5. Constitutional Construction Nitafan vs.

Commissioner of Internal Revenue, 152 SCRA 284 Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 78780 July 23, 1987

DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO, JR., petitioners, vs. COMMISSIONER OF INTERNAL REVENUE and THE FINANCIAL OFFICER, SUPREME COURT OF THE PHILIPPINES, respondents. RESOLUTION MELENCIO-HERRERA, J.: Petitioners, the duly appointed and qualified Judges presiding over Branches 52, 19 and 53, respectively, of the Regional Trial Court, National Capital Judicial Region, all with stations in Manila, seek to prohibit and/or perpetually enjoin respondents, the Commissioner of Internal Revenue and the Financial Officer of the Supreme Court, from making any deduction of withholding taxes from their salaries. In a nutshell, they submit that "any tax withheld from their emoluments or compensation as judicial officers constitutes a decrease or diminution of their salaries, contrary to the provision of Section 10, Article VIII of the 1987 Constitution mandating that "(d)uring their continuance in office, their salary shall not be decreased," even as it is anathema to the Ideal of an independent judiciary envisioned in and by said Constitution." It may be pointed out that, early on, the Court had dealt with the matter administratively in response to representations that the Court direct its Finance Officer to discontinue the withholding of taxes from salaries of members of the Bench. Thus, on June 4, 1987, the Court en banc had reaffirmed the Chief Justice's directive as follows: RE: Question of exemption from income taxation. The Court REAFFIRMED the Chief Justice's previous and standing directive to the Fiscal Management and Budget Office of this Court to continue with the deduction of the withholding taxes from the salaries of the Justices of the Supreme Court as well as from the salaries of all other members of the judiciary. That should have resolved the question. However, with the filing of this petition, the Court has deemed it best to settle the legal issue raised through this judicial pronouncement. As will be shown hereinafter, the clear intent of the Constitutional Commission was to delete the proposed express grant of exemption from payment of income tax to members of the Judiciary, so as to "give substance to equality among the three branches of Government" in the words of Commissioner Rigos. In the course of the deliberations, it was further expressly made clear, specially with regard to Commissioner Joaquin F. Bernas' accepted amendment to the amendment of Commissioner Rigos, that the salaries of members of the Judiciary would be subject to the general income tax applied to all taxpayers. This intent was somehow and inadvertently not clearly set forth in the final text of the Constitution as approved and ratified in February, 1987 ( infra, pp. 7-8). Although the intent may have been obscured by the failure to include in the General Provisions a proscription against exemption of any public officer or employee, including constitutional officers, from payment of income tax, the Court since then has authorized the continuation of the deduction of the withholding tax from the salaries of the members of the Supreme Court, as well as from the salaries of all other members of the Judiciary. The Court hereby makes of record that it had then discarded the ruling in Perfecto vs. Meer and Endencia vs. David, infra, that declared the salaries of members of the Judiciary exempt from payment of the income tax and considered such payment as a diminution of their salaries during their continuance in office. The Court hereby reiterates that the salaries of Justices and Judges are properly subject to a general income tax law applicable to all income earners and that the payment of such income tax by Justices and Judges does not fall within the constitutional protection against decrease of their salaries during their continuance in office. A comparison of the Constitutional provisions involved is called for. The 1935 Constitution provided: ... (The members of the Supreme Court and all judges of inferior courts) shall receive such compensation as may be fixed by law, which shall not be diminished during their continuance in office ... 1 (Emphasis supplied). Under the 1973 Constitution, the same provision read: The salary of the Chief Justice and of the Associate Justices of the Supreme court, and of judges of inferior courts shall be fixed by law, which shall not be decreased during their continuance in office. ... 2 (Emphasis ours). And in respect of income tax exemption, another provision in the same 1973 Constitution specifically stipulated: No salary or any form of emolument of any public officer or employee, including constitutional officers, shall be exempt from payment of income tax. 3

The provision in the 1987 Constitution, which petitioners rely on, reads: The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. 4(Emphasis supplied). The 1987 Constitution does not contain a provision similar to Section 6, Article XV of the 1973 Constitution, for which reason, petitioners claim that the intent of the framers is to revert to the original concept of "non-diminution "of salaries of judicial officers. The deliberations of the 1986 Constitutional Commission relevant to Section 10, Article VIII, negate such contention. The draft proposal of Section 10, Article VIII, of the 1987 Constitution read: Section 13. The salary of the Chief Justice and the Associate Justices of the Supreme Court and of judges of the lower courts shall be fixed by law. During their continuance in office, their salary shall not be diminished nor subjected to income tax. Until the National Assembly shall provide otherwise, the Chief Justice shall receive an annual salary of _____________ and each Associate Justice ______________ pesos. 5 (Emphasis ours) During the debates on the draft Article (Committee Report No. 18), two Commissioners presented their objections to the provision on tax exemption, thus: MS. AQUINO. Finally, on the matter of exemption from tax of the salary of justices, does this not violate the principle of the uniformity of taxation and the principle of equal protection of the law? After all, tax is levied not on the salary but on the combined income, such that when the judge receives a salary and it is comingled with the other income, we tax the income, not the salary. Why do we have to give special privileges to the salary of justices? MR. CONCEPCION. It is the independence of the judiciary. We prohibit the increase or decrease of their salary during their term. This is an indirect way of decreasing their salary and affecting the independence of the judges. MS. AQUINO. I appreciate that to be in the nature of a clause to respect tenure, but the special privilege on taxation might, in effect, be a violation of the principle of uniformity in taxation and the equal protection clause. 6 xxx MR. OPLE. x x x Of course, we share deeply the concern expressed by the sponsor, Commissioner Roberto Concepcion, for whom we have the highest respect, to surround the Supreme Court and the judicial system as a whole with the whole armor of defense against the executive and legislative invasion of their independence. But in so doing, some of the citizens outside, especially the humble government employees, might say that in trying to erect a bastion of justice, we might end up with the fortress of privileges, an island of extra territoriality under the Republic of the Philippines, because a good number of powers and rights accorded to the Judiciary here may not be enjoyed in the remotest degree by other employees of the government. An example is the exception from income tax, which is a kind of economic immunity, which is, of course, denied to the entire executive department and the legislative. 7 And during the period of amendments on the draft Article, on July 14, 1986, Commissioner Cirilo A. Rigos proposed that the term "diminished" be changed to "decreased" and that the words "nor subjected to income tax" be deleted so as to "give substance to equality among the three branches in the government. Commissioner Florenz D. Regalado, on behalf of the Committee on the Judiciary, defended the original draft and referred to the ruling of this Court in Perfecto vs. Meer 8 that "the independence of the judges is of far greater importance than any revenue that could come from taxing their salaries." Commissioner Rigos then moved that the matter be put to a vote. Commissioner Joaquin G. Bernas stood up "in support of an amendment to the amendment with the request for a modification of the amendment," as follows: FR. BERNAS. Yes. I am going to propose an amendment to the amendment saying that it is not enough to drop the phrase "shall not be subjected to income tax," because if that is all that the Gentleman will do, then he will just fall back on the decision in Perfecto vs. Meer and in Dencia vs. David [should be Endencia and Jugo vs. David, etc., 93 Phil. 696[ which excludes them from income tax, but rather I would propose that the statement will read: "During their continuance in office, their salary shall not be diminished BUT MAY BE SUBJECT TO GENERAL INCOME TAX."IN support of this position, I would say that the argument seems to be that the justice and judges should not be subjected to income tax because they already gave up the income from their practice. That is true also of Cabinet members and all other employees. And I know right now, for instance, there are many people who have accepted employment in the government involving a reduction of income and yet are still subject to income tax. So, they are not the only citizens whose income is reduced by accepting service in government. Commissioner Rigos accepted the proposed amendment to the amendment. Commissioner Rustico F. de los Reyes, Jr. then moved for a suspension of the session. Upon resumption, Commissioner Bernas announced: xxx xxx

During the suspension, we came to an understanding with the original proponent, Commissioner Rigos, that his amendment on page 6,. line 4 would read: "During their continuance in office, their salary shall not be DECREASED."But this is on the understanding that there will be a provision in the Constitution similar to Section 6 of Article XV, the General Provisions of the 1973 Constitution, which says: No salary or any form of emolument of any public officer or employee, including constitutional officers, shall be exempt from payment of income tax. So, we put a period (.) after "DECREASED" on the understanding that the salary of justices is subject to tax. When queried about the specific Article in the General Provisions on non-exemption from tax of salaries of public officers, Commissioner Bernas replied: FR BERNAS. Yes, I do not know if such an article will be found in the General Provisions. But at any rate, when we put a period (.) after "DECREASED," it is on the understanding that the doctrine in Perfecto vs. Meer and Dencia vs. David will not apply anymore. The amendment to the original draft, as discussed and understood, was finally approved without objection. THE PRESIDING OFFICER (Mr. Bengzon). The understanding, therefore, is that there will be a provision under the Article on General Provisions. Could Commissioner Rosario Braid kindly take note that the salaries of officials of the government including constitutional officers shall not be exempt from income tax? The amendment proposed herein and accepted by the Committee now reads as follows: "During their continuance in office, their salary shall not be DECREASED"; and the phrase "nor subjected to income tax" is deleted. 9 The debates, interpellations and opinions expressed regarding the constitutional provision in question until it was finally approved by the Commission disclosed that the true intent of the framers of the 1987 Constitution, in adopting it, was to make the salaries of members of the Judiciary taxable. The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect.10 The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution.11 it may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers. 121avvphi1 Besides, construing Section 10, Articles VIII, of the 1987 Constitution, which, for clarity, is again reproduced hereunder: The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. (Emphasis supplied). it is plain that the Constitution authorizes Congress to pass a law fixing another rate of compensation of Justices and Judges but such rate must be higher than that which they are receiving at the time of enactment, or if lower, it would be applicable only to those appointed after its approval. It would be a strained construction to read into the provision an exemption from taxation in the light of the discussion in the Constitutional Commission. With the foregoing interpretation, and as stated heretofore, the ruling that "the imposition of income tax upon the salary of judges is a dimunition thereof, and so violates the Constitution" in Perfecto vs. Meer,13 as affirmed inEndencia vs. David 14 must be declared discarded. The framers of the fundamental law, as the alter ego of the people, have expressed in clear and unmistakable terms the meaning and import of Section 10, Article VIII, of the 1987 Constitution that they have adopted Stated otherwise, we accord due respect to the intent of the people, through the discussions and deliberations of their representatives, in the spirit that all citizens should bear their aliquot part of the cost of maintaining the government and should share the burden of general income taxation equitably. WHEREFORE, the instant petition for Prohibition is hereby dismissed. Teehankee, C.J., Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. Yap, J., is on leave.

6. Self-executing and non-self-executing provisions Manila Prince Hotel vs. GSIS, GR. No. 122156, Feb. 3, 1997 Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 122156 February 3, 1997

MANILA PRINCE HOTEL petitioner, vs. GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents.

BELLOSILLO, J.: The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos, 1 is in oked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the provision is not self-executing but requires an implementing legislation for its enforcement. Corollarily, they ask whether the 51% shares form part of the national economy and patrimony covered by the protective mantle of the Constitution. The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the privatization program of the Philippine Government under Proclamation No. 50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel . 2 In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner. Pertinent provisions of the bidding rules prepared by respondent GSIS state I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders: a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for the Manila Hotel. . . . b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS . . . . K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met: a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to November 3, 1995); and b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/OGCC (Office of the Government Corporate Counsel) are obtained. 3 Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad. 4 In a subsequent letter dated 10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three Million Pesos (P33.000.000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong Berhad . . . 5 which respondent GSIS refused to accept. On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On 18 October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting and consummating the sale to the Malaysian firm. On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae. In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that the Manila Hotel has been identified with the Filipino nation and has practically become a historical monument which reflects the vibrancy of Philippine heritage and culture . It is a proud legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of independence and its power and capacity to release the full potential of the Filipino people. To all intents and purposes, it has become a part of the national patrimony. 6 Petitioner also argues that since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which is owned by respondent GSIS, a government-owned and controlled corporation, the hotel business of respondent GSIS being a part of the tourism industry is unquestionably a part of the national economy. Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. 7

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business also unquestionably part of the national economy petitioner should be preferred after it has matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share . 8 Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution is merely a statement of principle and policy since it is not a self-executing provision and requires implementing legislation(s) . . . Thus, for the said provision to Operate, there must be existing laws "to lay down conditions under which business may be done." 9 Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner speaks of the guests who have slept in the hotel and the events that have transpired therein which make the hotel historic, 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 respondent GSIS which possesses a personality of its own separate and distinct from the Philippines as a State. Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it right from the beginning and not after it had lost in the bidding. Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate that the privilege of submitting a matching bid has not yet arisen since it only takes place if for any reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid had not yet taken place. Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as petitioner has no clear legal right to what it demands and respondents do not have an imperative duty to perform the act required of them by petitioner. We now resolve. A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. 10 It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. 11 Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contrac t. Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. 12 A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. 13 As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executing If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. 14 This can be cataclysmic. That is why the prevailing view is, as it has always been, that . . . in case of doubt, the Constitution should be considered self-executing rather than non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute. 15 Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-executing, as they quote from discussions on the floor of the 1986 Constitutional Commission MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee on Style. If the wording of "PREFERENCE" is given to QUALIFIED FILIPINOS," can it be understood as a preference to qualified Filipinos vis-a-vis Filipinos who are not qualified. So, why do we not make it clear? To qualified Filipinos as against aliens? THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word "QUALIFIED?".

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against aliens or over aliens? MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED" because the existing laws or prospective laws will always lay down conditions under which business may be done . For example, qualifications on the setting up of other financial structures, et cetera (emphasis supplied by respondents) MR. RODRIGO. It is just a matter of style. MR. NOLLEDO Yes, 16 Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not precluded from enacting other further laws to enforce the constitutional provision so long as the contemplated statute squares with the Constitution. Minor details may be left to the legislature without impairing the self-executing nature of constitutional provisions. In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of powers directly granted by the constitution, further the operation of such a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the exercise of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the violation of a self-executing constitutional provision does not render such a provision ineffective in the absence of such legislation. The omission from a constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing. The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the constitution, further the exercise of constitutional right and make it more available. 17 Subsequent legislation however does not necessarily mean that the subject constitutional provision is not, by itself, fully enforceable. Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied from the tenor of the first and third paragraphs of the same section which undoubtedly are not self-executing. 18 The argument is flawed. If the first and third paragraphs are not self-executing because Congress is still to enact measures to encourage the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by its language require any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony. A constitutional provision may be self-executing in one part and non-self-executing in another. 19 Even the cases cited by respondents holding that certain constitutional provisions are merely statements of principles and policies, which are basically not self-executing and only placed in the Constitution as moral incentives to legislation, not as judicially enforceable rights are simply not in point. Basco v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional provisions on personal dignity, 21 the sanctity of family life, 22 the vital role of the youth in nation-building 23 the promotion of social justice, 24 and the values of education. 25 Tolentino v. Secretary of Finance 26 refers to the constitutional provisions on social justice and human rights 27 and on education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the promotion of general welfare, 30 the sanctity of family life, 31 the vital role of the youth in nation-building 32 and the promotion of total human liberation and development. 33 A reading of these provisions indeed clearly shows that they are not judicially enforceable constitutional rights but merely guidelines for legislation. The very terms of the provisions manifest that they are only principles upon which the legislations must be based. Res ipsa loquitur. On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable When our Constitution mandates that [i]n the grant of rights, privileges, and concessions covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and puissance, and from which all legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium. As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains The patrimony of the Nation that should be conserved and developed refers not only to out rich natural resources but also to the cultural heritage of out race. It also refers to our intelligence in arts, sciences and letters. Therefore, we should develop not only our lands, forests, mines and other natural resources but also the mental ability or faculty of our people. We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos. Manila Hotel has become a landmark a living testimonial of Philippine heritage. While it was restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly Filipino, Formerly a concourse for the elite, it has since then become the venue of various significant events which have shaped Philippine history. It was called the Cultural Center of the 1930's. It was the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine Government. it plays host to dignitaries and official visitors who are accorded the traditional Philippine hospitality. 36 The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a City. 37During World War II the hotel was converted by the Japanese Military Administration into a military headquarters. When the American forces returned to recapture Manila the hotel was

selected by the Japanese together with Intramuros as the two (2) places fro their final stand. Thereafter, in the 1950's and 1960's, the hotel became the center of political activities, playing host to almost every political convention. In 1970 the hotel reopened after a renovation and reaped numerous international recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup d' etat where an aspirant for vice-president was "proclaimed" President of the Philippine Republic. For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the MHC comes within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have actual control and management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim that theFilipino First Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel building nor the land upon which the building stands. 38 The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also includes corporations at least 60% of which is owned by Filipinos. This is very clear from the proceedings of the 1986 Constitutional Commission THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the amendment would consist in substituting the words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS. xxx xxx xxx MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to raise a question. Suppose it is a corporation that is 80-percent Filipino, do we not give it preference? MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a corporation wholly owned by Filipino citizens? MR. MONSOD. At least 60 percent, Madam President. MR. DAVIDE. Is that the intention? MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference should only be 100percent Filipino. MR: DAVIDE. I want to get that meaning clear because "QUALIFIED FILIPINOS" may refer only to individuals and not to juridical personalities or entities. MR. MONSOD. We agree, Madam President. 39 xxx xxx xxx MR. RODRIGO. Before we vote, may I request that the amendment be read again. MR. NOLLEDO. The amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word "Filipinos" here, as intended by the proponents, will include not only individual Filipinos but also Filipino-controlled entities or entities fully-controlled by Filipinos. 40 The phrase preference to qualified Filipinos was explained thus MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate his amendment so that I can ask a question. MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." MR FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipino enterprise is also qualified, will the Filipino enterprise still be given a preference? MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred? MR. NOLLEDO. The answer is "yes." MR. FOZ. Thank you, 41 Expounding further on the Filipino First Policy provision Commissioner Nolledo continues MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL THE STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-called "Filipino First" policy. That means that Filipinos should be given preference in the grant of concessions, privileges and rights covering the national patrimony. 42 The exchange of views in the sessions of the Constitutional Commission regarding the subject provision was still further clarified by Commissioner Nolledo 43 Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic concerns. It is better known as the FILIPINO FIRST Policy . . . This provision was never found in previous Constitutions . . . . The term "qualified Filipinos" simply means that preference shall be given to those citizens who can make a viable contribution to the common good, because of credible competence and efficiency. It certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or organizations that are incompetent or inefficient, since such an indiscriminate preference would be counter productive and inimical to the common good. In the granting of economic rights, privileges, and concessions, when a choice has to be made between a "qualified foreigner" end a "qualified Filipino," the latter shall be chosen over the former." Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance with its own guidelines so that the sole inference here is that petitioner has been found to be possessed of proven management expertise in the hotel industry, or it has significant equity ownership in another hotel company, or it has an overall management and marketing proficiency to successfully operate the Manila Hotel. 44 The penchant to try to whittle away the mandate of the Constitution by arguing that the subject provision is not self-executory and requires implementing legislation is quite disturbing. The attempt to violate a clear constitutional provision by the government itself is only too distressing. To adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For, even some of the provisions of the Constitution which evidently need implementing legislation have juridical life of their own and can be the source of a judicial remedy. We cannot simply afford the government a defense that arises out of the failure to enact further enabling, implementing or guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt The executive department has a constitutional duty to implement laws, including the Constitution, even before Congress acts provided that there are discoverable legal standards for executive action. When the executive acts, it must be guided by its own understanding of the constitutional command and of applicable laws. The responsibility for reading and understanding the Constitution and the laws is not the sole prerogative of Congress. If it were, the executive would have to ask Congress, or perhaps the Court, for an interpretation every time the executive is confronted by a constitutional command. That is not how constitutional government operates. 45 Respondents further argue that the constitutional provision is addressed to the State, not to respondent GSIS which by itself possesses a separate and distinct personality. This argument again is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with the prior approval of the State acting through respondent Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons distinct from the government are considered "state action" covered by the Constitution (1) when the activity it engages in is a "public function;" (2) when the government is so significantly involved with the private actor as to make the government responsible for his action; and, (3) when the government has approved or authorized the action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third categories of "state action." Without doubt therefore the transaction. although entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional command. 46 When the Constitution addresses the State it refers not only to the people but also to the government as elements of the State. After all, government is composed of three (3) divisions of power legislative, executive and judicial. Accordingly, a constitutional mandate directed to the State is correspondingly directed to the three(3) branches of government. It is undeniable that in this case the subject constitutional injunction is addressed among others to the Executive Department and respondent GSIS, a government instrumentality deriving its authority from the State. It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and executed the necessary contracts, and secured the requisite approvals. Since the "Filipino First Policy provision of the Constitution bestows preference on qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor are they under obligation to enter into one with the highest bidder. For in choosing the awardee respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to be known to all the bidders and other interested parties.

Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws and contracts must conform with the fundamental law of the land. Those which violate the Constitution lose their reason for being. Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share. 47 Certainly, the constitutional mandate itself is reason enough not to award the block of shares immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional injunction itself. In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights, privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would be to sanction a perilous skirting of the basic law. This Court does not discount the apprehension that this policy may discourage foreign investors. But the Constitution and laws of the Philippines are understood to be always open to public scrutiny. These are given factors which investors must consider when venturing into business in a foreign jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its agencies or instrumentalities is presumed to know his rights and obligations under the Constitution and the laws of the forum. The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since petitioner was well aware from the beginning that a foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In the case before us, while petitioner was already preferred at the inception of the bidding because of the constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the latter have a cause of action. Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the bid of the foreign group is to insist that government be treated as any other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable. Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the government develop the habit of forgetting that the Constitution lays down the basic conditions and parameters for its actions. Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC and to execute the necessary agreements and documents to effect the sale in accordance not only with the bidding guidelines and procedures but with the Constitution as well. The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion. The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained by the Constitution. The position of the Court on this matter could have not been more appropriately articulated by Chief Justice Narvasa As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of the legislature or the executive about the wisdom and feasibility of legislation economic in nature, the Supreme Court has not been spared criticism for decisions perceived as obstacles to economic progress and development . . . in connection with a temporary injunction issued by the Court's First Division against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements were published in a major daily to the effect that injunction "again demonstrates that the Philippine legal system can be a major obstacle to doing business here. Let it be stated for the record once again that while it is no business of the Court to intervene in contracts of the kind referred to or set itself up as the judge of whether they are viable or attainable, it is its bounden duty to make sure that they do not violate the Constitution or the laws, or are not adopted or implemented with grave abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair and ill-informed criticism. 48 Privatization of a business asset for purposes of enhancing its business viability and preventing further losses, regardless of the character of the asset, should not take precedence over non-material values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material values. Indeed, the Court will always defer to the Constitution in the proper governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved. 49 Nationalism is inherent, in the very concept of the Philippines being a democratic and republican state, with sovereignty residing in the Filipino people and from whom all government authority emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-state can have no higher purpose. Any interpretation of any constitutional provision must adhere to such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot override the demands of nationalism. 50 The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of property in a commercial district. We are talking about a historic relic that has hosted many of the most important events in the short history of the Philippines as a nation. We are talking about a hotel where heads of states would prefer to be housed as a

strong manifestation of their desire to cloak the dignity of the highest state function to their official visits to the Philippines. Thus the Manila Hotel has played and continues to play a significant role as an authentic repository of twentieth century Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul a place with a history of grandeur; a most historical setting that has played a part in the shaping of a country . 51 This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the historical landmark this Grand Old Dame of hotels in Asia to a total stranger. For, indeed, the conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nation's soul for some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from a qualified Filipino, can be gained by the Filipinos Manila Hotel and all that it stands for is sold to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is entrusted to a foreign entity? On the other hand, how much dignity will be preserved and realized if the national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly watchman of the nation, will continue to respect and protect the sanctity of the Constitution. WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances and to do such other acts and deeds as may be necessary for purpose. SO ORDERED. Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring: I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit more on the concept of national patrimony as including within its scope and meaning institutions such as the Manila Hotel. It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified Filipinos have the preference, in ownership and operation. The Constitutional provision on point states: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall Give preference to qualified Filipinos. 1 Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony" consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I) consisting of land, sea, and air. 2study of the 1935 Constitution, where the concept of "national patrimony" originated, would show that its framers decided to adopt the even more comprehensive expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only their natural resources of the country but practically everything that belongs to the Filipino people, the tangible and the material as well as the intangible and the spiritual assets and possessions of the people. It is to be noted that the framers did not stop with conservation. They knew that conservation alone does not spell progress; and that this may be achieved only through development as a correlative factor to assure to the people not only the exclusive ownership, but also the exclusive benefits of their national patrimony). 3 Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural resources but also to the cultural heritage of our race. 4 There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony and, as such, deserves constitutional protection as to who shall own it and benefit from its operation. This institution has played an important role in our nation's history, having been the venue of many a historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting foreign heads of state, dignitaries, celebrities, and others. 5 It is therefore our duty to protect and preserve it for future generations of Filipinos. As President Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do so with. an eye to the welfare of the future generations. In other words, the leaders of today are the trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating the need for nationalization of our lands and natural resources, one expounded that we should "put more teeth into our laws, and; not make the nationalization of our lands and natural resources a subject of ordinary legislation but of constitutional

enactment" 6 To quote further: "Let not our children be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is rightfully theirs, free from all foreign liens and encumbrances". 7 Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very "heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino bidder is to be significant at all. It is true that in this present age of globalization of attitude towards foreign investments in our country, stress is on the elimination of barriers to foreign trade and investment in the country. While government agencies, including the courts should re-condition their thinking to such a trend, and make it easy and even attractive for foreign investors to come to our shores, yet we should not preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture and heritage are involved. In the hotel industry, for instance, foreign investors have established themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels. This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our national patrimony, including our historical and cultural heritage in the hands of Filipinos. VITUG, J., concurring: I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice Reynato S. Puno in a well written separate (dissenting) opinion, that: First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos" 1 is self-executory. The provision verily does not need, although it can obviously be amplified or regulated by, an enabling law or a set of rules. Second, the term "patrimony" does not merely refer to the country's natural resources but also to its cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now indeed become part of Philippine heritage. Third, the act of the Government Service Insurance System ("GSIS"), a government entity which derives its authority from the State, in selling 51% of its share in MHC should be considered an act of the State subject to the Constitutional mandate. On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the dissenting view, could trigger the right of preference. It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it even takes on non-justiciable controversies. All told, I am constrained to vote for granting the petition. MENDOZA, J., concurring in the judgment: I take the view that in the context of the present controversy the only way to enforce the constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national patrimony the State shall give preference to qualified Filipinos" 1 is to allow petitioner Philippine corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given by the State, by favoring it over a foreign national corporation. Under the rules on public bidding of the Government Service and Insurance System, if petitioner and the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder seeking the larger ownership interest in MHC," 2 so that petitioner bid for more shares, it would be preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation. Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of stocks. 3 That, to me, is what "preference to qualified Filipinos" means in the context of this case by favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners. This was the meaning given in Co Chiong v. Cuaderno 4 to a 1947 statute giving "preference to Filipino citizens in the lease of public market stalls." 5 This Court upheld the cancellation of existing leases covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De la Fuente, 6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo, 7 the preference granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public markets even if there were available other stalls as good as those occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference immediately arises." 8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s in America to realize the promise of equality, through affirmative action and reverse discrimination programs designed to remedy past discrimination against colored people in such areas as employment, contracting and licensing. 9Indeed, in vital areas of our national economy, there are situations in which the only way to place Filipinos in control of the national economy as contemplated in the Constitution 10 is to give them preferential treatment where they can at least stand on equal footing with aliens. There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive the country of the benefit of foreign capital or knowhow. We are dealing here not with common trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of government property, which is like the grant of government largess of benefits and concessions covering the national economy" and therefore no one should begrudge us if we give preferential treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by the Government. It is being privatized. Privatization should result in the relinquishment of the business in favor of private individuals and groups who are Filipino citizens, not in favor of aliens. Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be trading competence and capability for nationalism. Both petitioner and the Malaysian firm are qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that is sought to be modified by enabling petitioner to up its bid to equal the highest bid. Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest bid of an alien could encourage speculation, since all that a Filipino entity would then do would be not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no basis in fact. For the foregoing reasons, I vote to grant the petition. TORRES, JR., J., separate opinion: Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the case at bar with legal and constitutional issues and yet I am driven so to speak on the side of history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes, Jr., a "page of history is worth a volume of logic." I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the nation". Section 10, Article XII of the 1987 Constitution provides: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national goals and priorities. The foregoing provisions should be read in conjunction with Article II of the same Constitution pertaining to "Declaration of Principles and State Policies" which ordain The State shall develop a self-reliant and independent national economy effectively by Filipinos. (Sec. 19). Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the 1987 Constitution Commission proceedings thus: xxx xxx xxx MR. NOLLEDO. The Amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS". And the word "Filipinos" here, as intended by the proponents, will include not only individual Filipinos but also Filipino-Controlled entities fully controlled by Filipinos (Vol. III, Records of the Constitutional Commission, p. 608). MR. MONSOD. We also wanted to add, as Commissioner Villegas said, this committee and this body already approved what is known as the Filipino First policy which was suggested by Commissioner de Castro. So that it is now in our Constitution (Vol. IV, Records of the Constitutional Commission, p. 225). Commissioner Jose Nolledo explaining the provision adverted to above, said:

MR. NOLLEDO. In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and the Filipinos enterprise is also qualified, will the Filipino enterprise still be given a preference? MR. NOLLEDO. Obviously. MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred:? MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616, Records of the Constitutional Commission). The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on this nationalist policy is articulated in one of the earliest case, this Court said The nationalistic tendency is manifested in various provisions of the Constitution. . . . It cannot therefore be said that a law imbued with the same purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid or unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155). I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the product of events, customs, usages and practices. It is actually a product of growth and acceptance by the collective mores of a race. It is the spirit and soul of a people. The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness to historic events (too numerous to mention) which shaped our history for almost 84 years. As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal largese which have given rise to this controversy. As I believe that has been exhaustively discussed in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed in the auction block of a purely business transaction, where profits subverts the cherished historical values of our people. As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps flowing, and one must view the flowing , and one must view the flow of both directions. If you look towards the hill from which the river flows, you see tradition in the form of forceful currents that push the river or people towards the future, and if you look the other way, you progress." Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not jettison the tradition of the Manila Hotel and thereby repeat our colonial history. I grant, of course the men of the law can see the same subject in different lights. I remember, however, a Spanish proverb which says "He is always right who suspects that he makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding the belief that the Filipino be first under his Constitution and in his own land. I vote GRANT the petition.

PUNO, J., dissenting: This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale violates the second paragraph of section 10, Article XII of the Constitution. Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was included in the privatization program of the government. In 1995, GSIS proposed to sell to interested buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic partner" of the GSIS was required to "provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel" 1 The proposal was approved by respondent Committee on Privatization. In July 1995, a conference was held where prequalification documents and the bidding rules were furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2 The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization" provide: I INTRODUCTION AND HIGHLIGHTS

DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER The party that accomplishes the steps set forth below will be declared the Winning Bidder/Strategic Partner and will be awarded the Block of Shares: First Pass the prequalification process; Second Submit the highest bid on a price per share basis for the Block of Shares; Third Negotiate and execute the necessary contracts with GSIS/MHC not later than October 23, 1995; xxx xxx xxx IV GUIDELINES FOR PREQUALIFICATION A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION The Winning Bidder/Strategic Partner will be expected to provide management expertise and/or an international marketing reservation system, and financial support to strengthen the profitability and performance of The Manila Hotel. In this context, the GSIS is inviting to the prequalification process any local and/or foreign corporation, consortium/joint venture or juridical entity with at least one of the following qualifications: a. Proven management .expertise in the hotel industry; or b. Significant equity ownership (i.e. board representation) in another hotel company; or c. Overall management and marketing expertise to successfully operate the Manila Hotel. Parties interested in bidding for MHC should be able to provide access to the requisite management expertise and/or international marketing/reservation system for The Manila Hotel. xxx xxx xxx D. PREQUALIFICATION DOCUMENTS xxx xxx xxx E. APPLICATION PROCEDURE 1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE The prequalification documents can be secured at the Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in Section III. Each set of documents consists of the following: a. Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization b. Confidential Information Memorandum: The Manila Hotel Corporation c. Letter of Invitation. to the Prequalification and Bidding Conference xxx xxx xxx 4. PREQUALIFICATION AND BIDDING CONFERENCE A prequalification and bidding conference will be held at The Manila Hotel on the date specified in Section III to allow the Applicant to seek clarifications and further information regarding the guidelines and procedures. Only those who purchased the prequalification documents will be allowed in this conference. Attendance to this conference is strongly advised, although the Applicant will not be penalized if it does not attend. 5. SUBMISSION OF PREQUALIFICATION DOCUMENTS The applicant should submit 5 sets of the prequalification documents (1 original set plus 4 copies) at the Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in Section III.

F. PREQUALIFICATION PROCESS 1. The Applicant will be evaluated by the PBAC with the assistance of the TEC based on the Information Package and other information available to the PBAC. 2. If the Applicant is a Consortium/Joint Venture, the evaluation will consider the overall qualifications of the group, taking into account the contribution of each member to the venture. 3. The decision of the PBAC with respect to the results of the PBAC evaluation will be final. 4. The Applicant shall be evaluated according to the criteria set forth below: a. Business management expertise, track record, and experience b. Financial capability. c. Feasibility and acceptability of the proposed strategic plan for the Manila Hotel 5. The PBAC will shortlist such number of Applicants as it may deem appropriate. 6. The parties that prequalified in the first MHC public bidding ITT Sheraton, Marriot International Inc., Renaissance Hotels International Inc., consortium of RCBC Capital/Ritz Carlton may participate in the Public Bidding without having to undergo the prequalification process again. G. SHORTLIST OF QUALIFIED BIDDERS 1. A notice of prequalification results containing the shortlist of Qualified Bidders will be posted at the Registration Office at the date specified in Section III. 2. In the case of a Consortium/Joint Venture, the withdrawal by member whose qualification was a material consideration for being included in the shortlist is ground for disqualification of the Applicant. V. GUIDELINES FOR THE PUBLIC BIDDING A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING All parties in the shortlist of Qualified Bidders will be eligible to participate in the Public Bidding. B. BLOCK OF SHARES A range of Nine Million (9,000,000) to Fifteen Million Three Hundred Thousand (15,300,000) shares of stock representing Thirty Percent to Fifty-One Percent (30%-51%) of the issued and outstanding shares of MHC, will be offered in the Public Bidding by the GSIS. The Qualified Bidders will have the Option of determining the number of shares within the range to bid for. The range is intended to attract bidders with different preferences and objectives for the operation and management of The Manila Hotel. C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS 1. Bids will be evaluated on a price per share basis. The minimum bid required on a price per share basis for the Block of Shares is Thirty-Six Pesos and Sixty-Seven Centavos (P36.67). 2. Bids should be in the Philippine currency payable to the GSIS. 3. Bids submitted with an equivalent price per share below the minimum required will not considered. D. TRANSFER COSTS xxx xxx xxx E. OFFICIAL BID FORM

1. Bids must be contained in the prescribed Official Bid Form, a copy of which is attached as Annex IV. The Official Bid Form must be properly accomplished in all details; improper accomplishment may be a sufficient basis for disqualification. 2. During the Public Bidding, the Qualified Bidder will submit the Official Bid Form, which will indicate the offered purchase price, in a sealed envelope marked "OFFICIAL BID." F. SUPPORTING DOCUMENTS During the Public Bidding, the following documents should be submitted along with the bid in a separate envelop marked "SUPPORTING DOCUMENTS": 1. WRITTEN AUTHORITY TO BID (UNDER OATH). If the Qualified Bidder is a corporation, the representative of the Qualified Bidder should submit a Board resolution which adequately authorizes such representative to bid for and in behalf of the corporation with full authority to perform such acts necessary or requisite to bind the Qualified Bidder. If the Qualified Bidder is a Consortium/Joint Venture, each member of the Consortium/Joint venture should submit a Board resolution authorizing one of its members and such member's representative to make the bid on behalf of the group with full authority to perform such acts necessary or requisite to bind the Qualified Bidder. 2. BID SECURITY a. The Qualified Bidder should deposit Thirty-Three Million Pesos (P33,000,00), in Philippine currency as Bid Security in the form of: i. Manager's check or unconditional demand draft payable to the "Government Service Insurance System" and issued by a reputable banking institution duly licensed to do business in the Philippines and acceptable to GSIS; or ii. Standby-by letter of credit issued by a reputable banking institution acceptable to the GSIS. b. The GSIS will reject a bid if: i. The bid does not have Bid Security; or ii. The Bid Security accompanying the bid is for less than the required amount. c. If the Bid Security is in the form of a manager's check or unconditional demand draft, the interest earned on the Bid Security will be for the account of GSIS. d. If the Qualified Bidder becomes the winning Bidder/Strategic Partner, the Bid Security will be applied as the downpayment on the Qualified Bidder's offered purchase price. e. The Bid Security of the Qualified Bidder will be returned immediately after the Public Bidding if the Qualified Bidder is not declared the Highest Bidder. f. The Bid Security will be returned by October 23, 1995 if the Highest Bidder is unable to negotiate and execute with GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other types of contract specified by the Highest Bidder in its strategic plan for The Manila Hotel. g. The Bid Security of the Highest Bidder will be forfeited in favor of GSIS if the Highest Bidder, after negotiating and executing the Management Contract, International Marketing/Reservation System Contract specified by the Highest Bidder or other types of contract in its strategic plan for The Manila Hotel, fails or refuses to: i. Execute the Stock Purchase and Sale Agreement with GSIS not later than October 23, 1995; or ii. Pay the full amount of the offered purchase price not later than October 23, 1995; or iii. Consummate the sale of the Block of Shares for any other reason. G. SUBMISSION OF BIDS

1. The Public Bidding will be held on September 7, 1995 at the following location: New GSIS Headquarters Building Financial Center, Reclamation Area Roxas Boulevard, Pasay City, Metro Manila. 2. The Secretariat of the PBAC will be stationed at the Public Bidding to accept any and all bids and supporting requirements. Representatives from the Commission on Audit and COP will be invited to witness the proceedings. 3. The Qualified Bidder should submit its bid using the Official Bid Form. The accomplished Official Bid Form should be submitted in a sealed envelope marked "OFFICIAL BID." 4. The Qualified Bidder should submit the following documents in another sealed envelope marked "SUPPORTING BID DOCUMENTS" a. Written Authority Bid b. Bid Security 5. The two sealed envelopes marked "OFFICIAL BID" and "SUPPORTING BID DOCUMENTS" must be submitted simultaneously to the Secretariat between 9:00 AM and 2:00 PM, Philippine Standard Time, on the date of the Public Bidding. No bid shall be accepted after the closing time. Opened or tampered bids shall not be accepted. 6. The Secretariat will log and record the actual time of submission of the two sealed envelopes. The actual time of submission will also be indicated by the Secretariat on the face of the two envelopes. 7. After Step No. 6, the two sealed envelopes will be dropped in the corresponding bid boxes provided for the purpose. These boxes will be in full view of the invited public. H. OPENING AND READING OF BIDS 1. After the closing time of 2:00 PM on the date of the Public Bidding, the PBAC will open all sealed envelopes marked "SUPPORTING BID DOCUMENTS" for screening, evaluation and acceptance. Those who submitted incomplete/insufficient documents or document/s which is/are not substantially in the form required by PBAC will be disqualified. The envelope containing their Official Bid Form will be immediately returned to the disqualified bidders. 2. The sealed envelopes marked "OFFICIAL BID" will be opened at 3:00 PM. The name of the bidder and the amount of its bid price will be read publicly as the envelopes are opened. 3. Immediately following the reading of the bids, the PBAC will formally announce the highest bid and the Highest Bidder. 4. The highest bid will be, determined on a price per share basis. In the event of a tie wherein two or more bids have the same equivalent price per share, priority will be given to the bidder seeking the larger ownership interest in MHC. 5. The Public Bidding will be declared a failed bidding in case: a. No single bid is submitted within the prescribed period; or b. There is only one (1) bid that is submitted and acceptable to the PBAC. I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders: a. The Highest Bidder must negotiate and execute with GSIS/MHC the Management Contract, International Marketing Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for The Manila Hotel. If the Highest Bidder is intending to provide only financial support to The Manila Hotel, a separate institution may enter into the aforementioned contract/s with GSIS/MHC.

b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS, a copy of which will be distributed to each of the Qualified Bidder after the prequalification process is completed. 2. In the event that the Highest Bidder chooses a Management Contract for The Manila Hotel, the maximum levels for the management fee structure that GSIS/MHC are prepared to accept in the Management Contract are as follows: a. Basic management fee: Maximum of 2.5% of gross revenues.(1) b. Incentive fee: Maximum of 8.0% of gross operating profit(1) after deducting undistributed overhead expenses and the basic management fee. c. Fixed component of the international marketing/reservation system fee: Maximum of 2.0% of gross room revenues.(1) The Applicant should indicate in its Information Package if it is wishes to charge this fee. Note (1): As defined in the uniform system of account for hotels. The GSIS/MHC have indicated above the acceptable parameters for the hotel management fees to facilitate the negotiations with the Highest Bidder for the Management Contract after the Public Bidding. A Qualified Bidder envisioning a Management Contract for The Manila Hotel should determine whether or not the management fee structure above is acceptable before submitting their prequalification documents to GSIS. J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS 1. If for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified are willing to match the highest bid in terms of price per share. 2. The order of priority among the interested Qualified Bidders will be in accordance wit the equivalent price per share of their respective bids in their public Bidding, i.e., first and second priority will be given to the Qualified Bidders that submitted the second and third highest bids on the price per share basis, respectively, and so on. K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met: a. Execution of the necessary contract with GSIS/MHC not later than October 23, 1995; and b. Requisite approvals from the GSIS/MHC and COP/OGCC are obtained. I. FULL PAYMENT FOR THE BLOCK OF SHARES 1. Upon execution of the necessary contracts with GSIS/MHC, the Winning Bidder/Strategic Partner must fully pay, not later than October 23, 1995, the offered purchase price for the Block of Shares after deducting the Bid Security applied as downpayment. 2. All payments should be made in the form of a Manager's Check or unconditional Demand Draft, payable to the "Government Service Insurance System," issued by a reputable banking institution licensed to do business in the Philippines and acceptable to GSIS. M. GENERAL CONDITIONS 1. The GSIS unconditionally reserves the right to reject any or all applications, waive any formality therein, or accept such application as maybe considered most advantageous to the GSIS. The GSIS similarly reserves the right to require the submission of any additional information from the Applicant as the PBAC may deem necessary. 2. The GSIS further reserves the right to call off the Public Bidding prior to acceptance of the bids and call for a new public bidding under amended rules, and without any liability whatsoever to any or all the Qualified Bidders, except the obligation to return the Bid Security.

3. The GSIS reserves the right to reset the date of the prequalification/bidding conference, the deadline for the submission of the prequalification documents, the date of the Public Bidding or other pertinent activities at least three (3) calendar days prior to the respective deadlines/target dates. 4. The GSIS sells only whatever rights, interest and participation it has on the Block of Shares. 5. All documents and materials submitted by the Qualified Bidders, except the Bid Security, may be returned upon request. 6. The decision of the PBAC/GSIS on the results of the Public Bidding is final. The Qualified Bidders, by participating in the Public Bidding, are deemed to have agreed to accept and abide by these results. 7. The GSIS will be held free and harmless form any liability, suit or allegation arising out of the Public Bidding by the Qualified Bidders who have participated in the Public Bidding. 3 The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for 15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security. On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the bid price of Renong Berhad. It requested that the award be made to itself citing the second paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three million pesos (P33,000,000.00) as bid security. Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions of the contract and technical agreements in the operation of the hotel, refused to entertain petitioner's request. Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18, 1995. Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution 4 on the "National Economy and Patrimony" which provides: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. xxx xxx xxx The vital issues can be summed up as follows: (1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-executing provision and does not need implementing legislation to carry it into effect; (2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the controlling shares of the Manila Hotel Corporation form part of our patrimony as a nation; (3) Whether GSIS is included in the term "State," hence, mandated to implement section 10, paragraph 2 of Article XII of the Constitution; (4) Assuming GSIS is part of the State, whether it failed to give preference to petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign corporation, in the sale of the controlling shares of the Manila Hotel Corporation; (5) Whether petitioner is estopped from questioning the sale of the shares to Renong Berhad, a foreign corporation. Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and principles upon which is built the substantial foundation and general framework of the law and government. 5 As a rule, its provisions are deemed self-executing and can be enforced without further legislative action. 6 Some of its provisions, however, can be implemented only through appropriate laws enacted by the Legislature, hence not selfexecuting. To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe. The key lies on the intent of the framers of the fundamental law oftentimes submerged in its language. A searching inquiry should be made to find out if the provision is intended as a present enactment, complete in itself as a definitive law, or if it needs future legislation for completion and enforcement. 7 The inquiry demands a micro-analysis of the text and the context of the provision in question. 8 Courts as a rule consider the provisions of the Constitution as self-executing, 9 rather than as requiring future legislation for their enforcement. 10 The reason is not difficult to discern. For if they are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign people can be easily ignored and nullified by Congress. 11 Suffused with wisdom of the ages is the unyielding rule that legislative actions may give breath to constitutional rights but congressional in action should not suffocate them. 12

Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and seizures, 13the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the privilege against self-incrimination, 16 It is recognize a that legislation is unnecessary to enable courts to effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection of property. 17 The same treatment is accorded to constitutional provisions forbidding the taking or damaging of property for public use without just compensation. 18 Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it merely announces a policy and its language empowers the Legislature to prescribe the means by which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article II of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as mere statements of principles of the State. 20 We have also ruled that some provisions of Article XIII on "Social Justice and Human Rights," 21 and Article XIV on "Education Science and Technology, Arts, Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their enforcement is addressed to the discretion of Congress though they provide the framework for legislation 23 to effectuate their policy content. 24 Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the 1987 Constitution is self-executing or not. It reads: Sec. 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. The first paragraph directs Congress to reserve certain areas of investments in the country 25 to Filipino citizens or to corporations sixty per cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws that will encourage the formation and operation of one hundred percent Filipino-owned enterprises. In checkered contrast, the second paragraph orders the entire State to give preference to qualified Filipinos in the grant of rights and privileges covering the national economy and patrimony. The third paragraph also directs the State to regulate foreign investments in line with our national goals and well-set priorities. The first paragraph of Section 10 is not self-executing. By its express text, there is a categorical command for Congress to enact laws restricting foreign ownership in certain areas of investments in the country and to encourage the formation and operation of wholly-owned Filipino enterprises. The right granted by the provision is clearly still in esse. Congress has to breathe life to the right by means of legislation. Parenthetically, this paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong v. Hernandez, 28where we upheld the discretionary authority of Congress to Filipinize certain areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10 affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos. The second and third paragraphs of Section 10 are different. They are directed to the State and not to Congress alone which is but one of the three great branches of our government. Their coverage is also broader for they cover "the national economy and patrimony" and "foreign investments within [the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot be read as granting Congress the exclusive power to implement by law the policy of giving preference to qualified Filipinos in the conferral of rights and privileges covering our national economy and patrimony. Their language does not suggest that any of the State agency or instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever. Their duty to implement is unconditional and it is now. The second and the third paragraphs of Section 10, Article XII are thus self-executing. This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino First policy in our fundamental law and by the use of the mandatory word "shall," directs its enforcement by the whole State without any pause or a half- pause in time. The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation involves the disposition of part of our national patrimony. The records of the Constitutional Commission show that the Commissioners entertained the same view as to its meaning. According to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day Romulo, 31 the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively used by American and Caucasian travelers and served as the "official guesthouse" of the American Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous international film and sports celebrities were housed in the Hotel. It was also the situs of international conventions and conferences. In the local scene, it was the venue of historic meetings, parties and conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind. The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a particular cultural property may be classified a "national cultural treasure" or an "important cultural property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase "patrimony of the nation."

The third issue is whether the constitutional command to the State includes the respondent GSIS. A look at its charter will reveal that GSIS is a government-owned and controlled corporation that administers funds that come from the monthly contributions of government employees and the government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of the employees and the administrative and operational expenses of the GSIS, 35 Excess funds, however, are allowed to be invested in business and other ventures for the benefit of the employees. 36 It is thus contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution. The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public corporation created by Congress and granted an original charter to serve a public purpose. It is subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As stateowned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the general welfare of the people. One of these policies is the Filipino First policy which the people elevated as a constitutional command. The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their "preferential right." The Constitution desisted from defining their contents. This is as it ought to be for a Constitution only lays down flexible policies and principles which can bent to meet today's manifest needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as a living constitution. Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that present and prospective "laws" will take care of the problem of its interpretation, viz: xxx xxx xxx THE PRESIDENT. What is the suggestion of Commissioner Rodrigo? Is it to remove the word "QUALIFIED?" MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against aliens over aliens? MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED" because the existing laws or the prospective laws will always lay down conditions under which business map be done, for example, qualifications on capital, qualifications on the setting up of other financial structures, et cetera. MR. RODRIGO. It is just a matter of style. MR. NOLLEDO Yes. MR. RODRIGO. If we say, "PREFERENCE TO QUALIFIED FILIPINOS," it can be understood as giving preference to qualified Filipinos as against Filipinos who are not qualified. MR. NOLLEDO. Madam President, that was the intention of the proponents. The committee has accepted the amendment. xxx xxx xxx As previously discussed, the constitutional command to enforce the Filipino First policy is addressed to the State and not to Congress alone. Hence, the word "laws" should not be understood as limited to legislations but all state actions which include applicable rules and regulations adopted by agencies and instrumentalities of the State in the exercise of their rule-making power. In the case at bar, the bidding rules and regulations set forth the standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not seriously disputed that petitioner qualified to bid as did Renong Berhad. 39 Thus, we come to the critical issue of the degree of preference which GSIS should have accorded petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it a second chance to match the highest bid of Renong Berhad. With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not absolutely bar aliens in the grant of rights, privileges and concessions covering the national economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited from granting these rights, privileges and concessions to foreigners if the act will promote the weal of the nation. In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of our State policy-makers is to maintain a creative tension between two desiderata first, the need to develop our economy and patrimony with the help of foreigners if necessary, and, second, the need to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to serve the general welfare, it must have a malleable content that can be adjusted by our policy-makers to meet the changing needs of our people. In fine, the right of preference of qualified Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the need for alien assistance, the greater the degree of the right of preference can be given to Filipinos and vice verse.

Again, it should be stressed that the right and the duty to determine the degree of this privilege at any given time is addressed to the entire State. While under our constitutional scheme, the right primarily belongs to Congress as the lawmaking department of our government, other branches of government, and all their agencies and instrumentalities, share the power to enforce this state policy. Within the limits of their authority, they can act or promulgate rules and regulations defining the degree of this right of preference in cases where they have to make grants involving the national economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate the policy. To date, Congress has not enacted a law defining the degree of the preferential right. Consequently, we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject sale. A tearless look at the rules and regulations will show that they are silent on the degree of preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot be read to mean that they do not grant any degree of preference to petitioner for paragraph 2, section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred. It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties may be with petitioner but the court has no power to extend the latitude and longtitude of the right of preference as defined by the rules. The parameters of the right of preference depend on galaxy of facts and factors whose determination belongs to the province of the policy-making branches and agencies of the State. We are duty-bound to respect that determination even if we differ with the wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long as the right of preference is not denied. It is only when a State action amounts to a denial of the right that the Court can come in and strike down the denial as unconstitutional. Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad. Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners' stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest bidding to raise as much funds as possible for the government to maximize its capacity to deliver essential services to our people. This is a duty that must be discharged by Filipinos and foreigners participating in a bidding contest and the rules are carefully written to attain this objective. Among others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids are sealed to prevent collusion among the parties. This objective will be undermined if we grant petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding. We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M. Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy makers can write laws and rules giving favored treatment to the Filipino but we are not free to be unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution protects all against unfairness. We can be pro-Filipino without unfairness to foreigner. I vote to dismiss the petition. Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting: I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno, may I just add 1. The majority contends the Constitution should be interpreted to mean that, after a bidding process is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights . . . covering the national economy and patrimony, the State shall give preference to qualified Filipinos." The majority concedes that there is no law defining the extent or degree of such preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal that of the winning foreigner. In the absence of such empowering law, the majority's strained interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes bidding a ridiculous sham where no Filipino can lose and where no foreigner can win . Only in the Philippines!. 2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed properly, gravely prejudicial to long-term Filipino interest. It encourages other countries in the guise of reverse comity or worse, unabashed retaliation to discriminate against us in their own jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the global marketplace with absolute no chance of winning any bidding outside our country. Even authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation are self-defeating and in the long-term, self-destructing. The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.

3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without being unfair to the foreigner. In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied. But not when the ballgame is over and the foreigner clearly posted the highest score.

Separate Opinions PADILLA, J., concurring: I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit more on the concept of national patrimony as including within its scope and meaning institutions such as the Manila Hotel. It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified Filipinos have the preference, in ownership and operation. The Constitutional provision on point states: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall Give preference to qualified Filipinos. 1 Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony" consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I) consisting of land, sea, and air. 2study of the 1935 Constitution, where the concept of "national patrimony" originated, would show that its framers decided to adopt the even more comprehensive expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only their natural resources of the country but practically everything that belongs to the Filipino people, the tangible and the material as well as the intangible and the spiritual assets and possessions of the people. It is to be noted that the framers did not stop with conservation. They knew that conservation alone does not spell progress; and that this may be achieved only through development as a correlative factor to assure to the people not only the exclusive ownership, but also the exclusive benefits of their national patrimony). 3 Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural resources but also to the cultural heritage of our race. 4 There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony and, as such, deserves constitutional protection as to who shall own it and benefit from its operation. This institution has played an important role in our nation's history, having been the venue of many a historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting foreign heads of state, dignitaries, celebrities, and others. 5 It is therefore our duty to protect and preserve it for future generations of Filipinos. As President Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do so with. an eye to the welfare of the future generations. In other words, the leaders of today are the trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating the need for nationalization of our lands and natural resources, one expounded that we should "put more teeth into our laws, and; not make the nationalization of our lands and natural resources a subject of ordinary legislation but of constitutional enactment" 6 To quote further: "Let not our children be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is rightfully theirs, free from all foreign liens and encumbrances". 7 Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very "heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino bidder is to be significant at all. It is true that in this present age of globalization of attitude towards foreign investments in our country, stress is on the elimination of barriers to foreign trade and investment in the country. While government agencies, including the courts should re-condition their thinking to such a trend, and make it easy and even attractive for foreign investors to come to our shores, yet we should not preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture and heritage are involved. In the hotel industry, for instance, foreign investors have established themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels. This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our national patrimony, including our historical and cultural heritage in the hands of Filipinos. VITUG, J., concurring: I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice Reynato S. Puno in a well written separate (dissenting) opinion, that:

First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos" 1 is self-executory. The provision verily does not need, although it can obviously be amplified or regulated by, an enabling law or a set of rules. Second, the term "patrimony" does not merely refer to the country's natural resources but also to its cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now indeed become part of Philippine heritage. Third, the act of the Government Service Insurance System ("GSIS"), a government entity which derives its authority from the State, in selling 51% of its share in MHC should be considered an act of the State subject to the Constitutional mandate. On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the dissenting view, could trigger the right of preference. It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it even takes on non-justiciable controversies. All told, I am constrained to vote for granting the petition. MENDOZA, J., concurring in the judgment: I take the view that in the context of the present controversy the only way to enforce the constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national patrimony the State shall give preference to qualified Filipinos" 1 is to allow petitioner Philippine corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given by the State, by favoring it over a foreign national corporation. Under the rules on public bidding of the Government Service and Insurance System, if petitioner and the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder seeking the larger ownership interest in MHC," 2 so that petitioner bid for more shares, it would be preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation. Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of stocks. 3 That, to me, is what "preference to qualified Filipinos" means in the context of this case by favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners. This was the meaning given in Co Chiong v. Cuaderno 4 to a 1947 statute giving "preference to Filipino citizens in the lease of public market stalls." 5 This Court upheld the cancellation of existing leases covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De la Fuente, 6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo, 7 the preference granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public markets even if there were available other stalls as good as those occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference immediately arises." 8 Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s in America to realize the promise of equality, through affirmative action and reverse discrimination programs designed to remedy past discrimination against colored people in such areas as employment, contracting and licensing. 9Indeed, in vital areas of our national economy, there are situations in which the only way to place Filipinos in control of the national economy as contemplated in the Constitution 10 is to give them preferential treatment where they can at least stand on equal footing with aliens. There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive the country of the benefit of foreign capital or knowhow. We are dealing here not with common trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of government property, which is like the grant of government largess of benefits and concessions covering the national economy" and therefore no one should begrudge us if we give preferential treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by the Government. It is being privatized. Privatization should result in the relinquishment of the business in favor of private individuals and groups who are Filipino citizens, not in favor of aliens. Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be trading competence and capability for nationalism. Both petitioner and the Malaysian firm are qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that is sought to be modified by enabling petitioner to up its bid to equal the highest bid. Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest bid of an alien could encourage speculation, since all that a Filipino entity would then do would be not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no basis in fact.

For the foregoing reasons, I vote to grant the petition. TORRES, JR., J., separate opinion: Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the case at bar with legal and constitutional issues and yet I am driven so to speak on the side of history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes, Jr., a "page of history is worth a volume of logic." I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the nation". Section 10, Article XII of the 1987 Constitution provides: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national goals and priorities. The foregoing provisions should be read in conjunction with Article II of the same Constitution pertaining to "Declaration of Principles and State Policies" which ordain The State shall develop a self-reliant and independent national economy effectively by Filipinos. (Sec. 19). Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the 1987 Constitution Commission proceedings thus: xxx xxx xxx MR. NOLLEDO. The Amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS". And the word "Filipinos" here, as intended by the proponents, will include not only individual Filipinos but also Filipino-Controlled entities fully controlled by Filipinos (Vol. III, Records of the Constitutional Commission, p. 608). MR. MONSOD. We also wanted to add, as Commissioner Villegas said, this committee and this body already approved what is known as the Filipino First policy which was suggested by Commissioner de Castro. So that it is now in our Constitution (Vol. IV, Records of the Constitutional Commission, p. 225). Commissioner Jose Nolledo explaining the provision adverted to above, said: MR. NOLLEDO. In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and the Filipinos enterprise is also qualified, will the Filipino enterprise still be given a preference? MR. NOLLEDO. Obviously. MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred:? MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616, Records of the Constitutional Commission). The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on this nationalist policy is articulated in one of the earliest case, this Court said The nationalistic tendency is manifested in various provisions of the Constitution. . . . It cannot therefore be said that a law imbued with the same purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid or unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155). I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the product of events, customs, usages and practices. It is actually a product of growth and acceptance by the collective mores of a race. It is the spirit and soul of a people.

The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness to historic events (too numerous to mention) which shaped our history for almost 84 years. As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal largese which have given rise to this controversy. As I believe that has been exhaustively discussed in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed in the auction block of a purely business transaction, where profits subverts the cherished historical values of our people. As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps flowing, and one must view the flowing , and one must view the flow of both directions. If you look towards the hill from which the river flows, you see tradition in the form of forceful currents that push the river or people towards the future, and if you look the other way, you progress." Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not jettison the tradition of the Manila Hotel and thereby repeat our colonial history. I grant, of course the men of the law can see the same subject in different lights. I remember, however, a Spanish proverb which says "He is always right who suspects that he makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding the belief that the Filipino be first under his Constitution and in his own land. I vote GRANT the petition.

