively opposed thereto. accordance with humanity and justice. (Pp. 12, 13.).
They not only did not need the supposed benefits of such a government, but
they actually reputed them as inimical to the larger interest of the very ideology It would seem that to deny Japan benefits, because she has refused to carry
and cause for which they were continuing their resistance to those who would the burdens of the law, is to base our reasoning "on high considerations of
extend here the brutal power and pernicious influence of the now exploded morality", and to resolve any doubt, there be, as to the point in question, "in
"Greater East Asia Co-Prosperity Sphere." They suffered, yes, and suffered accordance with humanity and justice." In other words (even if we applied said
much but they placed that ideology and that cause high above their private rules to the instant case), Japan, under the circumstances of this case, could
comfort. Let us not penalize them for it. If this government is democratic, and not be heard to say that the government which she established here was a de
when it comes to a question of convenience, whose will and whose facto government, or a government of paramount force, as in the cases where
convenience should prevail, that of the majority or that of the minority? Are we such a government was deemed to exist.
going to force those free citizens of this free country to accept the alleged
benefits and assume the burdens of a government they have never consented
In additional to what has been said above, let us see if the Japanese-
to own?
sponsored "Republic of the Philippines" did not introduces such fundamental
and drastic changes in the political organization of this country, as it existed
I am furthermore, of opinion that there is another important consideration which upon the date of the Japanese invasion, as to vitiate with invalidity the acts of
argues against the recognition of the said government as a de all its department, executive, judicial, and legislative. To begin with, the
facto government or government of paramount force during the Japanese Commonwealth Constitution was completely overthrown. It was replaced by
occupation of the Philippine Islands. Japan, in starting and prosecuting this the so-called constitution of the "Republic." A casual comparison of these two
war against the United States and her allies by breaking the most vital rules of instruments cannot fail to reveal a most revolutionary transformation of the
civilized warfare as prescribed by International Law, must be deemed to have political organization of the country. While under the Commonwealth
forfeited the right to invoke that law in so far as specific provisions thereof Constitution the retention of American sovereignty over the Philippines is
would favor her or her acts. Japan in treacherously attacking Pearl Harbor and expressly recognized, for the purposes specified in the ordinance appended
the Philippines, successively on December 7 and 8, 1941, violated the rule thereto, in the very preamble of the constitution of the "Republic" the
providing for the necessity of declaring war as established at the Hague independence " of the Philippines is proclaim. While under the Commonwealth
Conference of 1907 (Lawrence, Principles of International Law, 7th ed., pp. Constitution the President and Vice-President are elected "by direct vote of the
321-322, 325); she has infringed the rule requiring that war prisoners be cared people "Art. VII, sec. 2), under the constitution of the "Republic" the President
for and treated with humanity (Ibid, p. 377); the rule imposing the obligation to (no Vice-President is provided for) was elected "by majority of all the members
properly tend the sick and wounded (Ibid, 384), the rule interdicting bombing of the Assembly" (Art. II, sec. 2). While under Commonwealth Constitution the
of open and defenseless cities (Ibid, 522, 523) when she bombed Manila after legislative power is vested in a bicameral Congress with a Senate and a House
it had been declared an open city and all its military defenses had been of Representatives (Art. VI, sec. 1), under the constitution of the "Republic"
removed; the rule exempting noncombatants from personal injury (Ibid, 397) that power was vested in a unicameral National Assembly (Art. III, sec. 1).