PUNO, J., dissenting: This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale violates the second paragraph of section 10, Article XII of the Constitution. Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was included in the privatization program of the government. In 1995, GSIS proposed to sell to interested buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic partner" of the GSIS was required to "provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel" 1 The proposal was approved by respondent Committee on Privatization. In July 1995, a conference was held where prequalification documents and the bidding rules were furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2 The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization" provide: I INTRODUCTION AND HIGHLIGHTS DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER The party that accomplishes the steps set forth below will be declared the Winning Bidder/Strategic Partner and will be awarded the Block of Shares: First Pass the prequalification process; Second Submit the highest bid on a price per share basis for the Block of Shares; Third Negotiate and execute the necessary contracts with GSIS/MHC not later than October 23, 1995; xxx xxx xxx IV GUIDELINES FOR PREQUALIFICATION A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION The Winning Bidder/Strategic Partner will be expected to provide management expertise and/or an international marketing reservation system, and financial support to strengthen the profitability and performance of The Manila Hotel. In this context, the GSIS is inviting to the prequalification process any local and/or foreign corporation, consortium/joint venture or juridical entity with at least one of the following qualifications:

a. Proven management .expertise in the hotel industry; or b. Significant equity ownership (i.e. board representation) in another hotel company; or c. Overall management and marketing expertise to successfully operate the Manila Hotel. Parties interested in bidding for MHC should be able to provide access to the requisite management expertise and/or international marketing/reservation system for The Manila Hotel. xxx xxx xxx D. PREQUALIFICATION DOCUMENTS xxx xxx xxx E. APPLICATION PROCEDURE 1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE The prequalification documents can be secured at the Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in Section III. Each set of documents consists of the following: a. Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization b. Confidential Information Memorandum: The Manila Hotel Corporation c. Letter of Invitation. to the Prequalification and Bidding Conference xxx xxx xxx 4. PREQUALIFICATION AND BIDDING CONFERENCE A prequalification and bidding conference will be held at The Manila Hotel on the date specified in Section III to allow the Applicant to seek clarifications and further information regarding the guidelines and procedures. Only those who purchased the prequalification documents will be allowed in this conference. Attendance to this conference is strongly advised, although the Applicant will not be penalized if it does not attend. 5. SUBMISSION OF PREQUALIFICATION DOCUMENTS The applicant should submit 5 sets of the prequalification documents (1 original set plus 4 copies) at the Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in Section III. F. PREQUALIFICATION PROCESS 1. The Applicant will be evaluated by the PBAC with the assistance of the TEC based on the Information Package and other information available to the PBAC. 2. If the Applicant is a Consortium/Joint Venture, the evaluation will consider the overall qualifications of the group, taking into account the contribution of each member to the venture. 3. The decision of the PBAC with respect to the results of the PBAC evaluation will be final. 4. The Applicant shall be evaluated according to the criteria set forth below: a. Business management expertise, track record, and experience b. Financial capability. c. Feasibility and acceptability of the proposed strategic plan for the Manila Hotel 5. The PBAC will shortlist such number of Applicants as it may deem appropriate.

6. The parties that prequalified in the first MHC public bidding ITT Sheraton, Marriot International Inc., Renaissance Hotels International Inc., consortium of RCBC Capital/Ritz Carlton may participate in the Public Bidding without having to undergo the prequalification process again. G. SHORTLIST OF QUALIFIED BIDDERS 1. A notice of prequalification results containing the shortlist of Qualified Bidders will be posted at the Registration Office at the date specified in Section III. 2. In the case of a Consortium/Joint Venture, the withdrawal by member whose qualification was a material consideration for being included in the shortlist is ground for disqualification of the Applicant. V. GUIDELINES FOR THE PUBLIC BIDDING A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING All parties in the shortlist of Qualified Bidders will be eligible to participate in the Public Bidding. B. BLOCK OF SHARES A range of Nine Million (9,000,000) to Fifteen Million Three Hundred Thousand (15,300,000) shares of stock representing Thirty Percent to Fifty-One Percent (30%-51%) of the issued and outstanding shares of MHC, will be offered in the Public Bidding by the GSIS. The Qualified Bidders will have the Option of determining the number of shares within the range to bid for. The range is intended to attract bidders with different preferences and objectives for the operation and management of The Manila Hotel. C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS 1. Bids will be evaluated on a price per share basis. The minimum bid required on a price per share basis for the Block of Shares is Thirty-Six Pesos and Sixty-Seven Centavos (P36.67). 2. Bids should be in the Philippine currency payable to the GSIS. 3. Bids submitted with an equivalent price per share below the minimum required will not considered. D. TRANSFER COSTS xxx xxx xxx E. OFFICIAL BID FORM 1. Bids must be contained in the prescribed Official Bid Form, a copy of which is attached as Annex IV. The Official Bid Form must be properly accomplished in all details; improper accomplishment may be a sufficient basis for disqualification. 2. During the Public Bidding, the Qualified Bidder will submit the Official Bid Form, which will indicate the offered purchase price, in a sealed envelope marked "OFFICIAL BID." F. SUPPORTING DOCUMENTS During the Public Bidding, the following documents should be submitted along with the bid in a separate envelop marked "SUPPORTING DOCUMENTS": 1. WRITTEN AUTHORITY TO BID (UNDER OATH). If the Qualified Bidder is a corporation, the representative of the Qualified Bidder should submit a Board resolution which adequately authorizes such representative to bid for and in behalf of the corporation with full authority to perform such acts necessary or requisite to bind the Qualified Bidder. If the Qualified Bidder is a Consortium/Joint Venture, each member of the Consortium/Joint venture should submit a Board resolution authorizing one of its members and such member's representative to make the bid on behalf of the group with full authority to perform such acts necessary or requisite to bind the Qualified Bidder. 2. BID SECURITY

a. The Qualified Bidder should deposit Thirty-Three Million Pesos (P33,000,00), in Philippine currency as Bid Security in the form of: i. Manager's check or unconditional demand draft payable to the "Government Service Insurance System" and issued by a reputable banking institution duly licensed to do business in the Philippines and acceptable to GSIS; or ii. Standby-by letter of credit issued by a reputable banking institution acceptable to the GSIS. b. The GSIS will reject a bid if: i. The bid does not have Bid Security; or ii. The Bid Security accompanying the bid is for less than the required amount. c. If the Bid Security is in the form of a manager's check or unconditional demand draft, the interest earned on the Bid Security will be for the account of GSIS. d. If the Qualified Bidder becomes the winning Bidder/Strategic Partner, the Bid Security will be applied as the downpayment on the Qualified Bidder's offered purchase price. e. The Bid Security of the Qualified Bidder will be returned immediately after the Public Bidding if the Qualified Bidder is not declared the Highest Bidder. f. The Bid Security will be returned by October 23, 1995 if the Highest Bidder is unable to negotiate and execute with GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other types of contract specified by the Highest Bidder in its strategic plan for The Manila Hotel. g. The Bid Security of the Highest Bidder will be forfeited in favor of GSIS if the Highest Bidder, after negotiating and executing the Management Contract, International Marketing/Reservation System Contract specified by the Highest Bidder or other types of contract in its strategic plan for The Manila Hotel, fails or refuses to: i. Execute the Stock Purchase and Sale Agreement with GSIS not later than October 23, 1995; or ii. Pay the full amount of the offered purchase price not later than October 23, 1995; or iii. Consummate the sale of the Block of Shares for any other reason. G. SUBMISSION OF BIDS 1. The Public Bidding will be held on September 7, 1995 at the following location: New GSIS Headquarters Building Financial Center, Reclamation Area Roxas Boulevard, Pasay City, Metro Manila. 2. The Secretariat of the PBAC will be stationed at the Public Bidding to accept any and all bids and supporting requirements. Representatives from the Commission on Audit and COP will be invited to witness the proceedings. 3. The Qualified Bidder should submit its bid using the Official Bid Form. The accomplished Official Bid Form should be submitted in a sealed envelope marked "OFFICIAL BID." 4. The Qualified Bidder should submit the following documents in another sealed envelope marked "SUPPORTING BID DOCUMENTS" a. Written Authority Bid b. Bid Security 5. The two sealed envelopes marked "OFFICIAL BID" and "SUPPORTING BID DOCUMENTS" must be submitted simultaneously to the Secretariat between 9:00 AM and 2:00 PM, Philippine Standard Time, on the date of the Public Bidding. No bid shall be accepted after the closing time. Opened or tampered bids shall not be accepted.

6. The Secretariat will log and record the actual time of submission of the two sealed envelopes. The actual time of submission will also be indicated by the Secretariat on the face of the two envelopes. 7. After Step No. 6, the two sealed envelopes will be dropped in the corresponding bid boxes provided for the purpose. These boxes will be in full view of the invited public. H. OPENING AND READING OF BIDS 1. After the closing time of 2:00 PM on the date of the Public Bidding, the PBAC will open all sealed envelopes marked "SUPPORTING BID DOCUMENTS" for screening, evaluation and acceptance. Those who submitted incomplete/insufficient documents or document/s which is/are not substantially in the form required by PBAC will be disqualified. The envelope containing their Official Bid Form will be immediately returned to the disqualified bidders. 2. The sealed envelopes marked "OFFICIAL BID" will be opened at 3:00 PM. The name of the bidder and the amount of its bid price will be read publicly as the envelopes are opened. 3. Immediately following the reading of the bids, the PBAC will formally announce the highest bid and the Highest Bidder. 4. The highest bid will be, determined on a price per share basis. In the event of a tie wherein two or more bids have the same equivalent price per share, priority will be given to the bidder seeking the larger ownership interest in MHC. 5. The Public Bidding will be declared a failed bidding in case: a. No single bid is submitted within the prescribed period; or b. There is only one (1) bid that is submitted and acceptable to the PBAC. I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders: a. The Highest Bidder must negotiate and execute with GSIS/MHC the Management Contract, International Marketing Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for The Manila Hotel. If the Highest Bidder is intending to provide only financial support to The Manila Hotel, a separate institution may enter into the aforementioned contract/s with GSIS/MHC. b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS, a copy of which will be distributed to each of the Qualified Bidder after the prequalification process is completed. 2. In the event that the Highest Bidder chooses a Management Contract for The Manila Hotel, the maximum levels for the management fee structure that GSIS/MHC are prepared to accept in the Management Contract are as follows: a. Basic management fee: Maximum of 2.5% of gross revenues.(1) b. Incentive fee: Maximum of 8.0% of gross operating profit(1) after deducting undistributed overhead expenses and the basic management fee. c. Fixed component of the international marketing/reservation system fee: Maximum of 2.0% of gross room revenues.(1) The Applicant should indicate in its Information Package if it is wishes to charge this fee. Note (1): As defined in the uniform system of account for hotels. The GSIS/MHC have indicated above the acceptable parameters for the hotel management fees to facilitate the negotiations with the Highest Bidder for the Management Contract after the Public Bidding. A Qualified Bidder envisioning a Management Contract for The Manila Hotel should determine whether or not the management fee structure above is acceptable before submitting their prequalification documents to GSIS.

J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS 1. If for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified are willing to match the highest bid in terms of price per share. 2. The order of priority among the interested Qualified Bidders will be in accordance wit the equivalent price per share of their respective bids in their public Bidding, i.e., first and second priority will be given to the Qualified Bidders that submitted the second and third highest bids on the price per share basis, respectively, and so on. K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met: a. Execution of the necessary contract with GSIS/MHC not later than October 23, 1995; and b. Requisite approvals from the GSIS/MHC and COP/OGCC are obtained. I. FULL PAYMENT FOR THE BLOCK OF SHARES 1. Upon execution of the necessary contracts with GSIS/MHC, the Winning Bidder/Strategic Partner must fully pay, not later than October 23, 1995, the offered purchase price for the Block of Shares after deducting the Bid Security applied as downpayment. 2. All payments should be made in the form of a Manager's Check or unconditional Demand Draft, payable to the "Government Service Insurance System," issued by a reputable banking institution licensed to do business in the Philippines and acceptable to GSIS. M. GENERAL CONDITIONS 1. The GSIS unconditionally reserves the right to reject any or all applications, waive any formality therein, or accept such application as maybe considered most advantageous to the GSIS. The GSIS similarly reserves the right to require the submission of any additional information from the Applicant as the PBAC may deem necessary. 2. The GSIS further reserves the right to call off the Public Bidding prior to acceptance of the bids and call for a new public bidding under amended rules, and without any liability whatsoever to any or all the Qualified Bidders, except the obligation to return the Bid Security. 3. The GSIS reserves the right to reset the date of the prequalification/bidding conference, the deadline for the submission of the prequalification documents, the date of the Public Bidding or other pertinent activities at least three (3) calendar days prior to the respective deadlines/target dates. 4. The GSIS sells only whatever rights, interest and participation it has on the Block of Shares. 5. All documents and materials submitted by the Qualified Bidders, except the Bid Security, may be returned upon request. 6. The decision of the PBAC/GSIS on the results of the Public Bidding is final. The Qualified Bidders, by participating in the Public Bidding, are deemed to have agreed to accept and abide by these results. 7. The GSIS will be held free and harmless form any liability, suit or allegation arising out of the Public Bidding by the Qualified Bidders who have participated in the Public Bidding. 3 The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for 15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security. On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the bid price of Renong Berhad. It requested that the award be made to itself citing the second paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three million pesos (P33,000,000.00) as bid security. Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions of the contract and technical agreements in the operation of the hotel, refused to entertain petitioner's request. Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18, 1995.

Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution 4 on the "National Economy and Patrimony" which provides: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. xxx xxx xxx The vital issues can be summed up as follows: (1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-executing provision and does not need implementing legislation to carry it into effect; (2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the controlling shares of the Manila Hotel Corporation form part of our patrimony as a nation; (3) Whether GSIS is included in the term "State," hence, mandated to implement section 10, paragraph 2 of Article XII of the Constitution; (4) Assuming GSIS is part of the State, whether it failed to give preference to petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign corporation, in the sale of the controlling shares of the Manila Hotel Corporation; (5) Whether petitioner is estopped from questioning the sale of the shares to Renong Berhad, a foreign corporation. Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and principles upon which is built the substantial foundation and general framework of the law and government. 5 As a rule, its provisions are deemed self-executing and can be enforced without further legislative action. 6 Some of its provisions, however, can be implemented only through appropriate laws enacted by the Legislature, hence not selfexecuting. To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe. The key lies on the intent of the framers of the fundamental law oftentimes submerged in its language. A searching inquiry should be made to find out if the provision is intended as a present enactment, complete in itself as a definitive law, or if it needs future legislation for completion and enforcement. 7 The inquiry demands a micro-analysis of the text and the context of the provision in question. 8 Courts as a rule consider the provisions of the Constitution as self-executing, 9 rather than as requiring future legislation for their enforcement. 10 The reason is not difficult to discern. For if they are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign people can be easily ignored and nullified by Congress. 11 Suffused with wisdom of the ages is the unyielding rule that legislative actions may give breath to constitutional rights but congressional in action should not suffocate them. 12 Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and seizures, 13the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the privilege against self-incrimination, 16 It is recognize a that legislation is unnecessary to enable courts to effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection of property. 17 The same treatment is accorded to constitutional provisions forbidding the taking or damaging of property for public use without just compensation. 18 Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it merely announces a policy and its language empowers the Legislature to prescribe the means by which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article II of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as mere statements of principles of the State. 20 We have also ruled that some provisions of Article XIII on "Social Justice and Human Rights," 21 and Article XIV on "Education Science and Technology, Arts, Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their enforcement is addressed to the discretion of Congress though they provide the framework for legislation 23 to effectuate their policy content. 24 Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the 1987 Constitution is self-executing or not. It reads: Sec. 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. The first paragraph directs Congress to reserve certain areas of investments in the country 25 to Filipino citizens or to corporations sixty per cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws that will encourage the formation and

operation of one hundred percent Filipino-owned enterprises. In checkered contrast, the second paragraph orders the entire State to give preference to qualified Filipinos in the grant of rights and privileges covering the national economy and patrimony. The third paragraph also directs the State to regulate foreign investments in line with our national goals and well-set priorities. The first paragraph of Section 10 is not self-executing. By its express text, there is a categorical command for Congress to enact laws restricting foreign ownership in certain areas of investments in the country and to encourage the formation and operation of wholly-owned Filipino enterprises. The right granted by the provision is clearly still in esse. Congress has to breathe life to the right by means of legislation. Parenthetically, this paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong v. Hernandez, 28where we upheld the discretionary authority of Congress to Filipinize certain areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10 affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos. The second and third paragraphs of Section 10 are different. They are directed to the State and not to Congress alone which is but one of the three great branches of our government. Their coverage is also broader for they cover "the national economy and patrimony" and "foreign investments within [the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot be read as granting Congress the exclusive power to implement by law the policy of giving preference to qualified Filipinos in the conferral of rights and privileges covering our national economy and patrimony. Their language does not suggest that any of the State agency or instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever. Their duty to implement is unconditional and it is now. The second and the third paragraphs of Section 10, Article XII are thus self-executing. This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino First policy in our fundamental law and by the use of the mandatory word "shall," directs its enforcement by the whole State without any pause or a half- pause in time. The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation involves the disposition of part of our national patrimony. The records of the Constitutional Commission show that the Commissioners entertained the same view as to its meaning. According to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day Romulo, 31 the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively used by American and Caucasian travelers and served as the "official guesthouse" of the American Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous international film and sports celebrities were housed in the Hotel. It was also the situs of international conventions and conferences. In the local scene, it was the venue of historic meetings, parties and conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind. The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a particular cultural property may be classified a "national cultural treasure" or an "important cultural property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase "patrimony of the nation." The third issue is whether the constitutional command to the State includes the respondent GSIS. A look at its charter will reveal that GSIS is a government-owned and controlled corporation that administers funds that come from the monthly contributions of government employees and the government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of the employees and the administrative and operational expenses of the GSIS, 35 Excess funds, however, are allowed to be invested in business and other ventures for the benefit of the employees. 36 It is thus contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution. The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public corporation created by Congress and granted an original charter to serve a public purpose. It is subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As stateowned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the general welfare of the people. One of these policies is the Filipino First policy which the people elevated as a constitutional command. The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their "preferential right." The Constitution desisted from defining their contents. This is as it ought to be for a Constitution only lays down flexible policies and principles which can bent to meet today's manifest needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as a living constitution. Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that present and prospective "laws" will take care of the problem of its interpretation, viz: xxx xxx xxx THE PRESIDENT. What is the suggestion of Commissioner Rodrigo? Is it to remove the word "QUALIFIED?"

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against aliens over aliens? MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED" because the existing laws or the prospective laws will always lay down conditions under which business map be done, for example, qualifications on capital, qualifications on the setting up of other financial structures, et cetera. MR. RODRIGO. It is just a matter of style. MR. NOLLEDO Yes. MR. RODRIGO. If we say, "PREFERENCE TO QUALIFIED FILIPINOS," it can be understood as giving preference to qualified Filipinos as against Filipinos who are not qualified. MR. NOLLEDO. Madam President, that was the intention of the proponents. The committee has accepted the amendment. xxx xxx xxx As previously discussed, the constitutional command to enforce the Filipino First policy is addressed to the State and not to Congress alone. Hence, the word "laws" should not be understood as limited to legislations but all state actions which include applicable rules and regulations adopted by agencies and instrumentalities of the State in the exercise of their rule-making power. In the case at bar, the bidding rules and regulations set forth the standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not seriously disputed that petitioner qualified to bid as did Renong Berhad. 39 Thus, we come to the critical issue of the degree of preference which GSIS should have accorded petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it a second chance to match the highest bid of Renong Berhad. With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not absolutely bar aliens in the grant of rights, privileges and concessions covering the national economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited from granting these rights, privileges and concessions to foreigners if the act will promote the weal of the nation. In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of our State policy-makers is to maintain a creative tension between two desiderata first, the need to develop our economy and patrimony with the help of foreigners if necessary, and, second, the need to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to serve the general welfare, it must have a malleable content that can be adjusted by our policy-makers to meet the changing needs of our people. In fine, the right of preference of qualified Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the need for alien assistance, the greater the degree of the right of preference can be given to Filipinos and vice verse. Again, it should be stressed that the right and the duty to determine the degree of this privilege at any given time is addressed to the entire State. While under our constitutional scheme, the right primarily belongs to Congress as the lawmaking department of our government, other branches of government, and all their agencies and instrumentalities, share the power to enforce this state policy. Within the limits of their authority, they can act or promulgate rules and regulations defining the degree of this right of preference in cases where they have to make grants involving the national economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate the policy. To date, Congress has not enacted a law defining the degree of the preferential right. Consequently, we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject sale. A tearless look at the rules and regulations will show that they are silent on the degree of preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot be read to mean that they do not grant any degree of preference to petitioner for paragraph 2, section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred. It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties may be with petitioner but the court has no power to extend the latitude and longtitude of the right of preference as defined by the rules. The parameters of the right of preference depend on galaxy of facts and factors whose determination belongs to the province of the policy-making branches and agencies of the State. We are duty-bound to respect that determination even if we differ with the wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long as the right of preference is not denied. It is only when a State action amounts to a denial of the right that the Court can come in and strike down the denial as unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad. Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners' stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest bidding to raise as much funds as possible for the government to maximize its capacity to deliver essential services to our people. This is a duty that must be discharged by Filipinos and foreigners participating in a bidding contest and the rules are carefully written to attain this objective. Among others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids are sealed to prevent collusion among the parties. This objective will be undermined if we grant petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding. We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M. Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy makers can write laws and rules giving favored treatment to the Filipino but we are not free to be unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution protects all against unfairness. We can be pro-Filipino without unfairness to foreigner. I vote to dismiss the petition. Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting: I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno, may I just add 1. The majority contends the Constitution should be interpreted to mean that, after a bidding process is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights . . . covering the national economy and patrimony, the State shall give preference to qualified Filipinos." The majority concedes that there is no law defining the extent or degree of such preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal that of the winning foreigner. In the absence of such empowering law, the majority's strained interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes bidding a ridiculous sham where no Filipino can lose and where no foreigner can win . Only in the Philippines!. 2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed properly, gravely prejudicial to long-term Filipino interest. It encourages other countries in the guise of reverse comity or worse, unabashed retaliation to discriminate against us in their own jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the global marketplace with absolute no chance of winning any bidding outside our country. Even authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation are self-defeating and in the long-term, self-destructing. The moral lesson here is simple: Do not do unto other what you dont want other to do unto you. 3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without being unfair to the foreigner. In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied. But not when the ballgame is over and the foreigner clearly posted the highest score.

7. Effectivity of the 1987 Philippine Constitution (Art. XVIII, Sec. 27)

De Leon vs. Esguerra, 153 SCRA 602, No. L-78059, Aug. 31, 1987 Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 78059 August 31, 1987

ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners, vs. HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

MELENCIO-HERRERA, J.: An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing them from their respective positions as Barangay Captain and Barangay Councilmen of Barangay Dolores, Municipality of Taytay, Province of Rizal. As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their Reply to respondents' Comment. In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982. On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The designation made by the OIC Governor was "by authority of the Minister of Local Government." Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of the same Barangay and Municipality. That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the pertinent portions of which read: xxx xxx xxx That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986; That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I among others, have signed as I did sign the unnumbered memorandum ordering the replacement of all the barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal; That the above cited memorandum dated December 1, 1986 was signed by me personally on February 8,1987; That said memorandum was further deciminated (sic) to all concerned the following day, February 9. 1987. FURTHER AFFIANT SAYETH NONE. Pasig, Metro Manila, March 23, 1987. Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and void and that respondents be prohibited from taking over their positions of Barangay Captain and Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall commence on June 7, 1982 and shall continue until their successors shall have elected and shall have qualified," or up to June 7, 1988. It is also their position that with the ratification of the 1987 Constitution, respondent OIC Governor no longer has the authority to replace them and to designate their successors. On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated on March 25, 1986, which provided: SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from February 25,1986. By reason of the foregoing provision, respondents contend that the terms of office of elective and appointive officials were abolished and that petitioners continued in office by virtue of the aforequoted provision and not because their term of six years had not yet expired; and that the provision in the Barangay Election Act fixing the term of office of Barangay officials to six (6) years must be deemed to have been repealed for being inconsistent with the aforequoted provision of the Provisional Constitution. Examining the said provision, there should be no question that petitioners, as elective officials under the 1973 Constitution, may continue in office but should vacate their positions upon the occurrence of any of the events mentioned. 1

Since the promulgation of the Provisional Constitution, there has been no proclamation or executive order terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or not the designation of respondents to replace petitioners was validly made during the one-year period which ended on February 25, 1987. Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be considered as the effective date of replacement and not December 1,1986 to which it was ante dated, in keeping with the dictates of justice. But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in the Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the 1987 Constitution reading. SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the Provisional Constitution must be deemed to have been superseded. Having become inoperative, respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate respondents to the elective positions occupied by petitioners. Petitioners must now be held to have acquired security of tenure specially considering that the Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the barangays to ensure their fullest development as self-reliant communities. 2 Similarly, the 1987 Constitution ensures the autonomy of local governments and of political subdivisions of which the barangays form a part, 3 and limits the President's power to "general supervision" over local governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years ... Until the term of office of barangay officials has been determined by law, therefore, the term of office of six (6) years provided for in the Barangay Election Act of 1982 5 should still govern. Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for elective Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading: Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other executive issuances not inconsistent, with this Constitution shall remain operative until amended, repealed or revoked. WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating respondents as the Barangay Captain and Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ of Prohibition is granted enjoining respondents perpetually from proceeding with the ouster/take-over of petitioners' positions subject of this Petition. Without costs. SO ORDERED. Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, CJ., concurring: The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that the plebiscite for its ratification was held or whether it took effect on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino. The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date. The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall have been ascertained and not at the time the people cast their votes to approve or reject it." This view was actually proposed at the Constitutional Commission deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will be effective on the very day of the plebiscite." The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor and none against) the aforequoted Section

27 of Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by the people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite." The record of the deliberations and the voting is reproduced hereinbelow: 1 MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee as indicated in Section 12, unless there are other commissioners who would like to present amendments. MR. DAVIDE. Madam President. THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. May I propose the following amendments. On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after "constitutions," add the following: "AND THEIR AMENDMENTS." MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an additional sentence, the committee would suggest that we take up first his amendment to the first sentence as originally formulated. We are now ready to comment on that proposed amendment. The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment would be: After the word "constitutions," add the words" AND THEIR AMENDMENTS," The committee accepts the first proposed amendment. However, we regret that we cannot accept the second proposed amendment after the word "constitutions" because the committee feels that when we talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS." MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request that I be allowed to read the second amendment so the Commission would be able to appreciate the change in the first. MR. MAAMBONG. Yes, Madam President, we can now do that. MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE." MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the second proposed amendment in the form of a new sentence would not be exactly necessary and the committee feels that it would be too much for us to impose a time frame on the President to make the proclamation. As we would recall, Madam President, in the approved Article on the Executive, there is a provision which says that the President shall make certain that all laws shall be faithfully complied. When we approve this first sentence, and it says that there will be a proclamation by the President that the Constitution has been ratified, the President will naturally comply with the law in accordance with the provisions in the Article on the Executive which we have cited. It would be too much to impose on the President a time frame within which she will make that declaration. It would be assumed that the President would immediately do that after the results shall have been canvassed by the COMELEC. Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is proposing, Madam President. MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate proclamation of the results by the President. MR. MAAMBONG. With that understanding, Madam President. MR. DAVIDE. I will not insist on the second sentence. FR. BERNAS. Madam President. THE PRESIDENT. Commissioner Bernas is recognized. FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes the effectivity of the new Constitution dependent upon the proclamation of the President. The effectivity of the Constitution should commence on the date of the ratification, not on the date of the proclamation of the President . What is confusing, I think, is what happened in 1976 when the amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were effective upon the proclamation of the President was that the draft presented to the people said that the amendment will be effective upon the proclamation made by the President. I have a suspicion that was put in there precisely to give the President some kind of leeway on

whether to announce the ratification or not. Therefore, we should not make this dependent on the action of the President since this will be a manifestation of the act of the people to be done under the supervision of the COMELEC and it should be the COMELEC who should make the announcement that, in fact, the votes show that the Constitution was ratified and there should be no need to wait for any proclamation on the part of the President. MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions? FR. BERNAS. Willingly, Madam President. MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the Constitution is supposed to be ratified. FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to have been cast. MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by the Commission on Elections. If we delete the suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the Constitution is supposed to be ratified or not ratified, as the case may be? FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite would be held, for instance, on January 19, 1987, then the date for the effectivity of the new Constitution would be January 19, 1987. MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the Commission on Elections which will be doing the canvass? That is immaterial Madam President FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when one casts his ballot. MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the proponent, Commissioner Davide, if he is insisting on his amendment. MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the ballots. That cannot be the date of reckoning because it is a plebiscite all over the country. We do not split the moment of casting by each of the voters. Actually and technically speaking, it would be all right if it would be upon the announcement of the results of the canvass conducted by the COMELEC or the results of the plebiscite held all over the country. But it is necessary that there be a body which will make the formal announcement of the results of the plebiscite. So it is either the President or the COMELEC itself upon the completion of the canvass of the results of the plebiscite, and I opted for the President. xxx xxx xxx MR. NOLLEDO. Madam President. THE PRESIDENT. Commissioner Nolledo is recognized. MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I support the stand of Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the date of the ratification of the Constitution The announcement merely confirms the ratification even if the results are released two or three days after. I think it is a fundamental principle in political law, even in civil law, because an announcement is a mere confirmation The act of ratification is the act of voting by the people. So that is the date of the ratification. If there should be any need for presidential proclamation, that proclamation will merely confirm the act of ratification. Thank you, Madam President. THE PRESIDENT. Does Commissioner Regalado want to contribute? MR. REGALADO. Madam President, I was precisely going to state the same support for Commissioner Bernas, because the canvass thereafter is merely the mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite. MR. LERUM. Madam President, may I be recognized. THE PRESIDENT. Commissioner Lerum is recognized.

MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity of the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to the obligations and rights that accrue upon the approval of the Constitution? So I think we must have a definite date. I am, therefore, in favor of the Davide amendment. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized. MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the Commission on Elections to declare the results of the canvass? FR. BERNAS. There would be because it is the Commission on Elections which makes the official announcement of the results. MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has declared the results of the canvass, will there be a necessity for the President to make a proclamation of the results of the canvass as submitted by the Commission on Elections? FR. BERNAS. I would say there would be no necessity, Madam President. MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the Constitution has been ratified or not. FR. BERNAS. I would say that the proclamation made by the President would be immaterial because under the law, the administration of all election laws is under an independent Commission on Elections. It is the Commission on Elections which announces the results. MR. MAAMBONG. But nevertheless, the President may make the proclamation. FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on Elections says, it would have no effect. I would only add that when we say that the date of effectivity is on the day of the casting of the votes, what we mean is that the Constitution takes effect on every single minute and every single second of that day, because the Civil Code says a day has 24 hours.So that even if the votes are cast in the morning, the Constitution is really effective from the previous midnight. So that when we adopted the new rule on citizenship, the children of Filipino mothers or anybody born on the date of effectivity of the 1973 Constitution, which is January 17, 1973, are natural-born citizens, no matter what time of day or night. MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of the canvass by the COMELEC retroacts to the date of the plebiscite? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. I thank the Commissioner. MR. GUINGONA. Madam President. THE PRESIDENT. Commissioner Guingona is recognized. MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the proposal of Commissioner Bernas which speaks of the date (of ratification that would have a definite date, because there would be no definite date if we depend upon the canvassing by the COMELEC. Thank you, THE PRESIDENT. Commissioner Concepcion is recognized. MR. CONCEPCION. Thank you, Madam President. Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President, would announce that a majority of the votes cast on a given date was in favor of the Constitution. And that is the date when the Constitution takes effect, apart from the fact that the provision on the drafting or amendment of the Constitution provides that a constitution becomes effective upon ratification by a majority of the votes cast, although I would not say from the very beginning of the date of election because as of that time it is impossible to determine whether there is a majority. At the end of the day of election or plebiscite, the determination is made as of that time-the majority of the votes cast in a plebiscite held on such and such a date. So that is the time when the new Constitution will be considered ratified and, therefore, effective. THE PRESIDENT. May we now hear Vice-President Padilla.

MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I support the view of Commissioner Bernas and the others because the ratification of the Constitution is on the date the people, by a majority vote, have cast their votes in favor of the Constitution. Even in civil law, if there is a contract, say, between an agent and a third person and that contract is confirmed or ratified by the principal, the validity does not begin on the date of ratification but it retroacts from the date the contract was executed. Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast their affirmative votes in favor of the Constitution. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective on the very day of the plebiscite, I am withdrawing my amendment on the assumption that any of the following bodies the Office of the President or the COMELEC will make the formal announcement of the results. MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the committee. MR. MAAMBONG. The committee will read again the formulation indicated in the original committee report as Section 12. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and shall supersede all previous Constitutions. We ask for a vote, Madam President. VOTING THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their hands.) As many as are against, please raise their hand. (No Member raised his hand.) The results show 35 votes in favor and none against; Section 12 is approved.
2

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the 1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no longer exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC Governor's designation on February 8, 1987 of their successors could no longer produce any legal force and effect. While the Provisional Constitution provided for a one-year period expiring on March 25, 1987 within which the power of replacement could be exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they would have so provided for in the Transitory Article, as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII, e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers by the incumbent President until the convening of the first Congress, etc. A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the Judicial and Bar Council created under the Constitution. It should be stated for the record that the reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on February 1, 1987 and they were all appointed on or before January 31, 1987. 3(Similarly, the records of the Department of Justice likewise show that the appointment papers of the last batch of provincial and city fiscals signed by the President in completion of the reorganization of the prosecution service were made on January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the Judiciary have been extended by the President, pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared by the Court. CRUZ, J., concurring. In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones of thunder. She has written another persuasive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having acquired security of tenure under the new Constitution. Our difference is that whereas I would make that right commence on February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with her ponencia completely. SARMIENTO, J., Dissenting.

With due respect to the majority I register this dissent. While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the tenure of government functionaries, as follows: SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from February 25, 1986. was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same was proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2, 1987, plebiscite day. I rely, first and foremost, on the language of the 1987 Charter itself, thus: Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been ascertained, and not at the time the people cast their votes to approve or reject it. For it cannot be logically said that Constitution was ratified during such a plebiscite, when the will of the people as of that time, had not, and could not have been, vet determined. Other than that, pragmatic considerations compel me to take the view. I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have been valid under the Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows: xxx xxx xxx Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. xxx xxx xxx Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy, Such appointments need no confirmation. xxx xxx xxx such appointments could be open to serious questions. Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments thereto from the date it is proclaimed ratified. In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus: SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of nineteen-hundred and thirty- five and all amendments thereto. On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that. By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as duly ratified by the Filipino people in the referendum- plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect as of this date. It shall be noted that under Amendment No. 9 of the said 1976 amendments. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by a majority of the votes cast in the referendum-plebiscite.

On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution" (lengthening the terms of office of judges and justices). The Proclamation provides: [t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held, together with the election for local officials, on January 30, 1980, and that said amendment is hereby declared to take effect immediately. It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect on the date the incumbent President/Prime Minister shall proclaim its ratification. On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the said amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which parented these amendments, the same: . . .shall become valid as part of the Constitution when approved by a majority of the votes cast in a plebiscite to be held pursuant to Section 2, Article XVI of the Constitution. On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate Funds Therefore," provides, as follows: SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the plebiscite using the certificates submitted to it, duly authenticated and certified by the Board of Canvassers of each province or city. We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments: ....are therefore effective and in full force and effect as of the date of this Proclamation. It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643), which states, that: The proposed amendments shall take effect on the date the President of the Philippines shall proclaim that they have been ratified by a majority of the votes cast in the plebiscite held for the purpose, but not later than three months from the approval of the amendments. albeit Resolutions Nos. 105, 111, and 113 provide, that: These amendments shall be valid as a part of the Constitution when approved by a majority of the votes cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant to Section 2 of Article XVI of the Constitution, as amended. That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite is a view that is not peculiar to the Marcos era. The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention of a retroactive application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace: ... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of 1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and is therefore effective and in full force and effect. the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time. I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-examination. I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in force.

Separate Opinions TEEHANKEE, CJ., concurring: The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that the plebiscite for its ratification was held or whether it took effect on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino. The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date. The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall have been ascertained and not at the time the people cast their votes to approve or reject it." This view was actually proposed at the Constitutional Commission deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will be effective on the very day of the plebiscite." The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor and none against) the aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by the people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite." The record of the deliberations and the voting is reproduced hereinbelow: 1 MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee as indicated in Section 12, unless there are other commissioners who would like to present amendments. MR. DAVIDE. Madam President. THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. May I propose the following amendments. On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after "constitutions," add the following: "AND THEIR AMENDMENTS." MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an additional sentence, the committee would suggest that we take up first his amendment to the first sentence as originally formulated. We are now ready to comment on that proposed amendment. The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment would be: After the word "constitutions," add the words" AND THEIR AMENDMENTS," The committee accepts the first proposed amendment. However, we regret that we cannot accept the second proposed amendment after the word "constitutions" because the committee feels that when we talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS." MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request that I be allowed to read the second amendment so the Commission would be able to appreciate the change in the first. MR. MAAMBONG. Yes, Madam President, we can now do that. MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE." MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the second proposed amendment in the form of a new sentence would not be exactly necessary and the committee feels that it would be too much for us to impose a time frame on the President to make the proclamation. As we would recall, Madam President, in the approved Article on the Executive, there is a provision which says that the President shall make certain that all laws shall be faithfully complied. When we approve this first sentence, and it says that there will be a proclamation by the President that the Constitution has been ratified, the President will naturally comply with the law in accordance with the provisions in the Article on the Executive which we have cited. It would be too much to impose on the President a time frame within which she will make that declaration. It would be assumed that the President would immediately do that after the results shall have been canvassed by the COMELEC. Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is proposing, Madam President.

MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate proclamation of the results by the President. MR. MAAMBONG. With that understanding, Madam President. MR. DAVIDE. I will not insist on the second sentence. FR. BERNAS. Madam President. THE PRESIDENT. Commissioner Bernas is recognized. FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes the effectivity of the new Constitution dependent upon the proclamation of the President. The effectivity of the Constitution should commence on the date of the ratification, not on the date of the proclamation of the President . What is confusing, I think, is what happened in 1976 when the amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were effective upon the proclamation of the President was that the draft presented to the people said that the amendment will be effective upon the proclamation made by the President. I have a suspicion that was put in there precisely to give the President some kind of leeway on whether to announce the ratification or not. Therefore, we should not make this dependent on the action of the President since this will be a manifestation of the act of the people to be done under the supervision of the COMELEC and it should be the COMELEC who should make the announcement that, in fact, the votes show that the Constitution was ratified and there should be no need to wait for any proclamation on the part of the President. MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions? FR. BERNAS. Willingly, Madam President. MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the Constitution is supposed to be ratified. FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to have been cast. MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by the Commission on Elections. If we delete the suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the Constitution is supposed to be ratified or not ratified, as the case may be? FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite would be held, for instance, on January 19, 1987, then the date for the effectivity of the new Constitution would be January 19, 1987. MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the Commission on Elections which will be doing the canvass? That is immaterial Madam President FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when one casts his ballot. MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the proponent, Commissioner Davide, if he is insisting on his amendment. MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the ballots. That cannot be the date of reckoning because it is a plebiscite all over the country. We do not split the moment of casting by each of the voters. Actually and technically speaking, it would be all right if it would be upon the announcement of the results of the canvass conducted by the COMELEC or the results of the plebiscite held all over the country. But it is necessary that there be a body which will make the formal announcement of the results of the plebiscite. So it is either the President or the COMELEC itself upon the completion of the canvass of the results of the plebiscite, and I opted for the President. xxx xxx xxx MR. NOLLEDO. Madam President. THE PRESIDENT. Commissioner Nolledo is recognized. MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I support the stand of Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the date of the ratification of the Constitution The

announcement merely confirms the ratification even if the results are released two or three days after. I think it is a fundamental principle in political law, even in civil law, because an announcement is a mere confirmation The act of ratification is the act of voting by the people. So that is the date of the ratification. If there should be any need for presidential proclamation, that proclamation will merely confirm the act of ratification. Thank you, Madam President. THE PRESIDENT. Does Commissioner Regalado want to contribute? MR. REGALADO. Madam President, I was precisely going to state the same support for Commissioner Bernas, because the canvass thereafter is merely the mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite. MR. LERUM. Madam President, may I be recognized. THE PRESIDENT. Commissioner Lerum is recognized. MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity of the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to the obligations and rights that accrue upon the approval of the Constitution? So I think we must have a definite date. I am, therefore, in favor of the Davide amendment. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized. MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the Commission on Elections to declare the results of the canvass? FR. BERNAS. There would be because it is the Commission on Elections which makes the official announcement of the results. MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has declared the results of the canvass, will there be a necessity for the President to make a proclamation of the results of the canvass as submitted by the Commission on Elections? FR. BERNAS. I would say there would be no necessity, Madam President. MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the Constitution has been ratified or not. FR. BERNAS. I would say that the proclamation made by the President would be immaterial because under the law, the administration of all election laws is under an independent Commission on Elections. It is the Commission on Elections which announces the results. MR. MAAMBONG. But nevertheless, the President may make the proclamation. FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on Elections says, it would have no effect. I would only add that when we say that the date of effectivity is on the day of the casting of the votes, what we mean is that the Constitution takes effect on every single minute and every single second of that day, because the Civil Code says a day has 24 hours. So that even if the votes are cast in the morning, the Constitution is really effective from the previous midnight. So that when we adopted the new rule on citizenship, the children of Filipino mothers or anybody born on the date of effectivity of the 1973 Constitution, which is January 17, 1973, are natural-born citizens, no matter what time of day or night. MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of the canvass by the COMELEC retroacts to the date of the plebiscite? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. I thank the Commissioner. MR. GUINGONA. Madam President. THE PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the proposal of Commissioner Bernas which speaks of the date (of ratification that would have a definite date, because there would be no definite date if we depend upon the canvassing by the COMELEC. Thank you, THE PRESIDENT. Commissioner Concepcion is recognized. MR. CONCEPCION. Thank you, Madam President. Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President, would announce that a majority of the votes cast on a given date was in favor of the Constitution. And that is the date when the Constitution takes effect, apart from the fact that the provision on the drafting or amendment of the Constitution provides that a constitution becomes effective upon ratification by a majority of the votes cast, although I would not say from the very beginning of the date of election because as of that time it is impossible to determine whether there is a majority. At the end of the day of election or plebiscite, the determination is made as of that time-the majority of the votes cast in a plebiscite held on such and such a date. So that is the time when the new Constitution will be considered ratified and, therefore, effective. THE PRESIDENT. May we now hear Vice-President Padilla. MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I support the view of Commissioner Bernas and the others because the ratification of the Constitution is on the date the people, by a majority vote, have cast their votes in favor of the Constitution. Even in civil law, if there is a contract, say, between an agent and a third person and that contract is confirmed or ratified by the principal, the validity does not begin on the date of ratification but it retroacts from the date the contract was executed. Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast their affirmative votes in favor of the Constitution. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective on the very day of the plebiscite, I am withdrawing my amendment on the assumption that any of the following bodies the Office of the President or the COMELEC will make the formal announcement of the results. MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the committee. MR. MAAMBONG. The committee will read again the formulation indicated in the original committee report as Section 12. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and shall supersede all previous Constitutions. We ask for a vote, Madam President. VOTING THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their hands.) As many as are against, please raise their hand. (No Member raised his hand.) The results show 35 votes in favor and none against; Section 12 is approved.
2

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the 1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no longer exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC Governor's designation on February 8, 1987 of their successors could no longer produce any legal force and effect. While the Provisional Constitution provided for a one-year period expiring on March 25, 1987 within which the power of replacement could be exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they would have so provided for in the Transitory Article, as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII, e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers by the incumbent President until the convening of the first Congress, etc.

A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the Judicial and Bar Council created under the Constitution. It should be stated for the record that the reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on February 1, 1987 and they were all appointed on or before January 31, 1987. 3(Similarly, the records of the Department of Justice likewise show that the appointment papers of the last batch of provincial and city fiscals signed by the President in completion of the reorganization of the prosecution service were made on January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the Judiciary have been extended by the President, pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared by the Court. CRUZ, J., concurring. In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones of thunder. She has written another persuasive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having acquired security of tenure under the new Constitution. Our difference is that whereas I would make that right commence on February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with her ponencia completely. SARMIENTO, J., Dissenting. With due respect to the majority I register this dissent. While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the tenure of government functionaries, as follows: SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from February 25, 1986. was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same was proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2, 1987, plebiscite day. I rely, first and foremost, on the language of the 1987 Charter itself, thus: Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been ascertained, and not at the time the people cast their votes to approve or reject it. For it cannot be logically said that Constitution was ratified during such a plebiscite, when the will of the people as of that time, had not, and could not have been, vet determined. Other than that, pragmatic considerations compel me to take the view. I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have been valid under the Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows: xxx xxx xxx Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. xxx xxx xxx 2Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy, Such appointments need no confirmation. xxx xxx xxx such appointments could be open to serious questions. Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments thereto from the date it is proclaimed ratified.

In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus: SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of nineteen-hundred and thirty- five and all amendments thereto. On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that. By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as duly ratified by the Filipino people in the referendum plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect as of this date. It shall be noted that under Amendment No. 9 of the said 1976 amendments. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by a majority of the votes cast in the referendum-plebiscite. On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution" (lengthening the terms of office of judges and justices). The Proclamation provides: [t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held, together with the election for local officials, on January 30, 1980, and that said amendment is hereby declared to take effect immediately. It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect on the date the incumbent President/Prime Minister shall proclaim its ratification. On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the said amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which parented these amendments, the same: ... shall become valid as part of the Constitution when approved by a majority of the votes cast in a plebiscite to be held pursuant to Section 2, Article XVI of the Constitution. On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate Funds Therefore," provides, as follows: SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the plebiscite using the certificates submitted to it, duly authenticated and certified by the Board of Canvassers of each province or city. We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments: ....are therefore effective and in full force and effect as of the date of this Proclamation. It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643), which states, that: The proposed amendments shall take effect on the date the President of the Philippines shall proclaim that they have been ratified by a majority of the votes cast in the plebiscite held for the purpose, but not later than three months from the approval of the amendments. albeit Resolutions Nos. 105, 111, and 113 provide, that: These amendments shall be valid as a part of the Constitution when approved by a majority of the votes cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant to Section 2 of Article XVI of the Constitution, as amended. That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite is a view that is not peculiar to the Marcos era. The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no

mention of a retroactive application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace: ... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of 1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and is therefore effective and in full force and effect. the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time. I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-examination. I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in force. Footnotes

a. Difference The Two-Part-Test, Lambino vs. Comelec, GR No. 174153, Oct. 25, 2006

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS, Petitioners, vs. THE COMMISSION ON ELECTIONS, Respondent. x--------------------------------------------------------x ALTERNATIVE LAW GROUPS, INC., Intervenor. x ------------------------------------------------------ x ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors. x------------------------------------------------------ x ATTY. PETE QUIRINO QUADRA, Intervenor. x--------------------------------------------------------x BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas, MIGRANTE represented by its Chairperson Concepcion Bragas-Regalado, GABRIELA represented by its Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR. REGINALD PAMUGAS of Health Action for Human Rights, Intervenors. x--------------------------------------------------------x

LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-BARAQUEL, Intervenors. x--------------------------------------------------------x ARTURO M. DE CASTRO, Intervenor. x ------------------------------------------------------- x TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor. x---------------------------------------------------------x LUWALHATI RICASA ANTONINO, Intervenor. x ------------------------------------------------------- x PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors. x ------------------------------------------------------- x RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors. x -------------------------------------------------------- x PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR. VICTORINO F. BALAIS, Intervenors. x -------------------------------------------------------- x SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., Intervenor. x ------------------------------------------------------- x SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor. x ------------------------------------------------------- x JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR, and RANDALL TABAYOYONG, Intervenors. x -------------------------------------------------------- x INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE CHAPTERS, Intervenors. x --------------------------------------------------------x SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors. x -----------------------------------------------------x JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors. x -----------------------------------------------------x G.R. No. 174299 October 25, 2006

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

DECISION

CARPIO, J.: The Case These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections ("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution. Antecedent Facts On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado ("Lambino Group"), with other groups 1 and individuals, commenced gathering signatures for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under Section 5(b) and (c) 2 and Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act ("RA 6735"). The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least twelve per centum (12%) of all registered voters, with each legislative district represented by at least three per centum(3%) of its registered voters. The Lambino Group also claimed that COMELEC election registrars had verified the signatures of the 6.3 million individuals. The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI (Legislative Department) 4 and Sections 1-4 of Article VII (Executive Department)5 and by adding Article XVIII entitled "Transitory Provisions." 6 These proposed changes will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The Lambino Group prayed that after due publication of their petition, the COMELEC should submit the following proposition in a plebiscite for the voters' ratification: DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER? On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating modifications in the proposed Article XVIII (Transitory Provisions) of their initiative.7 The Ruling of the COMELEC On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino Group's petition for lack of an enabling law governing initiative petitions to amend the Constitution. The COMELEC invoked this Court's ruling in Santiago v. Commission on Elections8 declaring RA 6735 inadequate to implement the initiative clause on proposals to amend the Constitution. 9 In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel the COMELEC to give due course to their initiative petition. The Lambino Group contends that the COMELEC committed grave abuse of discretion in denying due course to their petition since Santiago is not a binding precedent. Alternatively, the Lambino Group claims that Santiago binds only the parties to that case, and their petition deserves cognizance as an expression of the "will of the sovereign people." In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC Commissioners to show cause why they should not be cited in contempt for the COMELEC's verification of signatures and for "entertaining" the Lambino Group's petition despite the permanent injunction in Santiago. The Court treated the Binay Group's petition as an opposition-in-intervention. In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the petitioners, urging the Court to grant the petition despite the Santiago ruling. The Solicitor General proposed that the Court treat RA 6735 and its implementing rules "as temporary devises to implement the system of initiative." Various groups and individuals sought intervention, filing pleadings supporting or opposing the Lambino Group's petition. The supporting intervenors10 uniformly hold the view that the COMELEC committed grave abuse of discretion in relying on Santiago. On the other hand, the opposing intervenors11 hold the contrary view and maintain that Santiago is a binding precedent. The opposing intervenors also challenged (1) the Lambino Group's standing to file the petition; (2) the validity of the signature gathering and verification process; (3) the Lambino Group's compliance with the minimum requirement for the percentage of voters supporting an initiative petition under Section 2, Article XVII of the 1987 Constitution; 12 (4) the nature of the proposed changes as revisions and not mere amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's compliance with the requirement in Section 10(a) of RA 6735 limiting initiative petitions to only one subject. The Court heard the parties and intervenors in oral arguments on 26 September 2006. After receiving the parties' memoranda, the Court considered the case submitted for resolution.

The Issues The petitions raise the following issues: 1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the Constitution on amendments to the Constitution through a people's initiative; 2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to implement the initiative clause on proposals to amend the Constitution; and 3. Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino Group's petition. The Ruling of the Court There is no merit to the petition. The Lambino Group miserably failed to comply with the basic requirements of the Constitution for conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the Lambino Group's glaring failure to comply with the basic requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse of discretion is attributable to the Commision on Elections. 1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct Proposal by the People Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people's initiative to propose amendments to the Constitution. This section states: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters of which every legislative district must be represented by at least three per centum of the registered voters therein. x x x x (Emphasis supplied) The deliberations of the Constitutional Commission vividly explain the meaning of an amendment "directly proposed by the people through initiative upon a petition," thus: MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. Is the draft of the proposed constitutional amendment ready to be shown to the people when they are asked to sign ? MR. SUAREZ: That can be reasonably assumed, Madam President. MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign. Now, who prepares the draft? MR. SUAREZ: The people themselves, Madam President. MR. RODRIGO: No, because before they sign there is already a draft shown to them and they are asked whether or not they want to propose this constitutional amendment. MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for signature.13 (Emphasis supplied) Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional amendment" should be "ready and shown" to the people "before" they sign such proposal. The framers plainly stated that "before they sign there is already a draft shown to them." The framers also "envisioned" that the people should sign on the proposal itself because the proponents must "prepare that proposal and pass it around for signature." The essence of amendments "directly proposed by the people through initiative upon a petition" is thatthe entire proposal on its face is a petition by the people. This means two essential elements must be present. First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition. These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition. Thus, an amendment is "directly proposed by the people through initiative upon a petition" only if the people sign on a petition that contains the full text of the proposed amendments. The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached, the petition must state the fact of such attachment. This is an assurance that every one of the several millions of signatories to the petition had seen the full text of the proposed amendments before signing. Otherwise, it is physically impossible, given the time constraint, to prove that every one of the millions of signatories had seen the full text of the proposed amendments before signing. The framers of the Constitution directly borrowed14 the concept of people's initiative from the United States where various State constitutions incorporate an initiative clause. In almost all States15 which allow initiative petitions, the unbending requirement is that the people must first see the full text of

the proposed amendments before they sign to signify their assent, and that the people must sign on an initiative petition that contains the full text of the proposed amendments.16 The rationale for this requirement has been repeatedly explained in several decisions of various courts. Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts, affirmed by the First Circuit Court of Appeals, declared: [A] signature requirement would be meaningless if the person supplying the signature has not first seen what it is that he or she is signing. Further, and more importantly, loose interpretation of the subscription requirement can pose a significant potential for fraud. A person permitted to describe orally the contents of an initiative petition to a potential signer, without the signer having actually examined the petition, could easily mislead the signer by, for example, omitting, downplaying, or even flatly misrepresenting, portions of the petition that might not be to the signer's liking. This danger seems particularly acute when, in this case, the person giving the description is the drafter of the petition, who obviously has a vested interest in seeing that it gets the requisite signatures to qualify for the ballot .17 (Boldfacing and underscoring supplied) Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained: The purposes of "full text" provisions that apply to amendments by initiative commonly are described in similar terms. x x x ( The purpose of the full text requirement is to provide sufficient information so that registered voters can intelligently evaluate whether to sign the initiative petition."); x x x (publication of full text of amended constitutional provision required because it is "essential for the elector to have x x x the section which is proposed to be added to or subtracted from. If he is to vote intelligently, he must have this knowledge. Otherwise in many instances he would be required to vote in the dark.") (Emphasis supplied) Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed" and failure to do so is "deceptive and misleading" which renders the initiative void.19 Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the proposed amendments. However, the deliberations of the framers of our Constitution clearly show that the framers intended to adopt the relevant American jurisprudence on people's initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the framers intended that the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text . Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as valid, requires that the people must sign the " petition x x x as signatories." The proponents of the initiative secure the signatures from the people. The proponents secure the signatures in their private capacity and not as public officials. The proponents are not disinterested parties who can impartially explain the advantages and disadvantages of the proposed amendments to the people. The proponents present favorably their proposal to the people and do not present the arguments against their proposal. The proponents, or their supporters, often pay those who gather the signatures. Thus, there is no presumption that the proponents observed the constitutional requirements in gathering the signatures. The proponents bear the burden of proving that they complied with the constitutional requirements in gathering the signatures - that the petition contained, or incorporated by attachment, the full text of the proposed amendments. The Lambino Group did not attach to their present petition with this Court a copy of the paper that the people signed as their initiative petition. The Lambino Group submitted to this Court a copy of a signature sheet20 after the oral arguments of 26 September 2006 when they filed their Memorandum on 11 October 2006. The signature sheet with this Court during the oral arguments was the signature sheet attached 21 to the opposition in intervention filed on 7 September 2006 by intervenor Atty. Pete Quirino-Quadra. The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the Lambino Group's Memorandum are the same. We reproduce below the signature sheet in full: Province: Legislative District: City/Municipality: Barangay: No. of Verified Signatures: PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?" I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which shall form part of the petition for initiative to amend the Constitution signifies my support for the filing thereof. Precinct Number Name Last Name, First Name, M.I. 1 2 Address Birthdate MM/DD/YY Signature Verification

3 4 5 6 7 8 9 10 _________________ Barangay Official (Print Name and Sign) _________________ Witness (Print Name and Sign) __________________ Witness (Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed changes in the signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral arguments before this Court on 26 September 2006. The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the Unicameral-Parliamentary system of government. The signature sheet does not show to the people the draft of the proposed changes before they are asked to sign the signature sheet. Clearly, the signature sheet is not the "petition" that the framers of the Constitution envisioned when they formulated the initiative clause in Section 2, Article XVII of the Constitution. Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to August 2006, the Lambino Group circulated, together with the signature sheets, printed copies of the Lambino Group's draft petition which they later filed on 25 August 2006 with the COMELEC. When asked if his group also circulated the draft of their amended petition filed on 30 August 2006 with the COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty. Lambino changed his answer and stated that what his group circulated was the draft of the 30 August 2006 amended petition, not the draft of the 25 August 2006 petition. The Lambino Group would have this Court believe that they prepared the draft of the 30 August 2006 amended petition almost seven months earlier in February 2006 when they started gathering signatures. Petitioner Erico B. Aumentado's "Verification/Certification" of the 25 August 2006 petition, as well as of the 30 August 2006 amended petition, filed with the COMELEC, states as follows: I have caused the preparation of the foregoing [Amended] Petition in my personal capacity as a registered voter, for and on behalf of the Union of Local Authorities of the Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached , and as representative of the mass of signatories hereto. (Emphasis supplied) The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition. However, the "Official Website of the Union of Local Authorities of the Philippines"22 has posted the full text of Resolution No. 2006-02, which provides: RESOLUTION NO. 2006-02 RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a common stand on the approach to support the proposals of the People's Consultative Commission on Charter Change; WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint Declaration for Constitutional Reforms signed by the members of the ULAP and the majority coalition of the House of Representatives in Manila Hotel sometime in October 2005; WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency to recommend amendments to the 1987 Constitution has submitted its final report sometime in December 2005; WHEREAS, the ULAP is mindful of the current political developments in Congress which militates against the use of the expeditious form of amending the 1987 Constitution; WHEREAS, subject to the ratification of its institutional members and the failure of Congress to amend the Constitution as a constituent assembly, ULAP has unanimously agreed to pursue the constitutional reform agenda through People's Initiative and Referendum without prejudice to other pragmatic means to pursue the same; WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION; DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at the Century Park Hotel, Manila.23 (Underscoring supplied)

ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter Change through people's initiative and referendum as a mode of amending the 1987 Constitution." The proposals of the Consultative Commission24 arevastly different from the proposed changes of the Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with the COMELEC. For example, the proposed revisions of the Consultative Commission affect all provisions of the existing Constitution, from the Preamble to the Transitory Provisions. The proposed revisions have profound impact on the Judiciary and the National Patrimony provisions of the existing Constitution, provisions that the Lambino Group's proposed changes do not touch. The Lambino Group's proposed changes purport to affect only Articles VI and VII of the existing Constitution, including the introduction of new Transitory Provisions. The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the filing of the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC. However, ULAP Resolution No. 2006-02 does not establish that ULAP or the Lambino Group caused the circulation of the draft petition, together with the signature sheets, six months before the filing with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the Lambino Group's claim that they circulated the draft petition together with the signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the Lambino Group's proposed changes . In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group declared: After the Petition was filed, Petitioners belatedly realized that the proposed amendments alleged in the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of Section 5 of the Transitory Provisions were inaccurately stated and failed to correctly reflect their proposed amendments. The Lambino Group did not allege that they were amending the petition because the amended petition was what they had shown to the people during the February to August 2006 signature-gathering. Instead, the Lambino Group alleged that the petition of 25 August 2006 "inaccurately stated and failed to correctly reflect their proposed amendments." The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC that they circulated printed copies of the draft petition together with the signature sheets. Likewise, the Lambino Group did not allege in their present petition before this Court that they circulated printed copies of the draft petition together with the signature sheets. The signature sheets do not also contain any indication that the draft petition is attached to, or circulated with, the signature sheets. It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first claimed that they circulated the "petition for initiative filed with the COMELEC," thus: [T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer who did not read the measure attached to a referendum petition cannot question his signature on the ground that he did not understand the nature of the act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who signed the signature sheets circulated together with the petition for initiative filed with the COMELEC below, are presumed to have understood the proposition contained in the petition. (Emphasis supplied) The Lambino Group's statement that they circulated to the people "the petition for initiative filed with the COMELEC " appears an afterthought, made after the intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that the signature sheets did not contain the text of the proposed changes. In their Consolidated Reply, the Lambino Group alleged that they circulated " the petition for initiative" but failed to mention the amended petition. This contradicts what Atty. Lambino finally stated during the oral arguments that what they circulated was the draft of the amended petition of 30 August 2006. The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not read the measure attached to a referendum petition cannot question his signature on the ground that he did not understand the nature of the act." The Lambino Group quotes an authority that cites a proposed changeattached to the petition signed by the people. Even the authority the Lambino Group quotes requires that the proposed change must be attached to the petition. The same authority the Lambino Group quotes requires the people to sign on the petition itself. Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated with, or attached to, the initiative petition signed by the people. In the present initiative, the Lambino Group's proposed changes were not incorporated with, or attached to, the signature sheets. The Lambino Group's citation of Corpus Juris Secundum pulls the rug from under their feet. It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to August 2006 during the signature-gathering period, the draft of the petition or amended petition they filed later with the COMELEC. The Lambino Group are less than candid with this Court in their belated claim that they printed and circulated, together with the signature sheets, the petition or amended petition. Nevertheless, even assuming the Lambino Group circulated the amended petition during the signature-gathering period, the Lambino Group admitted circulating only very limited copies of the petition. During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000 copies of the draft petition they filed more than six months later with the COMELEC. Atty. Lambino added that he also asked other supporters to print additional copies of the draft petition but he could not state with certainty how many additional copies the other supporters printed. Atty. Lambino could only assure this Court of the printing of 100,000 copies because he himself caused the printing of these 100,000 copies. Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group expressly admits that "petitioner Lambino initiated the printing and reproduction of 100,000 copies of the petition for initiative x x x."25 This admission binds the Lambino Group and establishes

beyond any doubt that the Lambino Group failed to show the full text of the proposed changes to the great majority of the people who signed the signature sheets. Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one copy each of the petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and company attached one copy of the petition to each signature sheet, only 100,000 signature sheets could have circulated with the petition. Each signature sheet contains space for ten signatures. Assuming ten people signed each of these 100,000 signature sheets with the attached petition, the maximum number of people who saw the petition before they signed the signature sheets would not exceed 1,000,000. With only 100,000 printed copies of the petition, it would be physically impossible for all or a great majority of the 6.3 million signatories to have seen the petition before they signed the signature sheets. The inescapable conclusion is that the Lambino Group failed to show to the 6.3 million signatories the full text of the proposed changes. If ever, not more than one million signatories saw the petition before they signed the signature sheets. In any event, the Lambino Group's signature sheets do not contain the full text of the proposed changes, either on the face of the signature sheets, or as attachment with an indication in the signature sheet of such attachment.Petitioner Atty. Lambino admitted this during the oral arguments, and this admission binds the Lambino Group. This fact is also obvious from a mere reading of the signature sheet. This omission is fatal . The failure to so include the text of the proposed changes in the signature sheets renders the initiative void for non-compliance with the constitutional requirement that the amendment must be "directly proposed by the people through initiative upon a petition." The signature sheet is not the "petition" envisioned in the initiative clause of the Constitution. For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full text of the proposed changes before signing. They could not have known the nature and effect of the proposed changes, among which are: 1. The term limits on members of the legislature will be lifted and thus members of Parliament can be re-elected indefinitely;26 2. The interim Parliament can continue to function indefinitely until its members, who are almost all the present members of Congress, decide to call for new parliamentary elections. Thus, the members of the interim Parliament will determine the expiration of their own term of office; 27 3. Within 45 days from the ratification of the proposed changes, the interim Parliament shall convene to propose further amendments or revisions to the Constitution.28 These three specific amendments are not stated or even indicated in the Lambino Group's signature sheets. The people who signed the signature sheets had no idea that they were proposing these amendments. These three proposed changes are highly controversial. The people could not have inferred or divined these proposed changes merely from a reading or rereading of the contents of the signature sheets. During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people during the signature-gathering that the elections for the regular Parliament would be held during the 2007 local elections if the proposed changes were ratified before the 2007 local elections. However, the text of the proposed changes belies this. The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states: Section 5(2). The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials. x x x x (Emphasis supplied) Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with the 2007 local elections. This section merely requires that the elections for the regular Parliament shall be held simultaneously with the local elections without specifying the year. Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily written the word "next" before the phrase "election of all local government officials." This would have insured that the elections for the regular Parliament would be held in the next local elections following the ratification of the proposed changes. However, the absence of the word " next" allows the interim Parliament to schedule the elections for the regular Parliament simultaneously with any future local elections. Thus, the members of the interim Parliament will decide the expiration of their own term of office. This allows incumbent members of the House of Representatives to hold office beyond their current three-year term of office, and possibly even beyond the five-year term of office of regular members of the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his group to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group deceived the 6.3 million signatories, and even the entire nation . This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group because the signature sheets did not contain the full text of the proposed changes. The result is a grand deception on the 6.3 million signatories who were led to believe that the proposed changes would require the holding in 2007 of elections for the regular Parliament simultaneously with the local elections. The Lambino Group's initiative springs another surprise on the people who signed the signature sheets. The proposed changes mandate the interim Parliament to make further amendments or revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions, provides:

Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. (Emphasis supplied) During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court and the people should simply ignore it. Far from being a surplusage, this provision invalidates the Lambino Group's initiative. Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling - when the initiative petition incorporates an unrelated subject matter in the same petition. This puts the people in a dilemma since they can answer only either yes or no to the entire proposition, forcing them to sign a petition that effectively contains two propositions, one of which they may find unacceptable. Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only the unrelated subject matter. Thus, in Fine v. Firestone,29 the Supreme Court of Florida declared: Combining multiple propositions into one proposal constitutes "logrolling," which, if our judicial responsibility is to mean anything, we cannot permit. The very broadness of the proposed amendment amounts to logrolling because the electorate cannot know what it is voting on - the amendment's proponents' simplistic explanation reveals only the tip of the iceberg. x x x x The ballot must give the electorate fair notice of the proposed amendment being voted on. x x x x The ballot language in the instant case fails to do that. The very broadness of the proposal makes it impossible to state what it will affect and effect and violates the requirement that proposed amendments embrace only one subject. (Emphasis supplied) Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the Supreme Court of Alaska warned against "inadvertence, stealth and fraud" in logrolling: Whenever a bill becomes law through the initiative process, all of the problems that the single-subject rule was enacted to prevent are exacerbated. There is a greater danger of logrolling, or the deliberate intermingling of issues to increase the likelihood of an initiative's passage, and there is a greater opportunity for "inadvertence, stealth and fraud" in the enactment-by-initiative process . The drafters of an initiative operate independently of any structured or supervised process. They often emphasize particular provisions of their proposition, while remaining silent on other (more complex or less appealing) provisions, when communicating to the public. x x x Indeed, initiative promoters typically use simplistic advertising to present their initiative to potential petition-signers and eventual voters . Many voters will never read the full text of the initiative before the election. More importantly, there is no process for amending or splitting the several provisions in an initiative proposal. These difficulties clearly distinguish the initiative from the legislative process. (Emphasis supplied) Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be undertaken by the interim Parliament as a constituent assembly. The people who signed the signature sheets could not have known that their signatures would be used to propose an amendment mandating the interim Parliament to propose further amendments or revisions to the Constitution. Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to amend or revise again the Constitution within 45 days from ratification of the proposed changes, or before the May 2007 elections. In the absence of the proposed Section 4(4), the interim Parliament has the discretion whether to amend or revise again the Constitution. With the proposed Section 4(4), the initiative proponents want the interim Parliament mandated to immediately amend or revise again the Constitution. However, the signature sheets do not explain the reason for this rush in amending or revising again so soon the Constitution. The signature sheets do not also explain what specific amendments or revisions the initiative proponents want the interim Parliament to make, and why there is a need for such further amendments or revisions. The people are again left in the dark to fathom the nature and effect of the proposed changes . Certainly, such an initiative is not "directly proposed by the people" because the people do not even know the nature and effect of the proposed changes. There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August 2006. The proposed Section 4(3) of the Transitory Provisions states: Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until noon of the thirtieth day of June 2010. After 30 June 2010, not one of the present Senators will remain as member of Parliament if the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010. However, there is no counterpart provision for the present members of the House of Representatives even if their term of office will all end on 30 June 2007, three years earlier than that of half of the present Senators. Thus, all the present members of the House will remain members of the interim Parliament after 30 June 2010. The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all the powers of the President. If the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010, the Prime Minister will come only from the present members of the House of Representatives to theexclusion of the present Senators. The signature sheets do not explain this discrimination against the Senators. The 6.3 million people who signed the signature sheets could not have known that their signatures would be used to discriminate against the Senators. They could not have known that their signatures would be used to limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to members of the existing House of Representatives. An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people. That is why the Constitution requires that an initiative must be "directly proposed by the people x x x in a petition" - meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an

issue as amending the nation's fundamental law, the writing of the text of the proposed amendments cannot behidden from the people under a general or special power of attorney to unnamed, faceless, and unelected individuals. The Constitution entrusts to the people the power to directly propose amendments to the Constitution. This Court trusts the wisdom of the people even if the members of this Court do not personally know the people who sign the petition. However, this trust emanates from a fundamental assumption: the full text of the proposed amendment is first shown to the people before they sign the petition, not after they have signed the petition . In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must be "directly proposed by the people through initiative upon a petition." 2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives A people's initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution. Article XVII of the Constitution provides: ARTICLE XVII AMENDMENTS OR REVISIONS Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members, or (2) A constitutional convention. Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative x x x. (Emphasis supplied) Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a people's initiative. Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode, applies only to "[A]mendments to this Constitution." This distinction was intentional as shown by the following deliberations of the Constitutional Commission: MR. SUAREZ: Thank you, Madam President. May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should be limited to amendments to the Constitution and should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. x x x x xxxx MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision? MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution . That was the sense that was conveyed by the Committee. MS. AQUINO: In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas, the process of initiation to amend, which is given to the public, would only apply to amendments? MR. SUAREZ: That is right. Those were the terms envisioned in the Committee. MS. AQUINO: I thank the sponsor; and thank you, Madam President. xxxx

MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"? MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." MR. MAAMBONG: Thank you.31 (Emphasis supplied) There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction between "amendment" and "revision" of the Constitution. The framers intended, and wrote, that only Congress or a constitutional convention may propose revisions to the Constitution. The framers intended, and wrote, that a people's initiative may propose only amendments to the Constitution. Where the intent and language of the Constitution clearly withhold from the people the power to propose revisions to the Constitution, the people cannot propose revisions even as they are empowered to propose amendments. This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden v. Jordan,32the Supreme Court of California ruled: The initiative power reserved by the people by amendment to the Constitution x x x applies only to the proposing and the adopting or rejecting of 'laws and amendments to the Constitution' and does not purport to extend to a constitutional revision . x x x x It is thus clear that a revision of the Constitution may be accomplished only through ratification by the people of a revised constitution proposed by a convention called for that purpose as outlined hereinabove. Consequently if the scope of the proposed initiative measure (hereinafter termed 'the measure') now before us is so broad that if such measure became law a substantial revision of our present state Constitution would be effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention, and the writ sought by petitioner should issue. x x x x (Emphasis supplied) Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33 It is well established that when a constitution specifies the manner in which it may be amended or revised, it can be altered by those who favor amendments, revision, or other change only through the use of one of the specified means. The constitution itself recognizes that there is a difference between an amendment and a revision; and it is obvious from an examination of the measure here in question that it is not an amendment as that term is generally understood and as it is used in Article IV, Section 1. The document appears to be based in large part on the revision of the constitution drafted by the 'Commission for Constitutional Revision' authorized by the 1961 Legislative Assembly, x x x and submitted to the 1963 Legislative Assembly. It failed to receive in the Assembly the two-third's majority vote of both houses required by Article XVII, Section 2, and hence failed of adoption, x x x. While differing from that document in material respects, the measure sponsored by the plaintiffs is, nevertheless, a thorough overhauling of the present constitution x x x. To call it an amendment is a misnomer. Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the people through the initiative. If a revision, it is subject to the requirements of Article XVII, Section 2(1); if a new constitution, it can only be proposed at a convention called in the manner provided in Article XVII, Section 1. x x x x Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose amendments to the Constitution since the Constitution itself limits initiatives to amendments. There can be no deviation from the constitutionally prescribed modes of revising the Constitution. A popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the specific modes prescribed in the Constitution itself. As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34 It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the instrument itself, and that any attempt to revise a constitution in a manner other than the one provided in the instrument is almost invariably treated as extra-constitutional and revolutionary. x x x x "While it is universally conceded that the people are sovereign and that they have power to adopt a constitution and to change their own work at will, they must, in doing so, act in an orderly manner and according to the settled principles of constitutional law. And where the people, in adopting a constitution, have prescribed the method by which the people may alter or amend it, an attempt to change the fundamental law in violation of the self-imposed restrictions, is unconstitutional." x x x x (Emphasis supplied) This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn oath and duty to insure compliance with the clear command of the Constitution that a people's initiative may only amend, never revise, the Constitution. The question is, does the Lambino Group's initiative constitute an amendment or revision of the Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition should be dismissed for being outside the scope of Section 2, Article XVII of the Constitution. Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the earliest cases that recognized the distinction described the fundamental difference in this manner: [T]he very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the

instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term "amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.35 (Emphasis supplied) Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is "so extensive in its provisions as to change directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing provisions." 36 The court examines only the number of provisions affected and does not consider the degree of the change. The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will "accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision." 37 Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan" includes "change in its fundamental framework or the fundamental powers of its Branches."38 A change in the nature of the basic governmental plan also includes changes that "jeopardize the traditional form of government and the system of check and balances." 39 Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles - Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in the entire Constitution.40Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature. A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of government. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution. By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the Lambino Group's proposed changes, it is readily apparent that the changes will radically alter the framework of government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading member of the Constitutional Commission, writes: An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document which have over-all implications for the entire document, to determine how and to what extent they should be altered. Thus, for instance a switch from the presidential system to a parliamentary system would be a revision because of its over-all impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system be because of its effect on other important provisions of the Constitution.41 (Emphasis supplied) In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution to shift from a bicameral to a unicameral legislature. The issue turned on whether the initiative "was defective and unauthorized where [the] proposed amendment would x x x affect several other provisions of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside the scope of the initiative clause, ruled as follows: The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a Unicameral Legislature affects not only many other provisions of the Constitution but provides for a change in the form of the legislative branch of government , which has been in existence in the United States Congress and in all of the states of the nation, except one, since the earliest days. It would be difficult to visualize a more revolutionary change. The concept of a House and a Senate is basic in the American form of government. It would not only radically change the whole pattern of government in this state and tear apart the whole fabric of the Constitution, but would even affect the physical facilities necessary to carry on government. xxxx We conclude with the observation that if such proposed amendment were adopted by the people at the General Election and if the Legislature at its next session should fail to submit further amendments to revise and clarify the numerous inconsistencies and conflicts which would result, or if after submission of appropriate amendments the people should refuse to adopt them, simple chaos would prevail in the government of this State. The same result would obtain from an amendment, for instance, of Section 1 of Article V, to provide for only a Supreme Court and Circuit Courts-and there could be other examples too numerous to detail. These examples point unerringly to the answer. The purpose of the long and arduous work of the hundreds of men and women and many sessions of the Legislature in bringing about the Constitution of 1968 was to eliminate inconsistencies and conflicts and to give the State a workable, accordant, homogenous and up-to-date

document. All of this could disappear very quickly if we were to hold that it could be amended in the manner proposed in the initiative petition here.43 (Emphasis supplied) The rationale of the Adams decision applies with greater force to the present petition. The Lambino Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to merge the executive and legislative departments. The initiative in Adams did not even touch the executive department. In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that would be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's present initiative, no less than 105 provisions of the Constitution would be affected based on the count of Associate Justice Romeo J. Callejo, Sr.44 There is no doubt that the Lambino Group's present initiative seeks far more radical changes in the structure of government than the initiative in Adams. The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called "revisions" because members of the deliberative body work full-time on the changes. However, the same substantive changes, when proposed through an initiative, are called "amendments" because the changes are made by ordinary people who do not make an "occupation, profession, or vocation" out of such endeavor. Thus, the Lambino Group makes the following exposition of their theory in their Memorandum: 99. With this distinction in mind, we note that the constitutional provisions expressly provide for both "amendment" and "revision" when it speaks of legislators and constitutional delegates, while the same provisions expressly provide only for "amendment" when it speaks of the people. It would seem that the apparent distinction is based on the actual experience of the people, that on one hand the common people in general are not expected to work full-time on the matter of correcting the constitution because that is not their occupation, profession or vocation; while on the other hand, the legislators and constitutional convention delegates are expected to work full-time on the same matter because that is their occupation, profession or vocation. Thus, the difference between the words "revision" and "amendment" pertain only to the process or procedure of coming up with the corrections, for purposes of interpreting the constitutional provisions. 100. Stated otherwise, the difference between "amendment" and "revision" cannot reasonably be in the substance or extent of the correction. x x x x (Underlining in the original; boldfacing supplied) The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same proposed changes that the Lambino Group wrote in the present initiative, the changes would constitute a revision of the Constitution. Thus, the Lambino Group concedes that the proposed changes in the present initiative constitute a revision if Congress or a constitutional convention had drafted the changes . However, since the Lambino Group as private individuals drafted the proposed changes, the changes are merely amendments to the Constitution. The Lambino Group trivializes the serious matter of changing the fundamental law of the land. The express intent of the framers and the plain language of the Constitution contradict the Lambino Group's theory. Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language. 45 Any theory espousing a construction contrary to such intent and language deserves scant consideration. More so, if such theory wreaks havoc by creating inconsistencies in the form of government established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's position. Any theory advocating that a proposed change involving a radical structural change in government does not constitute a revision justly deserves rejection. The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have attempted to advance without any success. In Lowe v. Keisling,46 the Supreme Court of Oregon rejected this theory, thus: Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by initiative. His theory is that Article XVII, section 2 merely provides a procedure by which the legislature can propose a revision of the constitution, but it does not affect proposed revisions initiated by the people. Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the constitution that cannot be enacted through the initiative process. They assert that the distinction between amendment and revision is determined by reviewing the scope and subject matter of the proposed enactment, and that revisions are not limited to "a formal overhauling of the constitution." They argue that this ballot measure proposes far reaching changes outside the lines of the original instrument, including profound impacts on existing fundamental rights and radical restructuring of the government's relationship with a defined group of citizens. Plaintiffs assert that, because the proposed ballot measure "will refashion the most basic principles of Oregon constitutional law," the trial court correctly held that it violated Article XVII, section 2, and cannot appear on the ballot without the prior approval of the legislature. We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of the constitution may not be accomplished by initiative, because of the provisions of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed amendments, the court said: "From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of amending the Oregon Constitution, but it contains no similar sanction for its use as a means of revising the constitution." x x x x It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the constitution which provides the means for constitutional revision and it excludes the idea that an individual, through the initiative, may place such a measure before the electorate." x x x x

Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to constitutional revisions proposed by initiative. (Emphasis supplied) Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the framers and the plain language of the Constitution. We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties arise in determining whether there is an amendment or revision. The present initiative is indisputably located at the far end of the red spectrum where revision begins. The present initiative seeks a radical overhaul of the existing separation of powers among the three co-equal departments of government, requiring far-reaching amendments in several sections and articles of the Constitution. Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years to 15 years 47 is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100 percent to 60 percent is an amendment and not a revision.48 Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision. 49 The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific provision being amended. These changes do not also affect the structure of government or the system of checks-and-balances among or within the three branches. These three examples are located at the far green end of the spectrum, opposite the far red end where the revision sought by the present petition is located. However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word "republican" with "monarchic" or "theocratic" in Section 1, Article II50 of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution. Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions. In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states: Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; x x x x (Emphasis supplied) The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior law, the later law prevails. This rule also applies to construction of constitutions. However, the Lambino Group's draft of Section 2 of the Transitory Provisions turns on its head this rule of construction by stating that in case of such irreconcilable inconsistency, the earlier provision "shall be amended to conform with a unicameral parliamentary form of government." The effect is to freeze the two irreconcilable provisions until the earlier one "shall be amended," which requires a future separate constitutional amendment. Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily conceded during the oral arguments that the requirement of a future amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the rule of statutory construction so that the later provision automatically prevails in case of irreconcilable inconsistency. However, it is not as simple as that. The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not between a provision in Article VI of the 1987 Constitution and a provision in the proposed changes. The inconsistency is between a provision in Article VI of the 1987 Constitution and the "Parliamentary system of government," and the inconsistency shall be resolved in favor of a "unicameral parliamentary form of government." Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed changes refer to the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are among the few countries withunicameral parliaments? The proposed changes could not possibly refer to the traditional and well-known parliamentary forms of government the British, French, Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have all bicameral parliaments. Did the people who signed the signature sheets realize that they were adopting the Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government? This drives home the point that the people's initiative is not meant for revisions of the Constitution but only for amendments. A shift from the present Bicameral-Presidential to a Unicameral-Parliamentary system requires harmonizing several provisions in many articles of the Constitution. Revision of the Constitution through a people's initiative will only result in gross absurdities in the Constitution. In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2, Article XVII of the Constitution limiting the scope of a people's initiative to "[A]mendments to this Constitution." 3. A Revisit of Santiago v. COMELEC is Not Necessary

The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII of the Constitution on the conduct and scope of a people's initiative to amend the Constitution. There is no need to revisit this Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to cover the system of initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively ruled that RA 6735 does not comply with the requirements of the Constitution to implement the initiative clause on amendments to the Constitution. This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the Court can be resolved on some other grounds. Such avoidance is a logical consequence of the well-settled doctrine that courts will not pass upon the constitutionality of a statute if the case can be resolved on some other grounds.51 Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives to amend the Constitution, this will not change the result here because the present petition violates Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative must first comply with Section 2, Article XVII of the Constitution even before complying with RA 6735. Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories." Section 5(b) of RA 6735 requires that the people must sign the "petition x x x as signatories." The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming to act "together with" the 6.3 million signatories, merely attached the signature sheets to the petition and amended petition. Thus, the petition and amended petition filed with the COMELEC did not even comply with the basic requirement of RA 6735 that the Lambino Group claims as valid. The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition embracing more than one (1) subject shall be submitted to the electorate; x x x." The proposed Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the form of government. Since the present initiative embraces more than one subject matter, RA 6735 prohibits submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the Lambino Group's initiative will still fail. 4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino Group's Initiative In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this Court's ruling in Santiago and People's Initiative for Reform, Modernization and Action (PIRMA) v. COMELEC.52 For following this Court's ruling, no grave abuse of discretion is attributable to the COMELEC. On this ground alone, the present petition warrants outright dismissal. Thus, this Court should reiterate its unanimous ruling in PIRMA: The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the Decisions of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997. 5. Conclusion The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all the citizens of this nation. No one can trivialize the Constitution by cavalierly amending or revising it in blatant violation of the clearly specified modes of amendment and revision laid down in the Constitution itself. To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be tossed and turned by every dominant political group of the day. If this Court allows today a cavalier change in the Constitution outside the constitutionally prescribed modes, tomorrow the new dominant political group that comes will demand its own set of changes in the same cavalier and unconstitutional fashion. A revolving-door constitution does not augur well for the rule of law in this country. An overwhelming majority 16,622,111 voters comprising 76.3 percent of the total votes cast53 approved our Constitution in a national plebiscite held on 11 February 1987. That approval is the unmistakable voice of the people, the full expression of the people's sovereign will. That approval included the prescribed modes for amending or revising the Constitution. No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group, can change our Constitution contrary to the specific modes that the people, in their sovereign capacity, prescribed when they ratified the Constitution. The alternative is an extra-constitutional change, which means subverting the people's sovereign will and discarding the Constitution. This is one act the Court cannot and should never do. As the ultimate guardian of the Constitution, this Court is sworn to perform its solemn duty to defend and protect the Constitution, which embodies the real sovereign will of the people. Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise, the Constitution the people's fundamental covenant that provides enduring stability to our society becomes easily susceptible to manipulative changes by political groups gathering signatures through false promises. Then, the Constitution ceases to be the bedrock of the nation's stability. The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group unabashedly states in ULAP Resolution No. 200602, in the verification of their petition with the COMELEC, that "ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms." The Lambino Group thus admits that their "people's" initiative is an "unqualified support to the

agenda" of the incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of "people's voice" or "sovereign will" in the present initiative. This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which embodies the people's sovereign will, is the bible of this Court. This Court exists to defend and protect the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the Constitution. To allow such alteration and desecration is to lose this Court's raison d'etre. WHEREFORE, we DISMISS the petition in G.R. No. 174153. SO ORDERED. Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur. ____________________ EN BANC G.R. No. 174153 October 25, 2006 RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS V. COMMISSION ON ELECTIONS ET AL. SEPARATE CONCURRING OPINION PANGANIBAN, CJ.: Without the rule of law, there can be no lasting prosperity and certainly no liberty. Beverley McLachlin 1 Chief Justice of Canada After a deep reflection on the issues raised and a careful evaluation of the parties' respective arguments -- both oral and written -- as well as the enlightened and enlightening Opinions submitted by my esteemed colleagues, I am fully convinced that the present Petition must be dismissed. I write, however, to show that my present disposition is completely consistent with my previous Opinions and votes on the two extant Supreme Court cases involving an initiative to change the Constitution. In my Separate Opinion in Santiago v. Comelec,2 I opined "that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), Republic Act 6735 and Comelec Resolution 2300 provide more than sufficient __________________ 'SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.' "With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason. Taken Together and Interpreted Properly, the Constitution, R.A. 6735 and Comelec Resolution 2300 Are Sufficient to Implement Constitutional Initiatives "While R.A. 6735 may not be a perfect law, it was as the majority openly concedes intended by the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution. I completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments to the Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, that "provisions for initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and in Garcia vs. Comelec, that any "effort to trivialize the effectiveness of people's initiatives ought to be rejected."

"No law can completely and absolutely cover all administrative details. In recognition of this, R.A. 6735 wisely empowered the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and referendum on national and local laws," not by the incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo authority to implement, effectuate and realize our people's power to amend the Constitution." __________________ E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort to give life to a cherished right of our people. "The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for the Resolution is the same law, R.A. 6735. "I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), R.A. 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and realize our people's power to amend the Constitution. Petitioner Delfin and the Pedrosa Spouses Should Not Be Muzzled "I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of initiative. In fact, I believe that such restraining order as against private respondents should not have been issued, in the first place. While I agree that the Comelec should be stopped from using public funds and government resources to help them gather signatures, I firmly believe that this Court has no power to restrain them from exercising their right of initiative. The right to propose amendments to the Constitution is really a species of the right of free speech and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, 'I may disagree with what you say, but I will defend to the death your right to say it.' After all, freedom is not really for the thought we agree with, but as Justice Holmes wrote, 'freedom for the thought that we hate.' Epilogue "By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights of our people to be used as Six months after, in my Separate Opinion in People's Initiative for Reform, Modernization and Action (PIRMA) v. Comelec, 3 I joined the rest of the members of the Court in ruling "by a unanimous vote, that no grave abuse of discretion could be attributed to the Comelec in dismissing the petition filed by __________________ Constitution x x x." While concededly, petitioners in this case were not direct parties in Santiago, nonetheless the Court's injunction against the Comelec covered ANY petition, not just the Delfin petition which was the immediate subject of said case. As a dissenter in Santiago, I believed, and still do, that the majority gravely erred in rendering such a sweeping injunction, but I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with said decision's ratio decidendi. Respondent Comelec was directly enjoined by the highest Court of the land. It had no choice but to obey. Its obedience cannot constitute grave abuse of discretion. Refusal to act on the PIRMA petition was the only recourse open to the Comelec. Any other mode of action would have constituted defiance of the Court and would have been struck down as grave abuse of discretion and contumacious disregard of this Court's supremacy as the final arbiter of justiciable controversies. Second Issue: Sufficiency of RA 6735 "I repeat my firm legal position that RA 6735 is adequate to cover initiatives on the Constitution, and that whatever administrative details may have been omitted in said law are satisfactorily provided by Comelec Resolution 2300. The promulgation of Resolution 2300 is sanctioned by Section 2, Article IX-C of the Constitution, which vests upon the Comelec the power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall." The Omnibus Election Code likewise empowers the electoral body to "promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to enforce and administer x x x." Finally and most relevantly, Section 20 of Ra 6735 specifically authorizes Comelec "to promulgate rules and regulations as may be necessary to carry out the purposes of this Act." "In my dissent in Santiago, I wrote that "there is a right way to do the right thing at the right time and for the right reason." Let me explain further. The Right Thing

"A people's initiative is direct democracy in action. It is the right thing that citizens may avail themselves of to articulate their will. It is a new and treasured feature of the Filipino constitutional system. Even the majority implicitly conceded its value and worth in our legal firmament when it implored Congress "not to tarry any longer in complying with the constitutional mandate to provide for implementation of the right (of initiative) of the people x x x." Hence, in the en banc case of Subic Bay Metropolitan Authority vs. Comelec, [G.R. No. 125416, September 26, 1996], this Court unanimously held that "(l)ike elections, initiative and referendum are powerful and valuable modes of expressing popular PIRMA therein," since the Commission had "only complied" with the Santiago Decision. __________________ sovereignty. And this Court as a matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate exercise." The Right Way "From the outset, I have already maintained the view that "taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), RA 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and realize our people's power to amend the Constitution." Let me now demonstrate the adequacy of RA 6735 by outlining, in concrete terms, the steps to be taken the right way to amend the Constitution through a people's initiative. "Pursuant to Section 3(f) of the law, the Comelec shall prescribe the form of the petition which shall contain the proposition and the required number of signatories. Under Sec. 5(c) thereof, the petition shall state the following: 'c.1 contents or text of the [provision or provisions] sought to be x x x amended, x x x; c.2 the proposition [in full text]; c.3 the reason or reasons therefor [fully and clearly explained]; c.4 that it is not one of exceptions provided herein; c.5 signatures of the petitioners or registered voters; and c.6 an abstract or summary proposition in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition.' "Section 8(f) of Comelec Resolution 2300 additionally requires that the petition include a formal designation of the duly authorized representatives of the signatories. "Being a constitutional requirement, the number of signatures becomes a condition precedent to the filing of the petition, and is jurisdictional. Without such requisite signatures, the Commission shall motu proprio reject the petition. "Where the initiators have substantially complied with the above requirements, they may thence file the petition with the Comelec which is tasked to determine the sufficiency thereof and to verify the signatures on the basis of the registry list of voters, voters' affidavits and voters' identification cards. In deciding whether the petition is sufficient, the Comelec shall also determine if the proposition is proper for an initiative, i.e., if it consists of an amendment, not a revision, of the Constitution. Any decision of the electoral body may be appealed to the Supreme Court within thirty (30) days from notice. I added "that my position upholding the adequacy of RA 6735 and the validity of Comelec Resolution 2300 will not ipso __________________ "Within thirty (30) days from receipt of the petition, and after the determination of its sufficiency, the Comelec shall publish the same in Filipino and English at least twice in newspapers of general and local circulation, and set the date of the plebiscite. The conduct of the plebiscite should not be earlier than sixty (60) days, but not later than ninety (90) days after certification by the Comelec of the sufficiency of the petition. The proposition, if approved by a majority of the votes cast in the plebiscite, becomes effective as of the day of the plebiscite. "From the foregoing, it should be clear that my position upholding the adequacy of RA 6735 and the validity of Comelec Resolution 2300 will not ipso facto validate the PIRMA petition and automatically lead to a plebiscite to amend the Constitution. Far from it. Among others, PIRMA must still satisfactorily hurdle the following searching issues: 1. Does the proposed change the lifting of the term limits of elective officials -- constitute a mere amendment and not a revision of the Constitution? 2. Which registry of voters will be used to verify the signatures in the petition? This question is relevant considering that under RA 8189, the old registry of voters used in the 1995 national elections was voided after the barangay elections on May 12, 1997, while the new list may be used starting only in the elections of May 1998.

3. Does the clamor for the proposed change in the Constitution really emanate from the people who signed the petition for initiative? Or it is the beneficiaries of term extension who are in fact orchestrating such move to advance their own political self-interest? 4. Are the six million signatures genuine and verifiable? Do they really belong to qualified warm bodies comprising at least 12% of the registered voters nationwide, of which every legislative district is represented by at least 3% of the registered voters therein? "I shall expound on the third question in the next section, The Right Reason. Question Nos. 1 and 2 above, while important, are basically legal in character and can be determined by argumentation and memoranda. However, Question No. 4 involves not only legal issues but gargantuan hurdles of factual determination. This to my mind is the crucible, the litmus test, of a people's petition for initiative. If herein petitioners, led by PIRMA, succeed in proving -- not just alleging -- that six million voters of this country indeed want to amend the Constitution, what power on earth can stop them? Not this Court, not the Comelec, not even the President or Congress. facto validate the PIRMA petition and automatically lead to a plebiscite to amend the Constitution. Far from it." I stressed that PIRMA must show the following, among others: __________________ "It took only one million people to stage a peaceful revolution at EDSA, and the very rafters and foundations of the martial law society trembled, quaked and crumbled. On the other hand, PIRMA and its co-petitioners are claiming that they have gathered six million signatures. If, as claimed by many, these six million signatures are fraudulent, then let them be exposed and damned for all history in a signatureverification process conducted under our open system of legal advocacy. "More than anything else, it is the truth that I, as a member of this Court and as a citizen of this country, would like to seek: Are these six million signatures real? By insisting on an entirely new doctrine of statutory inadequacy, the majority effectively suppressed the quest for that truth. The Right Reason "As mentioned, the third question that must be answered, even if the adequacy of RA 6735 and the validity of Comelec Resolution 2300 were upheld by the majority is: Does the clamor for the proposed change to the Constitution really emanate from the people who signed the petition for initiative? Or is it the beneficiaries of term extension who are in fact orchestrating such move to advance their own political self-interests? In other words, is PIRMA's exercise of the right to initiative being done in accordance with our Constitution and our laws? Is such attempted exercise legitimate? "In Garcia vs. Commission on Elections, we described initiative, along with referendum, as the 'ultimate weapon of the people to negate government malfeasance and misfeasance.' In Subic Bay, we specified that 'initiative is entirely the work of the electorate x x x a process of lawmaking by the people themselves without the participation and against the wishes of their elected representatives.' As ponente of Subic Bay, I stand foursquare on this principle: The right to amend through initiative belongs only to the people not to the government and its minions. This principle finds clear support from utterances of many constitutional commissioners like those quoted below: "[Initiative is] a reserve power of the sovereign people, when they are dissatisfied with the National Assembly x x x [and] precisely a fallback position of the people in the event that they are dissatisfied." -- Commissioner Ople "[Initiative is] a check on a legislative that is not responsive [and resorted to] only if the legislature is not as responsive to the vital and urgent needs of people." -- Commissioner Gascon (1) The proposed change -- the lifting of term limits of elective officials -- "constitute[s] a mere amendment and not a revision of the Constitution." _________________ "[Initiative is an] extraordinary power given to the people [and] reserved for the people [which] should not be frivolously resorted to." -Commissioner Romulo "Indeed, if the powers-that-be desire to amend the Constitution, or even to revise it, our Charter itself provides them other ways of doing so, namely, by calling a constitutional convention or constituting Congress into a constituent assembly. These are officialdom's weapons. But initiative belongs to the people. "In the present case, are PIRMA and its co-petitioners legitimate people's organizations or are they merely fronts for incumbents who want to extend their terms? This is a factual question which, unfortunately, cannot be judicially answered anymore, because the Supreme Court majority ruled that the law that implements it, RA 6735, is inadequate or insufficient insofar as initiatives to the Constitutions are concerned. With such ruling, the majority effectively abrogated a constitutional right of our people. That is why in my Separate Opinion in Santiago, I exclaimed that such precipitate action "is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain." I firmly maintain that to defeat PIRMA's effort, there is no need to "burn" the constitutional right to initiative. If PIRMA's exercise is not "legitimate," it can be exposed as such in the ways I have discussed short of abrogating the right itself. On the other hand, if PIRMA's position is proven to be legitimate if it hurdles the four issues I outlined earlier by all means, we should allow and encourage it. But the majority's theory of statutory inadequacy has pre-empted unnecessarily and invalidly, in my view any judicial determination of such legitimacy or illegitimacy. It has silenced the quest for truth into the interstices of the PIRMA petition. The Right Time

"The Constitution itself sets a time limitation on when changes thereto may be proposed. Section 2 of Article XVII precludes amendments "within five years following [its] ratification x x x nor oftener than once every five years thereafter." Since its ratification, the 1987 Constitution has never been amended. Hence, the five-year prohibition is now inoperative and amendments may theoretically be proposed at any time. "Be that as it may, I believe given the present circumstances that there is no more time to lift term limits to enable incumbents to seek reelection in the May 11, 1998 polls. Between today and the next national (2) The "six million signatures are genuine and verifiable"; and they "really belong to qualified warm bodies comprising at __________________ elections, less than eight (8) months remain. Santiago, where the single issue of the sufficiency of RA 6735 was resolved, took this Court three (3) months, and another two (2) months to decide the motion for reconsideration. The instant case, where the same issue is also raised by the petitioners, took two months, not counting a possible motion for reconsideration. These time spans could not be abbreviated any further, because due process requires that all parties be given sufficient time to file their pleadings. "Thus, even if the Court were to rule now in favor of the adequacy of RA 6735 as I believe it should and allow the Comelec to act on the PIRMA petition, such eight-month period will not be enough to tackle the four weighty issues I mentioned earlier, considering that two of them involve tedious factual questions. The Comelec's decision on any of these issues can still be elevated to this Court for review, and reconsiderations on our decisions on each of those issues may again be sought. "Comelec's herculean task alone of verifying each of the six million signatures is enormously time-consuming, considering that any person may question the authenticity of each and every signature, initially before the election registrar, then before the Comelec on appeal and finally, before this Court in a separate proceeding. Moreover, the plebiscite itself assuming such stage can be reached may be scheduled only after sixty (60) but not more than ninety (90) days, from the time the Comelec and this Court, on appeal, finally declare the petition to be sufficient. "Meanwhile, under Comelec Resolution 2946, political parties, groups organizations or coalitions may start selecting their official candidates for President, Vice President and Senators on November 27, 1997; the period for filing certificates of candidacy is from January 11 to February 9, 1998; the election period and campaign for national officials start on February 10, 1998, while the campaign period for other elective officials, on March 17, 1998. This means, by the time PIRMA's proposition is ready if ever for submission directly to the voters at large, it will have been overcome by the elections. Time will simply run out on PIRMA, if the intention is to lift term limits in time for the 1998 elections. "That term limits may no longer be lifted prior to the 1998 elections via a people's initiative does not detract one whit from (1) my firm conviction that RA 6735 is sufficient and adequate to implement this constitutional right and, more important, (2) my faith in the power of the people to initiate changes in local and national laws and the Constitution. In fact, I think the Court can deliberate on these two items even more serenely and wisely now that the debates will be free from the din and distraction of the 1998 elections. After all, jurisprudence is not merely for the here and now but, more so, for the hereafter and the morrow. Let me therefore stress, by way of epilogue, my unbending credo in favor of our people's right to initiative. least 12% of the registered voters nationwide, of which every legislative district is represented by at least 3% of the registered voters therein." __________________ Epilogue "I believe in democracy in our people's natural right to determine our own destiny. "I believe in the process of initiative as a democratic method of enabling our people to express their will and chart their history. Initiative is an alternative to bloody revolution, internal chaos and civil strife. It is an inherent right of the people as basic as the right to elect, the right to self-determination and the right to individual liberties. I believe that Filipinos have the ability and the capacity to rise above themselves, to use this right of initiative wisely and maturely, and to choose what is best for themselves and their posterity. "Such beliefs, however, should not be equated with a desire to perpetuate a particular official or group of officials in power. Far from it. Such perpetuation is anathema to democracy. My firm conviction that there is an adequate law implementing the constitutional right of initiative does not ipso facto result in the victory of the PIRMA petition or of any proposed constitutional change. There are, after all, sufficient safeguards to guarantee the proper use of such constitutional right and to forestall its misuse and abuse. First, initiative cannot be used to revise the Constitution, only to amend it. Second, the petitioners' signatures must be validated against an existing list of voters and/or voters' identification cards. Third, initiative is a reverse power of and by the people, not of incumbent officials and their machinators. Fourth and most important of all, the signatures must be verified as real and genuine; not concocted, fictitious or fabricated. The only legal way to do this is to enable the Commission on Elections to conduct a nationwide verification process as mandated by the Constitution and the law. Such verification, it bears stressing, is subject to review by this Court. "There were, by the most generous estimate, only a million people who gathered at EDSA in 1986, and yet they changed the history of our country. PIRMA claims six times that number, not just from the National Capital Region but from all over the country. Is this claim through the invention of its novel theory of statutory insufficiency, the Court's majority has stifled the only legal method of determining whether PIRMA is real or not, whether there is indeed a popular clamor to lift term limits of elected officials, and whether six million voters want to initiate amendments to their most basic law. In suppressing a judicial answer to such questions, the Court may have unwittingly yielded to PIRMA the benefit of the legal presumption of legality and regularity. In its misplaced zeal to exterminate the rats, it burned down the whole house. It unceremoniously divested the people of a basic constitutional right.

In both Opinions, I concluded that we must implement "the right thing [initiative] in the right way at the right time and for the right reason." In the present case, I steadfastly stand by my foregoing Opinions in Santiago and PIRMA. Tested against them, the present Petition of Raul Lambino and Erico Aumentado must be DISMISSED. Unfortunately, the right thingis being rushed in the wrong way and for the wrong reasons. Let me explain. No Grave Abuse of Discretion by Comelec As in PIRMA, I find no grave abuse of discretion in Comelec's dismissal of the Lambino Petition. After all, the Commission merely followed the holding in Santiago permanently ____________________ "In the ultimate, the mission of the judiciary is to discover truth and to make it prevail. This mission is undertaken not only to resolve the vagaries of present events but also to build the pathways of tomorrow. The sum total of the entire process of adversarial litigation is the verity of facts and the application of law thereto. By the majority cop-out in this mission of discovery, our country and our people have been deprived not only of a basic constitutional right, as earlier noted, but also of the judicial opportunity to verify the truth." enjoining the poll body "from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system." Indeed, the Comelec did not violate the Constitution, the laws or any jurisprudence .4 Neither can whim, caprice, arbitrariness or personal bias be attributed to the Commission.5 Quite the contrary, it prudently followed this Court's jurisprudence in Santiago and PIRMA. Even assuming arguendo that Comelec erred in ruling on a very difficult and unsettled question of law, this Court still cannot attribute grave abuse of discretion to the poll body with respect to that action.6 The present Lambino Petition is in exactly the same situation as that of PIRMA in 1997. The differences pointed out by Justice Reynato S. Puno are, with due respect, superficial. It is argued that, unlike the present Lambino Petition, PIRMA did not contain verified signatures. These are distinctions that do not make a difference. Precisely, Justice Puno is urging a remand, because the verification issue is "contentious" and remains unproven by petitioners. Clearly, both the PIRMA and the Lambino Petitions contain unverified signatures. Therefore, they both deserve the same treatment: DISMISSAL. Besides, the only reason given in the unanimous Resolution on PIRMA v. Comelec was that the Commission had "only complied" with this Court's Decision in Santiago, the same reason given by Comelec in this case. The Separate Opinions in PIRMA gave no other reason. No one argued, even remotely, that the PIRMA Petition should have been dismissed because the signatures were unverified. To stress, I adhere to my Opinion in PIRMA that, "[b]eing a constitutional requirement, the number of signatures becomes a condition precedent to the filing of the petition, and is jurisdictional.7 Without those signatures, the Comelec shall motu proprio reject the petition." So, until and unless Santiago is revisited and changed by this Court or the legal moorings of the exercise of the right are substantially changed, the Comelec cannot be faulted for acting in accord with this Court's pronouncements . Respondent Commission has no discretion, under any guise, to refuse enforcement of any final decision of this Court.8 The refusal of the poll body to act on the Lambino Petition was its only recourse. Any other mode of action would appear not only presumptuous, but also contemptuous. It would have constituted defiance of the Court and would have surely been struck down as grave abuse of discretion and contumacious disregard of the supremacy of this Court as the final arbiter of justiciable controversies. Even assuming further that this Court rules, as I believe it should (for the reasons given in my Opinions in Santiago and PIRMA), that Republic Act 6735 is indeed sufficient to implement an initiative to amend the Constitution, still, no grave abuse of discretion can be attributed to the Comelec for merely following prevailing jurisprudence extant at the time it rendered its ruling in question. Only Amendments, Not Revisions I reiterate that only amendments, not revisions, may be the proper subject of an initiative to change the Constitution. This principle is crystal clear from even a layperson's reading of the basic law.9 I submit that changing the system of government from presidential to parliamentary and the form of the legislature from bicameral to unicameral contemplates an overhaul of the structure of government. The ponencia has amply demonstrated that the merger of the legislative and the executive branches under a unicameral-parliamentary system, "[b]y any legal test and under any jurisdiction," will "radically alter the framework of government as set forth in the Constitution." Indeed, the proposed changes have an overall implication on the entire Constitution; they effectively rewrite its most important and basic provisions. The prolixity and complexity of the changes cannot be categorized, even by semantic generosity, as "amendments." In addition, may I say that of the three modes of changing the Constitution, revisions (or amendments) may be proposed only through the first two: by Congress or by a constitutional convention. Under the third mode -- people's initiative -- only amendments are allowed. Many of the justices' Opinions

have cited the historical, philosophical and jurisprudential bases of their respective positions. I will not add to the woes of the reader by reiterating them here. Suffice it to say that, to me, the practical test to differentiate an amendment from a revision is found in the Constitution itself: a revision may be done only when the proposed change can be drafted, defined, articulated, discussed and agreed upon after a mature and democratic debate in a deliberative body like Congress or a Convention. The changes proposed must necessarily be scrutinized, as their adoption or non-adoption must result from an informed judgment. Indeed, the constitutional bodies that drafted the 1935, the 1972 and the 1987 Constitutions had to spend many months of purposeful discussions, democratic debates and rounds of voting before they could agree on the wordings covering the philosophy, the underlying principles, and the structure of government of our Republic. Verily, even bills creating or changing the administrative structure of local governments take several weeks or even months of drafting, reading, and debating before Congress can approve them. How much more when it comes to constitutional changes? A change in the form of government of our country from presidential-bicameral to parliamentary-unicameral is monumental. Even the initiative proponents admit this fact. So, why should a revision be rammed down our people's throats without the benefit of intelligent discussion in a deliberative assembly? Added to the constitutional mandate barring revisions is the provision of RA 6735 expressly prohibiting petitions for initiative from "embracing more than one subject matter."10 The present initiative covers at least two subjects: (1) the shift from a presidential to a parliamentary form of government; and (2) the change from a bicameral to a unicameral legislature.11 Thus, even under Republic Act 6735 -- the law that Justice Puno and I hold to be sufficient and valid -- the Lambino Petition deserves dismissal. 12 Percent and 3 Percent Thresholds Not Proven by Petitioners The litmus test of a people's petition for initiative is its ability to muster the constitutional requirement that it be supported by at least 12 percent of the registered voters nationwide, of which at least 3 percent of the registered voters in every legislative district must be represented. As pointed out by Intervenors One Voice, Inc., et al., however, records show that there was a failure to meet the minimum percentages required. 12 Even Justice Puno concedes that the 12 percent and 3 percent constitutional requirements involve "contentious facts," which have not been proven by the Lambino Petition. Thus, he is urging a remand to the Comelec. But a remand is both imprudent and futile. It is imprudent because the Constitution itself mandates the said requisites of an initiative petition. In other words, a petition that does not show the required percentages is fatally defective and must be dismissed , as the Delfin Petition was, in Santiago. Furthermore, as the ponencia had discussed extensively, the present Petition is void and unconstitutional. It points out that the Petition dismally fails to comply with the constitutional requirement that an initiative must be directly proposed by the people. Specifically, the ponencia has amply established that petitioners were unable to show that the Lambino Petition contained, or incorporated by attachment, the full text of the proposed changes. So, too, a remand is futile. Even if the required percentages are proven before the Commission, the Petition must still be dismissed for proposing a revision, not an amendment, in gross violation of the Constitution. At the very least, it proposes more than one subject, in violation of Republic Act 6735. Summation Petitioners plead with this Court to hear the voice of the people because, in the words of Justice Puno who supports them, the "people's voice is sovereign in a democracy." I, too, believe in heeding the people's voice. I reiterate my Separate Opinion in PIRMA that "initiative is a democratic method of enabling our people to express their will and chart their history. x x x. I believe that Filipinos have the ability and the capacity to rise above themselves, to use this right of initiative wisely and maturely, and to choose what is best for themselves and their posterity." This belief will not, however, automatically and blindly result in an initiative to change the Constitution, because the present Petition violates the following: The Constitution (specifically Article XVII, which allows only amendments, not revisions, and requires definite percentages of verified signatures) The law (specifically, Republic Act 6735, which prohibits petitions containing more than one subject) Jurisprudence (specifically, PIRMA v. Comelec, which dismissed the Petition then under consideration on the ground that, by following the Santiago ruling, the Comelec had not gravely abused its discretion). I submit further that a remand of the Lambino Petition is both imprudent and futile. More tellingly, it is a cop-out, a hand-washing already discredited 2000 years ago. Instead of finger-pointing, I believe we must confront the issues head on, because the people expect no less from this august and venerable institution of supreme justice.

Epilogue At bottom, the issue in this case is simply the Rule of Law.13 Initiative, like referendum and recall, is a treasured feature of the Filipino constitutional system. It was born out of our world-admired and often-imitated People Power, but its misuse and abuse must be resolutely rejected. Democracy must be cherished, but mob rule vanquished. The Constitution is a sacred social compact, forged between the government and the people, between each individual and the rest of the citizenry. Through it, the people have solemnly expressed their will that all of them shall be governed by laws, and their rights limited by agreed-upon covenants to promote the common good. If we are to uphold the Rule of Law and reject the rule of the mob, we must faithfully abide by the processes the Constitution has ordained in order to bring about a peaceful, just and humane society. Assuming arguendothat six million people allegedly gave their assent to the proposed changes in the Constitution, they are nevertheless still bound by the social covenant -- the present Constitution -- which was ratified by a far greater majority almost twenty years ago.14 I do not denigrate the majesty of the sovereign will; rather, I elevate our society to the loftiest perch, because our government must remain as one of laws and not of men. Upon assuming office, each of the justices of the Supreme Court took a solemn oath to uphold the Constitution. Being the protectors of the fundamental law as the highest expression of the sovereign will, they must subject to the strictest scrutiny any attempt to change it, lest it be trivialized and degraded by the assaults of the mob and of ill-conceived designs. The Court must single-mindedly defend the Constitution from bogus efforts falsely attributed to the sovereign people. The judiciary may be the weakest branch of government. Nonetheless, when ranged against incessant voices from the more powerful branches of government, it should never cower in submission. On the other hand, I daresay that the same weakness of the Court becomes its strength when it speaks independently through decisions that rightfully uphold the supremacy of the Constitution and the Rule of Law. The strength of the judiciary lies not in its lack of brute power, but in its moral courage to perform its constitutional duty at all times against all odds. Its might is in its being right.15 During the past weeks, media outfits have been ablaze with reports and innuendoes about alleged carrots offered and sticks drawn by those interested in the outcome of this case.16 There being no judicial proof of these allegations, I shall not comment on them for the nonce, except to quote the Good Book, which says, "There is nothing hidden that will not be revealed, and nothing secret that will not be known and come to light." 17 Verily, the Supreme Court is now on the crossroads of history. By its decision, the Court and each of its members shall be judged by posterity. Ten years, fifty years, a hundred years -- or even a thousand years -- from now, what the Court did here, and how each justice opined and voted, will still be talked about, either in shame or in pride. Indeed, the hand-washing of Pontius Pilate, the abomination of Dred Scott, and the loathing of Javellana still linger and haunt to this day. Let not this case fall into the same damnation. Rather, let this Court be known throughout the nation and the world for its independence, integrity, industry and intelligence. WHEREFORE, I vote to DISMISS the Petition. ARTEMIO V. PANGANIBAN Chief Justice ____________________ EN BANC G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS, Petitioners, vs. THE COMMISSION ON ELECTIONS, ET AL., Respondents. G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A. Q. SAGUISAG, Petitioners, vs. COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, JR. and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents. x ---------------------------------------------------------------------------------------- x SEPARATE OPINION YNARES-SANTIAGO, J.: I agree with the opinion of our esteemed colleague, Justice Reynato Puno, that the Court's ruling in Santiago v. COMELEC1 is not a binding precedent. However, it is my position that even if Santiago were reversed and Republic Act No. 6735 (R.A. 6735) be held as sufficient law for the purpose of people's initiative to amend the Constitution, the petition for initiative in this case must nonetheless be dismissed.

There is absolutely no showing here that petitioners complied with R.A. 6735, even as they blindly invoke the said law to justify their alleged people's initiative. Section 5(b) of R.A. 6735 requires that "[a] petition for an initiativeon the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein." On the other hand, Section 5(c)2 of the same law requires that the petition should state, among others, the proposition 3 or the "contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed." If we were to apply Section 5(c) to an initiative to amend the Constitution, as petitioners submit, the petition for initiative signed by the required number of voters should incorporate therein a text of the proposed changes to the Constitution. However, such requirement was not followed in the case at bar. During the oral arguments, petitioner Lambino admitted that they printed a mere 100,000 copies of the text of the proposed changes to the Constitution. According to him, these were subsequently distributed to their agents all over the country, for attachment to the sheets of paper on which the signatures were to be affixed. Upon being asked, however, if he in fact knew whether the text was actually attached to the signature sheets which were distributed for signing, he said that he merely assumed that they were. In other words, he could not tell the Court for certain whether their representatives complied with this requirement. The petition filed with the COMELEC, as well as that which was shown to this Court, indubitably establish that the full text of the proposed changes was not attached to the signature sheets. All that the signature sheets contained was the general proposition and abstract, which falls short of the full text requirement of R.A. 6735. The necessity of setting forth the text of the proposed constitutional changes in the petition for initiative to be signed by the people cannot be seriously disputed. To begin with, Article XVII, Section 2 of the Constitution unequivocally states that "[a]mendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein." Evidently, for the people to propose amendments to the Constitution, they must, in the first instance, know exactly what they are proposing. It is not enough that they merely possess a general idea of the proposed changes, as the Constitution speaks of a "direct" proposal by the people. Although the framers of the Constitution left the matter of implementing the constitutional right of initiative to Congress, it might be noted that they themselves reasonably assumed that the draft of the proposed constitutional amendments would be shown to the people during the process of signature gathering. Thus MR. RODRIGO. Section 2 of the complete committee report provides: "upon petition of at least 10 percent of the registered voters." How will we determine that 10 percent has been achieved? How will the voters manifest their desire, is it by signature? MR. SUAREZ. Yes, by signatures. MR. RODRIGO. Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. Is the draft of the proposed constitutional amendment ready to be shown to the people when they are asked to sign? MR. SUAREZ. That can be reasonably assumed, Madam President. MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign. Now, who prepares the draft? MR. SUAREZ: The people themselves, Madam President.4 It may thus be logically assumed that even without Section 5(c) of R.A. 6735, the full text of the proposed changes must necessarily be stated in or attached to the initiative petition. The signatories to the petition must be given an opportunity to fully comprehend the meaning and effect of the proposed changes to enable them to make a free, intelligent and well-informed choice on the matter. Needless to say, the requirement of setting forth the complete text of the proposed changes in the petition for initiative is a safeguard against fraud and deception. If the whole text of the proposed changes is contained in or attached to the petition, intercalations and riders may be duly avoided. Only then can we be assured that the proposed changes are truly of the people and that the signatories have been fully apprised of its implications. If a statutory provision is essential to guard against fraud, corruption or deception in the initiative and referendum process, such provision must be viewed as an indispensable requirement and failure to substantially comply therewith is fatal.5 The failure of petitioners in this case to comply with the full text requirement resultantly rendered their petition for initiative fatally defective. The petition for initiative is likewise irretrievably infirm because it violates the one subject rule under Section 10(a) of R.A. 6735: SEC. 10. Prohibited Measures. The following cannot be the subject of an initiative or referendum petition: (a) No petition embracing more than one subject shall be submitted to the electorate; x x x The one subject rule, as relating to an initiative to amend the Constitution, has the same object and purpose as the one subject-one bill rule embodied in Article VI, Section 26(1)6 of the Constitution.7 To elaborate, the one subject-one bill rule was designed to do away with the practice of inserting two or more unrelated provisions in one bill, so that those favoring one provision would be compelled to adopt the others. By this process of log-rolling, the adoption of both provisions could be accomplished and ensured, when neither, if standing alone, could succeed on its own merits.

As applied to the initiative process, the one subject rule is essentially designed to prevent surprise and fraud on the electorate. It is meant to safeguard the integrity of the initiative process by ensuring that no unrelated riders are concealed within the terms of the proposed amendment. This in turn guarantees that the signatories are fully aware of the nature, scope and purpose of the proposed amendment. Petitioners insist that the proposed changes embodied in their petition for initiative relate only to one subject matter, that is the shift from presidential to a parliamentary system of government. According to petitioners, all of the other proposed changes are merely incidental to this main proposal and are reasonably germane and necessary thereto.8 An examination of the text of the proposed changes reveals, however, that this is not the case. The proposed changes to the Constitution cover other subjects that are beyond the main proposal espoused by the petitioners. Apart from a shift from the presidential to a parliamentary form of government, the proposed changes include the abolition of one House of Congress, 9 and the convening of a constituent assembly to propose additional amendments to the Constitution.10 Also included within its terms is an omnibus declaration that those constitutional provisions under Articles VI and VII, which are inconsistent with the unicameral-parliamentary form of government, shall be deemed amended to conform thereto. It is not difficult to see that while the proposed changes appear to relate only to a shift in the form of government, it actually seeks to affect other subjects that are not reasonably germane to the constitutional alteration that is purportedly sought. For one, a shift to a parliamentary system of government does not necessarily result in the adoption of a unicameral legislature. A parliamentary system can exist in many different "hybrid" forms of government, which may or may not embrace unicameralism.11 In other words, the shift from presidential to parliamentary structure and from a bicameral to a unicameral legislature is neither the cause nor effect of the other. I also fail to see the relation of convening a constituent assembly with the proposed change in our system of government. As a subject matter, the convening of a constituent assembly to amend the Constitution presents a range of issues that is far removed from the subject of a shift in government. Besides, the constituent assembly is supposed to convene and propose amendments to the Constitution after the proposed change in the system of government has already taken place. This only goes to show that the convening of the constituent assembly is not necessary to effectuate a change to a parliamentary system of government. The omnibus statement that all provisions under Articles VI and VII which are inconsistent with a unicameral-parliamentary system of government shall be deemed amended is equally bothersome. The statement does not specify what these inconsistencies and amendments may be, such that everyone is left to guess the provisions that could eventually be affected by the proposed changes. The subject and scope of these automatic amendments cannot even be spelled out with certainty. There is thus no reasonable measure of its impact on the other constitutional provisions. The foregoing proposed changes cannot be the subject of a people's initiative under Section 2, Article XVII of the Constitution. Taken together, the proposed changes indicate that the intendment is not simply to effect substantial amendments to the Constitution, but a revision thereof. The distinction between an amendment and revision was explained by Dean Vicente G. Sinco, as follows: "Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one. The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed essential on account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect."12 The foregoing traditional exposition of the difference between amendment and revision has indeed guided us throughout our constitutional history. However, the distinction between the two terms is not, to my mind, as significant in the context of our past constitutions, as it should be now under the 1987 Constitution. The reason for this is apparent. Under our past constitutions, it was Congress alone, acting either as a constituent assembly or by calling out a constitutional convention, that exercised authority to either amend or revise the Constitution through the procedures therein described. Although the distinction between the two terms was theoretically recognized under both the 1935 and 1973 Constitutions, the need to highlight the difference was not as material because it was only Congress that could effect constitutional changes by choosing between the two modalities. However, it is different now under the 1987 Constitution. Apart from providing for the two modes of either Congress constituting itself as a constituent assembly or calling out for a constitutional convention, a third mode was introduced for proposing changes to the Constitution. This mode refers to the people's right to propose amendments to the fundamental law through the filing of a petition for initiative. Otherwise stated, our experience of what constitutes amendment or revision under the past constitutions is not determinative of what the two terms mean now, as related to the exercise of the right to propose either amendments or revision. The changes introduced to both the Constitutions of 1935 and 1973 could have indeed been deemed an amendment or revision, but the authority for effecting either would never have been questioned since the same belonged solely to Congress. In contrast, the 1987 Constitution clearly limits the right of the people to directly propose constitutional changes to amendments only. We must consequently not be swayed by examples of constitutional changes effected prior to the present fundamental law, in determining whether such changes are revisory or amendatory in nature. In this regard, it should be noted that the distinction laid down by Justice Felix Q. Antonio in Javellana v. Executive Secretary13 related to the procedure to be followed in ratifying a completely new charter proposed by a constitutional convention. The authority or right of the constitutional convention itself to effect such a revision was not put in issue in that case. As far as determining what constitutes "amendments" for the purpose of a people's initiative, therefore, we have neither relevant precedent nor prior experience. We must thus confine ourselves to Dean Sinco's basic articulation of the two terms.