her violations of one or the other of which were matters of daily occurrence, While under the Commonwealth Constitution the Senators are chosen at large
one might say, during her three and a half years of tyranny and oppression in by the qualified electors of the Philippines (Art. VI, sec. 2) and the
this country, and were climaxed by the ignominious and indescribable Representatives by the qualified electors in the respective districts (Art. VI,
atrocities of the mass massacre of innocent civilians during the battle for sec. 2) and the Representative by the qualified electors in the respective
Manila. In the interpretation of doubtful provisions of International Law, Doctor districts (Art. VI, 5), under the constitution of the "Republic" the National
Lawrence, in his work cited above, has the following to say: Assembly was composed of the provincial governors and city mayors as
members ex-oficio, and of delegate elected every three years, one from each
. . . If a point of Municipal Law is doubtful, men resort to supreme court and every province and chartered city (Art. III, sec. 2), While under the
for a decision, or to a supreme legislature for an interpreting statute; Commonwealth Constitution, respecting the Judicial Department, the
but if a point of International Law is doubtful, they can resort only to members of Supreme Court and all judges of inferior courts are appointed by
the President with the consent of the Commission on Appointments of the was the Imperial Japanese Army giving orders and instructions and otherwise
Congress (Art. VII, sec.), under the constitution of the "Republic" the members directing and controlling the activities of what really was their creature for the
of the Supreme Court were appointed by the President with the advice of the furtherance of their war aims. I cannot believe that those who conceived and
Cabinet, and all judges of interior courts, by the President with the advice of developed the doctrine of de facto government or government of paramount
the Supreme Court (Art. IV, sec. 4). force, ever intended to include therein such a counterfeit organization as the
Japanese contrived here an organization which, like its counterparts in
These changes and innovations can be multiplied many times, but the Manchukuo, Nanking, Burma, and Vichy, has been appropriately called
foregoing will suffice for our purpose. "puppet" by the civilized government of the world.
It has been said constantly in this discussion that political acts, or acts of a BRIONES, M., concurrente:
political complexion of a de factogovernment of paramount force, are the only
ones vitiated with nullity. Of course, I disagree with those who so hold. But El mandamiento de habeas corpus que se solicita debe concederse.
even by this test the "Republic" or, which is the same, the Imperial Japanese
Forces which gave it birth in thus introducing such positive changes in the La proclama del General McArthur de 23 de Octubre de 1944, lanzada cuatro
organization of this country or suspending the working of that already in dias despues de su desembarco en Leyte con las fuerzas libertadoras, reza
existence, executed a political act so fundamental and basic in nature and en parte lo siguiente:
operation that all subsequent acts of the new government which of course had
to be based thereon, inevitably had to be contaminated by the same vitiating 3. Que todas las leyes, regulaciones y procesos de cualquier otro
defect. gobierno en Filipinas que no fuera el del Commonwealth son nulos e
invalidos y carecen de efecto legal en areas de Filipinas liberadas de
Thus judicial acts done under his control, when they are not of a la ocupacion y control del enemigo.
political complexion, administrative acts so done, to the extent that
they take effect during the continuance of his control, and various acts Recientemente se ha discutido mucho en esta jurisdiccion sobre si la
done during the same time by private persons under the sanction of anulacion de que trata dicha proclama puede referirse tambien a actuaciones
municipal law, remain good.. Political acts on the other hand fall judiciales ( judicial processes). En el asunto de Co Kim Cham contra Valdez
through as of course, whether they introduce any positive change into Tan Keh y Dizon, R.G. No. L-5 (pag, 133, ante), he opinado afirmativamente,
the organization of the country, or whether they only suspend the
esto es, que el alcance de esa proclama puede extenderse a veces a ciertos
working of that already in existence. . . . (Hall, International Law, 6th actos o procesos judiciales. Reafirmo ahora mi opinion y con mayor vigor y
ed., p. 483; Emphasis ours.) enfasis si cabe. Porque, a mi juicio, la sentencia de reclusion perpetua
impuesta al recurrente bajo la ocupacion militar japonesa es de aquellos actos
Finally, upon closed scrutiny, we will find that all of the de facto governments judiciales del passado regimen que por su naturaleza y circunstancias
or governments of paramount force which have been cited in all this discussion reclaman una decidida y pronta accion de parte nuestra en el sentido de
were at the same time bona fide governments. The British established such a anularla y dejarla sin efecto. Mis razones se exponen a continuacion.
government in Castine, and ran it is a purely British organization. The
Americans established another such government in Tampico, and ran it as an
Parece innegable que la ley procesal bajo la cual fue enjuiciado y convicto el
American organization. The Confederate States established a like government
recurrente durante la ocupacion japonesa era absolutamente incompatible
in the seceding States, and ran it as the Government of the Confederacy. They
con las salvaguardias y garantias de un proceso justo, imparcial y ordenado
were all frank, sincere, and honest in their deeds as well as in their words. But
que la constitucion y legislacion procesal del Commonwealth de Filipinas
what happened in this country during the Japanese occupation? When the otorgan a todo acusado en una causa criminal. Hay en dicha ley ciertos
"Republic of the Philippines" was established on October 14, 1943, under aspectos decididamente repulsivos para una conciencia disciplinada en las
duress exerted by the Japanese Army, did the Japanese openly, frankly, and
normas y pricipios de una democracia constitucional.
sincerely say that government was being established under their orders and
was to be run subject to their direction and control? Far from it! They employed
all the means they could conceive to deceive the Filipino people and the Bajo nuestro sistema procesal el acusado tiene derecho a que no se le ponga
outside world that they had given the Filipinos their independence, and that en situacion de acriminarse. Tiene a derecho a callarse sin que esto pueda
"Republic" thereunder. But behind the curtain, from beginning to end, there
astribuirsele cargo inculpatorio alguno. Este es un derecho fundamental, En favor de la validez de dicha sentencia se arguye que fue dictada por un
garantido por la constitucion. tribunal creado por un gobierno de jure; que aun admitiendo el caracter
inquisitorial, anti democratico de la ley procesal bajo la cual fue enjuiciado el
Empero bajo el sistema procesal que se discute, "la negativa del acusado a acusado, el gobierno de facto era dueo de establecer los procedimientos
constestar cualqueira pregunta formulada por el tribunal o permitida por el legales que quisiera; y que, segun las reglas y doctrinas conocidas de derecho
mismo, puede ser considerada en contra de dicho acusado." (Seccion 21, international, las sentencias por "crimenes de guerra" o delitos politicos"
Orden Ejecutiva No. 157.) Bajo este mismo sistema el caracter sumarisimo generalmente validas aun despues de restablecido el gobierno de jure. Se
del proceso llega a tal extremo que "una sentencia condenatoria puede alega que en estos casos el derecho no tiene mas remedio que ceder a la
dictarse inmediatemente contra el acusado siempre que los hechos fuerza, aceptando la realidad de los hechos consumados.
discubiertos en el interrogatorio preliminar demuestren que el acusado es
culpable." Se admite, sin embargo, que la regla tiene sus excepciones. Una de allas
esque "los actos del ocupante militar que rebasen su poder a tenor del criterio
Bajo el sistema procesal del Commonwealth, cualquier acusado convicto ante establecido en el articulo 43 de las Regulaciones de La Haya, son nulos y sin
el Juzgado de Primera Instancia tiene el derecho de apelar de la sentencia efecto con relacion al gobierno legitimo." (Wheaton's International Law, 7th ed.
para ante el Tribunal superior de revision; y en los casos de condena [1944], p. 245.) Segun esto, las sentencias por "crimenes de guerra" o "delitos
areclusion perpetua o a muerte, el Tribunal Supremo es el llamado a revisar politicos" cometidos durante la ocupacion son, por razones pecfetamente
la causa, siendo compulsoria la revision en el caso de condena a muerte. Esta comprensibles, nulas e invalidas al restablecerse la soberania legitima.
jurisdiccion del Tribunal Supremo en los casos de condena areclusion Tambien quedan comprendidos bajo esta excepcion los denominados actos
perpetua y a muerte no se halla estatuida simplemente por una ley ordinaria, de caracter o complexion politica.
sino que esta proveida en la misma constitucion del Commonwealth. Asi que
el derecho del condenado a reclusion perpetua o a muerte para que se revise Otra limitacion a los poderes de un gobierno de ocupacion militar es que
su cuasa por el Tribunal Supremo es constitucional y, por ende, no puede ser elejercicio de tales poderes debe extenderse tan solo hasta donde fuese
abolido por un simple fiat legislativo. necesario para su seguridad y el exito de sus operaciones, teniendo
particularmente en cuental el caracter transeunte de su occupacion. Como
En cambio, bajo el sistema procesal en controversia las sentencias de los regla general, al invasor se le prohibe alterar o suspender las leyes referentes
tribunales o sumarias eran de caracter final, excepto cuando la pena impuesta a la propiedad y a las relaciones personales privadas, o las leyes que regulan
fuera la de muerte, en cuyo caso los autos se elevaban en consulta a una el orden moral de la comunidad. (Hall, Treatise on International Law, 7th ed.,
division especial del Tribunal Supremo compuesta de tres miembros 498,499). Lo que se hace fuera de estas limitaciones es en exceso de su
(Ordenanza No. 7 de la llamada Republica de Filipinas por la que se crearon competencia y es generalmente nulo al rstaurarse la soberania legitima.