It is clear from Dean Sinco's explanation that a revision may either be of the whole or only part of the Constitution. The part need not be a substantial part as a change may qualify as a revision even if it only involves some of the important provisions. For as long as the intention and plan to be carried out contemplate a consideration of all the provisions of the Constitution "to determine which should be altered or suppressed, or whether the whole document should be replaced with an entirely new one," the proposed change may be deemed a revision and not merely an amendment. Thus, it is not by the sheer number alone of the proposed changes that the same may be considered as either an amendment or revision. In so determining, another overriding factor is the "original intention and plan authorized to be carried out" by the proposed changes. If the same relates to a re-examination of the entire document to see which provisions remain relevant or if it has far-reaching effects on the entire document, then the same constitutes a revision and not a mere amendment of the Constitution. From the foregoing, it is readily apparent that a combination of the quantitative and qualitative test is necessary in assessing what may be considered as an amendment or revision. It is not enough that we focus simply on the physical scope of the proposed changes, but also consider what it means in relation to the entire document. No clear demarcation line can be drawn to distinguish the two terms and each circumstance must be judged on the basis of its own peculiar conditions. The determination lies in assessing the impact that the proposed changes may have on the entire instrument, and not simply on an arithmetical appraisal of the specific provisions which it seeks to affect. In McFadden v. Jordan,14 the California Supreme Court laid down the groundwork for the combination of quantitative and qualitative assessment of proposed constitutional changes, in order to determine whether the same is revisory or merely amendatory. In that case, the McFadden court found the proposed changes extensive since at least 15 of the 25 articles contained in the California Constitution would either be repealed in their entirety or substantially altered, and four new topics would be introduced. However, it went on to consider the qualitative effects that the proposed initiative measure would have on California's basic plan of government. It observed that the proposal would alter the checks and balances inherent in such plan, by delegating far-reaching and mixed powers to an independent commission created under the proposed measure. Consequently, the proposal inMcFadden was not only deemed as broad and numerous in physical scope, but was also held as having a substantive effect on the fundamental governmental plan of the State of California. The dual aspect of the amendment/revision analysis was reiterated by the California Supreme Court in Raven v. Deukmeijan.15 Proposition 115, as the initiative in that case was called, would vest in the United States Supreme Court all judicial interpretative powers of the California courts over fundamental criminal defense rights in that state. It was observed that although quantitatively, the proposition did "not seem so extensive as to change directly the substantial entirety of the Constitution by the deletion or alteration of numerous existing provisions," the same, nonetheless, "would substantially alter the substance and integrity of the state Constitution as a document of independent force and effect." Quoting Amador Valley Joint Union High School District v. State Board of Equalization,16 the Raven court said: ". . . apart from a measure effecting widespread deletions, additions and amendments involving many constitutional articles, 'even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also [A]n enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.'" (Underscoring supplied and citations omitted) Thus, in resolving the amendment/revision issue, the California Court examines both the quantitative and qualitative effects of a proposed measure on its constitutional scheme. Substantial changes in either respect could amount to a revision.17 I am persuaded that we can approach the present issue in the same manner. The experience of the courts in California is not far removed from the standards expounded on by Dean Sinco when he set out to differentiate between amendment and revision. It is actually consistent, not only with our traditional concept of the two terms, but also with the mindset of our constitutional framers when they referred to the disquisition of Justice Antonio inJavellana.18 We must thus consider whether the proposed changes in this case affect our Constitution in both its substantial physical entirety and in its basic plan of government. The question posed is: do the proposed changes, regardless of whether these are simple or substantial, amount to a revision as to be excluded from the people's right to directly propose amendments to the fundamental law? As indicated earlier, we may apply the quantitative/qualitative test in determining the nature of the proposed changes. These tests are consistent with Dean Sinco's traditional concept of amendment and revision when he explains that, quantitatively, revision "may result in the rewriting either of the whole constitution, or the greater part of it, or perhaps only some of its provisions." In any case, he continues, "the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out." Unmistakably, the latter statement refers to the qualitative effect of the proposed changes. It may thus be conceded that, quantitatively, the changes espoused by the proponents in this case will affect only two (2) out of the eighteen (18) articles of the 1987 Constitution, namely, Article VI (Legislative Department) and Article VII (Executive Department), as well as provisions that will ensure the smooth transition from a presidential-bicameral system to a parliamentary-unicameral structure of government. The quantitative effect of the proposed changes is neither broad nor extensive and will not affect the substantial entirety of the 1987 Constitution. However, it is my opinion that the proposed changes will have serious qualitative consequences on the Constitution. The initiative petition, if successful, will undoubtedly alter, not only our basic governmental plan, but also redefine our rights as citizens in relation to government. The proposed changes will set into motion a ripple effect that will strike at the very foundation of our basic constitutional plan. It is therefore an impermissible constitutional revision that may not be effected through a people's initiative. Petitioners' main proposal pertains to the shifting of our form of government from the presidential to the parliamentary system. An examination of their proposal reveals that there will be a fusion of the executive and legislative departments into one parliament that will be elected on the basis of proportional representation. No term limits are set for the members of parliament except for those elected under the party-list system whose terms and number shall be provided by law. There will be a President who shall be the head of state, but the head of government is the Prime Minister. The latter and his cabinet shall be elected from among the members of parliament and shall be responsible to parliament for the program of government.

The preceding proposal indicates that, under the proposed system, the executive and legislature shall be one and the same, such that parliament will be the paramount governing institution. What this implies is that there will be no separation between the law-making and enforcement powers of the state, that are traditionally delineated between the executive and legislature in a presidential form of government. Necessarily, the checks and balances inherent in the fundamental plan of our U.S.-style presidential system will be eliminated. The workings of government shall instead be controlled by the internal political dynamics prevailing in the parliament. Our present governmental system is built on the separation of powers among the three branches of government. The legislature is generally limited to the enactment of laws, the executive to the enforcement of laws and the judiciary to the application of laws. This separation is intended to prevent a concentration of authority in one person or group that might lead to an irreversible error or abuse in its exercise to the detriment of our republican institutions. In the words of Justice Laurel, the doctrine of separation of powers is intended to secure action, to forestall overaction, to prevent despotism and obtain efficiency.19 In the proposed parliamentary system, there is an obvious lack of formal institutional checks on the legislative and executive powers of the state, since both the Prime Minister and the members of his cabinet are drawn from parliament. There are no effective limits to what the Prime Minister and parliament can do, except the will of the parliamentary majority. This goes against the central principle of our present constitutional scheme that distributes the powers of government and provides for counteraction among the three branches. Although both the presidential and parliamentary systems are theoretically consistent with constitutional democracy, the underlying tenets and resulting governmental framework are nonetheless radically different. Consequently, the shift from presidential to parliamentary form of government cannot be regarded as anything but a drastic change. It will require a total overhaul of our governmental structure and involve a re-orientation in the cardinal doctrines that govern our constitutional set-up. As explained by Fr. Joaquin Bernas, S.J., a switch from the presidential system to a parliamentary system would be a revision because of its over-all impact on the entire constitutional structure.20 It cannot, by any standard, be deemed as a mere constitutional amendment. An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and plan contemplates a reexamination of the entire document, or of provisions of the document which have over-all implications for the entire document, to determine how and to what extent they should be altered.21 (Underscoring supplied) The inclusion of a proposal to convene a constituent assembly likewise shows the intention of the proponents to effect even more far-reaching changes in our fundamental law. If the original intent were to simply shift the form of government to the parliamentary system, then there would have been no need for the calling out of a constituent assembly to propose further amendments to the Constitution. It should be noted that, once convened, a constituent assembly can do away and replace any constitutional provision which may not even have a bearing on the shift to a parliamentary system of government. The inclusion of such a proposal reveals the proponents' plan to consider all provisions of the constitution, either to determine which of its provisions should be altered or suppressed or whether the whole document should be replaced with an entirely new one. Consequently, it is not true that only Articles VI and VII are covered by the alleged people's initiative. The proposal to convene a constituent assembly, which by its terms is mandatory, will practically jeopardize the future of the entire Constitution and place it on shaky grounds. The plan of the proponents, as reflected in their proposed changes, goes beyond the shifting of government from the presidential to the parliamentary system. Indeed, it could even extend to the "fundamental nature of our state as a democratic and republican state." To say that the proposed changes will affect only the constitution of government is therefore a fallacy. To repeat, the combined effect of the proposed changes to Articles VI and VII and those pertaining to the Transitory Provisions under Article XVIII indubitably establish the intent and plan of the proponents to possibly affect even the constitutions of liberty and sovereignty. Indeed, no valid reason exists for authorizing further amendments or revisions to the Constitution if the intention of the proposed changes is truly what it purports to be. There is no question here that only amendments to the Constitution may be undertaken through a people's initiative and not a revision, as textually reflected in the Constitution itself. This conclusion is inevitable especially from a comparative examination of Section 2 in relation to Sections 1 and 4 of Article XVII, which state: SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention. SECTION 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. xxxx SECTION 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission of Elections of the sufficiency of the petition. (Underscoring supplied) It is clear that the right of the people to directly propose changes to the Constitution is limited to amendments and does not include a revision thereof. Otherwise, it would have been unnecessary to provide for Section 2 to distinguish its scope from the rights vested in Congress under Section 1. The latter lucidly states that Congress may propose both amendments and a revision of the Constitution by either convening a constituent assembly or calling for a constitutional convention. Section 2, on the other hand, textually commits to the people the right to propose only amendments by direct action. To hold, therefore, that Section 2 allows substantial amendments amounting to revision obliterates the clear distinction in scope between Sections 1 and 2. The intention, as may be seen from a cursory perusal of the above provisions, is to provide differing fields of application for the three modes of effecting changes to the Constitution. We need not even delve into the intent of the constitutional framers to see that the distinction in scope is definitely marked. We should thus apply these provisions with a discerning regard for this distinction. Again, McFadden22 is instructive: ". . . The differentiation required is not merely between two words; more accurately it is between two procedures and between their respective fields of application. Each procedure, if we follow elementary principles of statutory construction, must be understood to have a substantial field of application, not to be x x x a mere alternative procedure in the same field. Each of the two words, then, must be understood to denote, respectively, not only a procedure but also a field of application appropriate to its procedure. The people of this state have spoken; they made it clear when they adopted article XVIII and made amendment relatively simple but provided the formidable bulwark of a constitutional convention as a protection against improvident or hasty (or any other) revision, that they understood that there was a real difference between amendment and revision. We find nothing whatsoever in the language of the initiative amendment of 1911 (art. IV, 1) to effect a breaking down of that difference. On the contrary, the distinction appears to be x x x scrupulously preserved by the express declaration in the amendment x x x that the power to propose and vote on "amendments to the Constitution" is reserved directly to the people in initiative proceedings, while leaving unmentioned the power and the procedure relative to constitutional revision, which revisional power and procedure, it will be remembered, had already been specifically treated in section 2 of article XVIII.Intervenors' contention--that any change less than a total one is but amendatory--would reduce to the rubble of absurdity the bulwark so carefully erected and preserved. Each situation involving the question of amendment, as contrasted with revision, of the Constitution must, we think, be resolved upon its own facts." Thus, our people too have spoken when they overwhelmingly ratified the 1987 Constitution, with the provisions on amendments and revisions under Article XVII. The voice and will of our people cannot be any clearer when they limited people's initiative to mere amendments of the fundamental law and excluded revisions in its scope. In this regard, the task of the Court is to give effect to the people's voice, as expressed unequivocally through the Constitution. Article XVII on amendments and revisions is called a "constitution of sovereignty" because it defines the constitutional meaning of "sovereignty of the people." It is through these provisions that the sovereign people have allowed the expression of their sovereign will and have canalized their powers which would otherwise be plenary. By approving these provisions, the sovereign people have decided to limit themselves and future generations in the exercise of their sovereign power.23 They are thus bound by the constitution and are powerless, whatever their numbers, to change or thwart its mandates, except through the means prescribed by the Constitution itself.24 It is thus misplaced to argue that the people may propose revisions to the Constitution through people's initiative because their representatives, whose power is merely delegated, may do so. While Section 1 of Article XVII may be considered as a provision delegating the sovereign powers of amendment and revision to Congress, Section 2, in contrast, is a self-limitation on that sovereign power. In the words of Cooley: x x x Although by their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not thereby divested themselves of the sovereignty. They retain in their own hands, so far as they have thought it needful to do so, a power to control the governments they create, and the three departments are responsible to and subject to be ordered, directed, changed or abolished by them. But this control and direction must be exercised in the legitimate mode previously agreed upon. The voice of the people, acting in their sovereign capacity, can be of legal force only when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the Constitution, or which, consistently with the Constitution, have been prescribed and pointed out for them by statute; and if by any portion of the people, however large, an attempt should be made to interfere with the regular working of the agencies of government at any other time or in any other mode than as allowed by existing law, either constitutional or statutory, it would be revolutionary in character, and must be resisted and repressed by the officers who, for the time being, represent legitimate government. 25 (Underscoring supplied) Consequently, there is here no case of "the spring rising above its source." Nor is it one where the people's sovereign power has been relegated to a lesser plane than that of Congress. In choosing to exercise self-limitation, there is no absence or lack of even a fraction of the sovereign power of the people since self-limitation itself is an expression of that sovereign power. The people have chosen to delegate and limit their sovereign power by virtue of the Constitution and are bound by the parameters that they themselves have ordained. Otherwise, if the people choose to defy their selfimposed constitutional restraints, we will be faced with a revolutionary situation. 26 It has repeatedly been emphasized that ours is a democratic and republican state.27 Even as we affirm, however, that aspect of direct democracy, we should not forget that, first and foremost, we are a constitutional democracy. To uphold direct democracy at the expense of the fundamental law is to sanction, not a constitutional, but an extra-constitutional recourse. This is clearly beyond the powers of the Court who, by sovereign mandate, is the guardian and keeper of the Constitution. IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in G.R. No. 174153. CONSUELO YNARES-SANTIAGO Associate Justice

____________________ EN BANC G.R. NO. 174153 RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH 6,327,952 REGISTERED VOTERS, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-intervenors, RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, petitioners-intervenors, SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-intervenor, PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) AND VICTORINO F. BALAIS, petitioners-intervenors, ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE AND CARLOS P. MEDINA, JR., oppositors-intervenors, ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor, ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FROUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS,LEONARDO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, AND DR. REGINALD PAMUGAS, oppositors-intervenors, LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA HONTIVEROS-BARAQUEL, oppositors-intervenors, LUWALHATI ANTONINO, oppositor-intervenor, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS AND AMADO GAT INCION, oppositors-intervenors, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR. AND SENATORS SERGIO R. OSMENA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCIRO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM, AND PANFILO M. LACSON, oppositors-intervenors, JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG PILIPINO, oppositors-intervenors, INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER, oppositors-intervenors, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA A. LAT, ANTONIO L. SALVADOR AND RANDALL C. TABAYOYONG, oppostors-intervenors, SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT, MANUEL VILLAR, JR., oppositor-intervenor; G.R. NO. 174299 MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND RENE A. Q. SAGUISAG, petitioners, vs. COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN BENJAMIN S. ABALOS, SR. AND COMMISSIONERS RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR. ROMEO A. BRAWNER, RENE V. SARMIENTO AND JOHN DOE AND PETER DOE, respondents. x ---------------------------------------------------------------------------------------- x CONCURRING OPINION SANDOVALGUTIERREZ, J.: Vox populi vox Dei -- the voice of the people is the voice of God. Caution should be exercised in choosing one's battlecry, lest it does more harm than good to one's cause. In its original context, the complete version of this Latin phrase means exactly the opposite of what it is frequently taken to mean. It originated from a holy man, the monk Alcuin, who advised Charlemagne, "nec audiendi qui solent dicere vox populi vox Dei quum tumultuositas vulgi semper insaniae proxima sit," meaning, "And those people should not be listened to who keep on saying, 'The voice of the people is the voice of God,' since the riotousness of the crowd is always very close to madness."1 Perhaps, it is by providence that the true meaning of the Latin phrase is revealed upon petitioners and their allies that they may reflect upon the sincerity and authenticity of their "people's initiative." History has been a witness to countless iniquities committed in the name of God. Wars were waged, despotism tolerated and oppressions justified all these transpired as man boasted of God's imprimatur. Today, petitioners and their allies hum the same rallying call, convincing this Court that the people's initiative is the "voice of the people" and, therefore, the "voice of God." After a thorough consideration of the petitions, I have come to realize that man, with his ingenuity and arrogance, has perfected the craft of imitating the voice of God. It is against this kind of genius that the Court must guard itself. The facts of the case are undisputed. In 1996, the Movement for People's Initiative sought to exercise the power of initiative under Section 2, Article XVII of the Constitution which reads: Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter, The Congress shall provide for the implementation of the exercise of this right.

The exercise was thwarted by a petition for prohibition filed with this Court by Senator Miriam Defensor Santiago, et al., entitled " Miriam Defensor Santiago, Alexander Padilla and Maria Isabel Ongpin, petitioners, v. Commission on Elections (COMELEC), Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa, in their capacities as founding members of the People's Initiative for Reforms, Modernization and Action (PIRMA), respondents ."2 The case was docketed as G.R. No. 127325. On March 19, 1997, this Court rendered its Decision in favor of petitioners, holding that Republic Act No. 6735 (R.A. No. 6735), An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor , is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned ." A majority of eight (8) Justices fully concurred with this ruling, while five (5) subscribed to the opposite view. One (1) opined that there is no need to rule on the adequacy of R.A. No. 6735. On motion for reconsideration, two (2) of the eight (8) Justices reconsidered their positions. One (1) filed an inhibition and the other one (1) joined the minority opinion. As a consequence, of the thirteen (13) Justices who participated in the deliberation, six (6) voted in favor of the majority opinion, while the other six (6) voted in favor of the minority opinion.3 A few months thereafter, or on September 23, 1997, the Court dismissed a similar case, entitled People's Initiative for Reform, Modernization and Action (PIRMA) v. Commission on Elections4 on the ground that the COMELEC did not commit grave abuse of discretion when it dismissed PIRMA's Petition for Initiative to Propose Amendments to the Constitution "it appearing that that it only complied with the dispositions in the Decision of the Court in G.R. no. 127325 (Santiago v. COMELEC) promulgated on March 19, 1997, and its Resolution of June 10, 1997." Seven (7) Justices voted that there was no need to re-examine its ruling, as regards the issue of the sufficiency of R.A. No. 6735. Another Justice concurred, but on the different premise that the case at bar is not the proper vehicle for such re-examination. Five (5) Justice opined otherwise. This time, another group known as Sigaw ng Bayan, in coordination with the Union of Local Authorities of the Philippines (ULAP), have gathered signatures in support of the proposed amendments to the Constitution, which entail a change in the form of government from bicameralpresidential to unicameral-parliamentary, thus: A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows: Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory, and each province must have at least one member. (2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old on the day of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of his district for a term of five years without limitation as to the number thereof, except those under the party-list system which shall be provided for by law and whose number shall be equal to twenty per centum of the total membership coming from the parliamentary districts. B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows: Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of Parliament from among themselves. He shall be responsible to the Parliament for the program of government. C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled "Transitory Provisions," which shall read, as follows: Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a vote of two thirds of all the members of the interim parliament. (2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under Article VII as amended. Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatium up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; provided, however, that any and all references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of Parliament" and any and all references to the "President" and/or "Acting President" shall be changed to read "Prime Minister." Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby be amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary System of government; provided, however, that any and all references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of the House of Representatives" shall be changed to read as "Member(s) of Parliament" and any and all references to the "President" and/or "Acting President" shall be changed to read "Prime Minister."

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who are heads of executive departments. (2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the interim Parliament and shall preside over its sessions for the election of the interim Prime Minister and until the Speaker shall have been elected by a majority vote of all the members of the interim Parliament from among themselves. (3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June 2010. (4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be delegated to him by the incumbent President." (2) The interim Parliament shall provide for the election of the members of Parliament which shall be synchronized and held simultaneously with the election of all local government officials. The duty elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term of the incumbent President and Vice President. Sigaw ng Bayan prepared signature sheets, and written on its upper right hand portion is the abstract of the proposed amendments, quoted as follows: Abstract: Do you approve of the amendment of Article VI and VII of the 1987 Constitution, changing the form of government from the present bicameral-presidential to a unicameral-parliamentary system of government, in order to achieve greater efficiency, simplicity and economy in government; and providing an Article XVIII as Transitory Provisions for the orderly shift from one system to another? On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado, herein petitioners, filed with the COMELEC a Petition for Initiative to Amend the Constitution.5 Five (5) days thereafter, they filed an Amended Petition alleging that they are filing the petition in their own behalf and together with some 6.3 million registered voters who have affixed their signatures on the signature sheets attached thereto . They claimed that the signatures of registered voters appearing on the signature sheets, constituting at least twelve per cent (12%) of all registered voters in the country, wherein each legislative district is represented by at least three per cent (3%) of all the registered voters, were verified by their respective city or municipal election officers. Several organizations opposed the petition. 6 In a Resolution dated August 31, 2006, the COMELEC denied due course to the petition, citing as basis this Court's ruling in Santiago, permanently enjoining it "from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system." Hence, the present petition for certiorari and mandamus praying that this Court set aside the COMELEC Resolution and direct the latter tocomply with Section 4, Article XVII of the Constitution, which provides: Sec. 4 x x x Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition. I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153 and grant the petition of Mar-len Abigail Binay, et al. in G.R. No. 174299. Here, petitioners pray that the COMELEC Chairman and Commissioners be required to show why they should not be punished for contempt 7 of court for disregarding the permanent injunction issued by this Court in Santiago. I Respondent COMELEC did not act with grave abuse of discretion Without necessarily brushing aside the other important issues, I believe the resolution of the present petition hinges on this singular issue -- did the COMELEC commit grave abuse of discretion when it denied Lambino, et al.'s petition for initiative to amend the Constitution on the basis of this Court's Decision in Santiago v. COMELEC? In other words, regardless of how the other remaining issues are resolved, still, the ultimate yardstick is the attendance of "grave abuse of discretion" on the part of the COMELEC. Jurisprudence teaches that an act of a court or tribunal may only be considered as committed in grave abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.8

The Resolution of respondent COMELEC denying due course to the petition for initiative on the basis of a case ( Santiago) decided by this Court cannot, in any way, be characterized as "capricious or whimsical," "patent and gross," or "arbitrary and despotic." On the contrary, it was the most prudent course to take. It must be stressed that in Santiago, this Court permanently enjoins respondent COMELEC "from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted. " It being a fact that Congress has not enacted a sufficient law, respondent COMELEC has no alternative but to adhere to Santiago. Otherwise, it is vulnerable to a citation for contempt. As succinctly stated by Chief Justice Artemio V. Panganiban (then Associate Justice) in his Separate Opinion in the subsequent case of PIRMA vs. COMELEC:9 x x x I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with said decision's ratio decidendi. Respondent Comelec was directly enjoined by the highest Court of the land. It had no choice but to obey. Its obedience cannot constitute grave abuse of discretion. Refusal to act on the PIRMA petition was the only recourse open to the Comelec. Any other mode of action would have constituted defiance of the Court and would have been struck down as grave abuse of discretion and contumacious disregard of this Court's supremacy as the final arbiter of justiciable controversies. It need not be emphasized that in our judicial hierarchy, this Court reigns supreme. All courts, tribunals and administrative bodies exercising quasijudicial functions are obliged to conform to its pronouncements. It has the last word on what the law is; it is the final arbiter of any justifiable controversy. In other words, there is only one Supreme Court from whose decisions all other courts should take their bearings .10 As a warning to lower court judges who would not adhere to its rulings, this Court, in People v. Santos,11 held: Now, if a judge of a lower Court feels, in the fulfillment of his mission of deciding cases, that the application of a doctrine promulgated by this Superiority is against his way of reasoning, or against his conscience, he may state his opinion on the matter, but rather than disposing of the case in accordance with his personal views he must first think that it is his duty to apply the law as interpreted by the Highest Court of the Land, and that any deviation from a principle laid down by the latter would unavoidably cause, as a sequel, unnecessary inconveniences, delays and expenses to the litigants. And if despite of what is here said, a Judge still believes that he cannot follow Our rulings, then he has no other alternative than to place himself in the position that he could properly avoid the duty of having to render judgment on the case concerned (Art. 9, C.C.), and he has only one legal way to do that. Clearly, respondent COMELEC did not gravely abuse its discretion in dismissing the petition of Lambino, et al. for it merely followed this Court's ruling in Santiago. Significantly, in PIRMA vs. COMELEC,12 a unanimous Court implicitly recognized that its ruling in Santiago is the established doctrine and that the COMELEC did not commit grave abuse of discretion in invoking it, thus: The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions of this Court in G.R. No. 127325 promulgated on March 19, 1997, and its resolution on June 10, 1997. Indeed, I cannot characterize as a "grave abuse of discretion" the COMELEC's obedience and respect to the pronouncement of this Court in Santiago. II The doctrine of stare decisis bars the re-examination of Santiago It cannot be denied that in Santiago, a majority of the members of this Court or eight (8) Justices (as against five (5) Justices) concurred in declaring R.A. No. 6735 an insufficient law. When the motion for reconsideration was denied via an equally-divided Court or a 6-6 vote, it does not mean that the Decision was overturned. It only shows that the opposite view fails to muster enough votes to modify or reverse the majority ruling. Therefore, the original Decision was upheld.13 In Ortigas and Company Limited Partnership vs. Velasco,14 this Court ruled that the denial of a motion or reconsideration signifies that the ground relied upon have been found, upon due deliberation, to be without merit, as not being of sufficient weight to warrant a modification of the judgment or final order. With Santiago being the only impediment to the instant petition for initiative, petitioners persistently stress that the doctrine of stare decisis does not bar its re-examination. I am not convinced. The maxim stare decisis et non quieta movere translates "stand by the decisions and disturb not what is settled."15 As used in our jurisprudence, it means that "once this Court has laid down a principle of law as applicable to a certain state of facts, it would adhere to that principle and apply it to all future cases in which the facts are substantially the same as in the earlier controversy ."16 There is considerable literature about whether this doctrine of stare decisis is a good or bad one, but the doctrine is usually justified by arguments which focus on the desirability of stability and certainty in the law and also by notions of justice and fairness. Justice Benjamin Cardozo in his treatise, The Nature of the Judicial Process stated: It will not do to decide the same question one way between one set of litigants and the opposite way between another. 'If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.17 That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation of American philosopher William K. Frankena as to what constitutes injustice:

The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one of them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the responsible agent or group; and unless that agent or group can establish that there is some relevant dissimilarity after all between the individuals concerned and their circumstances, he or they will be guilty as charged.18 Although the doctrine of stare decisis does not prevent re-examining and, if need be, overruling prior decisions, "It is x x x a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This policy x x x 'is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.19 Accordingly, a party urging overruling a precedent faces a rightly onerous task, the difficulty of which is roughly proportional to a number of factors, including the age of the precedent, the nature and extent of public and private reliance on it, and its consistency or inconsistency with other related rules of law. Here, petitioners failed to discharge their task. Santiago v. COMELEC was decided by this Court on March 19, 1997 or more than nine (9) years ago. During that span of time, the Filipino people, specifically the law practitioners, law professors, law students, the entire judiciary and litigants have recognized this Court's Decision as a precedent. In fact, the Santiago doctrine was applied by this Court in the subsequent case of PIRMA. Even the legislature has relied on said Decision, thus, several bills have been introduced in both Houses of Congress to cure the deficiency. I cannot fathom why it should be overturned or set aside merely on the basis of the petition of Lambino, et al. Indeed, this Court's conclusion inSantiago that R.A. No. 6735 is incomplete, inadequate or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned remains a precedent and must be upheld. III The proposed constitutional changes constitute revisions and not mere amendments Article XVII of the 1987 Constitution lays down the means for its amendment and revision. Thus: Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its members; or (2) A Constitutional Convention. Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered votes, of which every legislative district must be represented by at least three per centum of the registered voters therein. x x x. (Emphasis supplied) At the outset, it must be underscored that initiative and referendum, as means by which the people can directly propose changes to the Constitution, were not provided for in the 1935 and 1973 Constitutions. Thus, under these two (2) Constitutions, there was no demand to draw the distinction between an amendment and a revision, both being governed by a uniform process. This is not so under our present Constitution. The distinction between an amendment and a revision becomes crucial because only amendments are allowed under the system of people's initiative. Revisions are within the exclusive domain of Congress, upon a vote of three-fourths of all its members, or of a Constitutional Convention. The deliberations of the 1986 Constitutional Commission is explicit that Section 2, Article XVII covers only amendments, thus: The sponsor, Commissioner Suarez, is recognized. MR. SUAREZ: Thank you, Madam President. May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory that this matter of initiative which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should be limited to amendments to the Constitution and should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. xxx xxx xxx MR. MAAMBONG: Madam President, will the distinguished proponent of the amendment yield to a few questions? MR. DAVIDE: With pleasure, Madam President.

MR. MAAMBONG: My first question, Commissioner Davide's proposed amendment on line I refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision?" MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision" MR. MAAMBONG: Thank you.20 Considering that the initiative on the Constitution only permits amendments, it is imperative to examine whether petitioners' proposed changes partake of the nature of amendments, not revisions. The petition for initiative filed with the COMELEC by Lambino, et al. sought to amend the following provisions of the 1987 Constitution: Sections 1, 2, 3, 4, 5, 6, and 7 of Article VI (The Legislative Department); Sections 1, 2, 3 and 4 of Article VII (The Executive Department). It further includes Article XVIII (Transitory Provisions) for the purpose of insuring an orderly transition from the bicameral-presidential to a unicameral-parliamentary form of government. Succinctly, the proposals envision a change in the form of government, from bicameral-presidential to unicameral-parliamentary; conversion of the present Congress of the Philippines to an Interim National Assembly; change in the terms of Members of Parliament; and the election of a Prime Minister who shall be vested with executive power. Petitioners contend that the proposed changes are in the nature of amendments, hence, within the coverage of a "people's initiative." I disagree. The noted constitutionalist, Father Joaquin G. Bernas, S.J., who was also a member of the 1986 Constitutional Commission, characterized an amendment and a revision to the Constitution as follows: An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision however, the guiding original intention and plan contemplates a reexamination of the entire document, or of provisions of the document which have over-all implications for the document to determine how and to what extent they should be altered.21 Obviously, both "revision" and amendment" connote change; any distinction between the two must be based upon the degree of change contemplated. In Kelly v. Laing,22 the Supreme Court of Michigan made the following comparison of the two terms: "Revision" and "amendment" have the common characteristics of working changes in the charter, and are sometimes used in exactly the same sense but there is an essential difference between them. "Revision" implies a reexamination of the whole law and a redraft without obligation to maintain the form, scheme, or structure of the old. As applied to fundamental law, such as a constitution or charter, it suggests a convention to examine the whole subject and to prepare and submit a new instrument whether the desired changes from the old are few or many. Amendment implies continuance of the general plan and purpose of the law, with corrections to better accomplish its purpose . Basically, revision suggests fundamental change, while amendment is a correction of detail. Although there are some authorities which indicate that a change in a city's form of government may be accomplished by a process of "amendment," the cases which so hold seem to involve statutes which only distinguish between amendment and totally new charters. 23 However, as in Maine law, where the statute authorizing the changes distinguishes between "charter amendment" and "charter revision," it has been held that "(a) change in the form of government of a home rule city may be made only by revision of the city charter, not by its amendment." 24 In summary, it would seem that any major change in governmental form and scheme would probably be interpreted as a "revision" and should be achieved through the more thorough process of deliberation. Although, at first glance, petitioners' proposed changes appear to cover isolated and specific provisions only, however, upon careful scrutiny, it becomes clear that the proposed changes will alter the very structure of our government and create multifarious ramifications . In other words, the proposed changes will have a "domino effect" or, more appropriately, "ripple effect" on other provisions of the Constitution. At this juncture, it must be emphasized that the power reserved to the people to effect changes in the Constitution includes the power to amend anysection in such a manner that the proposed change, if approved, would "be complete within itself, relate to one subject and not substantially affect any other section or article of the Constitution or require further amendments to the Constitution to accomplish its purpose." 25 This is clearly not the case here. Firstly, a shift from a presidential to a parliamentary form of government affects the well-enshrined doctrine of separation of powers of government, embodied in our Constitution, by providing for an Executive, Legislative and Judiciary Branches. In a Parliamentary form of government, the Executive Branch is to a certain degree, dependent on the direct or indirect support of the Parliament, as expressed through a "vote of confidence." To my mind, this doctrine of separation of powers is so interwoven in the fabric of our Constitution, that any change affecting such doctrine must necessarily be a revision.

In McFadden vs. Jordan,26 the California Supreme Court ruled as follows: It is thus clear that that a revision of the Constitution may be accomplished only through ratification by the people of a revised constitution proposed by a convention called for that purpose x x x. Consequently, if the scope of the proposed initiative measure now before us is so broad that if such measure became law a substantial revision of our present state Constitution would be effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention. x x x. Secondly, the shift from a bicameral to a unicameral form of government is not a mere amendment, but is in actuality a revision, as set forth in Adams v. Gunter27: The proposal here to amend Section I of Article III of the 1968 Constitution to provide for a Unicameral Legislature affects not only many other provisions of the Constitution but provides for a change in the form of the legislative branch of government , which has been in existence in the United States Congress and in all of the states of the nation, except one, since the earliest days. It would be difficult to visualize a more revolutionary change. The concept of a House and a Senate is basic in the American form of government. It would not only radically change the whole pattern of the government in this state and tear apart the whole fabric of the Constitution, but would even affect the physical facilities necessary to carry on government. Thirdly, the proposed changes, on their face, signify revisions rather than amendments, especially, with the inclusion of the following "omnibus provision": C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-Parliamnetary form of government, there shall be a new Article XVIII, entitled "Transitory Provisions" which shall read, as follows: xxxxxxxxx Section 3. Upon the expiration of the term of the incumbent President and Vice-President, with the exceptions of Section 1,2,3 and 4 of Article VII of the 1987 Constitution which are hereby amended x x x x x x and all other Sections of Article VII shall be retained and numbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary system of government x x x x x x . xxxxxxxxx Section 4. (1) x x x (3) Within forty-five days from ratification of these amendments, the Interim Parliament shall convene to propose amendments to, or revisions of, this Constitution, consistent with the principles of local autonomy, decentralization and a strong bureaucracy. The above provisions will necessarily result in a "ripple effect" on the other provisions of the Constitution to make them conform to the qualities of unicameral-parliamentary form of government. With one sweeping stroke, these proposed provisions automatically revise some provisions of the Constitution. In McFadden, the same practice was considered by the Court to be in the nature of substantial revision, necessitating a constitutional convention. I quote the pertinent portion of its ruling, thus: There is in the measure itself, no attempt to enumerate the various and many articles and sections of our present Constitution which would be affected, replaced or repealed. It purports only to add one new article but its framers found it necessary to include the omnibus provision (subdivision (7) of section XII) that "If any section, subsection, sentence, clause or phrase of the constitution is in conflict with any of the provisions of this article, such section, subsection, sentence, clause, or phrase is to the extent of such conflict hereby repealed. x x x Consequently, if the scope of the proposed intitiative measure now before us is so broad that if such measure become law a substantial revision of our present state Constitution would be be effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention.28 Undoubtedly, the changes proposed by the petitioners are not mere amendments which will only affect the Articles or Sections sought to be changed. Rather, they are in the nature of revisions which will affect considerable portions of the Constitution resulting in the alteration of our form of government. The proposed changes cannot be taken in isolation since these are connected or "interlocked" with the other provisions of our Constitution. Accordingly, it has been held that: "If the changes attempted are so sweeping that it is necessary to include the provisions interlocking them, then it is plain that the plan would constitute a recasting of the whole Constitution and this, we think, it was intended to be accomplished only by a convention under Section 2 which has not yet been disturbed."29 I therefore conclude that since the proposed changes partake of the nature of a revision of the Constitution, then they cannot be the subject of an initiative. On this matter, Father Bernas expressed this insight: But why limit initiative and referendum to simple amendments? The answer, which one can easily glean from the rather long deliberation on initiative and referendum in the 1986 Constitutional Commission, is practicality. In other words, who is to formulate the revision or how is it to be formulated? Revision, as concretely being proposed now, is nothing less than a rebuilding of the Philippine constitutional structure. Who were involved in formulating the structure? What debates ensued? What records are there for future use in interpreting the provisions which may be found to be unclear? In a deliberative body like Congress or a Constitutional Convention, decisions are reached after much purifying debate. And while the deliberations proceed, the public has the opportunity to get involved. It is only after the work of an authorized body has been completed that it

is presented to the electorate for final judgment. Careful debate is important because the electorate tends to accept what is presented to it even sight unseen.30 IV R.A. No. 6735 is insufficient to implement the People's initiative Section 2, Article XVII of the 1987 Constitution reads: Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter, The Congress shall provide for the implementation of the exercise of this right. On its face, Section 2 is not a self-executory provision. This means that an enabling law is imperative for its implementation. Thus, Congress enacted R.A. No. 6735 in order to breathe life into this constitutional provision. However, as previously narrated, this Court struck the law in Santiago for being incomplete, inadequate, orwanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. The passage of time has done nothing to change the applicability of R.A. No. 6735. Congress neither amended it nor passed a new law to supply its deficiencies. Notwithstanding so, this Court is being persuaded to take a 360-degree turn, enumerating three (3) justifications why R.A. No. 6735 must be considered a sufficient law, thus: 1) The text of R.A. No. 6735 is replete with references to the right of people to initiate changes to the Constitution; 2) The legislative history of R.A. No. 6735 reveals the clear intent of the lawmakers to use it as instrument to implement the people's initiative; and 3) The sponsorship speeches by the authors of R.A. No. 6735 demonstrate the legislative intent to use it as instrument to implement people's initiative. I regret to say that the foregoing justifications are wanting. A thorough reading of R.A. No. 6735 leads to the conclusion that it covers only initiatives on national and local legislation. Its references to initiatives on the Constitution are few, isolated and misplaced. Unlike in the initiatives on national and local legislation, where R.A. No. 6735 provides a detailed, logical, and exhaustive enumeration on their implementation,31 however, as regards initiative on the Constitution, the law merely: (a) mentions the word "Constitution" in Section 2;32 (b) defines "initiative on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3; 33 (c) speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution may be approved or rejected by the people;34 (d) reiterates the constitutional requirements as to the number of voters who should sign the petition;35 and (e) provides the date for the effectivity of the approved proposition. 36 In other words, R.A. No. 6735 does not specify the procedure how initiative on the Constitution may be accomplished. This is not the enabling law contemplated by the Constitution. As pointed out by oppositor-intervenor Alternative Law Groups Inc., since the promulgation of the Decision in Santiago, various bills have been introduced in both Houses of Congress providing for a complete and adequate process for people's initiative, such as: Names, signatures and addresses of petitioners who shall be registered voters; A statement of the provision of the Constitution or any part thereof sought to be amended and the proposed amendment; The manner of initiation - in a congressional district through a petition by any individual, group, political party or coalition with members in the congressional district; The language used: the petition should be printed in English and translated in the local language; Signature stations to be provided for;

 Provisions pertaining to the need and manner of posting, that is, after the signatures shall have been verified by the Commission, the verified signatures shall be posted for at least thirty days in the respective municipal and city halls where the signatures were obtained; Provisions pertaining to protests allowed any protest as to the authenticity of the signatures to be filed with the COMELEC and decided within sixty (60) days from the filing of said protest. None of the above necessary details is provided by R.A. No. 6735, thus, demonstrating its incompleteness and inadequacy. V Petitioners are not Proper Parties to File the Petition for Initiative VI The Petition for Initiative Filed with the COMELEC Does not Comply with Section 2, Article XVII of the Constitution and R.A. No. 6735 I shall discuss the above issues together since they are interrelated and inseparable. The determination of whether petitioners are proper parties to file the petition for initiative in behalf of the alleged 6.3 million voters will require an examination of whether they have complied with the provisions of Section 2, Article XVII of the Constitution. To reiterate, Section 2, Article XVII of the Constitution provides: Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. (Underscoring supplied) The mandate of the above constitutional provisions is definite and categorical. For a people's initiative to prosper, the following requisites must be present: 1. It is "the people" themselves who must "directly propose" "amendments" to the Constitution; 2. The proposed amendments must be contained in "a petition of at least twelve per centum of the total number of registered voters ;" and 3. The required minimum of 12% of the total number of registered voters "must be represented by at least three per centum of the registered voters" of "every legislative district." In this case, however, the above requisites are not present. The petition for initiative was filed with the COMELEC by petitioners Lambino and Aumentado, two registered voters. As shown in the "Verification/Certification with Affidavit of Non-Forum Shopping" contained in their petition, they alleged under oath that they have caused the preparation of the petition in their personal capacity as registered voters " and as representatives" of the supposed 6.3 million registered voters. This goes to show that the questioned petition was not initiated directly by the 6.3 million people who allegedly comprised at least 12% of the total number of registered voters, as required by Section 2. Moreover, nowhere in the petition itself could be found the signatures of the 6.3 million registered voters. Only the signatures of petitioners Lambino and Aumentado were affixed therein "as representatives" of those 6.3 million people. Certainly, that is not the petition for people's initiative contemplated by the Constitution. Petitioners Lambino and Aumentado have no authority whatsoever to file the petition "as representatives" of the alleged 6.3 million registered voters. Such act of representation is constitutionally proscribed. To repeat, Section 2 strictly requires that amendments to the Constitution shall be "directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters ." Obviously, the phrase "directly proposed by the people" excludes any person acting as representative or agent of the 12% of the total number of registered voters. The Constitution has bestowed upon the people the right to directly propose amendments to the Constitution. Such right cannot be usurped by anyone under the guise of being the people's representative. Simply put, Section 2 does not recognize acts of representation. For it is only "the people" (comprising the minimum of 12% of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein) who are the proper parties to initiate a petition proposing amendments to the Constitution. Verily, the petition filed with the COMELEC by herein petitioners Lambino and Aumentado is not a people's initiative. Necessarily, it must fail. Cororarilly, the plea that this Court should "hear" and "heed" "the people's voice" is baseless and misleading. There is no people's voice to be heard and heeded as this petition for initiative is not truly theirs, but only of petitioners Lambino and Aumentado and their allies. VII The issues at bar are not political questions. Lambino and Aumentado, petitioners in G.R. No. 174153, vehemently argue that: (1) "the validity of the exercise of the right of the sovereign people to amend the Constitution and their will, as expressed by the fact that over six million registered voters indicated their support of the Petition for initiative is a purely political question;" and (2) "[t]he power to propose amendments to the Constitution is a right explicitly bestowed upon the sovereign people.

Hence, the determination by the people to exercise their right to propose amendments under the system of initiative is a sovereign act and falls squarely within the ambit of a political question." The "political question doctrine" was first enunciated by the US Supreme Court in Luther v. Borden.37 Faced with the difficult question of whether the Supreme Court was the appropriate institution to define the substantive content of republicanism, the US Supreme Court, speaking thru Mr. Justice Roger B. Taney, concluded that "the sovereignty in every State resides in the people, as to how and whether they exercised it, was under the circumstances of the case, a political question to be settled by the political power." In other words, the responsibility of settling certain constitutional questions was left to the legislative and executive branches of the government. The Luther case arose from the so-called "Dorr Rebellion" in the State of Rhode Island. Due to increased migration brought about by the Industrial Revolution, the urban population of Rhode Island increased. However, under the 1663 Royal Charter which served as the State Constitution, voting rights were largely limited to residents of the rural districts. This severe mal-apportionment of suffrage rights led to the "Dorr Rebellion." Despairing of obtaining remedies for their disenfranchisement from the state government, suffrage reformers invoked their rights under the American Declaration of Independence to "alter or abolish" the government and to institute a new one. The reformers proceeded to call for and hold an extralegal constitutional convention, drafted a new State Constitution, submitted the document for popular ratification, and held elections under it. The State government, however, refused to cede power, leading to an anomalous situation in that for a few months in 1842, there were two opposing state governments contending for legitimacy and possession of state of offices. The Rhode Island militia, under the authority of martial law, entered and searched the house of Martin Luther, a Dorr supporter. He brought suit against Luther Borden, a militiaman. Before the US Supreme Court, Luther's counsel argued that since the State's archaic Constitution prevented a fair and peaceful address of grievances through democratic processes, the people of Rhode Island had instead chosen to exercise their inherent right in popular sovereignty of replacing what they saw as an oppressive government. The US Supreme Court deemed the controversy as non-justiciable and inappropriate for judicial resolution. In Colgrove v. Green,38 Mr. Justice Felix Frankfurter, coined the phrase "political thicket" to describe situations where Federal courts should not intervene in political questions which they have neither the competence nor the commission to decide. In Colgrove, the US Supreme Court, with a narrow 4-3 vote branded the apportionment of legislative districts in Illinois "as a political question and that the invalidation of the districts might, in requiring statewide elections, create an evil greater than that sought to be remedied. " While this Court has adopted the use of Frankfurter's "political thicket," nonetheless, it has sought to come up with a definition of the term "political question." Thus, in Vera v. Avelino,39 this Court ruled that properly, political questions are "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government." In Taada and Macapagal v. Cuenco,40 the Court held that the term political question connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. In Aquino v. Enrile,41 this Court adopted the following guidelines laid down in Baker v. Carr42 in determining whether a question before it is political, rather than judicial in nature, to wit: 1) there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or 2) there is a lack of judicially discoverable and manageable standards for resolving it; or 3) there is the sheer impossibility of deciding the matter without an initial policy determination of a kind clearly for non-judicial discretion; or 4) there is the sheer impossibility of the Court's undertaking an independent resolution without expressing lack of respect due the coordinate branches of government; or 5) there is an unusual need for unquestioning adherence to a political decision already made; or 6) there exists the potentiality of embarrassment arising from multifarious pronouncements by various departments on one question. None of the foregoing standards is present in the issues raised before this Court. Accordingly, the issues are justiciable. What is at stake here is the legality and not the wisdom of the act complained of. Moreover, even assuming arguendo that the issues raised before this Court are political in nature, it is not precluded from resolving them under its expanded jurisdiction conferred upon it by Section 1, Article VIII of the Constitution, following Daza v. Singson.43 As pointed out in Marcos v. Manglapus,44 the present Constitution limits resort to the political question doctrine and broadens the scope of judicial power which the Court, under previous charters, would have normally and ordinarily left to the political departments to decide. CONCLUSION In fine, considering the political scenario in our country today, it is my view that the so-called people's initiative to amend our Constitution from bicameralpresidential to unicameral-parliamentary is actually not an initiative of the people, but an initiative of some of our politicians. It has not been shown by petitioners, during the oral arguments in this case, that the 6.3 million registered voters who affixed their signatures understood what they signed. In fact, petitioners admitted that the Constitutional provisions sought to be amended and the proposed amendments were not explained to all those registered voters. Indeed, there will be no means of knowing, to the point of judicial certainty, whether they really understood what petitioners and their group asked them to sign.

Let us not repeat the mistake committed by this Court in Javellana v. The Executive Secretary.45 The Court then ruled that "This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect," although it had notice that the Constitution proposed by the 1971 Constitutional Convention was not validly ratified by the people in accordance with the 1935 Constitution. The Court concluded, among others, that the viva voce voting in the Citizens' Assemblies "was and is null and void ab initio." That was during martial law when perhaps majority of the justices were scared of the dictator. Luckily at present, we are not under a martial law regime. There is, therefore, no reason why this Court should allow itself to be used as a legitimizing authority by the so-called people's initiative for those who want to perpetuate themselves in power. At this point, I can say without fear that there is nothing wrong with our present government structure. Consequent1y, we must not change it. America has a presidential type of government. Yet, it thrives ideally and has become a super power. It is then safe to conclude that what we should change are some of the people running the government, NOT the SYSTEM. According to petitioners, the proposed amendment would effect a more efficient, more economical and more responsive government. Is there hope that a new breed of politicians, more qualified and capable, may be elected as members and leaders of the unicameral-parliament? Or will the present members of the Lower House continue to hold their respective positions with limitless terms? Will the new government be more responsive to the needs of the poor and the marginalized? Will it be able to provide homes for the homeless, food for the hungry, jobs for the jobless and protection for the weak? This is a defining moment in our history. The issue posed before us is crucial with transcendental significance. And history will judge us on how we resolve this issue shall we allow the revision of our Constitution, of which we are duty bound to guard and revere, on the basis of a doubtful people's initiative? Amending the Constitution involving a change of government system or structure is a herculean task affecting the entire Filipino people and the future generations. Let us, therefore, entrust this duty to more knowledgeable people elected as members of a Constitutional Convention. Yes, the voice of the people is the voice of God. But under the circumstances in this case, the voice of God is not audible. WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R. No. 174299. ANGELINA SANDOVAL-GUTIERREZ Associate Justice ____________________ EN BANC G.R. No. 174153 RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. G.R. No. 174299 MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners, vs. THE COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and JOHN DOE and PETER DOE, respondents. x ---------------------------------------------------------------------------------------- x SEPARATE CONCURRING OPINION CALLEJO, SR., J.: I am convinced beyond cavil that the respondent Commission on Elections (COMELEC) did not commit an abuse of its discretion in dismissing the amended petition before it. The proposals of petitioners incorporated in said amended petition are for the revision of the 1987 Constitution. Further, the amended petition before the respondent COMELEC is insufficient in substance. The Antecedents On August 25, 2006, petitioners Raul L. Lambino and Erico B. Aumentado filed with the COMELEC a petition entitled "IN THE MATTER OF PROPOSING AMENDMENTS TO THE 1987 CONSTITUTION THROUGH A PEOPLE'S INITIATIVE: A SHIFT FROM A BICAMERAL PRESIDENTIAL TO A UNICAMERAL PARLIAMENTARY GOVERNMENT BY AMENDING ARTICLES VI AND VII; AND PROVIDING TRANSITORY PROVISIONS FOR

THE ORDERLY SHIFT FROM THE PRESIDENTIAL TO THE PARLIAMENTARY SYSTEM." The case was docketed as EM (LD)-06-01. On August 30, 2006, petitioners filed an amended petition. For brevity, it is referred to as the petition for initiative. Petitioners alleged therein, inter alia, that they filed their petition in their own behalf and together with those who have affixed their signatures to the signature sheets appended thereto who are Filipino citizens, residents and registered voters of the Philippines, and they constitute at least twelve percent (12%) of all the registered voters in the country, wherein each legislative district is represented by at least three percent (3%) of all the registered voters therein. Petitioners further alleged therein that the filing of the petition for initiative is based on their constitutional right to propose amendments to the 1987 Constitution by way of people's initiative, as recognized in Section 2, Article XVII thereof, which provides: SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right." According to petitioners, while the above provision states that "(T)he Congress shall provide for the implementation of the exercise of this right," the provisions of Section 5(b) and (c), along with Section 7 of Republic Act (RA) 6735,1 are sufficient enabling details for the people's exercise of the power. The said sections of RA 6735 state: Sec. 5. Requirements. (a) To exercise the power x x x (b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. (c) The petition shall state the following: c.1. contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; c.2. the proposition; c.3. the reason or reasons therefor; c.4. that it is not one of the exceptions provided herein; c.5. signatures of the petitioners or registered voters; and c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. xxxx Sec. 7. Verification of Signatures. The Election Registrar shall verify the signatures on the basis of the registry list of voters, voters' affidavits and voters identification cards used in the immediately preceding election. They also alleged that the COMELEC has the authority, mandate and obligation to give due course to the petition for initiative, in compliance with the constitutional directive for the COMELEC to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall."2 Petitioners incorporated in their petition for initiative the changes they proposed to be incorporated in the 1987 Constitution and prayed that the COMELEC issue an order: 1. Finding the Petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution; 2. Directing the publication of the Petition in Filipino and English at least twice in newspapers of general and local circulation; and 3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification by this Honorable Commission of the sufficiency of this Petition, to allow the Filipino people to express their sovereign will on the proposition. Petitioners pray for such other reliefs deemed just and equitable in the premises. The Ruling of the respondent COMELEC

On August 31, 2006, the COMELEC promulgated the assailed Resolution denying due course and dismissing the petition for initiative. The COMELEC ruled that: We agree with the petitioners that this Commission has the solemn Constitutional duty to enforce and administer all laws and regulations relative to the conduct of, as in this case, initiative. This mandate, however, should be read in relation to the other provisions of the Constitution particularly on initiative. Section 2, Article XVII of the 1987 Constitution provides: "Sec. 2. Amendments to this Constitution may, likewise, be directly proposed by the people through initiative, upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. x x x. The Congress shall provide for the implementation of the exercise of this right." The aforequoted provision of the Constitution being a non-self-executory provision needed an enabling law for its implementation. Thus, in order to breathe life into the constitutional right of the people under a system of initiative to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolution, Congress enacted RA 6735. However, the Supreme Court, in the landmark case of Santiago v. Commission on Elections struck down the said law for being incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned The Supreme Court, likewise, declared that this Commission should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. Thus, even if the signatures in the instant Petition appear to meet the required minimum per centum of the total number of registered voters, of which every legislative district is represented by at least three per centum of the registered voters therein, still the Petition cannot be given due course since the Supreme Court categorically declared RA 6735 as inadequate to cover the system of initiative on amendments to the Constitution. This Commission is not unmindful of the transcendental importance of the right of the people under a system of initiative. However, neither can we turn a blind eye to the pronouncement of the High Court that in the absence of a valid enabling law, this right of the people remains nothing but an "empty right," and that this Commission is permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution. (Citations omitted.) Aggrieved, petitioners elevated the case to this Court on a petition for certiorari and mandamus under Rule 65 of the Rules of Court. The Petitioners' Case In support of their petition, petitioners alleged, inter alia, that: I. THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN REFUSING TO TAKE COGNIZANCE OF, AND TO GIVE DUE COURSE TO THE PETITION FOR INITIATIVE, BECAUSE THE CITED SANTIAGO RULING OF 19 MARCH 1997 CANNOT BE CONSIDERED THE MAJORITY OPINION OF THE SUPREME COURT EN BANC, CONSIDERING THAT UPON ITS RECONSIDERATION AND FINAL VOTING ON 10 JUNE 1997, NO MAJORITY VOTE WAS SECURED TO DECLARE REPUBLIC ACT NO. 6735 AS INADEQUATE, INCOMPLETE AND INSUFFICIENT IN STANDARD. II. THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735, REPUBLIC ACT NO. 8189 AND EXISTING APPROPRIATION OF THE COMELEC PROVIDE FOR SUFFICIENT DETAILS AND AUTHORITY FOR THE EXERCISE OF PEOPLE'S INITIATIVE, THUS, EXISTING LAWS TAKEN TOGETHER ARE ADEQUATE AND COMPLETE. III. THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN REFUSING TO TAKE COGNIZANCE OF, AND IN REFUSING TO GIVE DUE COURSE TO THE PETITION FOR INITIATIVE, THEREBY VIOLATING AN EXPRESS CONSTITUTIONAL MANDATE AND DISREGARDING AND CONTRAVENING THE WILL OF THE PEOPLE. A. THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT PETITION FOR INITIATIVE FILED BY THE PETITIONERS.

1. THE FRAMERS OF THE CONSTITUTION INTENDED TO GIVE THE PEOPLE THE POWER TO PROPOSE AMENDMENTS AND THE PEOPLE THEMSELVES ARE NOW GIVING VIBRANT LIFE TO THIS CONSTITUTIONAL PROVISION 2. PRIOR TO THE QUESTIONED SANTIAGO RULING OF 19 MARCH 1997, THE RIGHT OF THE PEOPLE TO EXERCISE THE SOVEREIGN POWER OF INITIATIVE AND RECALL HAS BEEN INVARIABLY UPHELD 3. THE EXERCISE OF THE INITIATIVE TO PROPOSE AMENDMENTS IS A POLITICAL QUESTION WHICH SHALL BE DETERMINED SOLELY BY THE SOVEREIGN PEOPLE. 4. BY SIGNING THE SIGNATURE SHEETS ATTACHED TO THE PETITION FOR INITIATIVE DULY VERIFIED BY THE ELECTION OFFICERS, THE PEOPLE HAVE CHOSEN TO PERFORM THIS SACRED EXERCISE OF THEIR SOVEREIGN POWER. B. THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT PETITION FOR INITIATIVE FILED BY THE PETITIONERS C. THE PERMANENT INJUNCTION ISSUED IN SANTIAGO V. COMELEC ONLY APPLIES TO THE DELFIN PETITION. 1. IT IS THE DISPOSITIVE PORTION OF THE DECISION AND NOT OTHER STATEMENTS IN THE BODY OF THE DECISION THAT GOVERNS THE RIGHTS IN CONTROVERSY. IV. THE HONORABLE PUBLIC RESPONDENT FAILED OR NEGLECTED TO ACT OR PERFORM A DUTY MANDATED BY LAW. A. THE MINISTERIAL DUTY OF THE COMELEC IS TO SET THE INITIATIVE FOR PLEBISCITE. 3 Petitioners Failed to Allege and Demonstrate All the Essential Facts To Establish the Right to a Writ of Certiorari Section 1, Rule 65 of the Rules of Court reads: Sec. 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46. A writ for certiorari may issue only when the following requirements are set out in the petition and established: (1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and

(3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. x x x4 The Court has invariably defined "grave abuse of discretion," thus: By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, and it must be shown that the discretion was exercised arbitrarily or despotically. For certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power, the very antithesis of the judicial prerogative in accordance with centuries of both civil law and common law traditions. 5 There is thus grave abuse of discretion on the part of the COMELEC when it acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment amounting to lack of jurisdiction. Mere abuse of discretion is not enough.6 The only question involved is jurisdiction, either the lack or excess thereof, and abuse of discretion warrants the issuance of the extraordinary remedy of certiorari only when the same is grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal hostility. A writ of certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment.7 An error of judgment is one in which the court may commit in the exercise of its jurisdiction, which error is reversible only by an appeal.8 In the present case, it appears from the assailed Resolution of the COMELEC that it denied the petition for initiative solely in obedience to the mandate of this Court in Santiago v. Commission on Elections.9 In said case, the Court En Banc permanently enjoined the COMELEC from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. When the COMELEC denied the petition for initiative, there was as yet no valid law enacted by Congress to provide for the implementation of the system. It is a travesty for the Court to declare the act of the COMELEC in denying due course to the petition for initiative as "capricious, despotic, oppressive or whimsical exercise of judgment as is equivalent to lack of jurisdiction." In fact, in so doing, the COMELEC merely followed or applied, as it ought to do, the Court's ruling in Santiago to the effect that Section 2, Article XVII of the Constitution on the system of initiative is a non self-executory provision and requires an enabling law for its implementation. In relation thereto, RA 6735 was found by the Court to be "incomplete, inadequate, or wanting in essential terms and conditions" to implement the constitutional provision on initiative. Consequently, the COMELEC was "permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system." The decision of the Court En Banc interpreting RA 6735 forms part of the legal system of the Philippines.10 And no doctrine or principle laid down by the Court En Banc may be modified or reversed except by the Court En Banc,11 certainly not by the COMELEC. Until the Court En Banc modifies or reverses its decision, the COMELEC is bound to follow the same. 12 As succinctly held in Fulkerson v. Thompson:13 Whatever was before the Court, and is disposed of, is considered as finally settled. The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it, or judicially examine it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court even where there is error apparent; or in any manner intermeddle with it further than to execute the mandate and settle such matters as have been remanded, not adjudicated by the Supreme Court. The principles above stated are, we think, conclusively established by the authority of adjudged cases. And any further departure from them would inevitably mar the harmony of the whole judiciary system, bring its parts into conflict, and produce therein disorganization, disorder, and incalculable mischief and confusion. Besides, any rule allowing the inferior courts to disregard the adjudications of the Supreme Court, or to refuse or omit to carry them into execution would be repugnant to the principles established by the constitution, and therefore void. 14 At this point, it is well to recall the factual context of Santiago as well as the pronouncement made by the Court therein. Like petitioners in the instant case, in Santiago, Atty. Jesus Delfin, the People's Initiative for Reforms, Modernization and Action (PIRMA), et al., invoked Section 2, Article XVII of the Constitution as they filed with the COMELEC a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, By People's Initiative" (the Delfin petition). They asked the COMELEC to issue an order fixing the time and date for signature gathering all over the country; causing the necessary publications of said order and their petition in newspapers of general and local circulation and instructing municipal election registrars in all regions all over the country and to assist petitioners in establishing signing stations. Acting thereon, the COMELEC issued the order prayed for. Senator Miriam Santiago, et al. forthwith filed with this Court a petition for prohibition to enjoin the COMELEC from implementing its order. The Court, speaking through Justice Hilario G. Davide, Jr. (later Chief Justice), granted the petition as it declared: 1. RA 6735 "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned"; 2. COMELEC Resolution No. 230015 invalid insofar as it prescribed rules and regulations on the conduct of initiative on amendments to the Constitution because the COMELEC is without authority to promulgate the rules and regulations to implement the exercise of the right of the people to directly propose amendments to the Constitution through the system of initiative; and 3. The Delfin petition insufficient as it did not contain the required number of signatures of registered voters. The Court concluded in Santiago that "the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system." The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered: a) GRANTING the instant petition;

b) DECLARING RA 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation; c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and d) ORDERING the Commission on Elections to forthwith DISMISS the Delfin petition (UND-96-037). The Temporary Restraining Order issued on December 18, 1996 is made permanent as against the Commission on Elections, but is LIFTED as against private respondents.16 The Court reiterated its ruling in Santiago in another petition which was filed with the Court by PIRMA and the spouses Alberto and Carmen Pedrosa (who were parties in Santiago) docketed as PIRMA v. Commission on Elections.17 The said petitioners, undaunted by Santiago and claiming to have gathered 5,793,213 signatures, filed a petition with the COMELEC praying, inter alia, that COMELEC officers be ordered to verify all the signatures collected in behalf of the petition and, after due hearing, that it (COMELEC) declare the petition sufficient for the purpose of scheduling a plebiscite to amend the Constitution. Like the Delfin petition in Santiago, the PIRMA petition proposed to submit to the people in a plebiscite the amendment to the Constitution on the lifting of the term limits of elected officials. The opinion of the minority that there was no doctrine enunciated by the Court in PIRMA has no basis. The COMELEC, in its Resolution dated July 8, 1997, dismissed the PIRMA petition citing the permanent restraining order issued against it by the Court in Santiago. PIRMA and the spouses Pedrosa forthwith elevated the matter to the Court alleging grave abuse of discretion on the part of the COMELEC in refusing to exercise jurisdiction over, and thereby dismissing, their petition for initiative to amend the Constitution. The Court dismissed outright, by a unanimous vote, the petition filed by PIRMA and the spouses Albert Pedrosa. The Court declared that the COMELEC merely complied with the dispositions in the decision of the Court in Santiago and, hence, cannot be held to have committed a grave abuse of its discretion in dismissing the petition before it: The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the Decision of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997. The Court next considered the question of whether there was need to resolve the second issue posed by the petitioners, namely, that the Court re-examine its ruling as regards R.A. 6735. On this issue, the Chief Justice and six (6) other members of the Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no need to take it up. Vitug, J., agreed that there was no need for re-examination of said second issue since the case a bar is not the proper vehicle for that purpose. Five (5) other members of the Court, namely, Melo, Puno, Francisco, Hermosisima and Panganiban, JJ., opined that there was need for such a re-examination. x x x WHEREFORE, the petition is DISMISSED. 18 (Underscoring supplied.) In the present case, the Office of the Solicitor General (OSG) takes the side of petitioners and argues that the COMELEC should not have applied the ruling in Santiago to the petition for initiative because the permanent injunction therein referred only to the Delfin petition. The OSG buttresses this argument by pointing out that the Temporary Restraining Order dated December 18, 1996 that was made permanent in the dispositive portion referred only to the Delfin petition. The OSG's attempt to isolate the dispositive portion from the body of the Court's decision in Santiago is futile. It bears stressing that the dispositive portion must not be read separately but in connection with the other portions of the decision of which it forms a part. To get to the true intent and meaning of a decision, no specific portion thereof should be resorted to but the same must be considered in its entirety. Hence, a resolution or ruling may and does appear in other parts of the decision and not merely in the fallo thereof.19 The pronouncement in the body of the decision in Santiago permanently enjoining the COMELEC "from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system" is thus as much a part of the Court's decision as its dispositive portion. The ruling of this Court is of the nature of an in rem judgment barring any and all Filipinos from filing a petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted . Clearly, the COMELEC, in denying due course to the present petition for initiative on amendments to the Constitution conformably with the Court's ruling in Santiago did not commit grave abuse of discretion. On the contrary, its actuation is in keeping with the salutary principle of hierarchy of courts. For the Court to find the COMELEC to have abused its discretion when it dismissed the amended petition based on the ruling of this Court in Santiago would be sheer judicial apostasy. As eloquently put by Justice J.B.L. Reyes, "there is only one Supreme Court from whose decisions all other courts should take their bearings." 20 This truism applies with equal force to the COMELEC as a quasi-judicial body for, after all, judicial decisions applying or interpreting laws or the Constitution "assume the same authority as the statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria which must control the actuations not only of those called upon to abide thereby but also of those duty bound to enforce obedience thereto." 21 Petitioners Cannot Ascribe Grave Abuse of Discretion on the COMELEC Based on the Minority Opinion in Santiago It is elementary that the opinion of the majority of the members of the Court, not the opinion of the minority, prevails. As a corollary, the decision of the majority cannot be modified or reversed by the minority of the members of the Court.

However, to eschew the binding effect of Santiago, petitioners argue, albeit unconvincingly, that the Court's declaration therein on the inadequacy, incompleteness and insufficiency of RA 6735 to implement the system of initiative to propose constitutional amendments did not constitute the majority opinion. This contention is utterly baseless. Santiago was concurred in, without any reservation, by eight Justices,22 or the majority of the members of the Court, who actually took part in the deliberations thereon. On the other hand, five Justices,23 while voting for the dismissal of the Delfin petition on the ground of insufficiency, dissented from the majority opinion as they maintained the view that RA 6735 was sufficient to implement the system of initiative. Given that a clear majority of the members of the Court, eight Justices, concurred in the decision in Santiago, the pronouncement therein that RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned" constitutes a definitive ruling on the matter. In the Resolution dated June 10, 1997, the motions for reconsideration of the Santiago decision were denied with finality as only six Justices, or less than the majority, voted to grant the same. The Resolution expressly stated that the motion for reconsideration failed "to persuade the requisite majority of the Court to modify or reverse the Decision of 19 March 1977."24 In fine, the pronouncement in Santiago as embodied in the Decision of March 19, 1997 remains the definitive ruling on the matter. It bears stressing that in PIRMA, petitioners prayed for the Court to resolve the issue posed by them and to re-examine its ruling as regards RA 6735. By a vote of seven members of the Court, including Justice Justo P. Torres, Jr. and Justice Jose C. Vitug, the Court voted that there was no need to resolve the issue. Five members of the Court opined that there was a need for the re-examination of said ruling. Thus, the pronouncement of the Court in Santiago remains the law of the case and binding on petitioners. If, as now claimed by the minorty, there was no doctrine enunciated by the Court in Santiago, the Court should have resolved to set aside its original resolution dismissing the petition and to grant the motion for reconsideration and the petition. But the Court did not. The Court positively and unequivocally declared that the COMELEC merely followed the ruling of the Court in Santiago in dismissing the petition before it. No less than Senior Justice Reynato S. Puno concurred with the resolution of the Court. It behooved Justice Puno to dissent from the ruling of the Court on the motion for reconsideration of petitioners precisely on the ground that there was no doctrine enunciated by the Court in Santiago. He did not. Neither did Chief Justice Artemio V. Panganiban, who was a member of the Court. That RA 6735 has failed to validly implement the people's right to directly propose constitutional amendments through the system of initiative had already been conclusively settled in Santiago as well as in PIRMA. Heeding these decisions, several lawmakers, including no less than Solicitor General Antonio Eduardo Nachura when he was then a member of the House of Representatives,25 have filed separate bills to implement the system of initiative under Section 2, Article XVII of the Constitution. In the present Thirteenth (13th) Congress, at least seven (7) bills are pending. In the Senate, the three (3) pending bills are: Senate Bill No. 119 entitled An Act Providing for People's Initiative to Amend the Constitution introduced by Senator Luisa "Loi" P. Ejercito Estrada; Senate Bill No. 2189 entitled An Act Providing for People's Initiative to Amend the Constitution introduced by Senator Miriam Defensor Santiago; and Senate Bill No. 2247 entitled An Act Providing for a System of People's Initiative to Propose Amendments to the Constitution introduced by Senator Richard Gordon. In the House of Representatives, there are at least four (4) pending bills: House Bill No. 05281 filed by Representative Carmen Cari, House Bill No. 05017 filed by Representative Imee Marcos, House Bill No. 05025 filed by Representative Roberto Cajes, and House Bill No. 05026 filed by Representative Edgardo Chatto. These House bills are similarly entitled An Act Providing for People's Initiative to Amend the Constitution. The respective explanatory notes of the said Senate and House bills uniformly recognize that there is, to date, no law to govern the process by which constitutional amendments are introduced by the people directly through the system of initiative . Ten (10) years after Santiago and absent the occurrence of any compelling supervening event, i.e., passage of a law to implement the system of initiative under Section 2, Article XVII of the Constitution, that would warrant the re-examination of the ruling therein, it behooves the Court to apply to the present case the salutary and wellrecognized doctrine of stare decisis. As earlier shown, Congress and other government agencies have, in fact, abided by Santiago. The Court can do no less with respect to its own ruling. Contrary to the stance taken by petitioners, the validity or constitutionality of a law cannot be made to depend on the individual opinions of the members who compose it the Supreme Court, as an institution, has already determined RA 6735 to be "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned" and therefore the same remains to be so regardless of any change in the Court's composition.26 Indeed, it is vital that there be stability in the courts in adhering to decisions deliberately made after ample consideration. Parties should not be encouraged to seek re-examination of determined principles and speculate on fluctuation of the law with every change in the expounders of it.27 Proposals to Revise the Constitution, As in the Case of the Petitioners' Proposal to Change the Form of Government, Cannot be Effected Through the System of Initiative, Which by Express Provision of Section 2, Article XVII of the Constitution, is Limited to Amendments Even granting arguendo the Court, in the present case, abandons its pronouncement in Santiago and declares RA 6735, taken together with other extant laws, sufficient to implement the system of initiative, still, the amended petition for initiative cannot prosper. Despite the denomination of their petition, the proposals of petitioners to change the form of government from the present bicameral-presidential to a unicameral-parliamentary system of government are actually for the revision of the Constitution.

Petitioners propose to "amend" Articles VI and VII of the Constitution in this manner: A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows: "Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory, and each province must have at least one member. "(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old on the day of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of his district for a term of five years without limitation as to the number thereof, except those under the party-list system which shall be provided for by law and whose number shall be equal to twenty per centum of the total membership coming from the parliamentary districts." B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows: "Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of Parliament from among themselves. He shall be responsible to the Parliament for the program of government. C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled "Transitory Provisions," which shall read as follows: Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a vote of two thirds of all the members of the interim parliament., (2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under Article VII as amended. Section 2. "Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; provided, however, that any and all references therein to "Congress," "Senate," "House of Representatives" and "House of Congress," "Senator[s] or "Member[s] of the House of Representatives" and "House of Congress" shall be changed to read "Parliament"; that any and all references therein to "Member[s] of the House of Representatives" shall be changed to read as "Member[s] of Parliament" and any and all references to the "President" and or "Acting President" shall be changed to read "Prime Minister." Section 3. "Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary System of government; provided, however, that any and all references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament"; that any and all references therein to "Member[s] of Congress," "Senator[s]" or "Member[s] of the House of Parliament" and any and all references to the "President" and of "Acting President" shall be changed to read "Prime Minister." Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who are heads of executive departments. (2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the interim Parliament and shall preside over its session for the election of the interim Prime Minister and until the Speaker shall have been elected by a majority vote of all the members of the interim Parliament from among themselves. (3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June 2010. (4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. "Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be delegated to him by the incumbent President." (2) The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials. [Thereafter, the Vice-President, as Member of Parliament, shall immediately convene the

Parliament and shall initially preside over its session for the purpose of electing the Prime Minister, who shall be elected by a majority vote of all its members, from among themselves.] The duly-elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term of the incumbent President and Vice President. 28 Petitioners claim that the required number of signatures of registered voters have been complied with, i.e., the signatories to the petition constitute twelve percent (12%) of all the registered voters in the country, wherein each legislative district is represented by at least three percent (3%) of all the registered voters therein. Certifications allegedly executed by the respective COMELEC Election Registrars of each municipality and city verifying these signatures were attached to the petition for initiative. The verification was allegedly done on the basis of the list of registered voters contained in the official COMELEC list used in the immediately preceding election. The proposition, as formulated by petitioners, to be submitted to the Filipino people in a plebiscite to be called for the said purpose reads: DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER? 29 According to petitioners, the proposed amendment of Articles VI and VII would effect a more efficient, more economical and more responsive government. The parliamentary system would allegedly ensure harmony between the legislative and executive branches of government, promote greater consensus, and provide faster and more decisive governmental action. Sections 1 and 2 of Article XVII pertinently read: Article XVII SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention. SECTION 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. It can be readily gleaned that the above provisions set forth different modes and procedures for proposals for the amendment and revision of the Constitution: 1. Under Section 1, Article XVII, any amendment to, or revision of, the Constitution may be proposed by a. Congress, upon a vote of three-fourths of all its members; or b. A constitutional convention. 2. Under Section 2, Article XVII, amendments to the Constitution may be likewise directly proposed by the people through initiative. The framers of the Constitution deliberately adopted the terms "amendment" and "revision" and provided for their respective modes and procedures for effecting changes of the Constitution fully cognizant of the distinction between the two concepts. Commissioner Jose E. Suarez, the Chairman of the Committee on Amendments and Transitory Provisions, explained: MR. SUAREZ. One more point, and we will be through. We mentioned the possible use of only one term and that is, "amendment." However, the Committee finally agreed to use the terms "amendment" or "revision" when our attention was called by the honorable Vice-President to the substantial difference in the connotation and significance between the said terms. As a result of our research, we came up with the observations made in the famous or notorious Javellana doctrine, particularly the decision rendered by Honorable Justice Makasiar, wherein he made the following distinction between "amendment" and "revision" of an existing Constitution: "Revision" may involve a rewriting of the whole Constitution. On the other hand, the act of amending a constitution envisages a change of specific provisions only. The intention of an act to amend is not the change of the entire Constitution, but only the improvement of specific parts or the addition of provisions deemed essential as a consequence of new conditions or the elimination of parts already considered obsolete or unresponsive to the needs of the times. The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental Charter embodying new political, social and economic concepts.

So, the Committee finally came up with the proposal that these two terms should be employed in the formulation of the Article governing amendments or revisions to the new Constitution.30 Further, the framers of the Constitution deliberately omitted the term "revision" in Section 2, Article XVII of the Constitution because it was their intention to reserve the power to propose a revision of the Constitution to Congress or the constitutional convention. Stated in another manner, it was their manifest intent that revision thereof shall not be undertaken through the system of initiative. Instead, the revision of the Constitution shall be done either by Congress or by a constitutional convention. It is significant to note that, originally, the provision on the system of initiative was included in Section 1 of the draft Article on Amendment or Revision proposed by the Committee on Amendments and Transitory Provisions. The original draft provided: SEC. 1. Any amendment to, or revision of, this Constitution may be proposed: (a) by the National Assembly upon a vote of three-fourths of all its members; or (b) by a constitutional convention; or (c) directly by the people themselves thru initiative as provided for in Article __ Section __ of the Constitution. 31 However, after deliberations and interpellations, the members of the Commission agreed to remove the provision on the system of initiative from Section 1 and, instead, put it under a separate provision, Section 2. It was explained that the removal of the provision on initiative from the other "traditional modes" of changing the Constitution was precisely to limit the former (system of initiative) to amendments to the Constitution. It was emphasized that the system of initiative should not extend to revision. MR. SUAREZ. Thank you, Madam President. May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should be limited to amendments to the Constitution and should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. x x x32 The intention to exclude "revision" of the Constitution as a mode that may be undertaken through the system of initiative was reiterated and made clear by Commissioner Suarez in response to a suggestion of Commissioner Felicitas Aquino: MR. SUAREZ. Section 2 must be interpreted together with the provisions of Section 4, except that in Section 4, as it is presently drafted, there is no take-off date for the 60-day and 90-day periods. MS. AQUINO. Yes. In other words, Section 2 is another alternative mode of proposing amendments to the Constitution which would further require the process of submitting it in a plebiscite, in which case it is not self-executing. MR. SUAREZ. No, not unless we settle and determine the take-off period. MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision? MR SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense conveyed by the Committee. MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas, the process of initiation to amend, which is given to the public, would only apply to amendments? MR. SUAREZ. That is right. Those were the terms envisioned by the Committee.33 Then Commissioner Hilario P. Davide, Jr. (later Chief Justice) also made the clarification with respect to the observation of Commissioner Regalado Maambong:

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"? MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision."34 After several amendments, the Commission voted in favor of the following wording of Section 2: AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER. THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. Sections 1 and 2, Article XVII as eventually worded read: Article XVII SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by: (3) The Congress, upon a vote of three-fourths of all its Members; or (4) A constitutional convention. SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative, upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. The final text of Article XVII on Amendments or Revisions clearly makes a substantial differentiation not only between the two terms but also between two procedures and their respective fields of application. Ineluctably, the system of initiative under Section 2, Article XVII as a mode of effecting changes in the Constitution is strictly limited to amendments not to a revision thereof. As opined earlier, the framers of the Constitution, in providing for "amendment" and "revision" as different modes of changing the fundamental law, were cognizant of the distinction between the two terms. They particularly relied on the distinction made by Justice Felix Antonio in his concurring opinion in Javellana v. Executive Secretary,35 the controversial decision which gave imprimatur to the 1973 Constitution of former President Ferdinand E. Marcos, as follows: There is clearly a distinction between revision and amendment of an existing constitution. Revision may involve a rewriting of the whole constitution. The act of amending a constitution, on the other hand, envisages a change of only specific provisions. The intention of an act to amend is not the change of the entire constitution, but only the improvement of specific parts of the existing constitution of the addition of provisions deemed essential as a consequence of new conditions or the elimination of parts already considered obsolete or unresponsive to the needs of the times. The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental charter embodying new political, social and economic concepts.36 Other elucidation on the distinction between "amendment" and "revision" is enlightening. For example, Dean Vicente G. Sinco, an eminent authority on political law, distinguished the two terms in this manner: Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important provisions. But whatever results the revisions may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one. The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve the specific parts of the existing constitution or to add to it provisions deemed essential on account of changed conditions or to suppress portions of it that seemed obsolete, or dangerous, or misleading in their effect. 37 In the United States, the Supreme Court of Georgia in Wheeler v. Board of Trustees38 had the occasion to make the distinction between the two terms with respect to Ga.L. 1945, an instrument which "amended" the 1877 Constitution of Georgia. It explained the term "amendment:" "Amendment" of a statute implies its survival and not destruction. It repeals or changes some provision, or adds something thereto. A law is amended when it is in whole or in part permitted to remain, and something is added to or taken from it, or it is in some way changed or altered

to make it more complete or perfect, or to fit it the better to accomplish the object or purpose for which it was made, or some other object or purpose.39 On the other hand, the term "revision" was explained by the said US appellate court: x x x When a house is completely demolished and another is erected on the same location, do you have a changed, repaired and altered house, or do you have a new house? Some of the materials contained in the old house may be used again, some of the rooms may be constructed the same, but this does not alter the fact that you have altogether another or a new house. We conclude that the instrument as contained in Ga.L. 1945, pp. 8 to 89, inclusive, is not an amendment to the constitution of 1877; but on the contrary it is a completely revised or new constitution.40 Fairly recently, Fr. Joaquin Bernas, SJ, a member of the Constitutional Commission, expounded on the distinction between the two terms thus: An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and plan contemplate a reexamination of the entire document or of provisions of the document (which have overall implications for the entire document or for the fundamental philosophical underpinnings of the document) to determine how and to what extent it should be altered. Thus, for instance, a switch from the presidential system to a parliamentary system would be a revision because of its overall impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system because of its effect on other important provisions of the Constitution. It is thus clear that what distinguishes revision from amendment is not the quantum of change in the document. Rather, it is the fundamental qualitative alteration that effects revision. Hence, I must reject the puerile argument that the use of the plural form of "amendments" means that a revision can be achieved by the introduction of a multiplicity of amendments! 41 Given that revision necessarily entails a more complex, substantial and far-reaching effects on the Constitution, the framers thereof wisely withheld the said mode from the system of initiative. It should be recalled that it took the framers of the present Constitution four months from June 2, 1986 until October 15, 1986 to come up with the draft Constitution which, as described by the venerable Justice Cecilia Muoz Palma, the President of the Constitutional Commission of 1986, "gradually and painstakingly took shape through the crucible of sustained sometimes passionate and often exhilarating debates that intersected all dimensions of the national life."42 Evidently, the framers of the Constitution believed that a revision thereof should, in like manner, be a product of the same extensive and intensive study and debates. Consequently, while providing for a system of initiative where the people would directly propose amendments to the Constitution, they entrusted the formidable task of its revision to a deliberative body, the Congress or Constituent Assembly. The Constitution is the fundamental law of the state, containing the principles upon which the government is founded, and regulating the division of sovereign powers, directing to what persons each of those powers is to be confided and the manner in which it is to be exercised. 43 The Philippines has followed the American constitutional legal system in the sense that the term constitution is given a more restricted meaning, i.e., as a written organic instrument, under which governmental powers are both conferred and circumscribed.44 The Constitution received its force from the express will of the people. An overwhelming 16,622,111, out of 21,785,216 votes cast during the plebiscite, or 76.30% ratified the present Constitution on February 2, 1987.45 In expressing that will, the Filipino people have incorporated therein the method and manner by which the same can be amended and revised, and when the electorate have incorporated into the fundamental law the particular manner in which the same may be altered or changed, then any course which disregards that express will is a direct violation of the fundamental law.46 Further, these provisions having been incorporated in the Constitution, where the validity of a constitutional amendment or revision depends upon whether such provisions have been complied with, such question presents for consideration and determination a judicial question, and the courts are the only tribunals vested with power under the Constitution to determine such question.47 Earlier, it was mentioned that Article XVII, by the use of the terms "amendment" and "revision," clearly makes a differentiation not only between the two terms but also between two procedures and their respective fields of application. On this point, the case of McFadden v. Jordan48 is instructive. In that case, a "purported initiative amendment" (referred to as the proposed measure) to the State Constitution of California, then being proposed to be submitted to the electors for ratification, was sought to be enjoined. The proposed measure, denominated as "California Bill of Rights," comprised a single new article with some 208 subsections which would repeal or substantially alter at least 15 of the 25 articles of the California State Constitution and add at least four new topics. Among the likely effects of the proposed measure were to curtail legislative and judicial functions, legalize gaming, completely revise the taxation system and reduce the powers of cities, counties and courts. The proposed measure also included diverse matters as ministers, mines, civic centers, liquor control and naturopaths. The Supreme Court of California enjoined the submission of the proposed measure to the electors for ratification because it was not an "amendment" but a "revision" which could only be proposed by a convention. It held that from an examination of the proposed measure itself, considered in relation to the terms of the California State Constitution, it was clear that the proposed initiative enactment amounted substantially to an attempted revision, rather than amendment, thereof; and that inasmuch as the California State Constitution specifies (Article XVIII 2 thereof) that it may be revised by means of constitutional convention but does not provide for revision by initiative measure, the submission of the proposed measure to the electorate for ratification must be enjoined. As piercingly enunciated by the California State Supreme Court in McFadden, the differentiation required (between amendment and revision) is not merely between two words; more accurately it is between two procedures and between their respective fields of application. Each procedure, if we follow elementary principles of statutory construction, must be understood to have a substantial field of application, not to be a mere alternative procedure in

the same field. Each of the two words, then, must be understood to denote, respectively, not only a procedure but also a field of application appropriate to its procedure.49 Provisions regulating the time and mode of effecting organic changes are in the nature of safety-valves they must not be so adjusted as to discharge their peculiar function with too great facility, lest they become the ordinary escape-pipes of party passion; nor, on the other hand, must they discharge it with such difficulty that the force needed to induce action is sufficient also to explode the machine. Hence, the problem of the Constitution maker is, in this particular, one of the most difficult in our whole system, to reconcile the requisites for progress with the requisites for safety. 50 Like in McFadden, the present petition for initiative on amendments to the Constitution is, despite its denomination, one for its revision. It purports to seek the amendment only of Articles VI and VII of the Constitution as well as to provide transitory provisions. However, as will be shown shortly, the amendment of these two provisions will necessarily affect other numerous provisions of the Constitution particularly those pertaining to the specific powers of Congress and the President. These powers would have to be transferred to the Parliament and the Prime Minister and/or President, as the case may be. More than one hundred (100) sections will be affected or altered thereby: 1. Section 19 of Article III (Bill of Rights) on the power of Congress to impose the death penalty for compelling reasons involving heinous crimes; 2. Section 2 of Article V (Suffrage) on the power of Congress to provide for securing the secrecy and sanctity of the ballot as well as a system for absentee voting; 3. All 32 Sections of Article VI on the Legislative Department; 4. All 23 Sections of Article VII on the Executive Department; 5. The following Sections of Article VIII (Judicial Department): - Section 2 on power of Congress to define, prescribe and apportion the jurisdiction of various courts; - Section 7 on the power of Congress to prescribe the qualifications of judges of lower courts; - Section 8 on the composition of Judicial Bar Council (JBC) which includes representatives of Congress as ex officio members and on the power of the President to appoint the regular members of the JBC; - Section 9 on the power of the President to appoint the members of the Supreme Court and judges of lower courts; - Section 16 on duty of Supreme Court to make annual report to the President and Congress. 6. The following Sections of Article IX (Constitutional Commissions); - (B) Section 3 on duty of Civil Service Commission to make annual report to the President and Congress; - (B) Section 5 on power of Congress to provide by law for the standardization of compensation of government officials; - (B) Section 8 which provides in part that "no public officer shall accept, without the consent of Congress, any present, emolument, etc. x x x" - (C) Section 1 on the power of the President to appoint the Chairman and Commissioners of the Commission on Elections with the consent of the Commission on Appointments; - (C) Section 2 (7) on the power of the COMELEC to recommend to Congress measures to minimize election spending x x x; - (C) Section 2 (8) on the duty of the COMELEC to recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action x x x; - (C) Section 2 (9) on the duty of the COMELEC to submit to the President and Congress a report on the conduct of election, plebiscite, etc.; - (C) Section 5 on the power of the President, with the favorable recommendation of the COMELEC, to grant pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules and regulations; - (C) Section 7 which recognizes as valid votes cast in favor of organization registered under party-list system; - (C) Section 8 on political parties, organizations or coalitions under the party-list system;

- (D) Section 1 (2) on the power of the President to appoint the Chairman and Commissioners of the Commission on Audit (COA) with the consent of the Commission of Appointments; - Section 4 on duty of the COA to make annual report to the President and Congress. 7. The following Sections of Article X (Local Government): - Section 3 on the power of Congress to enact a local government code; - Section 4 on the power of the President to exercise general supervision over local government units (LGUs); - Section 5 on the power of LGUs to create their own sources of income x x x, subject to such guidelines as Congress may provide; - Section 11 on the power of Congress to create special metropolitan political subdivisions; - Section 14 on the power of the President to provide for regional development councils x x x; - Section 16 on the power of the President to exercise general supervision over autonomous regions; - Section 18 on the power of Congress to enact organic act for each autonomous region as well as the power of the President to appoint the representatives to the regional consultative commission; - Section 19 on the duty of the first Congress elected under the Constitution to pass the organic act for autonomous regions in Muslim Mindanao and the Cordilleras. 8. The following Sections of Article XI (Accountability of Public Officers): - Section 2 on the impeachable officers (President, Vice-President, etc.); - Section 3 on impeachment proceedings (exclusive power of the House to initiate complaint and sole power of the Senate to try and decide impeachment cases); - Section 9 on the power of the President to appoint the Ombudsman and his deputies; - Section 16 which provides in part that "x x x no loans or guaranty shall be granted to the President, Vice-President, etc. - Section 17 on mandatory disclosure of assets and liabilities by public officials including the President, Vice-President, etc. 9. The following Sections of Article XII (National Economy and Patrimony): - Section 2 on the power of Congress to allow, by law, small-scale utilization of natural resources and power of the President to enter into agreements with foreign-owned corporations and duty to notify Congress of every contract; - Section 3 on the power of Congress to determine size of lands of public domain; - Section 4 on the power of Congress to determine specific limits of forest lands; - Section 5 on the power of Congress to provide for applicability of customary laws; - Section 9 on the power of Congress to establish an independent economic and planning agency to be headed by the President; - Section 10 on the power of Congress to reserve to Filipino citizens or domestic corporations(at least 60% Filipino-owned) certain areas of investment; - Section 11 on the sole power of Congress to grant franchise for public utilities; - Section 15 on the power of Congress to create an agency to promote viability of cooperatives; - Section 16 which provides that Congress shall not, except by general law, form private corporations; - Section 17 on the salaries of the President, Vice-President, etc. and the power of Congress to adjust the same; - Section 20 on the power of Congress to establish central monetary authority.

10. The following Sections of Article XIII (Social Justice and Human Rights): - Section 1 on the mandate of Congress to give highest priority to enactment of measures that protect and enhance the right of people x x x - Section 4 on the power of Congress to prescribe retention limits in agrarian reform; - Section 18 (6) on the duty of the Commission on Human Rights to recommend to Congress effective measures to promote human rights; - Section 19 on the power of Congress to provide for other cases to fall within the jurisdiction of the Commission on Human Rights. 11. The following Sections of Article XIV (Education, Science and Technology, etc.): - Section 4 on the power of Congress to increase Filipino equity participation in educational institutions; - Section 6 which provides that subject to law and as Congress may provide, the Government shall sustain the use of Filipino as medium of official communication; - Section 9 on the power of Congress to establish a national language commission; - Section 11 on the power of Congress to provide for incentives to promote scientific research. 12. The following Sections of Article XVI (General Provisions): - Section 2 on the power of Congress to adopt new name for the country, new national anthem, etc.; - Section 5 (7) on the tour of duty of the Chief of Staff which may be extended by the President in times of war or national emergency declared by Congress; - Section 11 on the power of Congress to regulate or prohibit monopolies in mass media; - Section 12 on the power of Congress to create consultative body to advise the President on indigenous cultural communities. 13. The following Sections of Article XVII (Amendments or Revisions): - Section 1 on the amendment or revision of Constitution by Congress; - Section 2 on the duty of Congress to provide for the implementation of the system of initiative; - Section 3 on the power of Congress to call constitutional convention to amend or revise the Constitution. 14. All 27 Sections of Article XVIII (Transitory Provisions). The foregoing enumeration negates the claim that "the big bulk of the 1987 Constitution will not be affected."51Petitioners' proposition, while purportedly seeking to amend only Articles VI and VII of the Constitution and providing transitory provisions, will, in fact, affect, alter, replace or repeal other numerous articles and sections thereof. More than the quantitative effects, however, the revisory character of petitioners' proposition is apparent from the qualitative effects it will have on the fundamental law. I am not impervious to the commentary of Dean Vicente G. Sinco that the revision of a constitution, in its strict sense, refers to a consideration of the entire constitution and the procedure for effecting such change; whileamendment refers only to particular provisions to be added to or to be altered in a constitution.52 For clarity and accuracy, however, it is necessary to reiterate below Dean Sinco's more comprehensive differentiation of the terms: Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important provisions. But whatever results the revisions may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one. The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve the specific parts of the existing constitution or to add to it provisions deemed essential on account of changed conditions or to suppress portions of it that seemed obsolete, or dangerous, or misleading in their effect. 53

A change in the form of government from bicameral-presidential to unicameral-parliamentary, following the above distinction, entails a revision of the Constitution as it will involve "alteration of different portions of the entire document" and "may result in the rewriting of the whole constitution, or the greater portion of it, or perhaps only some of its important provisions." More importantly, such shift in the form of government will, without doubt, fundamentally change the basic plan and substance of the present Constitution. The tripartite system ordained by our fundamental law divides governmental powers into three distinct but co-equal branches: the legislative, executive and judicial. Legislative power, vested in Congress which is a bicameral body consisting of the House of Representatives and the Senate, is the power to make laws and to alter them at discretion. Executive power, vested in the President who is directly elected by the people, is the power to see that the laws are duly executed and enforced. Judicial power, vested in the Supreme Court and the lower courts, is the power to construe and apply the law when controversies arise concerning what has been done or omitted under it. This separation of powers furnishes a system of checks and balances which guards against the establishment of an arbitrary or tyrannical government. Under a unicameral-parliamentary system, however, the tripartite separation of power is dissolved as there is a fusion between the executive and legislative powers. Essentially, the President becomes a mere "symbolic head of State" while the Prime Minister becomes the head of government who is elected, not by direct vote of the people, but by the members of the Parliament. The Parliament is a unicameral body whose members are elected by legislative districts. The Prime Minister, as head of government, does not have a fixed term of office and may only be removed by a vote of confidence of the Parliament. Under this form of government, the system of checks and balances is emasculated. Considering the encompassing scope and depth of the changes that would be effected, not to mention that the Constitution's basic plan and substance of a tripartite system of government and the principle of separation of powers underlying the same would be altered, if not entirely destroyed, there can be no other conclusion than that the proposition of petitioners Lambino, et al. would constitute a revision of the Constitution rather than an amendment or "such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed."54 As has been shown, the effect of the adoption of the petitioners' proposition, rather than to "within the lines of the original instrument" constitute "an improvement or better carry out the purpose for which it was framed," is to "substantially alter the purpose and to attain objectives clearly beyond the lines of the Constitution as now cast."55 To paraphrase McFadden, petitioners' contention that any change less than a total one is amendatory would reduce to the rubble of absurdity the bulwark so carefully erected and preserved. A case might, conceivably, be presented where the question would be occasion to undertake to define with nicety the line of demarcation; but we have no case or occasion here. As succinctly by Fr. Joaquin Bernas, "a switch from the presidential system to a parliamentary system would be a revision because of its overall impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system because of its effect on other important provisions of the Constitution. It is thus clear that what distinguishes revision from amendment is not the quantum of change in the document. Rather, it is the fundamental qualitative alteration that effects revision."56 The petition for initiative on amendments to the Constitution filed by petitioners Lambino, et al., being in truth and in fact a proposal for the revision thereof, is barred from the system of initiative upon any legally permissible construction of Section 2, Article XVII of the Constitution. The Petition for Initiative on Amendments to the Constitution is, on its Face, Insufficient in Form and Substance Again, even granting arguendo RA 6735 is declared sufficient to implement the system of initiative and that COMELEC Resolution No. 2300, as it prescribed rules and regulations on the conduct of initiative on amendments to the Constitution, is valid, still, the petition for initiative on amendments to the Constitution must be dismissed for being insufficient in form and substance. Section 5 of RA 6735 requires that a petition for initiative on the Constitution must state the following: 1. Contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; 2. The proposition; 3. The reason or reasons therefor; 4. That it is not one of the exceptions provided herein; 5. Signatures of the petitioners or registered voters; and 6. An abstract or summary proposition in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. Section 7 thereof requires that the signatures be verified in this wise: SEC. 7. Verification of Signatures. The Election Registrar shall verify the signatures on the basis of the registry list of voters, voters' affidavits and voters' identification cards used in the immediately preceding election.

The law mandates upon the election registrar to personally verify the signatures. This is a solemn and important duty imposed on the election registrar which he cannot delegate to any other person, even to barangay officials. Hence, a verification of signatures made by persons other than the election registrars has no legal effect. In patent violation of the law, several certifications submitted by petitioners showed that the verification of signatures was made, not by the election registrars, but by barangay officials. For example, the certification of the election officer in Lumbatan, Lanao del Sur reads in full: LOCAL ELECTION OFFICER'S CERTIFICATION 57 THIS IS TO CERTIFY that based on the verifications made by the Barangay Officials in this City/Municipality, as attested to by two (2) witnesses from the same Barangays, which is part of the 2nd Legislative District of the Province of Lanao del Sur, the names appearing on the attached signature sheets relative to the proposed initiative on Amendments to the 1987 Constitution, are those of bonafide resident of the saidBarangays and correspond to the names found in the official list of registered voters of the Commission on Elections and/or voters' affidavit and/or voters' identification cards. It is further certified that the total number of signatures of the registered voters for the City/Municipality of LUMBATAN, LANAO DEL SUR as appearing in the affixed signatures sheets is ONE THOUSAND ONE HUNDRED EIGHTY (1,180). April 2, 2006 IBRAHIM M. MACADATO Election Officer (Underscoring supplied) The ineffective verification in almost all the legislative districts in the Autonomous Region of Muslim Mindanao (ARMM) alone is shown by the certifications, similarly worded as above-quoted, of the election registrars of Buldon, Maguindanao;58 Cotabato City (Special Province);59 Datu Odin Sinsuat, Maguindanao;60 Matanog, Maguindanao;61 Parang, Maguindanao;62 Kabantalan, Maguindanao;63 Upi, Maguinadano;64 Barira, Maguindanao;65 Sultan, Mastura;66 Ampatuan, Maguindanao;67 Buluan, Maguindanao;68 Datu Paglas, Maguindanao;69 Datu Piang, Maguindanao;70 Shariff Aguak, Maguindanao;71 Pagalungan, Maguindanao;72Talayan, Maguindanao;73 Gen. S.K. Pendatun, Maguindanao;74 Mamasapano, Maguindanao;75 Talitay, Maguindanao;76 Guindulungan, Maguindanao;77 Datu Saudi Ampatuan, Maguindanao;78 Datu Unsay, Maguindanao;79 Pagagawan, Maguindanao;80 Rajah Buayan, Maguindanao;81 Indanan, Sulu;82 Jolo, Sulu;83Maimbung, Sulu;84 Hadji Panglima, Sulu;85 Pangutaran, Sulu;86 Parang, Sulu;87 Kalingalan Caluang, Sulu;88Luuk, Sulu;89 Panamao, Sulu;90 Pata, Sulu;91 Siasi, Sulu;92 Tapul, Sulu;93 Panglima Estino, Sulu;94 Lugus, Sulu;95 and Pandami, Sulu. 96 Section 7 of RA 6735 is clear that the verification of signatures shall be done by the election registrar, and by no one else, including the barangay officials. The foregoing certifications submitted by petitioners, instead of aiding their cause, justify the outright dismissal of their petition for initiative. Because of the illegal verifications made bybarangay officials in the above-mentioned legislative districts, it necessarily follows that the petition for initiative has failed to comply with the requisite number of signatures, i.e., at least twelve percent (12%) of the total number of registered voters, of which every legislative district must be represented by at least three percent (3%) of the registered voters therein. Petitioners cannot disclaim the veracity of these damaging certifications because they themselves submitted the same to the COMELEC and to the Court in the present case to support their contention that the requirements of RA 6735 had been complied with and that their petition for initiative is on its face sufficient in form and substance. They are in the nature of judicial admissions which are conclusive and binding on petitioners. 97 This being the case, the Court must forthwith order the dismissal of the petition for initiative for being, on its face, insufficient in form and substance. The Court should make the adjudication entailed by the facts here and now, without further proceedings, as it has done in other cases. 98 It is argued by petitioners that, assuming arguendo that the COMELEC is correct in relying on Santiago that RA 6735 is inadequate to cover initiative to the Constitution, this cannot be used to legitimize its refusal to heed the people's will. The fact that there is no enabling law should not prejudice the right of the sovereign people to propose amendments to the Constitution, which right has already been exercised by 6,327,952 voters. The collective and resounding act of the particles of sovereignty must not be set aside. Hence, the COMELEC should be ordered to comply with Section 4, Article XVII of the 1987 Constitution via a writ of mandamus. The submission of petitioners, however, is unpersuasive. Mandamus is a proper recourse for citizens who act to enforce a public right and to compel the persons of a public duty most especially when mandated by the Constitution.99 However, under Section 3, Rule 65 of the 1997 Rules of Court, for a petition for mandamus to prosper, it must be shown that the subject of the petition is a ministerial act or duty and not purely discretionary on the part of the board, officer or person, and that petitioner has a welldefined, clear and certain right to warrant the grant thereof. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public official and gives him the right to decide how or when the duty should be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of an official discretion nor judgment.100 To stress, in a petition for mandamus, petitioner must show a well defined, clear and certain right to warrant the grant thereof.101 In this case, petitioners failed to establish their right to a writ of mandamus as shown by the foregoing disquisitions. Remand of the Case to the COMELEC is Not Authorized by RA 6735 and COMELEC Resolution No. 2300

The dissenting opinion posits that the issue of whether or not the petition for initiative has complied with the requisite number of signatures of at least twelve percent (12%) of the total number of registered voters, of which every legislative district must be represented by at least three percent (3%) of the registered voters therein, involves contentious facts. The dissenting opinion cites the petitioners' claim that they have complied with the same while the oppositors-intervenors have vigorously refuted this claim by alleging, inter alia, that the signatures were not properly verified or were not verified at all. Other oppositors-intervenors have alleged that the signatories did not fully understand what they have signed as they were misled into signing the signature sheets. According to the dissenting opinion, the sufficiency of the petition for initiative and its compliance with the requirements of RA 6735 on initiative and its implementing rules is a question that should be resolved by the COMELEC at the first instance. It thus remands the case to the COMELEC for further proceedings. To my mind, the remand of the case to the COMELEC is not warranted. There is nothing in RA 6735, as well as in COMELEC Resolution No. 2300, granting that it is valid to implement the former statute, that authorizes the COMELEC to conduct any kind of hearing, whether full-blown or trial-type hearing, summary hearing or administrative hearing, on a petition for initiative. Section 41 of COMELEC Resolution No. 2300 provides that "[a]n initiative shall be conducted under the control and supervision of the Commission in accordance with Article III hereof." Pertinently, Sections 30, 31 and 32 of Article III of the said implementing rules provide as follows: Sec. 30. Verification of signatures. The Election Registrar shall verify the signatures on the basis of the registry list of voters, voters' affidavits and voters' identification cards used in the immediately preceding election. Sec. 31. Determination by the Commission. The Commission shall act on the findings of the sufficiency or insufficiency of the petition for initiative or referendum. If it should appear that the required number of signatures has not been obtained, the petition shall be deemed defeated and the Commission shall issue a declaration to that effect. If it should appear that the required number of signatures has been obtained, the Commission shall set the initiative or referendum in accordance with the succeeding sections. Sec. 32. Appeal. The decision of the Commission on the findings of the sufficiency and insufficiency of the petition for initiative or referendum may be appealed to the Supreme Court within thirty (30) days from notice hereof. Clearly, following the foregoing procedural rules, the COMELEC is not authorized to conduct any kind of hearing to receive any evidence for or against the sufficiency of the petition for initiative. Rather, the foregoing rules require of the COMELEC to determine the sufficiency or insufficiency of the petition for initiative on its face. And it has already been shown, by the annexes submitted by the petitioners themselves, their petition is, on its face, insufficient in form and substance. The remand of the case to the COMELEC for reception of evidence of the parties on the contentious factual issues is, in effect, an amendment of the abovequoted rules of the COMELEC by this Court which the Court is not empowered to do. The Present Petition Presents a Justiciable Controversy; Hence, a Non-Political Question. Further, the People, Acting in their Sovereign Capacity, Have Bound Themselves to Abide by the Constitution Political questions refer to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. 102 A political question has two aspects: (1) those matters that are to be exercised by the people in their primary political capacity; and (2) matters which have been specifically designated to some other department or particular office of the government, with discretionary power to act.103 In his concurring and dissenting opinion in Arroyo v. De Venecia,104 Senior Associate Justice Reynato S. Puno explained the doctrine of political question vis--vis the express mandate of the present Constitution for the courts to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the Government: In the Philippine setting, there is more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For Section 1, Article VIII of our Constitution was intentionally cobbled to empower courts "... to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was also not xeroxed from the US Constitution or any foreign state constitution. The CONCOM [Constitutional Commission] granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis--vis the Executive and the Legislative departments of government. In cases involving the proclamation of martial law and suspension of the privilege of habeas corpus, it is now beyond dubiety that the government can no longer invoke the political question defense. xxxx

To a great degree, it diminished its [political question doctrine] use as a shield to protect other abuses of government by allowing courts to penetrate the shield with new power to review acts of any branch or instrumentality of the government ". . . to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction." Even if the present petition involves the act, not of a governmental body, but of purportedly more than six million registered voters who have signified their assent to the proposal to amend the Constitution, the same still constitutes a justiciable controversy, hence, a non-political question. There is no doubt that the Constitution, under Article XVII, has explicitly provided for the manner or method to effect amendments thereto, or revision thereof. The question, therefore, of whether there has been compliance with the terms of the Constitution is for the Court to pass upon. 105 In the United States, in In re McConaughy,106 the State Supreme Court of Minnesota exercised jurisdiction over the petition questioning the result of the general election holding that "an examination of the decisions shows that the courts have almost uniformly exercised the authority to determine the validity of the proposal, submission, or ratification of constitutional amendments." The cases cited were Dayton v. St. Paul,107 Rice v. Palmer,108 Bott v. Wurtz,109 State v. Powell,110 among other cases. There is no denying that "the Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them."111 However, I find to be tenuous the asseveration that "the argument that the people through initiative cannot propose substantial amendments to change the Constitution turns sovereignty in its head. At the very least, the submission constricts the democratic space for the exercise of the direct sovereignty of the people."112 In effect, it is theorized that despite the unambiguous text of Section 2, Article XVII of the Constitution withholding the power to revise it from the system of initiative, the people, in their sovereign capacity, can conveniently disregard the said provision. I strongly take exception to the view that the people, in their sovereign capacity, can disregard the Constitution altogether. Such a view directly contravenes the fundamental constitutional theory that while indeed "the ultimate sovereignty is in the people, from whom springs all legitimate authority"; nonetheless, "by the Constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the state, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law." 113 The Constitution, it should be remembered, "is the protector of the people, placed on guard by them to save the rights of the people against injury by the people."114 This is the essence of constitutionalism: Through constitutionalism we placed limits on both our political institutions and ourselves, hoping that democracies, historically always turbulent, chaotic and even despotic, might now become restrained, principled, thoughtful and just. So we bound ourselves over to a law that we made and promised to keep. And though a government of laws did not displace governance by men, it did mean that now men, democratic men, would try to live by their word.115 Section 2, Article XVII of the Constitution on the system of initiative is limited only to proposals to amend to the Constitution, and does not extend to its revision. The Filipino people have bound themselves to observe the manner and method to effect the changes of the Constitution. They opted to limit the exercise of the right to directly propose amendments to the Constitution through initiative, but did not extend the same to the revision thereof. The petition for initiative, as it proposes to effect the revision thereof, contravenes the Constitution. The fundamental law of the state prescribes the limitations under which the electors of the state may change the same, and, unless such course is pursued, the mere fact that a majority of the electors are in favor of a change and have so expressed themselves, does not work a change. Such a course would be revolutionary, and the Constitution of the state would become a mere matter of form.116 The very term Constitution implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicated the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature.117 The Filipino people have incorporated the safety valves of amendment and revision in Article XVII of the Constitution. The Court is mandated to ensure that these safety valves embodied in the Constitution to guard against improvident and hasty changes thereof are not easily trifled with. To be sure, by having overwhelmingly ratified the Constitution, the Filipino people believed that it is "a good Constitution" and in the words of the learned Judge Cooley: x x x should be beyond the reach of temporary excitement and popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency. Changes in government are to be feared unless the benefit is certain. As Montaign says: "All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed and worse.118 Indisputably, the issues posed in the present case are of transcendental importance. Accordingly, I have approached and grappled with them with full appreciation of the responsibilities involved in the present case, and have given to its consideration the earnest attention which its importance demands. I have sought to maintain the supremacy of the Constitution at whatever hazard. I share the concern of Chief Justice Day in Koehler v. Hill:119 "it is for the protection of minorities that constitutions are framed. Sometimes constitutions must be interposed for the protection of majorities even against themselves. Constitutions are adopted in times of public repose, when sober reason holds her citadel, and are designed to check the surging passions in times of popular excitement. But if courts could be coerced by popular majorities into a disregard of their provisions, constitutions would become mere 'ropes of sand,' and there would be an end of social security and of constitutional freedom. The cause of temperance can sustain no injury from the loss of this amendment which would be at all comparable to the injury to republican institutions which a violation of the constitution would inflict. That large and respectable class of moral reformers which so justly demands the observance and enforcement of law, cannot afford to take its first reformatory step by a violation of the constitution. How can it consistently demand of others obedience to a constitution which it violates itself? The people can in a short time re-enact the amendment. In the manner of a great moral reform, the loss of a few years is nothing. The constitution is the palladium of republican freedom. The young men coming forward upon the stage of political action must be educated to venerate it; those already upon the stage must be taught to obey it. Whatever interest may be advanced or may suffer, whoever or whatever may be 'voted up or voted down,' no sacrilegious hand must be laid upon the constitution."120 WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R. No. 174299.

ROMEO J. CALLEJO, SR. Associate Justice ____________________ EN BANC G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.) and G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.). x ---------------------------------------------------------------------------------------- x SEPARATE OPINION AZCUNA, J.: "Why, friends, you go to do you know not what." -- Shakespeare, Julius Caesar, Act III, Sc. 2. Article XVII of the Constitution states: AMENDMENTS OR REVISIONS Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its members; or (2) A constitutional convention. Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered votes therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. Sec. 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention. Sec. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision. Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition. This Article states the procedure for changing the Constitution. Constitutions have three parts the Constitution of Liberty, which states the fundamental rights of the people; the Constitution of Government, which establishes the structure of government, its branches and their operation; and the Constitution of Sovereignty, which provides how the Constitution may be changed. Article XVII is the Constitution of Sovereignty. As a result, the powers therein provided are called constituent powers. So when Congress acts under this provision, it acts not as a legislature exercising legislative powers. It acts as a constituent body exercising constituent powers. The rules, therefore, governing the exercise of legislative powers do not apply, or do not apply strictly, to the actions taken under Article XVII. Accordingly, since Article XVII states that Congress shall provide for the implementation of the exercise of the people's right directly to propose amendments to the Constitution through initiative, the act of Congress pursuant thereto is not strictly a legislative action but partakes of a constituent act.

As a result, Republic Act No. 6735, the act that provides for the exercise of the people of the right to propose a law or amendments to the Constitution is, with respect to the right to propose amendments to the Constitution, a constituent measure, not a mere legislative one. The consequence of this special character of the enactment, insofar as it relates to proposing amendments to the Constitution, is that the requirements for statutory enactments, such as sufficiency of standards and the like, do not and should not strictly apply. As long as there is a sufficient and clear intent to provide for the implementation of the exercise of the right, it should be sustained, as it is simply a compliance of the mandate placed on Congress by the Constitution. Seen in this light, the provisions of Republic Act No. 6735 relating to the procedure for proposing amendments to the Constitution, can and should be upheld, despite shortcomings perhaps in legislative headings and standards. For this reason, I concur in the view that Santiago v. Comelec1 should be re-examined and, after doing so, that the pronouncement therein regarding the insufficiency or inadequacy of the measure to sustain a people's initiative to amend the Constitution should be reconsidered in favor of allowing the exercise of this sovereign right. And applying the doctrine stated in Senarillos v. Hermosisima,2 penned by Justice J.B.L. Reyes, in relation to Article 8 of the Civil Code, that a decision of this Court interpreting a law forms part of the law interpreted as of the time of its enactment, Republic Act No. 6735 should be deemed sufficient and adequate from the start. This next point to address, there being a sufficient law, is whether the petition for initiative herein involved complies with the requirements of that law as well as those stated in Article XVII of the Constitution. True it is that ours is a democratic state, as explicitated in the Declaration of Principles, to emphasize precisely that there are instances recognized and provided for in the Constitution where our people directly exercise their sovereign powers, new features set forth in this People Power Charter, namely, the powers of recall, initiative and referendum. Nevertheless, this democratic nature of our polity is that of a democracy under the rule of law. This equally important point is emphasized in the very Preamble to the Constitution, which states: ". . . the blessings of . . . democracy under the rule of law . . . ." Such is the case with respect to the power to initiate changes in the Constitution. The power is subject to limitations under the Constitution itself, thus: The power could not be exercised for the first five years after the Constitution took effect and thereafter can only be exercised once every five years; the power only extends to proposing amendments but not revisions; and the power needs an act of Congress providing for its implementation, which act is directed and mandated. The question, therefore, arises whether the proposed changes in the Constitution set forth in the petition for initiative herein involved are mere amendments or rather are revisions. Revisions are changes that affect the entire Constitution and not mere parts of it. The reason why revisions are not allowed through direct proposals by the people through initiative is a practical one, namely, there is no one to draft such extensive changes, since 6.3 million people cannot conceivably come up with a single extensive document through a direct proposal from each of them. Someone would have to draft it and that is not authorized as it would not be a direct proposal from the people. Such indirect proposals can only take the form of proposals from Congress as a Constituent Assembly under Article XVII, or a Constitutional Convention created under the same provision. Furthermore, there is a need for such deliberative bodies for revisions because their proceedings and debates are duly and officially recorded, so that future cases of interpretations can be properly aided by resort to the record of their proceedings. Even a cursory reading of the proposed changes contained in the petition for initiative herein involved will show on its face that the proposed changes constitute a revision of the Constitution. The proposal is to change the system of government from that which is bicameral-presidential to one that is unicameral-parliamentary. While purportedly only Articles VI, VII, and XVIII are involved, the fact is, as the petition and text of the proposed changes themselves state, every provision of the Constitution will have to be examined to see if they conform to the nature of a unicameral-parliamentary form of government and changed accordingly if they do not so conform to it. For example, Article VIII on Judicial Department cannot stand as is, in a parliamentary system, for under such a system, the Parliament is supreme, and thus the Court's power to declare its act a grave abuse of discretion and thus void would be an anomaly. Now, who is to do such examination and who is to do such changes and how should the changes be worded? The proposed initiative does not say who nor how. Not only, therefore, is the proposed initiative, on this score, a prohibited revision but it also suffers from being incomplete and insufficient on its very face. It, therefore, in that form, cannot pass muster the very limits contained in providing for the power under the Constitution. Neither does it comply with Republic Act No. 6735, which states in Section 10 that not more than one subject shall be proposed as an amendment or amendments to the Constitution. The petition herein would propose at the very least two subjects a unicameral legislature and a parliamentary form of government. Again, for this clear and patent violation of the very act that provides for the exercise of the power, the proposed initiative cannot lie.

This does not mean, however, that all is lost for petitioners. For the proposed changes can be separated and are, in my view, separable in nature a unicameral legislature is one; a parliamentary form of government is another. The first is a mere amendment and contains only one subject matter. The second is clearly a revision that affects every article and every provision in the Constitution to an extent not even the proponents could at present fully articulate. Petitioners Lambino, et al. thus go about proposing changes the nature and extent of which they do not as yet know exactly what. The proposal, therefore, contained in the petition for initiative, regarding a change in the legislature from a bicameral or two-chamber body to that of a unicameral or one-chamber body, is sustainable. The text of the changes needed to carry it out are perfunctory and ministerial in nature. Once it is limited to this proposal, the changes are simply one of deletion and insertions, the wordings of which are practically automatic and non-discretionary. As an example, I attach to this opinion an Appendix "A" showing how the Constitution would read if we were to change Congress from one consisting of the Senate and the House of Representatives to one consisting only of the House of Representatives. It only affects Article VI on the Legislative Department, some provisions on Article VII on the Executive Department, as well as Article XI on the Accountability of Public Officers, and Article XVIII on Transitory Provisions. These are mere amendments, substantial ones indeed but still only amendments, and they address only one subject matter. Such proposal, moreover, complies with the intention and rationale behind the present initiative, which is to provide for simplicity and economy in government and reduce the stalemates that often prevent needed legislation. For the nonce, therefore, I vote to DISMISS the petition, without prejudice to the filing of an appropriate initiative to propose amendments to the Constitution to change Congress into a unicameral body. This is not say that I favor such a change. Rather, such a proposal would come within the purview of an initiative allowed under Article XVII of the Constitution and its implementing Republic Act, and should, therefore, be submitted to our people in a plebiscite for them to decide in their sovereign capacity. After all is said and done, this is what democracy under the rule of law is about. ADOLFO S. AZCUNA Associate Justice ____________________ EN BANC G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS vs. THE COMMISSION ON ELECTIONS G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG vs. COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and NICODEMO T. FERRER, and John Doe and Peter Doe x ---------------------------------------------------------------------------------------- x "It is a Constitution we are expounding"1 Chief Justice John Marshall DISSENTING OPINION PUNO, J.: The petition at bar is not a fight over molehills. At the crux of the controversy is the critical understanding of the first and foremost of our constitutional principles "the Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them."2 Constitutionalism dictates that this creed must be respected with deeds; our belief in its validity must be backed by behavior. This is a Petition for Certiorari and Mandamus to set aside the resolution of respondent Commission on Elections (COMELEC) dated August 31, 2006, denying due course to the Petition for Initiative filed by petitioners Raul L. Lambino and Erico B. Aumentado in their own behalf and together with some 6.3 million registered voters who have affixed their signatures thereon, and praying for the issuance of a writ of mandamus to compel respondent COMELEC to set the date of the plebiscite for the ratification of the proposed amendments to the Constitution in accordance with Section 2, Article XVII of the 1987 Constitution. First, a flashback of the proceedings of yesteryears. In 1996, the Movement for People's Initiative sought to exercise the sovereign people's power to directly propose amendments to the Constitution through initiative under Section 2, Article XVII of the 1987 Constitution. Its founding member, Atty.