las tribunales especiales o sumarios). De modo que en esta ordenanza no
solo se suprimia de una plumada el derecho de apelar reconocido y Otra excepcion es la que se refiere a los actos de un gobierno de
establecido por la legislacion procesal del Commonwealth aun en los casos facto resultante de una insurreccion, rebelion, revolucion o guerra civil. A
de delitos y penas ordinarios, sino que inclusive quedaba abolido el derecho esteefecto se ha declarado, peo ejemplo. que los actos en fomento o apoyo
de apelar otorgado por la constitucion del Commonwealth al acusado de unarebelion contra los Estados Unidos, o encaminados a anular los justos
condenado a reclusion perpetua. Por este motivo el recurrente, a quien se le derechos de los ciudadanos, y otros actos de igual indole, deben ser
habia impuesto esta pena por el alergado delito de robo, no pudo apelar de al considerados, por lo general, invalidos y nulos (Texas vs. White, 74 U. S.,733;
sentencia para ante el Tribunal Supremo. 19 Law, ed., 240). En otro caso se ha declaro la validez de ciertos actos
judiciales o legislativos en estados insurreccionados, siempre que su
La cuestion que ahora tenemos que determinar y resolver es si debemos proposito o modo de operacion no fuerte hostil a la autoridad del gobierno
reconocer validez y eficacia en la sentencia por la cual el recurrente se halla nacional, o no conculcaren derechos de los ciudadanos bajo la Constitucion.
extinguiendo su condena de reclusion perpetua, o debemos anularla ahora Horn vs. Lockhart, 17 Well, 570-581; 2 Law. ed., 660.)
que esta en nuestras manos el poder hacerlo, restablecida como esta
enteramente la normalidad juridica y constitucional en nuestro pais. Visto el caso que nos ocupa a la luz de estas doctrinas, cual de ellas
debemos adoptar para determinar si es o no valida la sentencia por la la cual
el recurrente sufre ahora pena de reclusion perpetua y pide ser liberado
mediante peticion de habeas corpus?
Se aservera que no procede aplicar al presente caso la doctrina establecida operaciones del ocupante militar, sino que la piedra de toque de la validez o
en la jurisprudencia americana sobre gobiernos de facto resultantes de una nulidad viene a ser tan solo el acto positivo mismo de la conculcacion.