Jesus S. Delfin, filed with the COMELEC on December 6, 1996, a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" (Delfin Petition). It proposed to amend Sections 4 and 7 of Article VI, Section 4 of Article VII, and Section 8 of Article X of the 1987 Constitution by deleting the provisions on the term limits for all elective officials. The Delfin Petition stated that the Petition for Initiative would first be submitted to the people and would be formally filed with the COMELEC after it is signed by at least twelve per cent (12%) of the total number of registered voters in the country. It thus sought the assistance of the COMELEC in gathering the required signatures by fixing the dates and time therefor and setting up signature stations on the assigned dates and time. The petition prayed that the COMELEC issue an Order (1) fixing the dates and time for signature gathering all over the country; (2) causing the publication of said Order and the petition for initiative in newspapers of general and local circulation; and, (3) instructing the municipal election registrars in all the regions of the Philippines to assist petitioner and the volunteers in establishing signing stations on the dates and time designated for the purpose. The COMELEC conducted a hearing on the Delfin Petition. On December 18, 1996, Senator Miriam Defensor Santiago, Alexander Padilla and Maria Isabel Ongpin filed a special civil action for prohibition before this Court, seeking to restrain the COMELEC from further considering the Delfin Petition. They impleaded as respondents the COMELEC, Delfin, and Alberto and Carmen Pedrosa (Pedrosas) in their capacities as founding members of the People's Initiative for Reforms, Modernization and Action (PIRMA) which was likewise engaged in signature gathering to support an initiative to amend the Constitution. They argued that the constitutional provision on people's initiative may only be implemented by a law passed by Congress; that no such law has yet been enacted by Congress; that Republic Act No. 6735 relied upon by Delfin does not cover the initiative to amend the Constitution; and that COMELEC Resolution No. 2300, the implementing rules adopted by the COMELEC on the conduct of initiative, was ultra vires insofar as the initiative to amend the Constitution was concerned. The case was docketed as G.R. No. 127325, entitled Santiago v. Commission on Elections.3 Pending resolution of the case, the Court issued a temporary restraining order enjoining the COMELEC from proceeding with the Delfin Petition and the Pedrosas from conducting a signature drive for people's initiative to amend the Constitution. On March 19, 1997, the Court rendered its decision on the petition for prohibition. The Court ruled that the constitutional provision granting the people the power to directly amend the Constitution through initiative is not self-executory. An enabling law is necessary to implement the exercise of the people's right. Examining the provisions of R.A. 6735, a majority of eight (8) members of the Court held that said law was "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned," 4 and thus voided portions of COMELEC Resolution No. 2300 prescribing rules and regulations on the conduct of initiative on amendments to the Constitution. It was also held that even if R.A. 6735 sufficiently covered the initiative to amend the Constitution and COMELEC Resolution No. 2300 was valid, the Delfin Petition should still be dismissed as it was not the proper initiatory pleading contemplated by law. Under Section 2, Article VII of the 1987 Constitution and Section 5(b) of R.A. 6735, a petition for initiative on the Constitution must be signed by at least twelve per cent (12%) of the total number of registered voters, of which every legislative district is represented by at least three per cent (3%) of the registered voters therein. The Delfin Petition did not contain signatures of the required number of voters. The decision stated: CONCLUSION This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system. WHEREFORE, judgment is hereby rendered a) GRANTING the instant petition; b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation; c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037). The Temporary Restraining Order issued on 18 December 1996 is made permanent against the Commission on Elections, but is LIFTED as against private respondents.5 Eight (8) members of the Court, namely, then Associate Justice Hilario G. Davide, Jr. (ponente), Chief Justice Andres R. Narvasa, and Associate Justices Florenz D. Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C. Hermosisima, Jr. and Justo P. Torres, fully concurred in the majority opinion. While all the members of the Court who participated in the deliberation6 agreed that the Delfin Petition should be dismissed for lack of the required signatures, five (5) members, namely, Associate Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J. Francisco and Artemio V. Panganiban, held that R.A. 6735 was sufficient and adequate to implement the people's right to amend the Constitution through initiative, and that COMELEC Resolution No. 2300 validly provided the details for the actual exercise of such right. Justice Jose C. Vitug, on the other hand, opined that

the Court should confine itself to resolving the issue of whether the Delfin Petition sufficiently complied with the requirements of the law on initiative, and there was no need to rule on the adequacy of R.A. 6735. The COMELEC, Delfin and the Pedrosas filed separate motions for reconsideration of the Court's decision. After deliberating on the motions for reconsideration, six (6)7 of the eight (8) majority members maintained their position that R.A. 6735 was inadequate to implement the provision on the initiative on amendments to the Constitution. Justice Torres filed an inhibition, while Justice Hermosisima submitted a Separate Opinion adopting the position of the minority that R.A. 6735 sufficiently covers the initiative to amend the Constitution. Hence, of the thirteen (13) members of the Court who participated in the deliberation, six (6) members, namely, Chief Justice Narvasa and Associate Justices Regalado, Davide, Romero, Bellosillo and Kapunan voted to deny the motions for lack of merit; and six (6) members, namely, Associate Justices Melo, Puno, Mendoza, Francisco, Hermosisima and Panganiban voted to grant the same. Justice Vitug maintained his opinion that the matter was not ripe for judicial adjudication. The motions for reconsideration were therefore denied for lack of sufficient votes to modify or reverse the decision of March 19, 1997.8 On June 23, 1997, PIRMA filed with the COMELEC a Petition for Initiative to Propose Amendments to the Constitution (PIRMA Petition). The PIRMA Petition was supported by around five (5) million signatures in compliance with R.A. 6735 and COMELEC Resolution No. 2300, and prayed that the COMELEC, among others: (1) cause the publication of the petition in Filipino and English at least twice in newspapers of general and local circulation; (2) order all election officers to verify the signatures collected in support of the petition and submit these to the Commission; and (3) set the holding of a plebiscite where the following proposition would be submitted to the people for ratification: Do you approve amendments to the 1987 Constitution giving the President the chance to be reelected for another term, similarly with the VicePresident, so that both the highest officials of the land can serve for two consecutive terms of six years each, and also to lift the term limits for all other elective government officials, thus giving Filipino voters the freedom of choice, amending for that purpose, Section 4 of Article VII, Sections 4 and 7 of Article VI and Section 8 of Article X, respectively? The COMELEC dismissed the PIRMA Petition in view of the permanent restraining order issued by the Court in Santiago v. COMELEC. PIRMA filed with this Court a Petition for Mandamus and Certiorari seeking to set aside the COMELEC Resolution dismissing its petition for initiative. PIRMA argued that the Court's decision on the Delfin Petition did not bar the COMELEC from acting on the PIRMA Petition as said ruling was not definitive based on the deadlocked voting on the motions for reconsideration, and because there was no identity of parties and subject matter between the two petitions. PIRMA also urged the Court to reexamine its ruling in Santiago v. COMELEC. The Court dismissed the petition for mandamus and certiorari in its resolution dated September 23, 1997. It explained: The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the Decision of this Court in G.R. No. 127325 promulgated on March 19, 1997, and its Resolution of June 10, 1997. The Court next considered the question of whether there was need to resolve the second issue posed by the petitioners, namely, that the Court re-examine its ruling as regards R.A. 6735. On this issue, the Chief Justice and six (6) other members of the Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no need to take it up. Vitug, J., agreed that there was no need for re-examination of said second issue since the case at bar is not the proper vehicle for that purpose. Five (5) other members of the Court, namely, Melo, Puno, Francisco, Hermosisima, and Panganiban, JJ., opined that there was a need for such a re-examination x x x x9 In their Separate Opinions, Justice (later Chief Justice) Davide and Justice Bellosillo stated that the PIRMA petition was dismissed on the ground of res judicata. Now, almost a decade later, another group, Sigaw ng Bayan, seeks to utilize anew the system of initiative to amend the Constitution, this time to change the form of government from bicameral-presidential to unicameral-parliamentary system. Let us look at the facts of the petition at bar with clear eyes. On February 15, 2006, Sigaw ng Bayan, in coordination with Union of Local Authorities of the Philippines(ULAP), embarked on a nationwide drive to gather signatures to support the move to adopt the parliamentary form of government in the country through charter change. They proposed to amend the Constitution as follows: A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows: Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory, and each province must have at least one member. (2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old on the day of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of his district for a term of five years without limitation as to the number thereof, except those under the party-list system which shall be provided for by law and whose number shall be equal to twenty per centum of the total membership coming from the parliamentary districts.

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows: Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of Parliament from among themselves. He shall be responsible to the Parliament for the program of government. C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled "Transitory Provisions," which shall read, as follows: Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a vote of two thirds of all the members of the interim parliament. (2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under Article VII as amended. Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; provided, however, that any and all references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of the House of Representatives" shall be changed to read as "Member(s) of Parliament" and any and all references to the "President" and/or "Acting President" shall be changed to read "Prime Minister." Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary System of government; provided, however, that any all references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of the House of Representatives" shall be changed to read as "Member(s) of Parliament" and any and all references to the "President" and or "Acting President" shall be changed to read "Prime Minister." Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who are heads of executive departments. (2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the interim Parliament and shall preside over its sessions for the election of the interim Prime Minister and until the Speaker shall have been elected by a majority vote of all the members of the interim Parliament from among themselves. (3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June 2010. (4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be delegated to him by the incumbent President." (2) The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials. The duly elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term of the incumbent President and Vice President.10 Sigaw ng Bayan prepared signature sheets, on the upper portions of which were written the abstract of the proposed amendments, to wit: Abstract: Do you approve of the amendment of Articles VI and VII of the 1987 Constitution, changing the form of government from the present bicameral-presidential to a unicameral-parliamentary system of government, in order to achieve greater efficiency, simplicity and economy in government; and providing an Article XVIII as Transitory Provisions for the orderly shift from one system to another? The signature sheets were distributed nationwide to affiliated non-government organizations and volunteers of Sigaw ng Bayan, as well as to the local officials. Copies of the draft petition for initiative containing the proposition were also circulated to the local officials and multi-sectoral groups.

Sigaw ng Bayan alleged that it also held barangay assemblies which culminated on March 24, 25 and 26, 2006, to inform the people and explain to them the proposed amendments to the Constitution. Thereafter, they circulated the signature sheets for signing. The signature sheets were then submitted to the local election officers for verification based on the voters' registration record. Upon completion of the verification process, the respective local election officers issued certifications to attest that the signature sheets have been verified. The verified signature sheets were subsequently transmitted to the office of Sigaw ng Bayan for the counting of the signatures. On August 25, 2006, herein petitioners Raul L. Lambino and Erico B. Aumentado filed with the COMELEC a Petition for Initiative to Amend the Constitution entitled "In the Matter of Proposing Amendments to the 1987 Constitution through a People's Initiative: A Shift from a Bicameral Presidential to a Unicameral Parliamentary Government by Amending Articles VI and VII; and Providing Transitory Provisions for the Orderly Shift from the Presidential to the Parliamentary System." They filed an Amended Petition on August 30, 2006 to reflect the text of the proposed amendment that was actually presented to the people. They alleged that they were filing the petition in their own behalf and together with some 6.3 million registered voters who have affixed their signatures on the signature sheets attached thereto. Petitioners appended to the petition signature sheets bearing the signatures of registered voters which they claimed to have been verified by the respective city or municipal election officers, and allegedly constituting at least twelve per cent (12%) of all registered voters in the country, wherein each legislative district is represented by at least three per cent (3%) of all the registered voters therein. As basis for the filing of their petition for initiative, petitioners averred that Section 5 (b) and (c), together with Section 7 of R.A. 6735, provide sufficient enabling details for the people's exercise of the power. Hence, petitioners prayed that the COMELEC issue an Order: 1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution; 2. Directing the publication of the petition in Filipino and English at least twice in newspapers of general and local circulation; and 3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification by the COMELEC of the sufficiency of the petition, to allow the Filipino people to express their sovereign will on the proposition. Several groups filed with the COMELEC their respective oppositions to the petition for initiative , among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law Groups, Inc., Senate Minority Leader Aquilino Q. Pimentel, Jr., Senators Sergio Osmea III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. EjercitoEstrada, and Jinggoy Estrada; Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby Santiago and Reginald Pamugas; Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong. On August 31, 2006, the COMELEC denied due course to the Petition for Initiative. It cited this Court's ruling in Santiago v. COMELEC 11 permanently enjoining the Commission from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. Forthwith, petitioners filed with this Court the instant Petition for Certiorari and Mandamus praying that the Court set aside the August 31, 2006 resolution of the COMELEC, direct respondent COMELEC to comply with Section 4, Article XVII of the Constitution, and set the date of the plebiscite. They state the following grounds in support of the petition: I. The Honorable public respondent COMELEC committed grave abuse of discretion in refusing to take cognizance of, and to give due course to the petition for initiative, because the cited Santiago ruling of 19 March 1997 cannot be considered the majority opinion of the Supreme Court en banc, considering that upon its reconsideration and final voting on 10 June 1997, no majority vote was secured to declare Republic Act No. 6735 as inadequate, incomplete and insufficient in standard. II. The 1987 Constitution, Republic Act No. 6735, Republic Act No. 8189 and existing appropriation of the COMELEC provide for sufficient details and authority for the exercise of people's initiative, thus, existing laws taken together are adequate and complete. III. The Honorable public respondent COMELEC committed grave abuse of discretion in refusing to take cognizance of, and in refusing to give due course to the petition for initiative, thereby violating an express constitutional mandate and disregarding and contravening the will of the people. A. Assuming in arguendo that there is no enabling law, respondent COMELEC cannot ignore the will of the sovereign people and must accordingly act on the petition for initiative. 1.

The framers of the Constitution intended to give the people the power to propose amendments and the people themselves are now giving vibrant life to this constitutional provision. 2. Prior to the questioned Santiago ruling of 19 March 1997, the right of the people to exercise the sovereign power of initiative and recall has been invariably upheld. 3. The exercise of the initiative to propose amendments is a political question which shall be determined solely by the sovereign people. 4. By signing the signature sheets attached to the petition for initiative duly verified by the election officers, the people have chosen to perform this sacred exercise of their sovereign power. B. The Santiago ruling of 19 March 1997 is not applicable to the instant petition for initiative filed by the petitioners. C. The permanent injunction issued in Santiago vs. COMELEC only applies to the Delfin petition. 1. It is the dispositive portion of the decision and not other statements in the body of the decision that governs the rights in controversy. IV. The Honorable public respondent failed or neglected to act or perform a duty mandated by law. A. The ministerial duty of the COMELEC is to set the initiative for plebiscite. 12 The oppositors-intervenors, ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Dr. Darby Santiago, and Dr. Reginald Pamugas; Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio Osmea III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada; Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; and Attys. Pete QuirinoQuadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong moved to intervene in this case and filed their respective Oppositions/Comments-in-Intervention. The Philippine Constitution Association, Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon, Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; the Integrated Bar of the Philippines Cebu City and Cebu Province Chapters; former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino; and the Senate of the Philippines, represented by Senate President Manuel Villar, Jr., also filed their respective motions for intervention and Comments-in-Intervention. The Trade Union Congress of the Philippines, Sulongbayan Movement Foundation, Inc., Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya, Philippine Transport and General Workers Organization, and Victorino F. Balais likewise moved to intervene and submitted to the Court a Petition-inIntervention. All interventions and oppositions were granted by the Court. The oppositors-intervenors essentially submit that the COMELEC did not commit grave abuse of discretion in denying due course to the petition for initiative as it merely followed this Court's ruling in Santiago v. COMELECas affirmed in the case of PIRMA v. COMELEC, based on the principle of stare decisis; that there is no sufficient law providing for the authority and the details for the exercise of people's initiative to amend the Constitution; that the proposed changes to the Constitution are actually revisions, not mere amendments; that the petition for initiative does not meet the required number of signatories under Section 2, Article XVII of the 1987 Constitution; that it was not shown that the people have been informed of the proposed amendments as there was disparity between the proposal presented to them and the proposed amendments attached to the petition for initiative, if indeed there was; that the verification process was done ex parte, thus rendering dubious the signatures attached to the petition for initiative; and that petitioners Lambino and Aumentado have no legal capacity to represent the signatories in the petition for initiative. The Office of the Solicitor General (OSG), in compliance with the Court's resolution of September 5, 2006, filed its Comment to the petition. Affirming the position of the petitioners, the OSG prayed that the Court grant the petition at bar and render judgment: (1) declaring R.A. 6735 as adequate to cover

or as reasonably sufficient to implement the system of initiative on amendments to the Constitution and as having provided sufficient standards for subordinate legislation; (2) declaring as valid the provisions of COMELEC Resolution No. 2300 on the conduct of initiative or amendments to the Constitution; (3) setting aside the assailed resolution of the COMELEC for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction; and, (4) directing the COMELEC to grant the petition for initiative and set the corresponding plebiscite pursuant to R.A. 6735, COMELEC Resolution No. 2300, and other pertinent election laws and regulations. The COMELEC filed its own Comment stating that its resolution denying the petition for initiative is not tainted with grave abuse of discretion as it merely adhered to the ruling of this Court in Santiago v. COMELEC which declared that R.A. 6735 does not adequately implement the constitutional provision on initiative to amend the Constitution. It invoked the permanent injunction issued by the Court against the COMELEC from taking cognizance of petitions for initiative on amendments to the Constitution until a valid enabling law shall have been passed by Congress. It asserted that the permanent injunction covers not only the Delfin Petition, but also all other petitions involving constitutional initiatives. On September 26, 2006, the Court heard the case. The parties were required to argue on the following issues:13 1. Whether petitioners Lambino and Aumentado are proper parties to file the present Petition in behalf of the more than six million voters who allegedly signed the proposal to amend the Constitution. 2. Whether the Petitions for Initiative filed before the Commission on Elections complied with Section 2, Article XVII of the Constitution. 3. Whether the Court's decision in Santiago v. COMELEC (G.R. No. 127325, March 19, 1997) bars the present petition. 4. Whether the Court should re-examine the ruling in Santiago v. COMELEC that there is no sufficient law implementing or authorizing the exercise of people's initiative to amend the Constitution. 5. Assuming R.A. 6735 is sufficient, whether the Petitions for Initiative filed with the COMELEC have complied with its provisions. 5.1 Whether the said petitions are sufficient in form and substance. 5.2 Whether the proposed changes embrace more than one subject matter. 6. Whether the proposed changes constitute an amendment or revision of the Constitution. 6.1 Whether the proposed changes are the proper subject of an initiative. 7. Whether the exercise of an initiative to propose amendments to the Constitution is a political question to be determined solely by the sovereign people. 8. Whether the Commission on Elections committed grave abuse of discretion in dismissing the Petitions for Initiative filed before it. With humility, I offer the following views to these issues as profiled: I Petitioners Lambino and Aumentado are proper parties to file the present Petition in behalf of the more than six million voters who allegedly signed the proposal to amend the Constitution. Oppositors-intervenors contend that petitioners Lambino and Aumentado are not the proper parties to file the instant petition as they were not authorized by the signatories in the petition for initiative. The argument deserves scant attention. The Constitution requires that the petition for initiative should be filed by at least twelve per cent (12%) of all registered voters, of which every legislative district must be represented by at least three per cent (3%) of all the registered voters therein. The petition for initiative filed by Lambino and Aumentado before the COMELEC was accompanied by voluminous signature sheets which prima facie show the intent of the signatories to support the filing of said petition. Stated above their signatures in the signature sheets is the following: x x x My signature herein which shall form part of the petition for initiative to amend the Constitution signifies my support for the filing thereof. 14 There is thus no need for the more than six (6) million signatories to execute separate documents to authorize petitioners to file the petition for initiative in their behalf. Neither is it necessary for said signatories to authorize Lambino and Aumentado to file the petition for certiorari and mandamus before this Court. Rule 65 of the 1997 Rules of Civil Procedure provides who may file a petition for certiorari and mandamus. Sections 1 and 3 of Rule 65 read: SECTION 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court x x x x.

SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station x x x and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court x x x x. Thus, any person aggrieved by the act or inaction of the respondent tribunal, board or officer may file a petition for certiorari or mandamus before the appropriate court. Certainly, Lambino and Aumentado, as among the proponents of the petition for initiative dismissed by the COMELEC, have the standing to file the petition at bar. II The doctrine of stare decisis does not bar the reexamination of Santiago. The latin phrase stare decisis et non quieta movere means "stand by the thing and do not disturb the calm." The doctrine started with the English Courts.15 Blackstone observed that at the beginning of the 18th century, "it is an established rule to abide by former precedents where the same points come again in litigation."16 As the rule evolved, early limits to its application were recognized: (1) it would not be followed if it were "plainly unreasonable;" (2) where courts of equal authority developed conflicting decisions; and, (3) the binding force of the decision was the "actual principle or principles necessary for the decision; not the words or reasoning used to reach the decision." 17 The doctrine migrated to the United States. It was recognized by the framers of the U.S. Constitution.18 According to Hamilton, "strict rules and precedents" are necessary to prevent "arbitrary discretion in the courts."19Madison agreed but stressed that "x x x once the precedent ventures into the realm of altering or repealing the law, it should be rejected."20 Prof. Consovoy well noted that Hamilton and Madison "disagreeabout the countervailing policy considerations that would allow a judge to abandon a precedent."21 He added that their ideas "reveal a deep internal conflict between the concreteness required by the rule of law and the flexibility demanded in error correction. It is this internal conflict that the Supreme Court has attempted to deal with for over two centuries."22 Indeed, two centuries of American case law will confirm Prof. Consovoy's observation although stare decisisdeveloped its own life in the United States. Two strains of stare decisis have been isolated by legal scholars.23The first, known as vertical stare decisis deals with the duty of lower courts to apply the decisions of thehigher courts to cases involving the same facts. The second, known as horizontal stare decisis requires thathigh courts must follow its own precedents. Prof. Consovoy correctly observes that vertical stare decisishas been viewed as an obligation, while horizontal stare decisis, has been viewed as a policy, imposing choice but not a command.24 Indeed, stare decisis is not one of the precepts set in stone in our Constitution. It is also instructive to distinguish the two kinds of horizontal stare decisis constitutional stare decisis andstatutory stare decisis.25 Constitutional stare decisis involves judicial interpretations of the Constitution while statutory stare decisis involves interpretations of statutes. The distinction is important for courts enjoy more flexibility in refusing to apply stare decisis in constitutional litigations. Justice Brandeis' view on the binding effect of the doctrine in constitutional litigations still holds sway today. In soothing prose, Brandeis stated: " Stare decisis is not . . . a universal and inexorable command. The rule of stare decisis is not inflexible. Whether it shall be followed or departed from, is a question entirely within the discretion of the court, which is again called upon to consider a question once decided."26 In the same vein, the venerable Justice Frankfurteropined: "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it."27 In contrast, the application of stare decisis on judicial interpretation of statutes is more inflexible. AsJustice Stevens explains: "after a statute has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself."28 This stance reflects both respect for Congress' role and the need to preserve the courts' limited resources. In general, courts follow the stare decisis rule for an ensemble of reasons,29 viz: (1) it legitimizes judicial institutions; (2) it promotes judicial economy; and, (3) it allows for predictability. Contrariwise, courts refuse to be bound by the stare decisis rule where30 (1) its application perpetuates illegitimate and unconstitutional holdings; (2) it cannot accommodate changing social and political understandings; (3) it leaves the power to overturn bad constitutional law solely in the hands of Congress; and, (4) activist judges can dictate the policy for future courts while judges that respect stare decisis are stuck agreeing with them. In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and reversed its decisions in 192 cases.31 The most famous of these reversals is Brown v. Board of Education32 which junkedPlessy v. Ferguson's33 "separate but equal doctrine." Plessy upheld as constitutional a state law requirement that races be segregated on public transportation. In Brown, the U.S. Supreme Court, unanimously held that "separate . . . is inherently unequal." Thus, by freeing itself from the shackles of stare decisis, the U.S. Supreme Court freed the colored Americans from the chains of inequality. In the Philippine setting, this Court has likewise refused to be straitjacketed by the stare decisis rule in order to promote public welfare. In La Bugal-B'laan Tribal Association, Inc. v. Ramos,34 we reversed our original ruling that certain provisions of the Mining Law are unconstitutional. Similarly, in Secretary of Justice v. Lantion,35 we overturned our first ruling and held, on motion for reconsideration, that a private respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition process. An examination of decisions on stare decisis in major countries will show that courts are agreed on the factors that should be considered before overturning prior rulings. These are workability, reliance, intervening developments in the law and changes in fact. In addition, courts put in the balance the following determinants: closeness of the voting, age of the prior decision and its merits .36 The leading case in deciding whether a court should follow the stare decisis rule in constitutional litigations isPlanned Parenthood v. Casey.37 It established a 4-pronged test. The court should (1) determine whether the rule has proved to be intolerable simply in defying practical workability; (2) consider whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; (3) determine whether related principles of law have so far developed as to have the old rule no more than a remnant of an abandoned doctrine; and, (4) find out whether facts have so changed or come to be seen differently, as to have robbed the old rule of significant application or justification. Following these guidelines, I submit that the stare decisis rule should not bar the reexamination of Santiago. On the factor of intolerability, the six (6) justices in Santiago held R.A. 6735 to be insufficient as it provided no standard to guide COMELEC in issuing its implementing rules.

The Santiago ruling that R.A. 6735 is insufficient but without striking it down as unconstitutional is an intolerable aberration, the only one of its kind in our planet. It improperly assails the ability of legislators to write laws. It usurps the exclusive right of legislators to determine how far laws implementing constitutional mandates should be crafted. It is elementary that courts cannot dictate on Congress the style of writing good laws, anymore than Congress can tell courts how to write literate decisions. The doctrine of separation of powers forbids this Court to invade the exclusive lawmaking domain of Congress for courts can construe laws but cannot construct them. The end result of the ruling of the six (6) justices that R.A. 6735 is insufficient is intolerable for it rendered lifeless the sovereign right of the people to amend the Constitution via an initiative. On the factor of reliance, the ruling of the six (6) justices in Santiago did not induce any expectation from the people. On the contrary, the ruling smothered the hope of the people that they could amend the Constitution by direct action. Moreover, reliance is a non-factor in the case at bar for it is more appropriate to consider in decisions involving contracts where private rights are adjudicated. The case at bar involves no private rights but the sovereignty of the people. On the factor of changes in law and in facts, certain realities on ground cannot be blinked away. The urgent need to adjust certain provisions of the 1987 Constitution to enable the country to compete in the new millennium is given. The only point of contention is the mode to effect the change - - whether through constituent assembly, constitutional convention or people's initiative. Petitioners claim that they have gathered over six (6) million registered voters who want to amend the Constitution through people's initiative and that their signatures have been verified by registrars of the COMELEC. The six (6) justices who ruled that R.A. 6735 is insufficient to implement the direct right of the people to amend the Constitution through an initiative cannot waylay the will of 6.3 million people who are the bearers of our sovereignty and from whom all government authority emanates. New developments in our internal and external social, economic, and political settings demand the reexamination of the Santiago case. The stare decisis rule is no reason for this Court to allow the people to step into the future with a blindfold . III A reexamination of R.A. 6735 will show that it is sufficient to implement the people's initiative. Let us reexamine the validity of the view of the six (6) justices that R.A. 6735 is insufficient to implement Section 2, Article XVII of the 1987 Constitution allowing amendments to the Constitution to be directly proposed by the people through initiative. When laws are challenged as unconstitutional, courts are counseled to give life to the intent of legislators. In enacting R.A. 6735, it is daylight luminous that Congress intended the said law to implement the right of the people, thru initiative, to propose amendments to the Constitution by direct action. This all-important intent is palpable from the following: First. The text of R.A. 6735 is replete with references to the right of the people to initiate changes to the Constitution: The policy statement declares: Sec. 2. Statement of Policy. -- The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (emphasis supplied) It defines "initiative" as "the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose," and "plebiscite" as "the electoral process by which an initiative on the Constitution is approved or rejected by the people." It provides the requirements for a petition for initiative to amend the Constitution, viz: (1) That "(a) petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein;"38 and (2) That "(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter."39 It fixes the effectivity date of the amendment under Section 9(b) which provides that "(t)he proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite." Second. The legislative history of R.A. 6735 also reveals the clear intent of the lawmakers to use it as the instrument to implement people's initiative. No less than former Chief Justice Hilario G. Davide, Jr., the ponentein Santiago, concedes:40 We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17 x x x x The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate and by the House of Representatives. This approved bill is now R.A. No. 6735. Third. The sponsorship speeches by the authors of R.A. 6735 similarly demonstrate beyond doubt this intent. In his sponsorship remarks, the late Senator Raul Roco (then a Member of the House of Representatives) emphasized the intent to make initiative as a mode whereby the people can propose amendments to the Constitution. We quote his relevant remarks:41

SPONSORSHIP REMAKRS OF REP. ROCO MR. ROCO. Mr. Speaker, with the permission of the committee, we wish to speak in support of House Bill No. 497, entitled: INITIATIVE AND REFERENDUM ACT OF 1987, which later on may be called Initiative and Referendum Act of 1989. As a background, we want to point out the constitutional basis of this particular bill. The grant of plenary legislative power upon the Philippine Congress by the 1935, 1973 and 1987 Constitutions, Mr. Speaker, was based on the principle that any power deemed to be legislative by usage and tradition is necessarily possessed by the Philippine Congress unless the Organic Act has lodged it elsewhere. This was a citation from Vera vs. Avelino (1946). The presidential system introduced by the 1935 Constitution saw the application of the principle of separation of powers. While under the parliamentary system of the 1973 Constitution the principle remained applicable, Amendment 6 or the 1981 amendments to the 1973 Constitution ensured presidential dominance over the Batasang Pambansa. Our constitutional history saw the shifting and sharing of legislative power between the legislature and the executive. Transcending such changes in the exercise of legislative power is the declaration in the Philippine Constitution that he Philippines is a Republican State where sovereignty resides in the people and all government authority emanates from them. In a Republic, Mr. Speaker, the power to govern is vested in its citizens participating through the right of suffrage and indicating thereby their choice of lawmakers. Under the 1987 Constitution, lawmaking power is still preserved in Congress. However, to institutionalize direct action of the people as exemplified in the 1986 Revolution, there is a practical recognition of what we refer to as people's sovereign power. This is the recognition of a system of initiative and referendum. Section 1, Article VI of the 1987 Constitution provides, and I quote: The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. In other words, Mr. Speaker, under the 1987 Constitution, Congress does not have plenary powers. There is a reserved legislative power given to the people expressly. Section 32, the implementing provision of the same article of the Constitution provides, and I quote: The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, or which every legislative district must be represented by at least three per centum of the registered voters thereof. In other words, Mr. Speaker, in Section 1 of Article VI which describes legislative power, there are reserved powers given to the people. In Section 32, we are specifically told to pass at the soonest possible time a bill on referendum and initiative. We are specifically mandated to share the legislative powers of Congress with the people. Of course, another applicable provision in the Constitution is Section 2, Article XVII, Mr. Speaker. Under the provision on amending the Constitution, the section reads, and I quote: Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. We in Congress therefore, Mr. Speaker, are charged with the duty to implement the exercise by the people of the right of initiative and referendum. House Bill No. 21505, as reported out by the Committee on Suffrage and Electoral Reforms last December 14, 1988, Mr. Speaker, is the response to such a constitutional duty. Mr. Speaker, if only to allay apprehensions, allow me to show where initiative and referendum under Philippine law has occurred. Mr. Speaker, the system of initiative and referendum is not new. In a very limited extent, the system is provided for in our Local Government Code today. On initiative, for instance, Section 99 of the said code vests in the barangay assembly the power to initiate legislative processes, to hold plebiscites and to hear reports of the sangguniang barangay. There are variations of initiative and referendum. The barangay assembly is composed of all persons who have been actual residents of the barangay for at least six months, who are at least 15 years of age and citizens of the Philippines. The holding of barangay plebiscites and referendum is also provided in Sections 100 and 101 of the same Code.

Mr. Speaker, for brevity I will not read the pertinent quotations but will just submit the same to the Secretary to be incorporated as part of my speech. To continue, Mr. Speaker these same principles are extensively applied by the Local Government Code as it is now mandated by the 1987 Constitution. In other jurisdictions, Mr. Speaker, we have ample examples of initiative and referendum similar to what is now contained in House Bill No. 21505. As in the 1987 Constitutions and House Bill No. 21505, the various constitutions of the states in the United States recognize the right of registered voters to initiate the enactment of any statute or to reject any existing law or parts thereof in a referendum. These states are Alaska, Alabama, Montana, Massachusetts, Dakota, Oklahoma, Oregon, and practically all other states. In certain American states, the kind of laws to which initiative and referendum applies is also without ay limitation, except for emergency measures, which is likewise incorporated in Section 7(b) of House Bill No. 21505. The procedure provided by the House bill from the filing of the petition, the requirement of a certain percentage of supporters to present a proposition to submission to electors is substantially similar to those of many American laws. Mr. Speaker, those among us who may have been in the United States, particularly in California, during election time or last November during the election would have noticed different propositions posted in the city walls. They were propositions submitted by the people for incorporation during the voting. These were in the nature of initiative, Mr. Speaker. Although an infant then in Philippine political structure, initiative and referendum is a tried and tested system in other jurisdictions, and House Bill No. 21505 through the various consolidated bills is patterned after American experience in a great respect. What does the bill essentially say, Mr. Speaker? Allow me to try to bring our colleagues slowly through the bill. The bill has basically only 12 sections. The constitutional Commissioners, Mr. Speaker, saw this system of initiative and referendum as an instrument which can be used should the legislature show itself indifferent to the needs of the people. That is why, Mr. Speaker, it may be timely, since we seem to be amply criticized, as regards our responsiveness, to pass this bill on referendum and initiative now. While indifference would not be an appropriate term to use at this time, and surely it is not the case although we are so criticized, one must note that it is a felt necessity of our times that laws need to be proposed and adopted at the soonest possible time to spur economic development, safeguard individual rights and liberties, and share governmental power with the people. With the legislative powers of the President gone, we alone, together with the Senators when they are minded to agree with us, are left with the burden of enacting the needed legislation. Let me now bring our colleagues, Mr. Speaker, to the process advocated by the bill. First, initiative and referendum, Mr. Speaker, is defined. Initiative essentially is what the term connotes. It means that the people, on their own political judgment, submit fore the consideration and voting of the general electorate a bill or a piece of legislation. Under House Bill No. 21505, there are three kinds of initiative. One is an initiative to amend the Constitution. This can occur once every five years. Another is an initiative to amend statutes that we may have approved. Had this bill been an existing law, Mr. Speaker, it is most likely that an overwhelming majority of the barangays in the Philippines would have approved by initiative the matter of direct voting. The third mode of initiative, Mr. Speaker, refers to a petition proposing to enact regional, provincial, city, municipal or barangay laws or ordinances. It comes from the people and it must be submitted directly to the electorate. The bill gives a definite procedure and allows the COMELEC to define rules and regulations to give teeth to the power of initiative. On the other hand, referendum, Mr. Speaker, is the power of the people to approve or reject something that Congress has already approved. For instance, Mr. Speaker, when we divide the municipalities or the barangays into two or three, we must first get the consent of the people affected through plebiscite or referendum. Referendum is a mode of plebiscite, Mr. Speaker. However, referendum can also be petitioned by the people if, for instance, they do not life the bill on direct elections and it is approved subsequently by the Senate. If this bill had already become a law, then the people could petition that a referendum be conducted so that the acts of Congress can be appropriately approved or rebuffed. The initial stage, Mr. Speaker, is what we call the petition. As envisioned in the bill, the initiative comes from the people, from registered voters of the country, by presenting a proposition so that the people can then submit a petition, which is a piece of paper that contains the proposition. The proposition in the example I have been citing is whether there should be direct elections during the barangay elections. So the petition must be filed in the appropriate agency and the proposition must be clear stated. It can be tedious but that is how an effort to have direct democracy operates. Section 4 of the bill gives requirements, Mr. Speaker. It will not be all that easy to have referendum or initiative petitioned by the people. Under Section 4 of the committee report, we are given certain limitations. For instance, to exercise the power of initiative or referendum, at least 10 percent of the total number of registered voters, of which every legislative district is represented by at least 3 percent of the registered voters thereof, shall sign a petition. These numbers, Mr. Speaker, are not taken from the air. They are mandated by the Constitution. There must be a requirement of 10 percent for ordinary laws and 3 percent representing all districts. The same requirement is mutatis mutandis or appropriately modified and applied to the different sections. So if it is, for instance, a petition on initiative or referendum for a barangay, there is a 10 percent or a certain number required of the voters of the barangay. If it is for a district, there is also a certain number required of all towns

of the district that must seek the petition. If it is for a province then again a certain percentage of the provincial electors is required. All these are based with reference to the constitutional mandate. The conduct of the initiative and referendum shall be supervised and shall be upon the call of the Commission on Elections. However, within a period of 30 days from receipt of the petition, the COMELEC shall determine the sufficiency of the petition, publish the same and set the date of the referendum which shall not be earlier than 45 days but not later than 90 days from the determination by the commission of the sufficiency of the petition. Why is this so, Mr. Speaker? The petition must first be determined by the commission as to its sufficiency because our Constitution requires that no bill can be approved unless it contains one subject matter. It is conceivable that in the fervor of an initiative or referendum, Mr. Speaker, there may be more than two topics sought to be approved and that cannot be allowed. In fact, that is one of the prohibitions under this referendum and initiative bill. When a matter under initiative or referendum is approved by the required number of votes, Mr. Speaker, it shall become effective 15 days following the completion of its publication in the Official Gazette. Effectively then, Mr. Speaker, all the bill seeks to do is to enlarge and recognize the legislative powers of the Filipino people. Mr. Speaker, I think this Congress, particularly this House, cannot ignore or cannot be insensitive to the call for initiative and referendum. We should have done it in 1987 but that is past. Maybe we should have done it in 1988 but that too had already passed, but it is only February 1989, Mr. Speaker, and we have enough time this year at least to respond to the need of our people to participate directly in the work of legislation. For these reasons, Mr. Speaker, we urge and implore our colleagues to approve House Bill No. 21505 as incorporated in Committee Report No. 423 of the Committee on Suffrage and Electoral Reforms. In closing, Mr. Speaker, I also request that the prepared text of my speech, together with the footnotes since they contain many references to statutory history and foreign jurisdiction, be reproduced as part of the Record for future purposes. Equally unequivocal on the intent of R.A. 6735 is the sponsorship speech of former Representative Salvador Escudero III, viz:42 SPONSORSHIP REMARKS OF REP. ESCUDERO MR. ESCUDERO. Thank you, Mr. Speaker. Mr. Speaker and my dear colleagues: Events in recent years highlighted the need to heed the clamor of the people for a truly popular democracy. One recalls the impatience of those who actively participated in the parliament of the streets, some of whom are now distinguished Members of this Chamber. A substantial segment of the population feel increasingly that under the system, the people have the form but not the reality or substance of democracy because of the increasingly elitist approach of their chosen Representatives to many questions vitally affecting their lives. There have been complaints, not altogether unfounded, that many candidates easily forge their campaign promises to the people once elected to office. The 1986 Constitutional Commission deemed it wise and proper to provide for a means whereby the people can exercise the reserve power to legislate or propose amendments to the Constitution directly in case their chose Representatives fail to live up to their expectations. That reserve power known as initiative is explicitly recognized in three articles and four sections of the 1987 Constitution, namely: Article VI Section 1; the same article, Section 312; Article X, Section 3; and Article XVII, Section 2. May I request that he explicit provisions of these three articles and four sections be made part of my sponsorship speech, Mr. Speaker. These constitutional provisions are, however, not self-executory. There is a need for an implementing law that will give meaning and substance to the process of initiative and referendum which are considered valuable adjuncts to representative democracy. It is needless to state that this bill when enacted into law will probably open the door to strong competition of the people, like pressure groups, vested interests, farmers' group, labor groups, urban dwellers, the urban poor and the like, with Congress in the field of legislation. Such probability, however, pales in significance when we consider that through this bill we can hasten the politization of the Filipino which in turn will aid government in forming an enlightened public opinion, and hopefully produce better and more responsive and acceptable legislations. Furthermore, Mr. Speaker, this would give the parliamentarians of the streets and cause-oriented groups an opportunity to articulate their ideas in a truly democratic forum, thus, the competition which they will offer to Congress will hopefully be a healthy one. Anyway, in an atmosphere of competition there are common interests dear to all Filipinos, and the pursuit of each side's competitive goals can still take place in an atmosphere of reason and moderation. Mr. Speaker and my dear colleagues, when the distinguished Gentleman from Camarines Sur and this Representation filed our respective versions of the bill in 1987, we were hoping that the bill would be approved early enough so that our people could immediately use the agrarian reform bill as an initial subject matter or as a take-off point. However, in view of the very heavy agenda of the Committee on Local Government, it took sometime before the committee could act on these. But as they say in Tagalog, huli man daw at magaling ay naihahabol din. The passage of this bill therefore, my dear colleagues, could be one of our finest hours when we can set aside our personal and political consideration for the greater good of our people. I therefore respectfully urge and plead that this bill be immediately approved. Thank you, Mr. Speaker. We cannot dodge the duty to give effect to this intent for the "[c]ourts have the duty to interpret the law as legislated and when possible, to honor the clear meaning of statutes as revealed by its language, purpose and history." 43

The tragedy is that while conceding this intent, the six (6) justices, nevertheless, ruled that "x x x R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned" for the following reasons: (1) Section 2 of the Act does not suggest an initiative on amendments to the Constitution; (2) the Act does not provide for the contents of the petition for initiative on the Constitution; and (3) while the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. To say the least, these alleged omissions are too weak a reason to throttle the right of the sovereign people to amend the Constitution through initiative. R.A. 6735 clearly expressed the legislative policy for the people to propose amendments to the Constitution by direct action. The fact that the legislature may have omitted certain details in implementing the people's initiative in R.A. 6735, does not justify the conclusion that, ergo, the law is insufficient. What were omitted were mere details and not fundamental policies which Congress alone can and has determined. Implementing details of a law can be delegated to the COMELEC and can be the subject of its rule-making power. Under Section 2(1), Article IX-C of the Constitution, the COMELEC has the power to enforce and administer all laws and regulations relative to the conduct of initiatives. Its rule-making power has long been recognized by this Court. In ruling R.A. 6735 insufficient but without striking it down as unconstitutional, the six (6) justices failed to give due recognition to the indefeasible right of the sovereign people to amend the Constitution. IV The proposed constitutional changes, albeit substantial, are mere amendments and can be undertaken through people's initiative. Oppositors-intervenors contend that Sections 1 and 2, Article XVII of the 1987 Constitution, only allow the use of people's initiative to amend and not to revise the Constitution. They theorize that the changes proposed by petitioners are substantial and thus constitute a revision which cannot be done through people's initiative. In support of the thesis that the Constitution bars the people from proposing substantial amendmentsamounting to revision, the oppositors-intervenors cite the following deliberations during the Constitutional Commission, viz:44 MR. SUAREZ: x x x x This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The Committee members felt that this system of initiative should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. xxxxxxxxxxxx MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision? MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the Committee. MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas the process of initiation to amend, which is given to the public, would only apply to amendments? MR. SUAREZ. That is right. Those were the terms envisioned in the Committee. Commissioner (later Chief Justice) Hilario G. Davide, Jr., espoused the same view:45 MR. DAVIDE. x x x x We are limiting the right of the people, by initiative, to submit a proposal for amendment only, not for revision, only once every five years x x x x MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendment." Does it cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision?" MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." Commissioner (now a distinguished Associate Justice of this Court) Adolfo S. Azcuna also clarified this point 46 MR. OPLE. To more closely reflect the intent of Section 2, may I suggest that we add to "Amendments" "OR REVISIONS OF" to read: "Amendments OR REVISION OF this Constitution." MR. AZCUNA. I think it was not allowed to revise the Constitution by initiative. MR. OPLE. How is that again? MR. AZCUNA. It was not our intention to allow a revision of the Constitution by initiative but merely by amendments.

MR. BENGZON. Only by amendments. MR. AZCUNA. I remember that was taken on the floor. MR. RODRIGO. Yes, just amendments. The oppositors-intervenors then point out that by their proposals, petitioners will "change the very system of government from presidential to parliamentary, and the form of the legislature from bicameral to unicameral," among others. They allegedly seek other major revisions like the inclusion of a minimum number of inhabitants per district, a change in the period for a term of a Member of Parliament, the removal of the limits on the number of terms, the election of a Prime Minister who shall exercise the executive power, and so on and so forth. 47 In sum, oppositors-intervenors submit that "the proposed changes to the Constitution effect major changes in the political structure and system, the fundamental powers and duties of the branches of the government, the political rights of the people, and the modes by which political rights may be exercised." 48 They conclude that they are substantial amendments which cannot be done through people's initiative. In other words, they posit the thesis that only simple but not substantial amendments can be done through people's initiative. With due respect, I disagree. To start with, the words "simple" and "substantial" are not subject to any accurate quantitative or qualitative test. Obviously, relying on the quantitative test, oppositors-intervenors assert that the amendments will result in some one hundred (100) changes in the Constitution. Using the same test, however, it is also arguable that petitioners seek to change basically only two (2) out of the eighteen (18) articles of the 1987 Constitution, i.e. Article VI (Legislative Department) and Article VII (Executive Department), together with the complementary provisions for a smooth transition from a presidential bicameral system to a parliamentary unicameral structure. The big bulk of the 1987 Constitution will not be affected including Articles I (National Territory), II (Declaration of Principles and State Policies), III (Bill of Rights), IV (Citizenship), V (Suffrage), VIII (Judicial Department), IX (Constitutional Commissions), X (Local Government), XI (Accountability of Public Officers), XII (National Economy and Patrimony), XIII (Social Justice and Human Rights), XIV (Education, Science and Technology, Arts, Culture, and Sports), XV (The Family), XVI (General Provisions), and even XVII (Amendments or Revisions). In fine, we stand on unsafe ground if we use simple arithmetic to determine whether the proposed changes are "simple" or "substantial." Nor can this Court be surefooted if it applies the qualitative test to determine whether the said changes are "simple" or "substantial" as to amount to a revision of the Constitution. The well-regarded political scientist, Garner, says that a good constitution should contain at least three (3) sets of provisions: the constitution of liberty which sets forth the fundamental rights of the people and imposes certain limitations on the powers of the government as a means of securing the enjoyment of these rights; the constitution of government which deals with the framework of government and its powers, laying down certain rules for its administration and defining the electorate; and, the constitution of sovereignty which prescribes the mode or procedure for amending or revising the constitution.49 It is plain that the proposed changes will basically affect only the constitution of government. The constitutions of liberty and sovereignty remain unaffected. Indeed, the proposed changes will not change the fundamental nature of our state as "x x x a democratic and republican state."50 It is self-evident that a unicameral-parliamentary form of government will not make our State any less democratic or any less republican in character. Hence, neither will the use of the qualitative test resolve the issue of whether the proposed changes are "simple" or "substantial." For this reason and more, our Constitutions did not adopt any quantitative or qualitative test to determine whether an "amendment" is "simple" or "substantial." Nor did they provide that "substantial" amendments are beyond the power of the people to propose to change the Constitution. Instead, our Constitutions carried the traditional distinction between "amendment" and "revision," i.e., "amendment" means change, including complex changes while "revision" means complete change, including the adoption of an entirely new covenant. The legal dictionaries express this traditional difference between "amendment" and "revision." Black's Law Dictionary defines "amendment" as "[a] formal revision or addition proposed or made to a statute, constitution, pleading, order, or other instrument; specifically, a change made by addition, deletion, or correction."51 Black's also refers to "amendment" as "the process of making such a revision." 52 Revision, on the other hand, is defined as "[a] reexamination or careful review for correction or improvement."53 In parliamentary law, it is described as "[a] general and thorough rewriting of a governing document, in which the entire document is open to amendment."54 Similarly, Ballentine's Law Dictionary defines "amendment" as "[a] correction or revision of a writing to correct errors or better to state its intended purpose" 55 and "amendment of constitution" as "[a] process of proposing, passing, and ratifying amendments to the x x x constitution."56 In contrast, "revision," when applied to a statute (or constitution), "contemplates the reexamination of the same subject matter contained in the statute (or constitution), and the substitution of a new, and what is believed to be, a still more perfect rule."57 One of the most authoritative constitutionalists of his time to whom we owe a lot of intellectual debt, Dean Vicente G. Sinco, of the University of the Philippines College of Law, (later President of the U.P. and delegate to the Constitutional Convention of 1971) similarly spelled out the difference between "amendment" and "revision." He opined: "the revision of a constitution, in its strict sense, refers to a consideration of the entire constitution and the procedure for effecting such change; while amendment refers only to particular provisions to be added to or to be altered in a constitution." 58 Our people were guided by this traditional distinction when they effected changes in our 1935 and 1973 Constitutions . In 1940, the changes to the 1935 Constitution which included the conversion from a unicameral system to a bicameral structure , the shortening of the tenure of the President and Vice-President from a six-year term without reelection to a four-year term with one reelection, and the establishment of the COMELEC, together with the complementary constitutional provisions to effect the changes, were considered amendments only, not a revision. The replacement of the 1935 Constitution by the 1973 Constitution was, however, considered a revisionsince the 1973 Constitution was "a completely new fundamental charter embodying new political, social and economic concepts." 59 Among those adopted under the 1973 Constitution were: the parliamentary system in place of the presidential system, with the leadership in legislation and administration vested with the Prime Minister and his Cabinet; the reversion to a single-chambered lawmaking body instead of the two-chambered, which would be more suitable to a parliamentary system of government; the enfranchisement of the youth beginning eighteen (18) years of age instead of twenty-one (21), and the abolition of literacy, property, and other substantial requirements to widen the basis for the electorate and expand democracy; the strengthening of the judiciary, the civil service system, and the Commission on Elections; the complete nationalization of the ownership and management of mass media; the giving of control to Philippine citizens of all telecommunications; the prohibition against alien individuals to own educational institutions, and the strengthening of the government as a whole to improve the conditions of the masses.60 The 1973 Constitution in turn underwent a series of significant changes in 1976, 1980, 1981, and 1984. Thetwo significant innovations introduced in 1976 were (1) the creation of an interim Batasang Pambansa, in place of the interim National Assembly, and (2) Amendment No. 6 which conferred

on the President the power to issue decrees, orders, or letters of instruction, whenever the Batasang Pambansa fails to act adequately on any matter for any reason that in his judgment requires immediate action, or there is grave emergency or threat or imminence thereof, with such decrees, or letters of instruction to form part of the law of the land. In 1980, the retirement age of seventy (70) for justices and judges was restored. In 1981, the presidential system with parliamentary features was installed. The transfer of private land for use as residence to natural-born citizens who had lost their citizenship was also allowed. Then, in 1984, the membership of the Batasang Pambansa was reapportioned by provinces, cities, or districts in Metro Manila instead of by regions; the Office of the Vice-President was created while the executive committee was abolished; and, urban land reform and social housing programs were strengthened.61 These substantial changes were simply considered as mere amendments. In 1986, Mrs. Corazon C. Aquino assumed the presidency, and repudiated the 1973 Constitution. She governed under Proclamation No. 3, known as the Freedom Constitution. In February 1987, the new constitution was ratified by the people in a plebiscite and superseded the Provisional or Freedom Constitution. Retired Justice Isagani Cruz underscored the outstanding features of the 1987 Constitution which consists of eighteen articles and is excessively long compared to the Constitutions of 1935 and 1973, on which it was largely based. Many of the original provisions of the 1935 Constitution, particularly those pertaining to the legislative and executive departments, have been restored because of the revival of the bicameral Congress of the Philippines and the strictly presidential system. The independence of the judiciary has been strengthened, with new provisions for appointment thereto and an increase in its authority, which now covers even political questions formerly beyond its jurisdiction. While many provisions of the 1973 Constitution were retained, like those on the Constitutional Commissions and local governments, still the new 1987 Constitution was deemed as a revision of the 1973 Constitution. It is now contended that this traditional distinction between amendment and revision was abrogated by the 1987 Constitution. It is urged that Section 1 of Article XVII gives the power to amend or revise to Congress acting as a constituent assembly, and to a Constitutional Convention duly called by Congress for the purpose. Section 2 of the same Article, it is said, limited the people's right to change the Constitution via initiative through simple amendments. In other words, the people cannot propose substantial amendments amounting to revision. With due respect, I do not agree. As aforestated, the oppositors-intervenors who peddle the above proposition rely on the opinions of some Commissioners expressed in the course of the debate on how to frame the amendment/revision provisions of the 1987 Constitution. It is familiar learning, however, that opinions in a constitutional convention, especially if inconclusive of an issue, are of very limited value as explaining doubtful phrases, and are an unsafe guide (to the intent of the people) since the constitution derives its force as a fundamental law, not from the action of the convention but from the powers (of the people) who have ratified and adopted it.62 "Debates in the constitutional convention 'are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law.'" 63 Indeed, a careful perusal of the debates of the Constitutional Commissioners can likewise lead to the conclusion that there was no abandonment of the traditional distinction between "amendment" and "revision." For during the debates, some of the commissioners referred to the concurring opinion of former Justice Felix Q. Antonio in Javellana v. The Executive Secretary,64that stressed the traditional distinction between amendment and revision, thus:65 MR. SUAREZ: We mentioned the possible use of only one term and that is, "amendment." However, the Committee finally agreed to use the terms "amendment" or "revision" when our attention was called by the honorable Vice-President to the substantial difference in the connotation and significance between the said terms. As a result of our research, we came up with the observations made in the famous or notorious Javellana doctrine, particularly the decision rendered by Honorable Justice Makasiar,66 wherein he made the following distinction between "amendment" and "revision" of an existing Constitution: "Revision" may involve a rewriting of the whole Constitution. On the other hand, the act of amending a constitution envisages a change of specific provisions only. The intention of an act to amend is not the change of the entire Constitution, but only the improvement of specific parts or the addition of provisions deemed essential as a consequence of new conditions or the elimination of parts already considered obsolete or unresponsive to the needs of the times. The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental Charter embodying new political, social and economic concepts. So, the Committee finally came up with the proposal that these two terms should be employed in the formulation of the Article governing amendments or revisions to the new Constitution. To further explain "revision," former Justice Antonio, in his concurring opinion, used an analogy "When a house is completely demolished and another is erected on the same location, do you have a changed, repaired and altered house, or do you have a new house? Some of the material contained in the old house may be used again, some of the rooms may be constructed the same, but this does not alter the fact that you have altogether another or a new house."67 Hence, it is arguable that when the framers of the 1987 Constitution used the word "revision," they had in mind the "rewriting of the whole Constitution," or the "total overhaul of the Constitution." Anything less is an "amendment" or just "a change of specific provisions only," the intention being "not the change of the entire Constitution, but only the improvement of specific parts or the addition of provisions deemed essential as a consequence of new conditions or the elimination of parts already considered obsolete or unresponsive to the needs of the times." Under this view, "substantial" amendments are still "amendments" and thus can be proposed by the people via an initiative. As we cannot be guided with certainty by the inconclusive opinions of the Commissioners on the difference between "simple" and "substantial" amendments or whether "substantial" amendments amounting to revision are covered by people's initiative, it behooves us to follow the cardinal rule in interpreting Constitutions, i.e., construe them to give effect to the intention of the people who adopted it. The illustrious Cooley explains its rationale well, viz:68 x x x the constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. These proceedings therefore are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute; since in the latter case it is the intent of the legislature we seek, while in the

former we are endeavoring to arrive at the intent of the people through the discussion and deliberations of their representatives. The history of the calling of the convention, the causes which led to it, and the discussions and issues before the people at the time of the election of the delegates, will sometimes be quite as instructive and satisfactory as anything to be gathered form the proceedings of the convention. Corollarily, a constitution is not to be interpreted on narrow or technical principles, but liberally and on broad general lines, to accomplish the object of its establishment and carry out the great principles of government not to defeat them. 69 One of these great principles is the sovereignty of the people. Let us now determine the intent of the people when they adopted initiative as a mode to amend the 1987 Constitution. We start with the Declaration of Principles and State Policies which Sinco describes as "the basic political creed of the nation" 70 as it "lays down the policies that government is bound to observe."71 Section 1, Article II of the 1935 Constitution and Section 1, Article II of the 1973 Constitution, similarly provide that "the Philippines is a republican state. Sovereignty resides in the people and all government authority emanates from them." In a republican state, the power of the sovereign people is exercised and delegated to their representatives. Thus in Metropolitan Transportation Service v. Paredes, this Court held that "a republican state, like the Philippines x x x (is) derived from the will of the people themselves in freely creating a government 'of the people, by the people, and for the people' a representative government through which they have agreed to exercise the powers and discharge the duties of their sovereignty for the common good and general welfare."72 In both the 1935 and 1973 Constitutions, the sovereign people delegated to Congress or to a convention, the power to amend or revise our fundamental law. History informs us how this delegated power to amend or revise the Constitution was abused particularly during the Marcos regime. The Constitution was changed several times to satisfy the power requirements of the regime. Indeed, Amendment No. 6 was passed giving unprecedented legislative powers to then President Ferdinand E. Marcos. A conspiracy of circumstances from above and below, however, brought down the Marcos regime through an extra constitutional revolution, albeit a peaceful one by the people. A main reason for the people's revolution was the failure of the representatives of the people to effectuate timely changes in the Constitution either by acting as a constituent assembly or by calling a constitutional convention. When the representatives of the peopledefaulted in using this last peaceful process of constitutional change, the sovereign people themselves took matters in their own hands. They revolted and replaced the 1973 Constitution with the 1987 Constitution. It is significant to note that the people modified the ideology of the 1987 Constitution as it stressed the power of the people to act directly in their capacity as sovereign people. Correspondingly, the power of the legislators to act as representatives of the people in the matter of amending or revising the Constitution was diminished for the spring cannot rise above its source. To reflect this significant shift, Section 1, Article II of the 1987 Constitution was reworded. It now reads: "the Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority emanates from them." The commissioners of the 1986 Constitutional Commission explained the addition of the word "democratic," in our first Declaration of Principles, viz: MR. NOLLEDO. I am putting the word "democratic" because of the provisions that we are now adopting which are covering consultations with the people. For example, we have provisions on recall, initiative, the right of the people even to participate in lawmaking and other instances that recognize the validity of interference by the people through people's organizations x x x x73 MR. OPLE. x x x x The Committee added the word "democratic" to "republican," and, therefore, the first sentence states: "The Philippines is a republican and democratic state x x x x May I know from the committee the reason for adding the word "democratic" to "republican"? The constitutional framers of the 1935 and 1973 Constitutions were content with "republican." Was this done merely for the sake of emphasis? MR. NOLLEDO. x x x x "democratic" was added because of the need to emphasize people power and the many provisions in the Constitution that we have approved related to recall, people's organizations, initiative and the like, which recognize the participation of the people in policy-making in certain circumstances x x x x MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does meet a need x x x x MR. NOLLEDO. According to Commissioner Rosario Braid, "democracy" here is understood as participatory democracy. supplied) The following exchange between Commissioners Rene V. Sarmiento and Adolfo S. Azcuna is of the same import:75 MR. SARMIENTO. When we speak of republican democratic state, are we referring to representative democracy? MR. AZCUNA. That is right. MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and 1935 Constitutions which used the words "republican state" because "republican state" would refer to a democratic state where people choose their representatives? MR. AZCUNA. We wanted to emphasize the participation of the people in government. MR. SARMIENTO. But even in the concept "republican state," we are stressing the participation of the people x x x x So the word "republican" will suffice to cover popular representation. MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in view of the introduction of the aspects of direct democracy such as initiative, referendum or recall, it was necessary to emphasize the democratic portion of republicanism, of representative
74

(emphasis

democracy as well. So, we want to add the word "democratic" to emphasize that in this new Constitution there are instances where the people would act directly, and not through their representatives. (emphasis supplied) Consistent with the stress on direct democracy, the systems of initiative, referendum, and recall were enthroned as polestars in the 1987 Constitution. Thus, Commissioner Blas F. Ople who introduced the provision on people's initiative said:76 MR. OPLE. x x x x I think this is just the correct time in history when we should introduce an innovative mode of proposing amendments to the Constitution, vesting in the people and their organizations the right to formulate and propose their own amendments and revisions of the Constitution in a manner that will be binding upon the government. It is not that I believe this kind of direct action by the people for amending a constitution will be needed frequently in the future, but it is good to know that the ultimate reserves of sovereign power still rest upon the people and that in the exercise of that power, they can propose amendments or revision to the Constitution. (emphasis supplied) Commissioner Jose E. Suarez also explained the people's initiative as a safety valve, as a peaceful way for the people to change their Constitution, by citing our experiences under the Marcos government, viz:77 MR. SUAREZ. We agree to the difficulty in implementing this particular provision, but we are providing a channel for the expression of the sovereign will of the people through this initiative system. MR. BENGZON. Is Section 1, paragraphs (a) and (b), not sufficient channel for expression of the will of the people, particularly in the amendment or revision of the Constitution? MR. SUAREZ. Under normal circumstances, yes. But we know what happened during the 20 years under the Marcos administration. So, if the National Assembly, in a manner of speaking, is operating under the thumb of the Prime Minister or the President as the case may be, and the required number of votes could not be obtained, we would have to provide for a safety valve in order that the people could ventilate in a very peaceful way their desire for amendment to the Constitution. It is very possible that although the people may be pressuring the National Assembly to constitute itself as a constituent assembly or to call a constitutional convention, the members thereof would not heed the people's desire and clamor. So this is a third avenue that we are providing for the implementation of what is now popularly known as people's power. ( emphasis supplied) Commissioner Regalado E. Maambong opined that the people's initiative could avert a revolution, viz:78 MR. MAAMBONG. x x x x the amending process of the Constitution could actually avert a revolution by providing a safety valve in bringing about changes in the Constitution through pacific means. This, in effect, operationalizes what political law authors call the "prescription of sovereignty." (emphasis supplied) The end result is Section 2, Article XVII of the 1987 Constitution which expressed the right of the sovereign people to propose amendments to the Constitution by direct action or through initiative. To that extent, the delegated power of Congress to amend or revise the Constitution has to be adjusted downward. Thus, Section 1, Article VI of the 1987 Constitution has to be reminted and now provides: "The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives,except to the extent reserved to the people by the provision on initiative and referendum." Prescinding from these baseline premises, the argument that the people through initiative cannot propose substantial amendments to change the Constitution turns sovereignty on its head. At the very least, thesubmission constricts the democratic space for the exercise of the direct sovereignty of the people. It also denigrates the sovereign people who they claim can only be trusted with the power to propose "simple" but not "substantial" amendments to the Constitution. According to Sinco, the concept of sovereignty should be strictly understood in its legal meaning as it was originally developed in law.79 Legal sovereignty, he explained, is "the possession of unlimited power to make laws. Its possessor is the legal sovereign. It implies the absence of any other party endowed with legally superior powers and privileges. It is not subject to law 'for it is the author and source of law.' Legal sovereignty is thus the equivalent of legal omnipotence."80 To be sure, sovereignty or popular sovereignty, emphasizes the supremacy of the people's will over the state which they themselves have created. The state is created by and subject to the will of the people, who are the source of all political power. Rightly, we have ruled that "the sovereignty of our people is not a kabalistic principle whose dimensions are buried in mysticism. Its metes and bounds are familiar to the framers of our Constitutions. They knew that in its broadest sense, sovereignty is meant to be supreme, the jus summi imperu, the absolute right to govern." 81 James Wilson, regarded by many as the most brilliant, scholarly, and visionary lawyer in the United States in the 1780s, laid down the first principles of popular sovereignty during the Pennsylvania ratifying convention of the 1787 Constitution of the United States: 82 There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable. x x x x Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions x x x x This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess over our constitution, control in act, as well as right. (emphasis supplied) I wish to reiterate that in a democratic and republican state, only the people is sovereign - - - not the elected President, not the elected Congress, not this unelected Court. Indeed, the sovereignty of the people which is indivisible cannot be reposed in any organ of government. Only its exercise

may be delegated to any of them. In our case, the people delegated to Congress the exercise of the sovereign power to amend or revise the Constitution. If Congress, as delegate, can exercise this power to amend or revise the Constitution, can it be argued that the sovereign people who delegated the power has no power to substantially amend the Constitution by direct action? If the sovereign people do not have this power to make substantial amendments to the Constitution, what did it delegate to Congress? How can the people lack this fraction of a power to substantially amend the Constitution when by their sovereignty, all power emanates from them? It will take somemumbo jumbo to argue that the whole is lesser than its part. Let Sinco clinch the point:83 But although possession may not be delegated, the exercise of sovereignty often is. It is delegated to the organs and agents of the state which constitute its government, for it is only through this instrumentality that the state ordinarily functions. However ample and complete this delegation may be, it is nevertheless subject to withdrawal at any time by the state. On this point Willoughby says: Thus, States may concede to colonies almost complete autonomy of government and reserve to themselves a right to control of so slight and so negative a character as to make its exercise a rare and improbable occurrence; yet so long as such right of control is recognized to exist, and the autonomy of the colonies is conceded to be founded upon a grant and continuing consent of the mother countries the sovereignty of those mother countries over them is complete and they are to be considered as possessing only administrative autonomy and not political independence. At the very least, the power to propose substantial amendments to the Constitution is shared with the people. We should accord the most benign treatment to the sovereign power of the people to propose substantial amendments to the Constitution especially when the proposed amendments will adversely affect the interest of some members of Congress. A contrary approach will suborn the public weal to private interest and worse, will enable Congress (the delegate) to frustrate the power of the people to determine their destiny (the principal). All told, the teaching of the ages is that constitutional clauses acknowledging the right of the people to exercise initiative and referendum are liberally and generously construed in favor of the people.84 Initiative and referendum powers must be broadly construed to maintain maximum power in the people.85 We followed this orientation in Subic Bay Metropolitan Authority v. Commission on Elections.86 There is not an iota of reason to depart from it. V The issues at bar are not political questions. Petitioners submit that "[t]he validity of the exercise of the right of the sovereign people to amend the Constitution and their will, as expressed by the fact that over six million registered voters indicated their support of the Petition for Initiative, is a purely political question which is beyond even the very long arm of this Honorable Court's power of judicial review. Whether or not the 1987 Constitution should be amended is a matter which the people and the people alone must resolve in their sovereign capacity."87 They argue that "[t]he power to propose amendments to the Constitution is a right explicitly bestowed upon the sovereign people. Hence, the determination by the people to exercise their right to propose amendments under the system of initiative is a sovereign act and falls squarely within the ambit of a 'political question.'" 88 The petitioners cannot be sustained. This issue has long been interred by Sanidad v. Commission on Elections, viz:89 Political questions are neatly associated with the wisdom, not the legality of a particular act. Where the vortex of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the power of a constituent assembly. Whether the amending process confers on the President that power to propose amendments is therefore a downright justiciable question. Should the contrary be found, the actuation of the President would merely be a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not. We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the President's authority to propose amendments and the regularity of the procedure adopted for submission of the proposals to the people ultimately lie in the judgment of the latter. A clear Descartes fallacy of vicious cycle. Is it not that the people themselves, by their sovereign act, provided for the authority and procedure for the amending process when they ratified the present Constitution in 1973? Whether, therefore, that constitutional provision has been followed or not is indisputably a proper subject of inquiry, not by the people themselves of course who exercise no power of judicial review, but by the Supreme Court in whom the people themselves vested that power, a power which includes the competence to determine whether the constitutional norms for amendments have been observed or not. And, this inquiry must be done a priori not a posteriori, i.e., before the submission to and ratification by the people. In the instant case, the Constitution sets in black and white the requirements for the exercise of the people's initiative to amend the Constitution. The amendments must be proposed by the people "upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter." 90Compliance with these requirements is clearly a justiciable and not a political question. Be that as it may, how the issue will be resolved by the people is addressed to them and to them alone. VI Whether the Petition for Initiative filed before the COMELEC complied with Section 2, Article XVII of the Constitution and R.A. 6735 involves contentious issues of fact which should first be resolved by the COMELEC. Oppositors-intervenors impugn the Petition for Initiative as it allegedly lacks the required number of signatures under Section 2, Article XVII of the Constitution. Said provision requires that the petition for initiative be supported by at least twelve per cent (12%) of the total number of registered voters,

of which every legislative district must be represented by at least three per cent (3%) of the registered voters therein. Oppositors-intervenors contend thatno proper verification of signatures was done in several legislative districts. They assert that mere verification of the names listed on the signature sheets without verifying the signatures reduces the signatures submitted for their respective legislative districts to mere scribbles on a piece of paper. Oppositor-intervenor ONEVOICE, Inc., submitted to this Court a certification dated August 23, 2006 issued by Atty. Marlon S. Casquejo, Election Officer IV, Third District and OIC, First and Second District, Davao City, stating that his office has not verified the signatures submitted by the proponents of the people's initiative. The certification reads: This is to CERTIFY that this office (First, Second and Third District, Davao City) HAS NOT VERIFIED the signatures of registered voters as per documents submitted in this office by the proponents of the People's Initiative. Consequently, NO ELECTION DOCUMENTS AND/OR ORDER ISSUED BY HIGHER SUPERIORSused as basis for such verification of signatures.91 Senate Minority Leader Aquilino Pimentel, Jr., among others, further clarified that although Atty. Casquejo and Reynne Joy B. Bullecer, Acting Election Officer IV, First District, Davao City, later issued certifications stating that the Office of the City Election Officer has examined the list of individuals appearing in the signature sheets,92 the certifications reveal that the office had verified only the names of the signatories, but not their signatures. Oppositors-intervenors submit that not only the names of the signatories should be verified, but also their signatures to ensure the identities of the persons affixing their signatures on the signature sheets. Oppositor-intervenor Luwalhati Antonino also alleged that petitioners failed to obtain the signatures of at least three per cent (3%) of the total number of registered voters in the First Legislative District of South Cotabato. For the First District of South Cotabato, petitioners submitted 3,182 signatures for General Santos City, 2,186 signatures for Tupi, 3,308 signatures for Tampakan and 10,301 signatures for Polomolok, or 18,977 signatures out of 359,488 registered voters of said district. Antonino, however, submitted to this Court a copy of the certification by Glory D. Rubio, Election Officer III, Polomolok, dated May 8, 2006, showing that the signatures from Polomolok were not verified because the Book of Voters for the whole municipality was in the custody of the Clerk of Court of the Regional Trial Court, Branch 38, Polomolok, South Cotabato. 93 Excluding the signatures from Polomolok from the total number of signatures from the First District of South Cotabato would yield only a total of 8,676 signatures which falls short of the three per cent (3%) requirement for the district. Former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino likewise submitted to this Court a certification issued by Atty. Stalin A. Baguio, City Election Officer IV, Cagayan de Oro City, stating that the list of names appearing on the signature sheets corresponds to the names of registered voters in the city, thereby implying that they have not actually verified the signatures.94 The argument against the sufficiency of the signatures is further bolstered by Alternative Law Groups, Inc., which submitted copies of similarly worded certifications from the election officers from Zamboanga del Sur95 and from Compostela Valley.96 Alternative Law Groups, Inc., further assails the regularity of the verification process as it alleged that verification in some areas were conducted by Barangay officials and not by COMELEC election officers. It filed with this Court copies of certifications from Sulu and Sultan Kudarat showing that the verification was conducted by local officials instead of COMELEC personnel.97 Petitioners, on the other hand, maintain that the verification conducted by the election officers sufficiently complied with the requirements of the Constitution and the law on initiative. Contravening the allegations of oppositors-intervenors on the lack of verification in Davao City and in Polomolok, South Cotabato, petitioner Aumentado claimed that the same election officers cited by the oppositors-intervenors also issued certifications showing that they have verified the signatures submitted by the proponents of the people's initiative. He presented copies of the certifications issued by Atty. Marlon S. Casquejo for the Second and Third Legislative Districts of Davao City stating that he verified the signatures of the proponents of the people's initiative. His certification for the Second District states: This is to CERTIFY that this Office has examined the list of individuals as appearing in the Signature Sheets of the Registered Voters of District II, Davao City, submitted on April 7, 2006 by MR. NONATO BOLOS, Punong Barangay, Centro, Davao City for verification which consists of THIRTY THOUSAND SIX HUNDRED SIXTY-TWO (30,662) signatures. Anent thereto, it appears that of the THIRTY THOUSAND SIX HUNDRED SIXTY-TWO (30,662) individuals, only TWENTY-TWO THOUSAND SIX HUNDRED SIXTY-EIGHT (22,668) individuals were found to be REGISTERED VOTERS, in the Computerized List of Voters of SECOND CONGRESSIONAL DISTRICT, DAVAO CITY.98 It was also shown that Atty. Casquejo had issued a clarificatory certification regarding the verification process conducted in Davao City. It reads: Regarding the verification of the signatures of registered voters, this Office has previously issued two (2) separate certifications for the 2 nd and 3rd Districts of Davao City on April 20, 2006 and April 26, 2006, respectively, specifically relating to the voters who supported the people's initiative. It was stated therein that the names submitted, comprising 22,668 individual voters in the 2 nd District and 18,469 individual voters in the 3rd District, were found [to] be registered voters of the respective districts mentioned as verified by this Office based on the Computerized List of Voters. It must be clarified that the August 23, 2006 Certification was issued in error and by mistake for the reason that the signature verification has not been fully completed as of that date. I hereby CERTIFY that this Office has examined the signatures of the voters as appearing in the signature sheets and has compared these with the signatures appearing in the book of voters and computerized list of voters x x x 99 Petitioner Aumentado also submitted a copy of the certification dated May 8, 2006 issued by Polomolok Election Officer Glory D. Rubio to support their claim that said officer had conducted a verification of signatures in said area. The certification states:

This is to certify further, that the total 68,359 registered voters of this municipality, as of the May 10, 2004 elections, 10,804 names with signatures were submitted for verification and out of which 10,301 were found to be legitimate voters as per official list of registered voters, which is equivalent to 15.07% of the total number of registered voters of this Municipality.100 In addition to the lack of proper verification of the signatures in numerous legislative districts, allegations of fraud and irregularities in the collection of signatures in Makati City were cited by Senator Pimentel, among others, to wit: (1) No notice was given to the public, for the benefit of those who may be concerned, by the Makati COMELEC Office that signature sheets have already been submitted to it for "verification." The camp of Mayor Binay was able to witness the "verification process" only because of their pro-active stance; (2) In District 1, the proponents of charter change submitted 43,405 signatures for verification. 36,219 alleged voters' signatures (83% of the number of signatures submitted) were rejected outright. 7,186 signatures allegedly "passed" COMELEC's initial scrutiny. However, upon examination of the signature sheets by Atty. Mar-len Abigail Binay, the said 7,186 signatures could not be accounted for. Atty. Binay manually counted 2,793 signatures marked with the word "OK" and 3,443 signatures marked with a check, giving only 6,236 "apparently verified signatures." Before the COMELEC officer issued the Certification, Atty. Binay already submitted to the said office not less than 55 letters of "signature withdrawal," but no action was ever taken thereon; (3) In District 2, 29,411 signatures were submitted for verification. 23,521 alleged voters' signatures (80% of those submitted) were rejected outright. Of the 5,890 signatures which allegedly passed the COMELEC's initial scrutiny, some more will surely fail upon closer examination; (4) In the absence of clear, transparent, and uniform rules the COMELEC personnel did not know how to treat the objections and other observations coming from the camp of Mayor Binay. The oppositors too did not know where to go for their remedy when the COMELEC personnel merely "listened" to their objections and other observations. As mentioned earlier, the COMELEC personnel did not even know what to do with the many "letters of signature withdrawal" submitted to it; (5) Signatures of people long dead, in prison, abroad, and other forgeries appear on the Sigaw ng Bayan Signature Sheets. There is even a 15-year old alleged signatory; (6) There are Signature Sheets obviously signed by one person; (7) A Calara M. Roberto and a Roberto M. Calara both allegedly signed the Signature Sheets.101 Also, there are allegations that many of the signatories did not understand what they have signed as they were merely misled into signing the signature sheets. Opposed to these allegations are rulings that a person who affixes his signature on a document raises the presumption that the person so signing has knowledge of what the document contains. Courts have recognized that there is great value in the stability of records, so to speak, that no one should commit herself or himself to something in writing unless she or he is fully aware and cognizant of the effect it may have upon her on him. 102 In the same vein, we have held that a person is presumed to have knowledge of the contents of a document he has signed. 103 But as this Court is not a trier of facts, it cannot resolve the issue. In sum, the issue of whether the petitioners have complied with the constitutional requirement that the petition for initiative be signed by at least twelve per cent (12%) of the total number of registered voters, of which every legislative district must be represented by at least three per cent (3%) of the registered voters therein, involves contentious facts. Its resolution will require presentation of evidence and their calibration by the COMELEC according to its rules. During the oral argument on this case, the COMELEC, through Director Alioden Dalaig of its Law Department, admitted that it has not examined the documents submitted by the petitioners in support of the petition for initiative, as well as the documents filed by the oppositors to buttress their claim that the required number of signatures has not been met. The exchanges during the oral argument likewise clearly show the need for further clarification and presentation of evidence to prove certain material facts.104 The only basis used by the COMELEC to dismiss the petition for initiative was this Court's ruling in Santiago v. COMELEC that R.A. 6735 was insufficient. It has yet to rule on the sufficiency of the form and substance of the petition. I respectfully submit that this issue should be properly litigated before the COMELEC where both parties will be given full opportunity to prove their allegations. For the same reasons, the sufficiency of the Petition for Initiative and its compliance with the requirements of R.A. 6735 on initiative and its implementing rules is a question that should be resolved by the COMELEC at the first instance, as it is the body that is mandated by the Constitution to administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall. 105 VII COMELEC gravely abused its discretion when it denied due course to the Lambino and Aumentado petition. In denying due course to the Lambino and Aumentado petition, COMELEC relied on this Court's ruling inSantiago permanently enjoining it from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. Again, I respectfully submit that COMELEC's reliance on Santiago constitutes grave abuse of discretion amounting to lack of jurisdiction. The Santiago case did not establish the firm doctrine that R.A. 6735 is not a sufficient law to implement the constitutional provision allowing people's initiative to amend the Constitution. To recapitulate, the records show that in the original decision, eight (8) justices106 voted that R.A. 6735 was not a sufficient law; five (5) justices107 voted that said law was sufficient; and one (1) justice108 abstained from voting on the issue holding that unless and until a proper initiatory pleading is filed, the said issue is not ripe for adjudication.109

Within the reglementary period, the respondents filed their motion for reconsideration. On June 10, 1997, the Court denied the motion. Only thirteen (13) justices resolved the motion for Justice Torres inhibited himself.110 Of the original majority of eight (8) justices, only six (6) reiterated their ruling that R.A. 6735 was an insufficient law. Justice Hermosisima, originally part of the majority of eight (8) justices, changed his vote and joined the minority of five (5) justices. He opined without any equivocation that R.A. 6735 was a sufficient law, thus: It is one thing to utter a happy phrase from a protected cluster; another to think under fire to think for action upon which great interests depend." So said Justice Oliver Wendell Holmes, and so I am guided as I reconsider my concurrence to the holding of the majority that "R.A. No. 6735 is inadequate to cover the system of initiative on amendments to the Constitution and to have failed to provide sufficient standard for subordinate legislation" and now to interpose my dissent thereto. xxx WHEREFORE, I vote to dismiss the Delfin petition. I vote, however, to declare R.A. No. 6735 as adequately providing the legal basis for the exercise by the people of their right to amend the Constitution through initiative proceedings and to uphold the validity of COMELEC Resolution No. 2300 insofar as it does not sanction the filing of the initiatory petition for initiative proceedings to amend the Constitution without the required names and/or signatures of at least 12% of all the registered voters, of which every legislative district must be represented by at least 3% of the registered voters therein. (emphasis supplied) Justice Vitug remained steadfast in refusing to rule on the sufficiency of R.A. 6735. In fine, the final vote on whether R.A. 6735 is a sufficient law was 66 with one (1) justice inhibiting himself and another justice refusing to rule on the ground that the issue was not ripe for adjudication. It ought to be beyond debate that the six (6) justices who voted that R.A. 6735 is an insufficient law failed to establish a doctrine that could serve as a precedent. Under any alchemy of law, a deadlocked vote of six (6) is not a majority and a non-majority cannot write a rule with precedential value. The opinion of the late Justice Ricardo J. Francisco is instructive, viz: As it stands, of the thirteen justices who took part in the deliberations on the issue of whether the motion for reconsideration of the March 19, 1997 decision should be granted or not, only the following justices sided with Mr. Justice Davide, namely: Chief Justice Narvasa, and Justices Regalado, Romero, Bellosillo and Kapunan. Justices Melo, Puno, Mendoza, Hermosisima, Panganiban and the undersigned voted to grant the motion; while Justice Vitug "maintained his opinion that the matter was not ripe for judicial adjudication." In other words, only five, out of the other twelve justices, joined Mr. Justice Davide's June 10, 1997 ponencia finding R.A. No. 6735 unconstitutional for its failure to pass the so called "completeness and sufficiency standards" tests. The "concurrence of a majority of the members who actually took part in the deliberations" which Article VII, Section 4(2) of the Constitution requires to declare a law unconstitutional was, beyond dispute, not complied with. And even assuming, for the sake of argument, that the constitutional requirement on the concurrence of the "majority" was initially reached in the March 19, 1997 ponencia, the same is inconclusive as it was still open for review by way of a motion for reconsideration. It was only on June 10, 1997 that the constitutionality of R.A. No. 6735 was settled with finality, sans the constitutionally required "majority." The Court's declaration, therefore, is manifestly grafted with infirmity and wanting in force necessitating, in my view, the reexamination of the Court's decision in G.R. No. 127325. It behooves the Court "not to tarry any longer" nor waste this opportunity accorded by this new petition (G.R. No. 129754) to relieve the Court's pronouncement from constitutional infirmity. The jurisprudence that an equally divided Court can never set a precedent is well-settled. Thus, in the United States, an affirmance in the Federal Supreme Court upon equal division of opinion is not an authority for the determination of other cases, either in that Court or in the inferior federal courts. In Neil v. Biggers,111 which was a habeas corpus state proceeding by a state prisoner, the U.S. Supreme Court held that its equally divided affirmance of petitioner's state court conviction was not an "actual adjudication" barring subsequent consideration by the district court on habeas corpus. In discussing the non-binding effect of an equal division ruling, the Court reviewed the history of cases explicating the disposition "affirmed by an equally divided Court:" In this light, we review our cases explicating the disposition "affirmed by an equally divided Court." On what was apparently the first occasion of an equal division, The Antelope, 10 Wheat, 66, 6 L. Ed. 268 (1825), the Court simply affirmed on the point of division without much discussion. Id., at 126-127. Faced with a similar division during the next Term, the Court again affirmed, Chief Justice Marshall explaining that "the principles of law which have been argued, cannot be settled; but the judgment is affirmed, the court being divided in opinion upon it." Etting v. Bank of United States, 11 Wheat. 59, 78, 6 L. Ed. 419 (1826). As was later elaborated in such cases, it is the appellant or petitioner who asks the Court to overturn a lower court's decree. "If the judges are divided, the reversal cannot be had, for no order can be made. The judgment of the court below, therefore, stands in full force. It is indeed, the settled practice in such case to enter a judgment of affirmance; but this is only the most convenient mode of expressing the fact that the cause is finally disposed of in conformity with the action of the court below, and that that court can proceed to enforce its judgment. The legal effect would be the same if the appeal, or writ of error, were dismissed."Durant v. Essex Co., 7 Wall. 107, 112, 19 L. Ed. 154 (1869). Nor is an affirmance by an equally divided Court entitled to precedential weight. Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264, 80 S. Ct. 1463, 1464, 4 L. Ed. 2d 1708 (1960).xxx" This doctrine established in Neil has not been overturned and has been cited with approval in a number of subsequent cases,112 and has been applied in various state jurisdictions. In the case of In the Matter of the Adoption of Erin G., a Minor Child ,113 wherein a putative father sought to set aside a decree granting petition for adoption of an Indian child on grounds of noncompliance with the requirements of Indian Child Welfare Act (ICWA), the Supreme Court of Alaska held that its decision in In re Adoption of T.N.F. (T.N.F.),114 which lacked majority opinion supporting holding that an action such as the putative father's would be governed by the state's one-year statute of limitations, was not entitled to stare decisis effect. In T.N.F., a majority of the justices sitting did not agree on a common rationale, as two of four participating justices agreed that the state's one-year statute of limitations applied, one justice concurred in the result only, and one justice dissented. There was no "narrower" reasoning agreed upon by all three affirming justices. The concurring justice expressed no opinion on the statute of limitations issue, and in agreeing with the result, he reasoned that ICWA did not give the plaintiff standing to sue.115 The two-justice plurality, though agreeing that the state's one-year statute of limitations applied, specifically disagreed with the concurring

justice on the standing issue.116 Because a majority of the participating justices in T.N.F. did not agree on any one ground for affirmance, it was not accorded stare decisis effect by the state Supreme Court. The Supreme Court of Michigan likewise ruled that the doctrine of stare decisis does not apply to plurality decisions in which no majority of the justices participating agree to the reasoning and as such are not authoritative interpretations binding on the Supreme Court. 117 In State ex rel. Landis v. Williams,118 the Supreme Court of Florida, in an equally divided opinion on the matter,119 held that chapter 15938, Acts of 1933 must be allowed to stand, dismissing a quo warranto suit without prejudice. The Court held: In a cause of original jurisdiction in this court a statute cannot be declared unconstitutional nor its enforcement nor operation judicially interfered with, except by the concurrence of a majority of the members of the Supreme Court sitting in the cause wherein the constitutionality of the statute is brought in question or judicial relief sought against its enforcement. Section 4 of Article 5, state Constitution. Therefore in this case the concurrence of a majority of the members of this court in holding unconstitutional said chapter 15938, supra, not having been had, it follows that the statute in controversy must be allowed to stand and accordingly be permitted to be enforced as a presumptively valid act of the Legislature, and that this proceeding in quo warranto must be dismissed without prejudice. Spencer v. Hunt (Fla.) 147 So. 282.This decision is not to be regarded as a judicial precedent on the question of constitutional law involved concerning the constitutionality vel non of chapter 15938. State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51. Quo warranto proceeding dismissed without prejudice by equal division of the court on question of constitutionality of statute involved. In U.S. v. Pink,120 the Court held that the affirmance by the U.S. Supreme Court by an equally divided vote of a decision of the New York Court of Appeals that property of a New York branch of a Russian insurance company was outside the scope of the Russian Soviet government's decrees terminating existence of insurance companies in Russia and seizing their assets, while conclusive and binding upon the parties as respects the controversy in that action, did not constitute an authoritative "precedent." In Berlin v. E.C. Publications, Inc.,121 the U.S. Court of Appeals Second Circuit, in holding that printed lyrics which had the same meter as plaintiffs' lyrics, but which were in form a parody of the latter, did not constitute infringement of plaintiffs' copyrights, ruled that the prior case of Benny v. Loew's, Inc.,122 which was affirmed by an equally divided court, was not binding upon it, viz: Under the precedents of this court, and, as seems justified by reason as well as by authority, an affirmance by an equally divided court is as between the parties, a conclusive determination and adjudication of the matter adjudged; but the principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases, either in this or in inferior courts.123 In Perlman v. First National Bank of Chicago,124 the Supreme Court of Illinois dismissed the appeal as it was unable to reach a decision because two judges recused themselves and the remaining members of the Court were so divided, it was impossible to secure the concurrence of four judges as is constitutionally required. The Court followed the procedure employed by the U.S. Supreme Court when the Justices of that Court are equally divided,i.e. affirm the judgment of the court that was before it for review. The affirmance is a conclusive determination and adjudication as between the parties to the immediate case, it is not authority for the determination of other cases, either in the Supreme Court or in any other court. It is not "entitled to precedential weight." The legal effect of such an affirmance is the same as if the appeal was dismissed. 125 The same rule is settled in the English Courts. Under English precedents,126 an affirmance by an equally divided Court is, as between the parties, a conclusive determination and adjudication of the matter adjudged; but the principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases, either in that or in inferior courts. After a tour of these cases, we can safely conclude that the prevailing doctrine is that, the affirmance by an equally divided court merely disposes of the present controversy as between the parties and settles no issue of law; the affirmance leaves unsettled the principle of law presented by the case and is not entitled to precedential weight or value. In other words, the decision only has res judicata and not stare decisis effect. It is not conclusive and binding upon other parties as respects the controversies in other actions. Let us now examine the patent differences between the petition at bar and the Delfin Petition in the Santiago case which will prevent the Santiago ruling from binding the present petitioners. To start with, the parties are different. More importantly, the Delfin Petition did not contain the signatures of the required number of registered voters under the Constitution: the requirement that twelve per cent (12%) of all the registered voters in the country wherein each legislative district is represented by at least three per cent (3%) of all the registered voters therein was not complied with. For this reason, we ruled unanimously that it was not the initiatory petition which the COMELEC could properly take cognizance of. In contrast, the present petition appears to be accompanied by the signatures of the required number of registered voters. Thus, while the Delfin Petition prayed that an Order be issued fixing the time and dates for signature gathering all over the country, the Lambino and Aumentado petition, prayed for the calling of a plebiscite to allow the Filipino people to express their sovereign will on the proposition. COMELEC cannot close its eyes to these material differences. Plainly, the COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in denying due course to the Lambino and Aumentado petition on the basis of its mistaken notion that Santiago established the doctrine that R.A. 6735 was an insufficient law. As aforestressed, that ruling of six (6) justices who do not represent the majority lacks precedential status and is non-binding on the present petitioners. The Court's dismissal of the PIRMA petition is of no moment. Suffice it to say that we dismissed the PIRMA petition on the principle of res judicata. This was stressed by former Chief Justice Hilario G. Davide Jr., viz: The following are my reasons as to why this petition must be summarily dismissed:

First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v. COMELEC (G.R. No. 127325, 19 March 1997) may plead ignorance of the fact that the former is substantially identical to the latter, except for the reversal of the roles played by the principal parties and inclusion of additional, yet not indispensable, parties in the present petition. But plainly, the same issues and reliefs are raised and prayed for in both cases. The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM, MODERNIZATION, AND ACTION (PIRMA) and spouses ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit organization duly organized and existing under Philippine laws with office address at Suite 403, Fedman Suites, 199 Salcedo Street, Legaspi Village, Makati City," with "ALBERTO PEDROSA and CARMEN PEDROSA" as among its "officers." In Santiago, the PEDROSAS were made respondents as founding members of PIRMA which, as alleged in the body of the petition therein, "proposes to undertake the signature drive for a people's initiative to amend the Constitution." In Santiago then, the PEDROSAS were sued in their capacity as founding members of PIRMA. The decision in Santiago specifically declared that PIRMA was duly represented at the hearing of the Delfin petition in the COMELEC. In short, PIRMA was intervenor-petitioner therein. Delfin alleged in his petition that he was a founding member of the Movement for People's Initiative, and under footnote no. 6 of the decision, it was noted that said movement was "[l]ater identified as the People's Initiative for Reforms, Modernization and Action, or PIRMA for brevity." In their Comment to the petition in Santiago, the PEDROSAS did not deny that they were founding members of PIRMA, and by their arguments, demonstrated beyond a shadow of a doubt that they had joined Delfin or his cause. No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as well as the others joining them, from the operation of the principle of res judicata, which needs no further elaboration. (emphasis supplied) Justice Josue N. Bellosillo adds: The essential requisites of res judicata are: (1) the former judgment must be final; (2) it must have been rendered by a court having jurisdiction over the subject matter and the parties; (3) it must be a judgment on the merits; and (4) there must be between the first and second actions identity of parties, identity of subject matter, and identity of causes of action. 127 Applying these principles in the instant case, we hold that all the elements of res judicata are present. For sure, our Decision in Santiago v. COMELEC, which was promulgated on 19 March 1997, and the motions for reconsideration thereof denied with finality on 10 June 1997, is undoubtedly final. The said Decision was rendered by this Court which had jurisdiction over the petition for prohibition under Rule 65. Our judgment therein was on the merits, i.e., rendered only after considering the evidence presented by the parties as well as their arguments in support of their respective claims and defenses. And, as between Santiago v. COMELEC case and COMELEC Special Matter No. 97-001 subject of the present petition, there is identity of parties, subject matter and causes of action. Petitioners contend that the parties in Santiago v. COMELEC are not identical to the parties in the instant case as some of the petitioners in the latter case were not parties to the former case. However, a perusal of the records reveals that the parties in Santiago v. COMELEC included the COMELEC, Atty. Jesus S. Delfin, spouses Alberto and Carmen Pedrosa, in their capacities as founding members of PIRMA, as well as Atty. Pete Quirino-Quadra, another founding member of PIRMA, representing PIRMA, as respondents. In the instant case, Atty. Delfin was never removed, and the spouses Alberto and Carmen Pedrosa were joined by several others who were made parties to the petition. In other words, what petitioners did was to make it appear that the PIRMA Petition was filed by an entirely separate and distinct group by removing some of the parties involved in Santiago v. COMELEC and adding new parties. But as we said in Geralde v. Sabido 128A party may not evade the application of the rule of res judicata by simply including additional parties in the subsequent case or by not including as parties in the later case persons who were parties in the previous suit. The joining of new parties does not remove the case from the operation of the rule on res judicata if the party against whom the judgment is offered in evidence was a party in the first action; otherwise, the parties might renew the litigation by simply joining new parties. The fact that some persons or entities joined as parties in the PIRMA petition but were not parties in Santiago v. COMELEC does not affect the operation of the prior judgment against those parties to the PIRMA Petition who were likewise parties in Santiago v. COMELEC, as they are bound by such prior judgment. Needless to state, the dismissal of the PIRMA petition which was based on res judicata binds only PIRMA but not the petitioners. VIII Finally, let the people speak. "It is a Constitution we are expounding" solemnly intoned the great Chief Justice John Marshall of the United States in the 1819 case of M'cCulloch v. Maryland.129 Our Constitution is not a mere collection of slogans. Every syllable of our Constitution is suffused with significance and requires our full fealty. Indeed, the rule of law will wither if we allow the commands of our Constitution to underrule us. The first principle enthroned by blood in our Constitution is the sovereignty of the people. We ought to be concerned with this first principle, i.e., the inherent right of the sovereign people to decide whether to amend the Constitution. Stripped of its abstractions, democracy is all about who has the sovereign right to make decisions for the people and our Constitution clearly and categorically says it is no other than the people themselves from whom all government authority emanates. This right of the people to make decisions is the essence of sovereignty, and it cannot receive any minimalist interpretation from this Court. If there is any principle in the Constitution that cannot be diluted and is non-negotiable, it is this sovereign right of the people to decide. This Court should always be in lockstep with the people in the exercise of their sovereignty. Let them who will diminish or destroy the sovereign right of the people to decide be warned. Let not their sovereignty be diminished by those who belittle their brains to comprehend changes in the

Constitution as if the people themselves are not the source and author of our Constitution. Let not their sovereignty be destroyed by the masters of manipulation who misrepresent themselves as the spokesmen of the people. Be it remembered that a petition for people's initiative that complies with the requirement that it "must be signed by at least 12% of the total number of registered voters of which every legislative district is represented by at least 3% of the registered voters therein" is but the first step in a long journey towards the amendment of the Constitution. Lest it be missed, the case at bar involves but a proposal to amend the Constitution. The proposalwill still be debated by the people and at this time, there is yet no fail-safe method of telling what will be the result of the debate. There will still be a last step to the process of amendment which is the ratification of the proposal by a majority of the people in a plebiscite called for the purpose. Only when the proposal is approved by a majority of the people in the plebiscite will it become an amendment to the Constitution. All the way, we cannot tie the tongues of the people. It is the people who decide for the people are not an obscure footnote in our Constitution. The people's voice is sovereign in a democracy. Let us hear them. Let us heed them. Let us not only sing paens to the people's sovereignty. Yes, it is neither too soon nor too late to let the people speak. IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the resolution of the Commission on Elections dated August 31, 2006, denying due course to the Petition for Initiative filed by Raul L. Lambino and Erico B. Aumentado in their own behalf and together with some 6.3 million registered voters who affixed their signatures thereon and toREMAND the petition at bar to the Commission on Elections for further proceedings. REYNATO S. PUNO Associate Justice ____________________ EN BANC G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, Petitioners vs. THE COMMISSION ON ELECTIONS, Respondent; TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA HONTIVEROSBARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR, JR., Oppositors-Intervenors; G.R. No. 174299 October 25, 2006 MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners vs. COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents. x ---------------------------------------------------------------------------------------- x SEPARATE OPINION QUISUMBING, J.: 1. With due respect to the main opinion written by J. Antonio T. Carpio, and the dissent of J. Reynato S. Puno, I view the matter before us in this petition as one mainly involving a complex political question.1 While admittedly the present Constitution lays down certain numerical requirements for the conduct of a People's Initiative, such as the percentages of signatures being 12% of the total number of registered voters, provided each legislative district is represented by at least 3% they are not the main points of controversy. Stated in simple terms, what this Court must decide is whether the Commission on Elections gravely abused its discretion when it denied the petition to submit the proposed changes to the Constitution directly to the vote of the sovereign people in a plebiscite. Technical questions, e.g. whether petitioners should have filed a Motion for Reconsideration before coming to us, are of no moment in the face of the transcendental issue at hand. What deserve our full attention are the issues concerning the applicable rules as well as statutory and constitutional limitations on the conduct of the People's Initiative. 2. It must be stressed that no less than the present Constitution itself empowers the people to "directly" propose amendments through their own "initiative." The subject of the instant petition is by way of exercising that initiative in order to change our form of government from presidential to parliamentary. Much has been written about the fulsome powers of the people in a democracy. But the most basic concerns the idea that sovereignty

resides in the people and that all government authority emanates from them. Clearly, by the power of popular initiative, the people have the sovereign right to change the present Constitution. Whether the initial moves are done by a Constitutional Convention, a Constitutional Assembly, or a People's Initiative, in the end every amendment -- however insubstantial or radical -- must be submitted to a plebiscite. Thus, it is the ultimate will of the people expressed in the ballot, that matters.2 3. I cannot fault the COMELEC, frankly, for turning down the petition of Messrs. Lambino, et al. For the COMELEC was just relying on precedents, with the common understanding that, pursuant to the cases of Santiago v. COMELEC3 and PIRMA v. COMELEC,4 the COMELEC had been permanently enjoined from entertaining any petition for a people's initiative to amend the Constitution by no less than this Court. In denying due course below to Messrs. Lambino and Aumentado's petition, I could not hold the COMELEC liable for grave abuse of discretion when they merely relied on this Court's unequivocal rulings. Of course, the Santiago and the PIRMA decisions could be reviewed and reversed by this Court, as J. Reynato S. Puno submits now. But until the Court does so, the COMELEC was duty bound to respect and obey this Court's mandate, for the rule of law to prevail. 4. Lastly, I see no objection to the remand to the COMELEC of the petition of Messrs. Lambino and Aumentado and 6.327 million voters, for further examination of the factual requisites before a plebiscite is conducted. On page 4 of the assailed Resolution of the respondent dated August 31, 2006, the COMELEC tentatively expressed its view that "even if the signatures in the instant Petition appear to meet the required minimum per centum of the total number of registered voters", the COMELEC could not give the Petition due course because of our view that R.A. No. 6735 was inadequate. That, however, is now refuted by Mr. Justice Puno's scholarly ponencia. Now that we have revisited the Santiago v. COMELEC decision, there is only one clear task for COMELEC. In my view, the only doable option left for the COMELEC, once factual issues are heard and resolved, is to give due course to the petition for the initiative to amend our Constitution so that the sovereign people can vote on whether a parliamentary system of government should replace the present presidential system. 5. I am therefore in favor of letting the sovereign people speak on their choice of the form of government as a political question soonest. (This I say without fear of media opinion that our judicial independence has been tainted or imperiled, for it is not.) Thus I vote for the remand of the petition. Thereafter, as prayed for, COMELEC should forthwith certify the Petition as sufficient in form and substance and call for the holding of a plebiscite within the period mandated by the basic law, not earlier than sixty nor later than ninety days from said certification. Only a credible plebiscite itself, conducted peacefully and honestly, can bring closure to the instant political controversy. LEONARDO A. QUISUMBING Associate Justice ____________________ EN BANC G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. G. R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners, vs. HE COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe , respondents. x ---------------------------------------------------------------------------------------- x DISSENTING OPINION CORONA, J.: The life of the law is not logic but experience.1 Our collective experience as a nation breathes life to our system of laws, especially to the Constitution. These cases promise to significantly contribute to our collective experience as a nation. Fealty to the primary constitutional principle that the Philippines is not merely a republican State but a democratic one as well behooves this Court to affirm the right of the people to participate directly in the process of introducing changes to their fundamental law. These petitions present such an opportunity. Thus, this is an opportune time for this Court to uphold the sovereign rights of the people. I agree with the opinion of Mr. Justice Reynato Puno who has sufficiently explained the rationale for upholding the people's initiative. However, I wish to share my own thoughts on certain matters I deem material and significant. Santiago Does Not Apply to This Case But Only to the 1997 Delfin Petition The COMELEC denied the petition for initiative filed by petitioners purportedly on the basis of this Court's ruling in Santiago v. COMELEC2 that: (1) RA 6753 was inadequate to cover the system of initiative regarding amendments to the Constitution and (2) the COMELEC was permanently enjoined from entertaining or taking cognizance of any petition for initiative regarding amendments to the Constitution until a sufficient law was validly enacted to provide for the implementation of the initiative provision.

However, Santiago should not apply to this case but only to the petition of Delfin in 1997. It would be unreasonable to make it apply to all petitions which were yet unforeseen in 1997. The fact is that Santiago was focused on the Delfin petition alone. Those who oppose the exercise of the people's right to initiate changes to the Constitution via initiative claim that Santiago barred any and all future petitions for initiative by virtue of the doctrines of stare decisis and res judicata. The argument is flawed. The ponencia of Mr. Justice Puno has amply discussed the arguments relating to stare decisis. Hence, I will address the argument from the viewpoint of res judicata. Res judicata is the rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. 3 It has the following requisites: (1) the former judgment or order must be final; (2) it must have been rendered by a court having jurisdiction of the subject matter and of the parties; (3) it must be a judgment or order on the merits and (4) there must be identity of parties, of subject matter, and of cause of action between the first and second actions.4 There is no identity of parties in Santiago and the instant case. While the COMELEC was also the respondent inSantiago, the petitioners in that case and those in this case are different. More significantly, there is no identity of causes of action in the two cases. Santiago involved amendments to Sections 4 and 7 of Article VI, Section 4 of Article VII and Section 8 of Article X of the Constitution while the present petition seeks to amend Sections 1to 7 of Article VI and Sections 1 to 4 of the 1987 Constitution. Clearly, therefore, the COMELEC committed grave abuse of discretion when it ruled that the present petition for initiative was barred by Santiago and, on that ground, dismissed the petition. The present petition and that in Santiago are materially different from each other. They are not based on the same facts. There is thus no cogent reason to frustrate and defeat the present direct action of the people to exercise their sovereignty by proposing changes to their fundamental law. People's Initiative Should Not Be Subjected to Conditions People's initiative is an option reserved by the people for themselves exclusively. Neither Congress nor the COMELEC has the power to curtail or defeat this exclusive power of the people to change the Constitution. Neither should the exercise of this power be made subject to any conditions, as some would have us accept. Oppositors to the people's initiative point out that this Court ruled in Santiago that RA 6735 was inadequate to cover the system of initiative on amendments to the Constitution and, thus, no law existed to enable the people to directly propose changes to the Constitution. This reasoning is seriously objectionable. The pronouncement on the insufficiency of RA 6735 was, to my mind, out of place. It was unprecedented and dangerously transgressed the domain reserved to the legislature. While the legislature is authorized to establish procedures for determining the validity and sufficiency of a petition to amend the constitution, 5 that procedure cannot unnecessarily restrict the initiative privilege.6 In the same vein, this Court cannot unnecessarily and unreasonably restrain the people's right to directly propose changes to the Constitution by declaring a law inadequate simply for lack of a sub-heading and other grammatical but insignificant omissions. Otherwise, the constitutional intent to empower the people will be severely emasculated, if not rendered illusory. People's Right and Power to Propose Changes to the Constitution Directly Should not be Unreasonably Curtailed If Congress and a constitutional convention, both of which are mere representative bodies, can propose changes to the Constitution, there is no reason why the supreme body politic itself the people may not do sodirectly. Resort to initiative to amend the constitution or enact a statute is an exercise of "direct democracy" as opposed to "representative democracy." The system of initiative allows citizens to directly propose constitutional amendments for the general electorate to adopt or reject at the polls, particularly in a plebiscite. While representative government was envisioned to "refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations,"7 the exercise of "direct democracy" through initiative reserves direct lawmaking power to the people by providing them a method to make new laws via the constitution, or alternatively by enacting statutes.8 Efforts of the represented to control their representatives through initiative have been described as curing the problems of democracy with more democracy. 9 The Constitution celebrates the sovereign right of the people and declares that "sovereignty resides in the people and all government authority emanates from them."10 Unless the present petition is granted, this constitutional principle will be nothing but empty rhetoric, devoid of substance for those whom it seeks to empower. The right of the people to pass legislation and to introduce changes to the Constitution is a fundamental right and must be jealously guarded. 11 The people should be allowed to directly seek redress of the problems of society and representative democracy with the constitutional tools they have reserved for their use alone. Accordingly, I vote to GRANT the petition in G.R. No. 174513. RENATO C. CORONA Associate Justice

____________________ EN BANC G. R. No. 174153 RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, Petitioners vs. THE COMMISSION ON ELECTIONS, Respondent; TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR, JR., Oppositors-Intervenors; G.R. No. 174299 entitled MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners vs. COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents. x ---------------------------------------------------------------------------------------- x SEPARATE OPINION TINGA, J: I join in full the opinion of Senior Associate Justice Puno. Its enviable sang-froid, inimitable lucidity, and luminous scholarship are all so characteristic of the author that it is hardly a waste of pen and ink to write separately if only to express my deep admiration for his disquisition. It is compelling because it derives from the fundamental democratic ordinance that sovereignty resides in the people, and it seeks to effectuate that principle through the actual empowerment of the sovereign people. Justice Puno's opinion will in the short term engender reactions on its impact on present attempts to amend the Constitution, but once the political passion of the times have been shorn, it will endure as an unequivocal message to the taongbayan that they are to be trusted to chart the course of their future. Nothing that I inscribe will improve on Justice Puno's opinion. I only write separately to highlight a few other points which also inform my vote to grant the petitions. I. I agree with Justice Puno that Santiago v. COMELEC1 and PIRMA v. COMELEC2 had not acquired value as precedent and should be reversed in any case. I add that the Court has long been mindful of the rule that it necessitates a majority, and not merely a plurality, in order that a decision can stand as precedent. That principle has informed the members of this Court as they deliberated and voted upon contentious petitions, even if this consideration is not ultimately reflected on the final draft released for promulgation. The curious twist to Santiago and PIRMA is that for all the denigration heaped upon Rep. Act No. 6735 in those cases, the Court did not invalidate any provision of the statute. All the Court said then was that the law was "inadequate". Since this "inadequate" law was not annulled by the Court, or repealed by Congress, it remained part of the statute books.3 I maintain that even if Rep. Act No. 6735 is truly "inadequate", the Court in Santiago should not have simply let the insufficiency stand given that it was not minded to invalidate the law itself. Article 9 of the Civil Code provides that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws."4 As explained by the Court recently in Reyes v. Lim,5 "[Article 9] calls for the application of equity, which[, in the revered Justice Cardozo's words,] 'fills the open spaces in the law.'" 6 Certainly, any court that refuses to rule on an action premised on Rep. Act No. 6735 on the ground that the law is "inadequate" would have been found in grave abuse of discretion. The previous failure by the Court to "fill the open spaces" in Santiago further highlights that decision's status as an unfortunate aberration. I am mindful of the need to respect stare decisis, to the point of having recently decried a majority ruling that was clearly minded to reverse several precedents but refused to explicitly say so.7 Yet the principle is not immutable.8The passionate words of Chief Justice Panganiban in Osmea v. COMELEC9 bear quoting:

Before I close, a word about stare decisis. In the present case, the Court is maintaining the ad ban to be consistent with its previous holding in NPC vs. Comelec. Thus, respondent urges reverence for the stability of judicial doctrines. I submit, however, that more important than consistency and stability are the verity, integrity and correctness of jurisprudence. As Dean Roscoe Pound explains, "Law must be stable but it cannot stand still." Verily, it must correct itself and move in cadence with the march of the electronic age. Error and illogic should not be perpetuated. After all, the Supreme Court, in many cases, has deviated from stare decisis and reversed previous doctrines and decisions. 10 It should do no less in the present case.11 Santiago established a tenet that the Supreme Court may affirm a law as constitutional, yet declare its provisions as inadequate to accomplish the legislative purpose, then barred the enforcement of the law. That ruling is erroneous, illogical, and should not be perpetuated. II. Following Justice Puno's clear demonstration why Santiago should not be respected as precedent, I agree that the COMELEC's failure to take cognizance of the petitions as mandated by Rep. Act No. 6735 constitutes grave abuse of discretion correctible through the petitions before this Court. The Court has consistently held in cases such as Abes v. COMELEC12, Sanchez v. COMELEC13, and Sambarani v. COMELEC14 that "the functions of the COMELEC under the Constitution are essentially executive and administrative in nature". 15 More pertinently, in Buac v. COMELEC16, the Court held that the jurisdiction of the COMELEC relative to the enforcement and administration of a law relative to a plebiscite fell under the jurisdiction of the poll body under its constitutional mandate "to enforce and administer all laws and regulations relative to the conduct of a xxx plebiscite". 17 Rep. Act No. 6735 is a law relative to the conduct of a plebiscite. The primary task of the COMELEC under Rep. Act No. 6735 is to enforce and administer the said law, functions that are essentially executive and administrative in nature. Even the subsequent duty of the COMELEC of determining the sufficiency of the petitions after they have been filed is administrative in character. By any measure, the COMELEC's failure to perform its executive and administrative functions under Rep. Act No. 6735 constitutes grave abuse of discretion. III. It has been argued that the subject petitions for initiative are barred under Republic Act No. 6735 as they allegedly embrace more than one subject. Section 10 of Rep. Act No. 6735 classifies as a "prohibited measure," a petition submitted to the electorate that embraces more than one subject. 18 On this point, reliance is apparently placed on the array of provisions which are to be affected by the amendments proposed in the initiative petition. Section 10 of Rep. Act No. 6735 is a reflection of the long-enshrined constitutional principle that the laws passed by Congress "shall embrace only one subject which shall be expressed in the title thereof".19 The one-subject requirement under the Constitution is satisfied if all the parts of the statute are related, and are germane to the subject matter expressed in the title, or as long as they are not inconsistent with or foreign to the general subject and title.20 An act having a single general subject, indicated in the title, may contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the general object.21 The precedents governing the one-subject, one-title rule under the Constitution should apply as well in the interpretation of Section 10 of Rep. Act No. 6735. For as long as it can be established that an initiative petition embraces a single general subject, the petition may be allowed no matter the number of constitutional provisions proposed for amendment if the amendments are germane to the subject of the petition. Both the Sigaw ng Bayan and the Lambino initiative petitions expressly propose the changing of the form of government from bicameral-presidential to unicameral-parliamentary. Such a proposal may strike as comprehensive, necessitating as it will the reorganization of the executive and legislative branches of government, nevertheless it ineluctably encompasses only a single general subject still. The 1987 Constitution (or any constitution for that matter) is susceptible to division into several general spheres. To cite the broadest of these spheres by way of example, Article III enumerates the guaranteed rights of the people under the Bill of Rights; Articles VI, VII and VIII provide for the organizational structure of government; while Articles II, XII, XIII & XIV, XV and XVI enunciate policy principles of the State. What would clearly be prohibited under Section 10 of Rep. Act No. 6735 is an initiative petition that seeks to amend provisions which do not belong to the same sphere. For example, had a single initiative petition sought not only to change the form of government from presidential to parliamentary but also to amend the Bill of Rights, said petition would arguably have been barred under Section 10, as that petition ostensibly embraces more than one subject, with each subject bearing no functional relation to the other. But that is not the case with the present initiative petitions. Neither can it be argued that the initiative petitions embrace more than one subject since the proposed amendments seek to affect two separate branches of government. The very purpose of the initiative petitions is to fuse the powers of the executive and legislative branches of government; hence, the amendments intended to effect such general intent necessarily affects the two branches. If it required that to propose a shift in government from presidential to parliamentary, the amendments to Article VII (Executive Branch) have to be segregated to a different petition from that which would propose amendments to Article VI (Legislative Branch), then the result would be two initiative petitions both subject to separate authentications, consideration and even plebiscites, all to effect one general proposition. This scenario, which entertains the possibility that one petition would ultimately fail while the other succeeds, could thus allow for the risk that the executive branch could be abolished without transferring executive power to the legislative branch. An absurd result, indeed. I am not even entirely comfortable with the theoretical underpinnings of Section 10. The Constitution indubitably grants the people the right to seek amendment of the charter through initiative, and mandates Congress to "provide for the implementation of the exercise of this right." In doing so, Congress may not restrict the right to initiative on grounds that are not provided for in the Constitution. If for example the implementing law also provides that certain provisions of the Constitution may not be amended through initiative, that prohibition should not be sustained. Congress is tasked with the implementation, and not the restriction of the right to initiative.