insureccion, revolucion o guerra civil porque evidentemente la llamada
Republica de Filipinas instaurada durante la ocupacion militar japonesa no Esta forma de racioncinio no solo no es heterodoxa a la luz de los
tenia este caracter, sino que era mas bien un gobierno establecido pincipiosestablecidos de derecho internacional, sino parece ser una logica
mediantefuerza y coaccion por los mismos invasores para promover ciertos inferenciade los mismos. Ya hemos visto que al ocupante militar en el curso
designios politicos relacionados con sus fines de guerra. En otras palabras, de unaguerra internacional se le prohibe, como regla general, alterar o
era el mismo gobierno militar de ocupacion con fachada filipina arreglada y suspenderlas leyes referentes a la propiedad y a las relaciones personales
arbitrada coercitivamente. privadas, olas leyes que regulan el orden moral de la comunidad. (Hall,
Treatise on International Law, supra.) Ahora cabe preguntar: Son los justos
Mientras estoy conforme con una parte de la asercion, esto es, que la aludida derechos de los ciudadanos, o los fundamentales garantidos por la
republica no tenia caracter insurreccional ni revolucionario, en disfrute de constitucion inferiores en categoria a la propiedad, o las relaciones personales
plena autonomia, sino que era simple producto de la coaccion y estaba privadas, o al ordenmoral de la comunidad? No son en cierto sentido hasta
mediatizada continuamente por el invasor, difiero de la otra parte, aquella que superiores? Por tanto,a nadie debe chocar que la prohibicion se extienda a
declara inaplicable la conocida doctrina americana mencionada arriba sobre estas materias. Es unainclusion y perfectamente natural, mas que justificada
gobiernos de facto establecidos en el curso de una insurreccion, revolucion o por los avances y conquistas del moderno derecho internacional. Notese que
guerra civil. Y la razon es sencilla. Si a un gobierno de factode este ultimo tipo en las fraguas de esta ultima guerra se han forjado unas modalidades juridicas
gobierno establecido, despues de todo, por compatriotas,por harto originalesque denotan el esfuerzo supremo y gigante dela humanidad
conciudadanos se le coarta con la restriccion de que sus actos legislativos por superar la barbarie y por dar al traste con las formulas arcaicas,
o judiciales, en tanto son validos, al restaurarse el regimende jure, en cuanto reaccionarias. Para citar solamente algunos ejemplos los mas destados,
no conculcaren los derechos justos de los ciudadanos, a los derechos tenemos el enjuiciamento de los llamados criminales de la guerra, y la
garantidos por la constitucion, parece que no existe ninguna razon por que no responsabilidad que se exige a los jefes militares por las atricidades cometidas
se ha de aplicar la misma restriccion al gobierno de facto establecido como por las tropas bajo su mando.
incidente de una guerra entre dos naciones independientes y enemigas. En
realidad, la razon de nulidad es mucho mas poderosa y fuertecuando, en su Mi conclusion, por tanto, es que desde cualquier angulo que se mire la
caso como el de Filipinas, el enemigo invasor incio la agresion de una manera sentencia impuesta al recurrente por el tribunal sumario de la llamada
inicua y traicionera y la ejecuto luego con vesania y sadismo que llegaron a republica de Filipinas debe ser declarada nula, acotando las palabras
extremos inconcebibles de barbarie. En este caso la conculcacion de los delProcurador General, "no solo por razones fundadas en principios de
justos derechos de los ciudadanos, o de los derechos garantidos por la derecho internacional, sino tambien por la mas apremiante y poderosa de las
constitucion cobra proporciones de mucha mayor gravedad porque viene a razones,la de preservar y salvaguardar a nuestros ciudadanos de los actos
ser tan solo parte de un vasto plan de rapia, devastacion y atrocidades de del enemigo."
todo genero cometidas contra la humanidad y contra las leyes y usos de la
guerra entre naciones civilizadas. El invasor, en este caso, es como el foragido
Dar validez a esa sentencia ahora, en plena atmosfera de libertad que respiran
que se coloca fuera de toda ley. Por tanto, no hay absolutamente ninguna
a pulmon lleno de resto de nuestros conciudadanos menos el recurrente y
razon para no aplicarle una restriccion que se estimabuena para el insurrecto
otras que corrieron su suerte durante la ocupacion japonesa,equivaldria tanto
o revolucionario. como prolongar el regimen de opresion bajo el cual se tramito y se dicto la
referida sentencia. Es mas, equivaldria a sancionar laideologia totalitaria,
La ventaja de extender hasta cierto punto la doctrina sobre gobiernos de despotica, medieval contra la cual nuestro pueblo lucho tan heroicamente
facto resultantes de una insurreccion, rebelion o guerra civil a gobiernos de jugandose todo; vida libertad y bienes materiales.
facto establecidos como incidente en el curso de una guerra entre dos
naciones independeientes enemigas es que, frente a casos de conculcacion Ciertamente no nos hemos librado de la opresion para llegar a tan
de los justos derechos de los ciudadanos, o de los garantidos por
irrisorioresultado.
laconstitucion para los efectos de declararlos validos o nulos al restablecerse
el gobierno de jure, ya no se hace preciso examinar si los actos conculcatorios
fueron motivados por razones o exigencias de las seguridad y exito de las Concedase el remedio pedido.