The one-subject requirement under Section 10 is not provided for as a bar to amendment under the Constitution. Arguments can be supplied for the merit of such a requirement, since it would afford a measure of orderliness when the vital question of amending the Constitution arises. The one-subject requirement does allow the voters focus when deliberating whether or not to vote for the amendments. These factors of desirability nonetheless fail to detract from the fact that the one-subject requirement imposes an additional restriction on the right to initiative not contemplated by the Constitution. Short of invalidating the requirement, a better course of action would be to insist upon its liberal interpretation. After all, the Court has consistently adhered to a liberal interpretation of the one-subject, one-title rule.22 There is no cause to adopt a stricter interpretative rule with regard to the onesubject rule under Section 10 of Rep. Act No. 6735. IV. During the hearing on the petitions, the argument was raised that provisions of the Constitution amended through initiative would not have the benefit of a reference source from the record of a deliberative body such as Congress or a constitutional convention. It was submitted that this consideration influenced the Constitutional Commission as it drafted Section 2, Article XVII, which expressly provided that only amendments, and not revisions, may be the subject of initiative petitions. This argument clearly proceeds from a premise that accords supreme value to the record of deliberations of a constitutional convention or commission in the interpretation of the charter. Yet if the absence of a record of deliberations stands as so serious a flaw as to invalidate or constrict processes which change a constitution or its provisions, then the entire initiative process authorized by the Constitution should be scarlet-marked as well. Even if this position can be given any weight in the consideration of these petitions, I would like to point out that resort to the records of deliberations is only one of many aids to constitutional construction. For one, it should be abhorred if the provision under study is itself clear, plain, and free from ambiguity. As the Court held in Civil Liberties Union v. Executive Secretary:23 While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk . . . We think it safer to construe the constitution from what appears upon its face." 24 Even if there is need to refer to extrinsic sources in aid of constitutional interpretation, the constitutional record does not provide the exclusive or definitive answer on how to interpret the provision. The intent of a constitutional convention is not controlling by itself, and while the historical discussion on the floor of the constitutional convention is valuable, it is not necessarily decisive. The Court has even held in Vera v. Avelino25 that "the proceedings of the [constitutional] convention are less conclusive of the proper construction of the fundamental law than are legislative proceedings of the proper construction of a statute, since in the latter case it is the intent of the legislature that courts seek, while in the former courts are endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives." 26 The proper interpretation of a constitution depends more on how it was understood by the people adopting it than the framers' understanding thereof.27 If there is fear in the absence of a constitutional record as guide for interpretation of any amendments adopted via initiative, such absence would not preclude the courts from interpreting such amendments in a manner consistent with how courts generally construe the Constitution. For example, reliance will be placed on the other provisions of the Constitution to arrive at a harmonized and holistic constitutional framework. The constitutional record is hardly the Rosetta Stone that unlocks the meaning of the Constitution. V. I fully agree with Justice Puno that all issues relating to the sufficiency of the initiative petitions should be remanded to the COMELEC. Rep. Act No. 6735 clearly reposes on the COMELEC the task of determining the sufficiency of the petitions, including the ascertainment of whether twelve percent (12%) of all registered voters, including three percent (3%) of registered voters in every legislative district have indeed signed the initiative petitions. 28 It should be remembered that the COMELEC had dismissed the initiative petitions outright, and had yet to undertake the determination of sufficiency as required by law. It has been suggested to the end of leading the Court to stifle the initiative petitions that the Court may at this juncture pronounce the initiative petitions as insufficient. The derivation of the factual predicates leading to the suggestion is uncertain, considering that the trier of facts, the COMELEC in this instance, has yet to undertake the necessary determination. Still, the premise has been floated that petitioners have made sufficient admissions before this Court that purportedly established the petitions are insufficient. That premise is highly dubitable. Yet the more fundamental question that we should ask, I submit, is whether it serves well on the Court to usurp trier of facts even before the latter exercises its functions? If the Court, at this stage, were to declare the petitions as insufficient, it would be akin to the Court pronouncing an accused as guilty even before the lower court trial had began. Matugas v. COMELEC29 inveighs against the propriety of the Court uncharacteristically assuming the role of trier of facts, and resolving factual questions not previously adjudicated by the lower courts or tribunals: [P]etitioner in this case cannot "enervate" the COMELEC's findings by introducing new evidence before this Court, which in any case is not a trier of facts, and then ask it to substitute its own judgment and discretion for that of the COMELEC . The rule in appellate procedure is that a factual question may not be raised for the first time on appeal, and documents forming no part of the proofs before the appellate court will not be considered in disposing of the issues of an action. This is true whether the decision elevated for review originated from a regular court or an administrative agency or quasi-judicial body, and whether it was rendered in a civil case, a special proceeding, or a criminal case. Piecemeal presentation of evidence is simply not in accord with orderly justice. 30

Any present determination by the Court on the sufficiency of the petitions constitutes in effect a trial de novo, the Justices of the Supreme Court virtually descending to the level of trial court judges. This is an unbecoming recourse, and it simply is not done. VI. The worst position this Court could find itself in is to acquiesce to a plea that it make the choice whether to amend the Constitution or not. This is a matter which should not be left to fifteen magistrates who have not been elected by the people to make the choice for them. A vote to grant the petitions is not a vote to amend the 1987 Constitution. It is merely a vote to allow the people to directly exercise that option. In fact, the position of Justice Puno which I share would not even guarantee that the Lambino and Sigaw ng Bayan initiative petitions would be submitted to the people in a referendum. The COMELEC will still have to determine the sufficiency of the petition. Among the questions which still have to be determined by the poll body in considering the sufficiency of the petitions is whether twelve percent (12%) of all registered voters nationwide, including three percent (3%) of registered voters in every legislative district, have indeed signed the initiative petitions. 31 And even should the COMELEC find the initiative petitions sufficient, the matter of whether the Constitution should be amended would still depend on the choice of the electorate. The oppositors are clearly queasy about some of the amendments proposed, or the imputed motives behind the amendments. A referendum, should the COMELEC find the petitions as sufficient, would allow them to convey their uneasiness to the public at large, as well as for the proponents of the amendment to defend their proposal. The campaign period alone would allow the public to be involved in the significant deliberation on the course our nation should take, with the ensuing net benefit of a more informed, more politically aware populace. And of course, the choice on whether the Constitution should be amended would lie directly with the people. The initiative process involves participatory democracy at its most elemental; wherein the consequential debate would not be confined to the august halls of Congress or the hallowed chambers of this Court, as it would spill over to the public squares and town halls, the academic yards and the Internet blogosphere, the dining areas in the homes of the affluent and the impoverished alike. The prospect of informed and widespread discussion on constitutional change engaged in by a people who are actually empowered in having a say whether these changes should be enacted, gives fruition to the original vision of pure democracy, as formulated in Athens two and a half millennia ago. The great hero of Athenian democracy, Pericles, was recorded as saying in his famed Funeral Oration, " We differ from other states in regarding the man who keeps aloof from public life not as 'private' but as useless; we decide or debate, carefully and in person all matters of policy, and we hold, not that words and deeds go ill together, but that acts are foredoomed to failure when undertaken undiscussed ."32 Unfortunately, given the highly politicized charge of the times, it has been peddled that an act or vote that assists the initiative process is one for the willful extinction of democracy or democratic institutions. Such a consideration should of course properly play its course in the public debates and deliberations attendant to the initiative process. Yet as a result of the harum-scarum, the temptation lies heavy for a member of this Court perturbed with the prospect of constitutional change to relieve those anxieties by simply voting to enjoin any legal procedure that initiates the amendment or revision of the fundamental law, even at the expense of the people's will or what the Constitution allows. A vote so oriented takes the conservative path of least resistance, even as it may gain the admiration of those who do not want to see the Constitution amended. Still, the biases we should enforce as magistrates are those of the Constitution and the elements of democracy on which our rule of law is founded. Direct democracy, as embodied in the initiative process, is but a culmination of the evolution over the centuries of democratic rights of choice and selfgovernance. The reemergence of the Athenian democratic ideal after centuries of tyrannical rules arrived very slowly, the benefits parceled out at first only to favored classes. The Magna Carta granted limited rights to self-determination and self-governance only to a few English nobles; the American Constitution was originally intended to give a meaningful voice only to free men, mostly Caucasian, who met the property-holding requirements set by the states for voting. Yet even the very idea of popular voting, limited as it may have already been within the first few years of the American Union, met resistance from no less a revered figure as Alexander Hamilton, to whom the progressive historian Howard Zinn attributes these disconcerting words: The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct permanent share in the government Can a democratic assembly who annually revolve in the mass of the people be supposed steadily to pursue the public good? Nothing but a permanent body can check the imprudence of democracy33 This utterly paternalistic and bigoted view has not survived into the present age of modern democracy where a person's poverty, color, or gender no longer impedes the exercise of full democratic rights. Yet a democracy that merely guarantees its citizens the right to live their lives freely is incomplete if there is no corresponding allowance for a means by which the people have a direct choice in determining their country's direction. Initiative as a mode of amending a constitution may seem incompatible with representative democracy, yet it embodies an even purer form of democracy. Initiative, which our 1987 Constitution saw fit to grant to the people, is a progressive measure that is but a continuation of the line of evolution of the democratic ideal. By allowing the sovereign people to directly propose and enact constitutional amendments, the initiative process should be acknowledged as the purest implement of democratic rule under law. This right granted to over sixty million Filipinos cannot be denied by the votes of less than eight magistrates for reasons that bear no cogitation on the Constitution. I VOTE to GRANT the petitions. DANTE O. TINGA Associate Justice ____________________ EN BANC

G. R. No. 174153 RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, Petitioners vs. THE COMMISSION ON ELECTIONS, Respondent; TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR, JR., Oppositors-Intervenors; G.R. No. 174299 MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners vs. COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents. x ---------------------------------------------------------------------------------------- x DISSENTING OPINION CHICO-NAZARIO, J.: "The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or unmake, resides only in the whole body of the people; not in any subdivision of them ." -- Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264, 389, 5 L ed. 257, 287. I express my concurrence in the discussions and conclusions presented in the persuasive and erudite dissent of Justice Reynato S. Puno. However, I make some additional observations in connection with my concurrence. While it is but proper to accord great respect and reverence to the Philippine Constitution of 1987 for being the supreme law of the land, we should not lose sight of the truth that there is an ultimate authority to which the Constitution is also subordinate the will of the people. No less than its very first paragraph, the Preamble,1expressly recognizes that the Constitution came to be because it was ordained and promulgated by the sovereign Filipino people. It is a principle reiterated yet again in Article II, Section 1, of the Constitution, which explicitly declares that "[t]he Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them." Thus, the resolution of the issues and controversies raised by the instant Petition should be guided accordingly by the foregoing principle. If the Constitution is the expression of the will of the sovereign people, then, in the event that the people change their will, so must the Constitution be revised or amended to reflect such change. Resultantly, the right to revise or amend the Constitution inherently resides in the sovereign people whose will it is supposed to express and embody. The Constitution itself, under Article XVII, provides for the means by which the revision or amendment of the Constitution may be proposed and ratified. Under Section 1 of the said Article, proposals to amend or revise the Constitution may be made (a) by Congress, upon a vote of three-fourths of all its Members, or (b) by constitutional convention. The Congress and the constitutional convention possess the power to propose amendments to, or revisions of, the Constitution not simply because the Constitution so provides, but because the sovereign people had chosen to delegate their inherent right to make such proposals to their representatives either through Congress or through a constitutional convention. On the other hand, the sovereign people, well-inspired and greatly empowered by the People Power Revolution of 1986, reserved to themselves the right to directly propose amendments to the Constitution through initiative, to wit SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. 2 The afore-quoted section does not confer on the Filipino people the right to amend the Constitution because, as previously discussed, such right is inherent in them. The section only reduces into writing this right to initiate amendments to the Constitution where they collectively and willfully agreed in

the manner by which they shall exercise this right: (a) through the filing of a petition; (b) supported by at least twelve percent (12%) of the total number of registered voters nationwide; (c) with each legislative district represented by at least three percent (3%) of the registered voters therein; (d) subject to the limitation that no such petition may be filed within five years after the ratification of the Constitution, and not oftener than once every five years thereafter; and (e) a delegation to Congress of the authority to provide the formal requirements and other details for the implementation of the right. It is my earnest opinion that the right of the sovereign people to directly propose amendments to the Constitution through initiative is more superior than the power they delegated to Congress or to a constitutional convention to amend or revise the Constitution. The initiative process gives the sovereign people the voice to express their collective will, and when the people speak, we must be ready to listen. Article XVII, Section 2 of the Constitution recognizes and guarantees the sovereign people's right to initiative, rather than limits it. The enabling law which Congress has been tasked to enact must give life to the said provision and make the exercise of the right to initiative possible, not regulate, limit, or restrict it in any way that would render the people's option of resorting to initiative to amend the Constitution more stringent, difficult, and less feasible, as compared to the other constitutional means to amend or revise the Constitution. In fact, it is worth recalling that under Article VI, Section 1 of the Constitution, the legislative power of Congress is limited to the extent reserved to the people by the provisions on initiative and referendum . It is with this frame of mind that I review the issues raised in the instant Petitions, and which has led me to the conclusions, in support of the dissent of Justice Puno, that (a) The Commission on Election (COMELEC) had indeed committed grave abuse of discretion in summarily dismissing the petition for initiative to amend the Constitution filed by herein petitioners Raul L. Lambino and Erico B. Aumentado; (b) The Court should revisit the pronouncements it made in Santiago v. Commission on Elections;3 (c) It is the sovereign people's inherent right to propose changes to the Constitution, regardless of whether they constitute merely amendments or a total revision thereof; and (d) The COMELEC should take cognizance of Lambino and Aumentado's petition for initiative and, in the exercise of its jurisdiction, determine the factual issues raised by the oppositors before this Court. I The COMELEC had indeed committed grave abuse of discretion when it summarily dismissed Lambino and Aumentado's petition for initiative entirely on the basis of the Santiago case which, allegedly, permanently enjoined it from entertaining or taking cognizance of any petition for initiative to amend the Constitution in the absence of a sufficient law. After a careful reading, however, of the Santiago case, I believe in earnest that the permanent injunction actually issued by this Court against the COMELEC pertains only to the petition for initiative filed by Jesus S. Delfin, and not to all subsequent petitions for initiative to amend the Constitution. The Conclusion4 in the majority opinion in the Santiago case reads CONCLUSION This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system. WHEREFORE, judgment is hereby rendered a) GRANTING the instant petition; b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation; c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037). The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections, but is LIFTED as against private respondents. Resolution on the matter of contempt is hereby reserved. It is clear from the fallo, as it is reproduced above, that the Court made permanent the Temporary Restraining Order (TRO) it issued on 18 December 1996 against the COMELEC. The said TRO enjoined the COMELEC from proceeding with the Delfin Petition, and Alberto and Carmen Pedrosa from conducting a signature drive for people's initiative.5 It was this restraining order, more particularly the portion thereof referring to the Delfin Petition, which was expressly made permanent by the Court. It would seem to me that the COMELEC and all other oppositors to Lambino and Aumentado's petition for initiative gave unwarranted significance and weight to the first paragraph of the Conclusion in the Santiago case. The first and second paragraphs of the Conclusion, preceding the dispositive portion, merely express the opinion of the ponente; while the definite orders of the Court for implementation are found in the dispositive portion. We have previously held that

The dispositive portion or the fallo is what actually constitutes the resolution of the court and which is the subject of execution, although the other parts of the decision may be resorted to in order to determine the ratio decidendi for such a resolution. Where there is conflict between the dispositive part and the opinion of the court contained in the text of the decision, the former must prevail over the latter on the theory that the dispositive portion is the final order while the opinion is merely a statement ordering nothing. Hence execution must conform more particularly to that ordained or decreed in the dispositive portion of the decision. 6 Is there a conflict between the first paragraph of the Conclusion and the dispositive portion of the Santiago case? Apparently, there is. The first paragraph of the Conclusion states that the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until the enactment of a valid law. On the other hand, the fallo only makes permanent the TRO7 against COMELEC enjoining it from proceeding with the Delfin Petition. While the permanent injunction contemplated in the Conclusion encompasses all petitions for initiative on amendments to the Constitution, the fallo is expressly limited to the Delfin Petition. To resolve the conflict, the final order of the Court as it is stated in the dispositive portion or the fallo should be controlling. Neither can the COMELEC dismiss Lambino and Aumentado's petition for initiative on the basis of this Court's Resolution, dated 23 September 1997, in the case of People's Initiative for Reform, Modernization and Action (PIRMA) v. The Commission on Elections, et al .8 The Court therein found that the COMELEC did not commit grave abuse of discretion in dismissing the PIRMA Petition for initiative to amend the Constitution for it only complied with the Decision in the Santiago case. It is only proper that the Santiago case should also bar the PIRMA Petition on the basis of res judicata because PIRMA participated in the proceedings of the said case, and had knowledge of and, thus, must be bound by the judgment of the Court therein. As explained by former Chief Justice Hilario G. Davide, Jr. in his separate opinion to the Resolution in the PIRMA case First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v. COMELEC(G.R. No. 127325, 19 March 1997) may plead ignorance of the fact that the former is substantially identical to the latter, except for the reversal of the roles played by the principal parties and inclusion of additional, yet not indispensable, parties in the present petition. But plainly, the same issues and reliefs are raised and prayed for in both cases. The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM, MODERNIZATION, AND ACTION (PIRMA) and Spouses ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit organization duly organized and existing under Philippine laws with office address at Suite 403, Fedman Suites, 199 Salcedo Street, Legaspi Village, Makati City," with "ALBERTO PEDROSA and CARMEN PEDROSA" as among its "officers." In Santiago, the PEDROSAS were made respondents as founding members of PIRMA which, as alleged in the body of the petition therein, "proposes to undertake the signature drive for a people's initiative to amend the Constitution." In Santiago then, the PEDROSAS were sued in their capacity as founding members of PIRMA. The decision in Santiago specifically declared that PIRMA was duly represented at the hearing of the Delfin petition in the COMELEC. In short, PIRMA was intervenor-petitioner therein. Delfin alleged in his petition that he was a founding member of the Movement for People's Initiative, and under footnote no. 6 of the decision, it was noted that said movement was "[l]ater identified as the People's Initiative for Reforms, Modernization and Action, or PIRMA for brevity." In their Comment to the petition in Santiago, the PEDROSA'S did not deny that they were founding members of PIRMA, and by their arguments, demonstrated beyond a shadow of a doubt that they had joined Delfin or his cause. No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as well as the others joining them, from the operation of the principle of res judicata, which needs no further elaboration.9 While the Santiago case bars the PIRMA case because of res judicata, the same cannot be said to the Petition at bar. Res judicata is an absolute bar to a subsequent action for the same cause; and its requisites are: (a) the former judgment or order must be final; (b) the judgment or order must be one on the merits; (c) it must have been rendered by a court having jurisdiction over the subject matter and parties; and (d) there must be between the first and second actions, identity of parties, of subject matter and of causes of action.10 Even though it is conceded that the first three requisites are present herein, the last has not been complied with. Undoubtedly, the Santiago case and the present Petition involve different parties, subject matter, and causes of action, and the former should not bar the latter. In the Santiago case, the petition for initiative to amend the Constitution was filed by Delfin alone. His petition does not qualify as the initiatory pleading over which the COMELEC can acquire jurisdiction, being unsupported by the required number of registered voters, and actually imposing upon the COMELEC the task of gathering the voters' signatures. In the case before us, the petition for initiative to amend the Constitution was filed by Lambino and Aumentado, on behalf of the 6.3 million registered voters who affixed their signatures on the signature sheets attached thereto. Their petition prays that the COMELEC issue an Order 1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution; 2. Directing the publication of the petition in Filipino and English at least twice in newspapers of general and local circulation; and 3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification by the COMELEC of the sufficiency of the petition, to allow the Filipino people to express their sovereign will on the proposition. Although both cases involve the right of the people to initiate amendments to the Constitution, the personalities concerned and the other factual circumstances attendant in the two cases differ. Also dissimilar are the particular prayer and reliefs sought by the parties from the COMELEC, as well as from this Court. For these reasons, I find that the COMELEC acted with grave abuse of discretion when it summarily dismissed the petition for initiative filed by Lambino and Aumentado. It behooves the COMELEC to accord due course to a petition which on its face complies with the rudiments of the law. COMELEC was openly negligent in summarily dismissing the Lambino and Aumentado petition. The haste by which the instant Petition was struck down

is characteristic of bad faith, which, to my mind, is a patent and gross evasion of COMELEC's positive duty. It has so obviously copped out of its duty and responsibility to determine the sufficiency thereof and sought protection and justification for its craven decision in the supposed permanent injunction issued against it by the Court in the Santiago case. The COMELEC had seemingly expanded the scope and application of the said permanent injunction, reading into it more than what it actually states, which is surprising, considering that the Chairman and majority of the members of COMELEC are lawyers who should be able to understand and appreciate, more than a lay person, the legal consequences and intricacies of the pronouncements made by the Court in the Santiago case and the permanent injunction issued therein. No less than the Constitution itself, under the second paragraph of Article XVII, Section 4, imposes upon the COMELEC the mandate to set a date for plebiscite after a positive determination of the sufficiency of a petition for initiative on amendments to the Constitution, viz SEC. 4. x x x Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition. As a rule, the word "shall" commonly denotes an imperative obligation and is inconsistent with the idea of discretion, and that the presumption is that the word "shall" when used, is mandatory.11 Under the above-quoted constitutional provision, it is the mandatory or imperative obligation of the COMELEC to (a) determine the sufficiency of the petition for initiative on amendments to the Constitution and issue a certification on its findings; and (b) in case such petition is found to be sufficient, to set the date for the plebiscite on the proposed amendments not earlier than 60 days nor later than 90 days after its certification. The COMELEC should not be allowed to shun its constitutional mandate under the second paragraph of Article XVII, Section 4, through the summary dismissal of the petition for initiative filed by Lambino and Aumentado, when such petition is supported by 6.3 million signatures of registered voters. Should all of these signatures be authentic and representative of the required percentages of registered voters for every legislative district and the whole nation, then the initiative is a true and legitimate expression of the will of the people to amend the Constitution, and COMELEC had caused them grave injustice by silencing their voice based on a patently inapplicable permanent injunction. II We should likewise take the opportunity to revisit the pronouncements made by the Court in its Decision in the Santiago case, especially as regards the supposed insufficiency or inadequacy of Republic Act No. 6735 as the enabling law for the implementation of the people's right to initiative on amendments to the Constitution. The declaration of the Court that Republic Act No. 6735 is insufficient or inadequate actually gave rise to more questions rather than answers, due to the fact that there has never been a judicial precedent wherein the Court invalidated a law for insufficiency or inadequacy. The confusion over such a declaration thereby impelled former Chief Justice Davide, Jr., the ponente in the Santiago case, to provide the following clarification in his separate opinion to the Resolution in the PIRMA case, thus Simply put, Santiago did, in reality, declare as unconstitutional that portion of R.A. No. 6735 relating to Constitutional initiatives for failure to comply with the "completeness and sufficient standard tests" with respect to permissible delegation of legislative power or subordinate legislation. However petitioners attempt to twist the language in Santiago, the conclusion is inevitable; the portion of R.A. No. 6735 was held to be unconstitutional. It is important to note, however, that while the Decision in the Santiago case pronounced repeatedly that Republic Act No. 6735 was insufficient and inadequate, there is no categorical declaration therein that the said statute was unconstitutional. The express finding that Republic Act No. 6735 is unconstitutional can only be found in the separate opinion of former Chief Justice Davide to the Resolution in the PIRMA case, which was not concurred in by the other members of the Court. Even assuming arguendo that the declaration in the Santiago case, that Republic Act No. 6735 is insufficient and inadequate, is already tantamount to a declaration that the statute is unconstitutional, it was rendered in violation of established rules in statutory construction, which state that [A]ll presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its invalidity beyond a reasonable doubt (Victoriano v. Elizalde Rope Workers' Union, 59 SCRA 54 [19741). In fact, this Court does not decide questions of a constitutional nature unless that question is properly raised and presented in appropriate cases and is necessary to a determination of the case, i.e., the issue of constitutionality must be lis mota presented (Tropical Homes v. National Housing Authority, 152 SCRA 540 [1987]). First, the Court, in the Santiago case, could have very well avoided the issue of constitutionality of Republic Act No. 6735 by ordering the COMELEC to dismiss the Delfin petition for the simple reason that it does not constitute an initiatory pleading over which the COMELEC could acquire jurisdiction. And second, the unconstitutionality of Republic Act No. 6735 has not been adequately shown. It was by and large merely inferred or deduced from the way Republic Act No. 6735 was worded and the provisions thereof arranged and organized by Congress. The dissenting opinions rendered by several Justices in the Santiago case reveal the other side to the argument, adopting the more liberal interpretation that would allow the Court to sustain the constitutionality of Republic Act No. 6735. It would seem that the majority in the Santiago case failed to heed the rule that all presumptions should be resolved in favor of the constitutionality of the statute. The Court, acting en banc on the Petition at bar, can revisit its Decision in the Santiago case and again open to judicial review the constitutionality of Republic Act No. 6735; in which case, I shall cast my vote in favor of its constitutionality, having satisfied the completeness and sufficiency of standards tests for the valid delegation of legislative power. I fully agree in the conclusion made by Justice Puno on this matter in his dissenting opinion 12 in the Santiago case, that reads R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the law's implementing rules and regulations of the law. As aforestated, Section 2 spells out the policy of the law; viz: "The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any

legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the standards to canalize the delegated power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law states the number of signatures necessary to start a people's initiative, directs how initiative proceeding is commenced, what the COMELEC should do upon filing of the petition for initiative, how a proposition is approved, when a plebiscite may be held, when the amendment takes effect, and what matters may not be the subject of any initiative. By any measure, these standards are adequate. III The dissent of Justice Puno has already a well-presented discourse on the difference between an "amendment" and a "revision" of the Constitution. Allow me also to articulate my additional thoughts on the matter. Oppositors to Lambino and Aumentado's petition for initiative argue that the proposed changes therein to the provisions of the Constitution already amount to a revision thereof, which is not allowed to be done through people's initiative; Article XVII, Section 2 of the Constitution on people's initiative refers only to proposals for amendments to the Constitution. They assert the traditional distinction between an amendment and a revision, with amendment referring to isolated or piecemeal change only, while revision as a revamp or rewriting of the whole instrument. 13 However, as pointed out by Justice Puno in his dissent, there is no quantitative or qualitative test that can establish with definiteness the distinction between an amendment and a revision, or between a substantial and simple change of the Constitution. The changes proposed to the Constitution by Lambino and Aumentado's petition for initiative basically affect only Article VI on the Legislative Department and Article VII on the Executive Department. While the proposed changes will drastically alter the constitution of our government by vesting both legislative and executive powers in a unicameral Parliament, with the President as the Head of State and the Prime Minister exercising the executive power; they would not essentially affect the other 16 Articles of the Constitution. The 100 or so changes counted by the oppositors to the other provisions of the Constitution are constituted mostly of the nominal substitution of one word for the other, such as Parliament for Congress, or Prime Minister for President. As eloquently pointed out in the dissent of Justice Puno, the changes proposed to transform our form of government from bicameral-presidential to unicameral-parliamentary, would not affect the fundamental nature of our state as a democratic and republican state. It will still be a representative government where officials continue to be accountable to the people and the people maintain control over the government through the election of members of the Parliament. Furthermore, should the people themselves wish to change a substantial portion or even the whole of the Constitution, what or who is to stop them? Article XVII, Section 2 of the Constitution which, by the way it is worded, refers only to their right to initiative on amendments of the Constitution? The delegates to the Constitutional Convention who, according to their deliberations, purposely limited Article XVII, Section 2 of the Constitution to amendments? This Court which has the jurisdiction to interpret the provision? Bearing in mind my earlier declaration that the will of the sovereign people is supreme, there is nothing or no one that can preclude them from initiating changes to the Constitution if they choose to do so. To reiterate, the Constitution is supposed to be the expression and embodiment of the people's will, and should the people's will clamor for a revision of the Constitution, it is their will which should prevail. Even the fact that the people ratified the 1987 Constitution, including Article XVII, Section 2 thereof, as it is worded, should not prevent the exercise by the sovereign people of their inherent right to change the Constitution, even if such change would be tantamount to a substantial amendment or revision thereof, for their actual exercise of the said right should be a clear renunciation of the limitation which the said provision imposes upon it. It is the inherent right of the people as sovereign to change the Constitution, regardless of the extent thereof. IV Lastly, I fail to see the injustice in allowing the COMELEC to give due course to and take cognizance of Lambino and Aumentado's petition for initiative to amend the Constitution. I reiterate that it would be a greater evil if one such petition which is ostensibly supported by the required number of registered voters all over the country, be summarily dismissed. Giving due course and taking cognizance of the petition would not necessarily mean that the same would be found sufficient and set for plebiscite. The COMELEC still faces the task of reviewing the petition to determine whether it complies with the requirements for a valid exercise of the right to initiative. Questions raised by the oppositors to the petition, such as those on the authenticity of the registered voters' signatures or compliance with the requisite number of registered voters for every legislative district, are already factual in nature and require the reception and evaluation of evidence of the parties. Such questions are best presented and resolved before the COMELEC since this Court is not a trier of facts. In view of the foregoing, I am of the position that the Resolution of the COMELEC dated 31 August 2006 denying due course to the Petition for Initiative filed by Lambino and Aumentado be reversed and set aside for having been issued in grave abuse of discretion, amounting to lack of jurisdiction, and that the Petition be remanded to the COMELEC for further proceedings. In short, I vote to GRANT the petition for Initiative of Lambino and Aumentado. MINITA V. CHICO-NAZARIO Associate Justice ____________________ EN BANC G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS , petitioners, vs. The COMMISSION ON ELECTIONS, respondent. G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, petitioners vs.COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, JR., and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe , respondents. x ---------------------------------------------------------------------------------------- x SEPARATE OPINION VELASCO, JR., J.: Introduction The fate of every democracy, of every government based on the Sovereignty of the people, depends on the choices it makes between these opposite principles: absolute power on the one hand, and on the other the restraints of legality and the authority of tradition. John Acton In this thorny matter of the people's initiative, I concur with the erudite and highly persuasive opinion of Justice Reynato S. Puno upholding the people's initiative and raise some points of my own. The issue of the people's power to propose amendments to the Constitution was once discussed in the landmark case of Santiago v. COMELEC.1 Almost a decade later, the issue is once again before the Court, and I firmly believe it is time to reevaluate the pronouncements made in that case. The issue of Charter Change is one that has sharply divided the nation, and its proponents and opponents will understandably take all measures to advance their position and defeat that of their opponents. The wisdom or folly of Charter Change does not concern the Court. The only thing that the Court must review is the validity of the present step taken by the proponents of Charter Change, which is the People's Initiative, as set down in Article XVII, Sec. 2 of the 1987 Constitution: Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. In the Santiago case, the Court discussed whether the second paragraph of that section had been fulfilled. It determined that Congress had not provided for the implementation of the exercise of the people's initiative, when it held that Republic Act No. 6735, or "The Initiative and Referendum Act," was "inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation."2 With all due respect to those Justices who made that declaration, I must disagree. Republic Act No. 6735 is the proper law for proposing constitutional amendments and it should not have been considered inadequate. The decision in Santiago focused on what it perceived to be fatal flaws in the drafting of the law, in the failings of the way the law was structured, to come to the conclusion that the law was inadequate. The Court itself recognized the legislators' intent, but disregarded this intent. The law was found wanting. The Court then saw the inclusion of the Constitution in RA 6735 as an afterthought. However, it was included, and it should not be excluded by the Court via a strained analysis of the law. The difficult construction of the law should not serve to frustrate the intent of the framers of the 1987 Constitution: to give the people the power to propose amendments as they saw fit. It is a basic precept in statutory construction that the intent of the legislature is the controlling factor in the interpretation of a statute. 3 The intent of the legislature was clear, and yet RA 6735 was declared inadequate. It was not specifically struck down or declared unconstitutional, merely incomplete. The Court focused on what RA 6735 was not, and lost sight of what RA 6735 was. It is my view that the reading of RA 6735 in Santiago should have been more flexible. It is also a basic precept of statutory construction that statutes should be construed not so much according to the letter that killeth but in line with the purpose for which they have been enacted.4 The reading of the law should not have been with the view of its defeat, but with the goal of upholding it, especially with its avowed noble purpose. Congress has done its part in empowering the people themselves to propose amendments to the Constitution, in accordance with the Constitution itself. It should not be the Supreme Court that stifles the people, and lets their cries for change go unheard, especially when the Constitution itself grants them that power. The court's ruling in the Santiago case does not bar the present petition because the fallo in the Santiago case is limited to the Delfin petition.

The Santiago case involved a petition for prohibition filed by Miriam Defensor-Santiago, et al., against the COMELEC, et al., which sought to prevent the COMELEC from entertaining the "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" filed by Atty. Jesus Delfin. In the body of the judgment, the Court made the following conclusion, viz: This petition must then be granted and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition or initiative on amendments on the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system (emphasis supplied). We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system. In the said case, the Court's fallo states as follows: WHEREFORE, judgment is hereby rendered a) GRANTING the instant petition; b) DECLARING R. A. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation; c) DECLARING void those parts of Resolutions No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037). The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections, but is LIFTED against private respondents. Resolution on the matter of contempt is hereby reserved. SO ORDERED. The question now is if the ruling in Santiago is decisive in this case. It is elementary that when there is conflict between the dispositive portion or fallo of the decision and the opinion of the court contained in the text or body of the judgment, the former prevails over the latter. An order of execution is based on the disposition, not on the body, of the decision.5 The dispositive portion is its decisive resolution; thus, it is the subject of execution. The other parts of the decision may be resorted to in order to determine the ratio decidendi for the disposition. Where there is conflict between the dispositive part and the opinion of the court contained in the text or body of the decision, the former must prevail over the latter on the theory that the dispositive portion is the final order, while the opinion is merely a statement ordering nothing . Hence, the execution must conform with that which is ordained or decreed in the dispositive portion of the decision.6 A judgment must be distinguished from an opinion. The latter is an informal expression of the views of the court and cannot prevail against its final order or decision. While the two may be combined in one instrument, the opinion forms no part of the judgment. So there is a distinction between the findings and conclusions of a court and its Judgment. While they may constitute its decision and amount to the rendition of a judgment, they are not the judgment itself. It is not infrequent that the grounds of a decision fail to reflect the exact views of the court, especially those of concurring justices in a collegiate court. We often encounter in judicial decisions lapses, findings, loose statements and generalities which do not bear on the issues or are apparently opposed to the otherwise sound and considered result reached by the court as expressed in the dispositive part, so called, of the decision. 7 Applying the foregoing argument to the Santiago case, it immediately becomes apparent that the disposition in the latter case categorically made permanent the December 18, 1996 Temporary Restraining Order issued against the COMELEC in the Delfin petition but did NOT formally incorporate therein any directive PERMANENTLY enjoining the COMELEC "from entertaining or taking cognizance of any petition for initiative on amendments." Undeniably, the perpetual proscription against the COMELEC from assuming jurisdiction over any other petition on Charter Change through a People's Initiative is just a conclusion and cannot bind the poll body, for such unending ban would trench on its constitutional power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall under Section 2, Article IX of the Constitution. RA 6735 gave the COMELEC the jurisdiction to determine the sufficiency of the petition on the initiative under Section 8, Rule 11 and the form of the petition under Section 3, Rule I; hence, it cannot be barred from entertaining any such petition. In sum, the COMELEC still retains its jurisdiction to take cognizance of any petition on initiative under RA 6735 and it can rule on the petition and its action can only be passed upon by the Court when the same is elevated through a petition for certiorari. COMELEC cannot be barred from acting on said petitions since jurisdiction is conferred by law (RA 6735) and said law has not been declared unconstitutional and hence still valid though considered inadequate in the Santiago case. Respondents, however, claim that the Court in the subsequent case of PIRMA v. Commission on Elections8confirmed the statement of the Court in the Santiago case that the COMELEC was "permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments." Much reliance is placed on the ruling contained in a Minute Resolution which reads: The Court ruled, first, by a unanimous vote, that no grave abuse of Discretion could be attributed to the public respondent COMELEC in Dismissing the petition filed by PIRMA therein, it appearing that it only Complied with the DISPOSITIONS in the Decision of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.

Take note that the Court specifically referred to "dispositions" in the March 19, 1997 Decision. To reiterate, the dispositions in the Santiago case decision refer specifically to the December 18, 1996 TRO being made permanent against the COMELEC but do not pertain to a permanent injunction against any other petition for initiative on amendment. Thus, what was confirmed or even affirmed in the Minute Resolution in the PIRMA case pertains solely to the December 18, 1996 TRO which became permanent, the declaration of the inadequacy of RA 6735, and the annulment of certain parts of Resolution No. 2300 but certainly not the alleged perpetual injunction against the initiative petition. Thus, the resolution in the PIRMA case cannot be considered res judicata to the Lambino petition. Amendment or Revision One last matter to be considered is whether the petition may be allowed under RA 6735, since only amendments to the Constitution may be the subject of a people's initiative. The Lambino petition cannot be considered an act of revising the Constitution; it is merely an attempt to amend it. The term amendment has to be liberally construed so as to effectuate the people's efforts to amend the Constitution. As an eminent constitutionalist, Dean Vicente G. Sinco,9 explained: Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one. The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed essential on account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect. In this case, the Lambino petition is not concerned with rewriting the entire Constitution. It was never its intention to revise the whole Constitution. It merely concerns itself with amending a few provisions in our fundamental charter. When there are gray areas in legislation, especially in matters that pertain to the sovereign people's political rights, courts must lean more towards a more liberal interpretation favoring the people's right to exercise their sovereign power. Conclusion Sovereignty residing in the people is the highest form of sovereignty and thus deserves the highest respect even from the courts. It is not something that can be overruled, set aside, ignored or stomped over by whatever amount of technicalities, blurred or vague provisions of the law. As I find RA 6735 to be adequate as the implementing law for the People's Initiative, I vote to grant the petition in G.R. No. 174153 and dismiss the petition in G.R. No. 174299. The Amended Petition for Initiative filed by petitioners Raul L. Lambino and Erico B. Aumentado should be remanded to the COMELEC for determination whether or not the petition is sufficient under RA 6735, and if the petition is sufficient, to schedule and hold the necessary plebiscite as required by RA 6735. It is time to let the people's voice be heard once again as it was twenty years ago. And should this voice demand a change in the Constitution, the Supreme Court should not be one to stand in its way. PRESBITERO J. VELASCO, JR. Associate Justice b. Procedure i. Proposal 1. 2. By Congress By Constitutional Covention Imbong vs. Comelec, 35 SCRA 28 (1970) Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-32432 September 11, 1970

MANUEL B. IMBONG, petitioner, vs. JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR MILAFLOR, as members thereof, respondents. G.R. No. L-32443 September 11, 1970 IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL CONVENTION ACT OF 1970. RAUL M. GONZALES, petitioner, vs. COMELEC, respondent. Manuel B. Imbong in his own behalf. Raul M. Gonzales in his own behalf. Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L. Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de Leon, Vicente A. Torres and Guillermo C. Nakar for respondents. Lorenzo Taada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici curiae.

MAKASIAR, J.: These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19 of R.A. No. 6132 by petitioners Manuel B. Imbong and Raul M. Gonzales, both members of the Bar, taxpayers and interested in running as candidates for delegates to the Constitutional Convention. Both impugn the constitutionality of R.A. No. 6132, claiming during the oral argument that it prejudices their rights as such candidates. After the Solicitor General had filed answers in behalf the respondents, hearings were held at which the petitioners and the amici curiae, namely Senator Lorenzo Taada, Senator Arturo Tolentino, Senator Jovito Salonga, and Senator Emmanuel Pelaez argued orally. It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly pursuant to Art. XV of the Constitution, passed Resolution No. 2 which among others called for a Constitutional Convention to propose constitutional amendments to be composed of two delegates from each representative district who shall have the same qualifications as those of Congressmen, to be elected on the second Tuesday of November, 1970 in accordance with the Revised Election Code. After the adoption of said Res. No. 2 in 1967 but before the November elections of that year, Congress, acting as a legislative body, enacted Republic Act No. 4914 implementing the aforesaid Resolution No. 2 and practically restating in toto the provisions of said Resolution No. 2. On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4 amending the aforesaid Resolution No. 2 of March 16, 1967 by providing that the convention "shall be composed of 320 delegates apportioned among the existing representative districts according to the number of their respective inhabitants: Provided, that a representative district shall be entitled to at least two delegates, who shall have the same qualifications as those required of members of the House of Representatives," 1 "and that any other details relating to the specific apportionment of delegates, election of delegates to, and the holding of, the Constitutional Convention shall be embodied in an implementing legislation: Provided, that it shall not be inconsistent with the provisions of this Resolution." 2 On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132, implementing Resolutions Nos. 2 and 4, and expressly repealing R.A. No. 4914. 3 Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular provisions embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong impugns the constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132 practically on the same grounds advanced by petitioner Gonzales. I The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and employees, whether elective or appointive, including members of the Armed Forces of the Philippines, as well as officers and employees of corporations or enterprises of the government, as resigned from the date of the filing of their certificates of candidacy, was recently sustained by this Court, on the grounds, inter alia, that the same is merely an application of and in consonance with the prohibition in Sec. 2 of Art. XII of the Constitution and that it does not constitute a denial of due process or of the equal protection of the law. Likewise, the constitutionality of paragraph 2 of Sec. 8(a) of R.A. No. 6132 was upheld. 4 II Without first considering the validity of its specific provisions, we sustain the constitutionality of the enactment of R.A. No. 6132 by Congress acting as a legislative body in the exercise of its broad law-making authority, and not as a Constituent Assembly, because 1. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the Constitution, has full and plenary authority to propose Constitutional amendments or to call a convention for the purpose, by a three-fourths vote of each House in joint session

assembled but voting separately. Resolutions Nos. 2 and 4 calling for a constitutional convention were passed by the required threefourths vote. 2. The grant to Congress as a Constituent Assembly of such plenary authority to call a constitutional convention includes, by virtue of the doctrine of necessary implication, all other powers essential to the effective exercise of the principal power granted, such as the power to fix the qualifications, number, apportionment, and compensation of the delegates as well as appropriation of funds to meet the expenses for the election of delegates and for the operation of the Constitutional Convention itself, as well as all other implementing details indispensable to a fruitful convention. Resolutions Nos. 2 and 4 already embody the above-mentioned details, except the appropriation of funds. 3. While the authority to call a constitutional convention is vested by the present Constitution solely and exclusively in Congress acting as a Constituent Assembly, the power to enact the implementing details, which are now contained in Resolutions Nos. 2 and 4 as well as in R.A. No. 6132, does not exclusively pertain to Congress acting as a Constituent Assembly. Such implementing details are matters within the competence of Congress in the exercise of its comprehensive legislative power, which power encompasses all matters not expressly or by necessary implication withdrawn or removed by the Constitution from the ambit of legislative action. And as lone as such statutory details do not clash with any specific provision of the constitution, they are valid. 4. Consequently, when Congress, acting as a Constituent Assembly, omits to provide for such implementing details after calling a constitutional convention, Congress, acting as a legislative body, can enact the necessary implementing legislation to fill in the gaps, which authority is expressly recognized in Sec. 8 of Res No. 2 as amended by Res. No. 4. 5. The fact that a bill providing for such implementing details may be vetoed by the President is no argument against conceding such power in Congress as a legislative body nor present any difficulty; for it is not irremediable as Congress can override the Presidential veto or Congress can reconvene as a Constituent Assembly and adopt a resolution prescribing the required implementing details. III Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates is not in accordance with proportional representation and therefore violates the Constitution and the intent of the law itself, without pinpointing any specific provision of the Constitution with which it collides. Unlike in the apportionment of representative districts, the Constitution does not expressly or impliedly require such apportionment of delegates to the convention on the basis of population in each congressional district. Congress, sitting as a Constituent Assembly, may constitutionally allocate one delegate for, each congressional district or for each province, for reasons of economy and to avoid having an unwieldy convention. If the framers of the present Constitution wanted the apportionment of delegates to the convention to be based on the number of inhabitants in each representative district, they would have done so in so many words as they did in relation to the apportionment of the representative districts. 5 The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own intent expressed therein; for it merely obeyed and implemented the intent of Congress acting as a Constituent Assembly expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates should be apportioned among the existing representative districts according to the number of their respective inhabitants, but fixing a minimum of at least two delegates for a representative district. The presumption is that the factual predicate, the latest available official population census, for such apportionment was presented to Congress, which, accordingly employed a formula for the necessary computation to effect the desired proportional representation. The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez which is now R.A. No. 6132, submitted to this Tribunal by the amici curiae, show that it based its apportionment of the delegates on the 1970 official preliminary population census taken by the Bureau of Census and Statistics from May 6 to June 30, 1976; and that Congress adopted the formula to effect a reasonable apportionment of delegates. The Director of the Bureau of Census and Statistics himself, in a letter to Senator Pelaez dated July 30, 1970, stated that "on the basis of the preliminary count of the population, we have computed the distribution of delegates to the Constitutional Convention based on Senate Bill 77 (p. 2 lines 5 to 32 and p. 3 line 12) which is a fair and an equitable method of distributing the delegates pursuant to the provisions of the joint Resolution of both Houses No. 2, as amended. Upon your request at the session of the Senate-House Conference Committee meeting last night, we are submitting herewith the results of the computation on the basis of the above-stated method." Even if such latest census were a preliminary census, the same could still be a valid basis for such apportionment. 6 The fact that the lone and small congressional district of Batanes, may be over-represented, because it is allotted two delegates by R.A. No. 6132 despite the fact that it has a population very much less than several other congressional districts, each of which is also allotted only two delegates, and therefore under-represented, vis-a-vis Batanes alone, does not vitiate the apportionment as not effecting proportional representation. Absolute proportional apportionment is not required and is not possible when based on the number of inhabitants, for the population census cannot be accurate nor complete, dependent as it is on the diligence of the census takers, aggravated by the constant movement of population, as well as daily death and birth. It is enough that the basis employed is reasonable and the resulting apportionment is substantially proportional. Resolution No. 4 fixed a minimum of two delegates for a congressional district. While there may be other formulas for a reasonable apportionment considering the evidence submitted to Congress by the Bureau of Census and Statistics, we are not prepared to rule that the computation formula adopted by, Congress for proportional representation as, directed in Res. No. 4 is unreasonable and that the apportionment provided in R.A. No. 6132 does not constitute a substantially proportional representation. In the Macias case, relied on by petitioner Gonzales, the apportionment law, which was nullified as unconstitutional, granted more representatives to a province with less population than the provinces with more inhabitants. Such is not the case here, where under Sec. 2 of R.A. No. 6132 Batanes is allotted only two delegates, which number is equal to the number of delegates accorded other provinces with more population. The present petitions therefore do not present facts which fit the mould of the doctrine in the case of Macias et al. vs. Comelec, supra.

The impossibility of absolute proportional representation is recognized by the Constitution itself when it directs that the apportionment of congressional districts among the various provinces shall be "as nearly as may be according to their respective inhabitants, but each province shall have at least one member" (Sec. 5, Art. VI, Phil. Const., emphasis supplied). The employment of the phrase "as nearly as may be according to their respective inhabitants" emphasizes the fact that the human mind can only approximate a reasonable apportionment but cannot effect an absolutely proportional representation with mathematical precision or exactitude. IV Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of liberty without due process of law and denies the equal protection of the laws. Said Sec. 5 disqualifies any elected delegate from running "for any public office in any election" or from assuming "any appointive office or position in any branch of the government government until after the final adjournment of the Constitutional Convention." That the citizen does not have any inherent nor natural right to a public office, is axiomatic under our constitutional system. The State through its Constitution or legislative body, can create an office and define the qualifications and disqualifications therefor as well as impose inhibitions on a public officer. Consequently, only those with qualifications and who do not fall under any constitutional or statutory inhibition can be validly elected or appointed to a public office. The obvious reason for the questioned inhibition, is to immunize the delegates from the perverting influence of self-interest, party interest or vested interest and to insure that he dedicates all his time to performing solely in the interest of the nation his high and well nigh sacred function of formulating the supreme law of the land, which may endure for generations and which cannot easily be changed like an ordinary statute. With the disqualification embodied in Sec. 5, the delegate will not utilize his position as a bargaining leverage for concessions in the form of an elective or appointive office as long as the convention has not finally adjourned. The appointing authority may, by his appointing power, entice votes for his own proposals. Not love for self, but love for country must always motivate his actuations as delegate; otherwise the several provisions of the new Constitution may only satisfy individual or special interests, subversive of the welfare of the general citizenry. It should be stressed that the disqualification is not permanent but only temporary only to continue until the final adjournment of the convention which may not extend beyond one year. The convention that framed the present Constitution finished its task in approximately seven months from July 30, 1934 to February 8, 1935. As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional provision prohibiting a member of Congress, during the time for which he was elected, from being appointed to any civil office which may have been created or the emolument whereof shall have been increased while he was a member of the Congress. (Sec. 16, Art. VI, Phil. Constitution.) As observed by the Solicitor General in his Answer, the overriding objective of the challenged disqualification, temporary in nature, is to compel the elected delegates to serve in full their term as such and to devote all their time to the convention, pursuant to their representation and commitment to the people; otherwise, his seat in the convention will be vacant and his constituents will be deprived of a voice in the convention. The inhibition is likewise "designed to prevent popular political figures from controlling elections or positions. Also it is a brake on the appointing power, to curtail the latter's desire to 'raid' the convention of "talents" or attempt to control the convention." (p. 10, Answer in L-32443.) Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid limitation on the right to public office pursuant to state police power as it is reasonable and not arbitrary. The discrimination under Sec. 5 against delegates to the Constitutional Convention is likewise constitutional; for it is based on a substantial distinction which makes for real differences, is germane to the purposes of the law, and applies to all members of the same class. 7 The function of a delegate is more far-reaching and its effect more enduring than that of any ordinary legislator or any other public officer. A delegate shapes the fundamental law of the land which delineates the essential nature of the government, its basic organization and powers, defines the liberties of the people, and controls all other laws. Unlike ordinary statutes, constitutional amendments cannot be changed in one or two years. No other public officer possesses such a power, not even the members of Congress unless they themselves, propose constitutional amendments when acting as a Constituent Assembly pursuant to Art. XV of the Constitution. The classification, therefore, is neither whimsical nor repugnant to the sense of justice of the community. As heretofore intimated, the inhibition is relevant to the object of the law, which is to insure that the proposed amendments are meaningful to the masses of our people and not designed for the enhancement of selfishness, greed, corruption, or injustice. Lastly, the disqualification applies to all the delegates to the convention who will be elected on the second Tuesday of November, 1970. V Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of the constitutional guarantees of due process, equal protection of the laws, freedom of expressions, freedom of assembly and freedom of association. This Court ruled last year that the guarantees of due process, equal protection of the laws, peaceful assembly, free expression, and the right of association are neither absolute nor illimitable rights; they are always subject to the pervasive and dormant police power of the State and may be lawfully abridged to serve appropriate and important public interests. 8 In said Gonzalez vs. Comelec case the Court applied the clear and present danger test to determine whether a statute which trenches upon the aforesaid Constitutional guarantees, is a legitimate exercise of police power. 9 Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits: 1. any candidate for delegate to the convention (a) from representing, or

(b) allowing himself to be represented as being a candidate of any political party or any other organization; and 2. any political party, political group, political committee, civic, religious, professional or other organizations or organized group of whatever nature from (a) intervening in the nomination of any such candidate or in the filing of his certificate, or (b) from giving aid or support directly or indirectly, material or otherwise, favorable to or against his campaign for election. The ban against all political parties or organized groups of whatever nature contained in par. 1 of Sec. 8(a), is confined to party or organization support or assistance, whether material, moral, emotional or otherwise. The very Sec. 8(a) in its provisos permits the candidate to utilize in his campaign the help of the members of his family within the fourth civil degree of consanguinity or affinity, and a campaign staff composed of not more than one for every ten precincts in his district. It allows the full exercise of his freedom of expression and his right to peaceful assembly, because he cannot be denied any permit to hold a public meeting on the pretext that the provision of said section may or will be violated. The right of a member of any political party or association to support him or oppose his opponent is preserved as long as such member acts individually. The very party or organization to which he may belong or which may be in sympathy with his cause or program of reforms, is guaranteed the right to disseminate information about, or to arouse public interest in, or to advocate for constitutional reforms, programs, policies or constitutional proposals for amendments. It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic constitutional rights themselves remain substantially intact and inviolate. And it is therefore a valid infringement of the aforesaid constitutional guarantees invoked by petitioners. In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously sustained the validity of the limitation on the period for nomination of candidates in Sec. 50-A of R.A. No. 4880, thus: The prohibition of too early nomination of candidates presents a question that is not too formidable in character. According to the act: "It shall be unlawful for any political party, political committee, or political group to nominate candidates for any elective public office voted for at large earlier than one hundred and fifty days immediately preceding an election, and for any other elective public office earlier than ninety days immediately preceding an election. The right of association is affected. Political parties have less freedom as to the time during which they may nominate candidates; the curtailment is not such, however, as to render meaningless such a basic right. Their scope of legitimate activities, save this one, is not unduly narrowed. Neither is there infringement of their freedom to assemble. They can do so, but not for such a purpose. We sustain its validity. We do so unanimously. 10 In said Gonzales vs. Comelec case, this Court likewise held that the period for the conduct of an election campaign or partisan political activity may be limited without offending the aforementioned constitutional guarantees as the same is designed also to prevent a "clear and present danger of a substantive evil, the debasement of the electoral process." 11 Even if the partisan activity consists of (a) forming organizations, associations, clubs, committees or other group of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party; and (c) giving, soliciting, or receiving contributions for election campaign either directly or indirectly, (Sec. 50-B, pars. (a), (b), and (c), R.A. 4880), the abridgment was still affirmed as constitutional by six members of this Court, which could not "ignore ... the legislative declaration that its enactment was in response to a serious substantive evil affecting the electoral process, not merely in danger of happening, but actually in existence, and likely to continue unless curbed or remedied. To assert otherwise would be to close one's eyes to the reality of the situation." 12; Likewise, because four members dissented, this Court in said case of Gonzales vs. Comelec, supra, failed to muster the required eight votes to declare as unconstitutional the limitation on the period for (a) making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for public office; (b) publishing or distributing campaign literature or materials; and (e) directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party specified in Sec. 50-B, pars. (c), (d) & (e) of R.A. 4880. 13 The debasement of the electoral process as a substantive evil exists today and is one of the major compelling interests that moved Congress into prescribing the total ban contained in par. 1 of Sec. 8(a) of R.A. No. 6132, to justify such ban. In the said Gonzales vs. Comelec case, this Court gave "due recognition to the legislative concern to cleanse, and if possible, render spotless, the electoral process," 14 impressed as it was by the explanation made by the author of R.A. No. 4880, Sen. Lorenzo Taada, who appeared as amicus curiae, "that such provisions were deemed by the legislative body to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as violence that of late has marred election campaigns and partisan political activities in this country. He did invite our attention likewise to the well-settled doctrine that in the choice of remedies for an admitted malady requiring governmental action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or disregarded." 15 But aside from the clear and imminent danger of the debasement of the electoral process, as conceded by Senator Pelaez, the basic motivation, according to Senate Majority Floor Leader Senator Arturo Tolentino, the sponsor of the Puyat-Tolentino amendment embodied in par. 1 of Sec. 8(a) of R.A. No. 6132, is to assure the candidates equal protection of the laws by according them equality of chances. 16 The primary purpose of the prohibition then is also to avert the clear and present danger of another substantive evil, the denial of the equal protection of the laws. The candidates must depend on their individual merits and not on the support of political parties or organizations. Senator Tolentino and Senator Salonga emphasized that under this provision, the poor candidate has an even chance as against the rich candidate. We are not prepared to disagree with them, because such a conclusion, predicated as it is on empirical logic, finds support in our recent political history and experience. Both Senators stressed that the independent candidate who wins in the election against a candidate of the major political parties, is a rare phenomenon in this country and the victory of an independent candidate mainly rests on his ability to match the resources, financial and otherwise, of the political parties or organizations supporting his opponent.

This position is further strengthened by the principle that the guarantee of social justice under Sec. V, Art. II of the Constitution, includes the guarantee of equal opportunity, equality of political rights, and equality before the law enunciated by Mr. Justice Tuazon in the case Guido vs. Rural Progress Administration. 17 While it may be true that a party's support of a candidate is not wrong per se it is equally true that Congress in the exercise of its broad law-making authority can declare certain acts as mala prohibita when justified by the exigencies of the times. One such act is the party or organization support proscribed in Sec. 8(a),which ban is a valid limitation on the freedom of association as well as expression, for the reasons aforestated. Senator Tolentino emphasized that "equality of chances may be better attained by banning all organization support." The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-of-interest test. In the apt words of the Solicitor General: It is to be noted that right now the nation is on the threshold of rewriting its Constitution in a hopeful endeavor to find a solution to the grave economic, social and political problems besetting the country. Instead of directly proposing the amendments Congress has chosen to call a Constitutional Convention which shall have the task of fashioning a document that shall embody the aspirations and ideals of the people. Because what is to be amended is the fundamental law of the land, it is indispensable that the Constitutional Convention be composed of delegates truly representative of the people's will. Public welfare demands that the delegates should speak for the entire nation, and their voices be not those of a particular segment of the citizenry, or of a particular class or group of people, be they religious, political, civic or professional in character. Senator Pelaez, Chairman of the Senate Committee on Codes and Constitutional Amendments, eloquently stated that "the function of a constitution is not to represent anyone in interest or set of interests, not to favor one group at the expense or disadvantage of the candidates but to encompass all the interests that exist within our society and to blend them into one harmonious and balanced whole. For the constitutional system means, not the predominance of interests, but the harmonious balancing thereof." So that the purpose for calling the Constitutional Convention will not be deflated or frustrated, it is necessary that the delegatee thereto be independent, beholden to no one but to God, country and conscience. xxx xxx xxx The evil therefore, which the law seeks to prevent lies in the election of delegates who, because they have been chosen with the aid and resources of organizations, cannot be expected to be sufficiently representative of the people. Such delegates could very well be the spokesmen of narrow political, religious or economic interest and not of the great majority of the people. 20 We likewise concur with the Solicitor General that the equal protection of the laws is not unduly subverted in par. I of Sec. 8(a); because it does not create any hostile discrimination against any party or group nor does it confer undue favor or privilege on an individual as heretofore stated. The discrimination applies to all organizations, whether political parties or social, civic, religious, or professional associations. The ban is germane to the objectives of the law, which are to avert the debasement of the electoral process, and to attain real equality of chances among individual candidates and thereby make real the guarantee of equal protection of the laws. The political parties and the other organized groups have built-in advantages because of their machinery and other facilities, which, the individual candidate who is without any organization support, does not have. The fact that the other civic of religious organizations cannot have a campaign machinery as efficient as that of a political party, does not vary the situation; because it still has that much built-in advantage as against the individual candidate without similar support. Moreover, these civic religious and professional organization may band together to support common candidates, who advocates the reforms that these organizations champion and believe are imperative. This is admitted by petitioner Gonzales thru the letter of Senator Ganzon dated August 17, 1970 attached to his petition as Annex "D", wherein the Senator stated that his own "Timawa" group had agreed with the Liberal Party in Iloilo to support petitioner Gonzales and two others as their candidates for the convention, which organized support is nullified by the questioned ban, Senator Ganzon stressed that "without the group moving and working in joint collective effort" they cannot "exercise effective control and supervision over our leaders the Women's League, the area commanders, etc."; but with their joining with the LP's they "could have presented a solid front with very bright chances of capturing all seats." The civic associations other than political parties cannot with reason insist that they should be exempted from the ban; because then by such exemption they would be free to utilize the facilities of the campaign machineries which they are denying to the political parties. Whenever all organization engages in a political activity, as in this campaign for election of delegates to the Constitutional Convention, to that extent it partakes of the nature of a political organization. This, despite the fact that the Constitution and by laws of such civic, religious, or professional associations usually prohibit the association from engaging in partisan political activity or supporting any candidate for an elective office. Hence, they must likewise respect the ban. The freedom of association also implies the liberty not to associate or join with others or join any existing organization. A person may run independently on his own merits without need of catering to a political party or any other association for support. And he, as much as the candidate whose candidacy does not evoke sympathy from any political party or organized group, must be afforded equal chances. As emphasized by Senators Tolentino and Salonga, this ban is to assure equal chances to a candidate with talent and imbued with patriotism as well as nobility of purpose, so that the country can utilize their services if elected. Impressed as We are by the eloquent and masterly exposition of Senator Taada for the invalidation of par. 1 of Sec. 8(a) of R.A. No. 6132, demonstrating once again his deep concern for the preservation of our civil liberties enshrined in the Bill of Rights, We are not persuaded to entertain the belief that the challenged ban transcends the limits of constitutional invasion of such cherished immunities.
19 18

WHEREFORE, the prayers in both petitions are hereby denied and R.A. No. 6132 including Secs. 2, 4, 5, and 8(a), paragraph 1, thereof, cannot be declared unconstitutional. Without costs. Reyes, J.B.L., Dizon and Castro, JJ., concur. Makalintal, J., concurs in the result. Teehankee, J., is on leave.

Separate Opinions

FERNANDO, J., concurring and dissenting: The opinion of Justice Makasiar speaking for the Court, comprehensive in scope, persuasive in character and lucid in expression, has much to recommend it. On the whole, I concur. I find difficulty, however, in accepting the conclusion that there is no basis for the challenge hurled against the validity of this provision: "No candidate for delegate to the Convention shall represent or allow himself to be represented as being a candidate of any political party or any other organization, and no political party, political group, political committee, civic, religious, professional, or other organization or organized group of whatever nature shall intervene in the nomination of any such candidate or in the filing of his certificate of candidacy or give aid or support directly or indirectly, material or otherwise, favorable to or against his campaign for election: ..." 1 It is with regret then that I dissent from that portion of the decision. 1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban on political parties and civic, professional and other organizations is concerned with the explicit provision that the freedom to form associations or societies for purposes not contrary to law shall not be abridged. 2 The right of an individual to join others of a like persuasion to pursue common objectives and to engage in activities is embraced within if not actually encouraged by the regime of liberty ordained by the Constitution. This particular freedom has an indigenous cast, its origin being traceable to the Malolos Constitution. In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas, in a 1963 article, that it is primarily the First Amendment of her Constitution, which safeguards freedom of speech and of the press, of assembly and of petition "that provides [associations] with the protection they need if they are to remain viable and continue to contribute to our Free Society." 3 Such is indeed the case, for five years earlier the American Supreme Court had already declared: "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" [embraced in] freedom of speech." 4 Not long after, in 1965, Justice Douglas as; spokesman for the American Supreme Court could elaborate further on the scope of the right of association as including "the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means, Association in that context is a form of expression of opinion; and while it is not extremely included in the First Amendment its existence is necessary in making the express guarantees fully meaningful." 5 Thus is further vitalized freedom of expression which, for Justice Laurel, is at once the instrument" and the guarantee and the bright consummate flower of all liberty" 6 and, for Justice Cardozo, "the matrix, the indispensable condition of nearly every other form of freedom." 7 2. It is in the light of the above fundamental postulates that I find merit in the plea of petitioners to annul the challenged provision. There is much to be said for the point emphatically stressed by Senator Lorenzo M. Taada, as amicus curiae, to the effect that there is nothing unlawful in a candidate for delegate to the Convention representing or allowing himself to be represented as such of any political party or any other organization as well as of such political party, political group, political committee, civic, religious, professional or other organization or organized group intervening in his nomination, in the filing of his certificate of candidacy, or giving aid or support, directly or indirectly, material or otherwise, favorable to or against his campaign for election as such delegate. I find the conclusion inescapabe therefore, that what the constitutional provisions in question allow, more specifically the right to form associations, is prohibited. The infirmity of the ban is thus apparent on its face. There is, to my mind, another avenue of approach that leads to the same conclusion. The final proviso in the same section of the Act forbids any construction that would in any wise "impair or abridge the freedom of civic, political, religious, professional, trade organizations or organized groups of whatever nature to disseminate information about, or arouse public interest in, the forthcoming Constitutional Convention, or to advocate constitutional reforms, programs, policies or proposals for amendment of the present Constitution, and no prohibition contained herein shall limit or curtail the right of their members, as long as they act individually, to support or oppose any candidate for delegate to the Constitutional Convention." 8 It is regrettable that such an explicit recognition of what cannot be forbidden consistently with the constitutional guarantees of freedom of expression and freedom of association falls short of according full respect to what is thus commanded, by the fundamental law, as they are precluded by the very same Act from giving aid or support precisely to the very individuals who can carry out whatever constitutional reforms, programs, policies or proposals for amendment they might advocate. As thus viewed, the conviction I entertain as to its lack of validity is further strengthened and fortified. 3. It would be a different matter, of course, if there is a clear and present danger of a substantive evil that would justify a limitation on such cherished freedoms. Reference has been made to Gonzales v. Commission on Elections. 9 As repression is permissible only when the danger of substantive evil is present is explained by Justice Branders thus: ... the evil apprehended is to imminent that it may befall before there is opportunity for full discussion. If

there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. For him the apprehended evil must be "relatively serious." For "[prohibition] of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society." Justice Black would go further. He would require that the substantive evil be "extremely serious." Only thus may there be a realization of the ideal envisioned by Cardozo: "There shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme borders where thought merges into action." It received its original formulation from Holmes. Thus: "The question in every case is whether the words used in such circumstances are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." " 10 The majority of the Court would find the existence of a clear and present danger of debasing the electoral process. With due respect, I find myself unable to share such a view. The assumption would, appear to be that there is a clear and present danger of a grave substantive evil of partisanship running riot unless political parties are thus restrained. There would be a sacrifice then of the national interest involved. The Convention might not be able to live up to the high hopes entertained for an improvement of the fundamental law. It would appear though that what prompted such a ban is to assure that the present majority party would not continue to play its dominant role in the political life of the nation. The thought is entertained that otherwise, we will not have a Convention truly responsive to the needs of the hour and of the future insofar as they may be anticipated. To my mind, this is to lose sight of the fact that in the national elections of 1946, 1953, 1961 and 1965, the presidency was won by the opposition candidate. Moreover, in national elections for senators alone, that of 1951, to mention only one instance, saw a complete sweep of the field by the then minority party. It would be unjustifiable, so I am led to believe to assume that inevitably the prevailing dominant political party would continue its ascendancy in the coming Convention. Then, too, the result of the plebiscite in the two proposed amendments in 1967 indicate unmistakably that the people can, if so minded, make their wishes prevail. There is thus no assurance that the mere identification with party labels would automatically insure the success of a candidacy. Even if it be assumed that to guard against the evils of party spirit carried to excess, such a ban is called for, still no such danger is presented by allowing civil, professional or any other organization or organized group of whatever nature to field its own candidates or give aid or support, directly or indirectly material or otherwise, to anyone running for the Convention. From such a source, no such misgivings or apprehension need arise. Nor it the fear that organizations could hastily be assembled or put up to camouflage their true colors as satellites of the political parties be valid. The electorate can see through such schemes and can emphatically register its reaction. There is, moreover, the further safeguard that whatever work the Convention may propose is ultimately subject to popular ratification. For me then the danger of a substantive evil is neither clear nor present. What causes me grave concern is that to guard against such undesirable eventuality, which may not even come to pass, a flagrant disregard of what the Constitution ordains is minimized. A desirable end cannot be coerced by unconstitutional means. 4. It is not easy to yield assent to the proposition that on a matter so essentially political as the amendment or revision of an existing Constitution, political parties or political groups are to be denied the opportunity of launching the candidacy of their choice. Well has it been said by Chief Justice Hughes: "The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government." 11 It is to carry this essential process one step farther to recognize and to implement the right of every political party or group to select the candidates who, by their election, could translate into actuality their hopes for the fundamental law that the times demand. Moreover, is it not in keeping with the rights to intellectual freedom so sedulously safeguarded by the Constitution to remove all obstacles to organized civic groups making their influence felt in the task of constitution framing, the result of which has momentuous implications for the nation? What is decisive of this aspect of the matter is not the character of the association or organized group as such but the essentially political activity thus carried out. This is not to deny the wide latitude as to the choice of means vested in Congress to attain a desirable goal. Nor can it be successfully argued that the judiciary should display reluctance in extending sympathy and understanding to such legislative determination. This is merely to stress that however worthwhile the objective, the Constitution must still be paid deference. Moreover, it may not be altogether unrealistic to consider the practical effects of the ban as thus worded as not lacking in effectivity insofar as civic, religious, professional or other organizations or organized group is concerned, but not necessarily so in the case of political party, political group or political committee. There is the commendable admission by Senator Tolentino, appearing as amicus curiae, that the political leaders of stature, in their individual capacity, could continue to assert their influence. It could very well happen, then, in not a few cases, assuming the strength of political parties, that a candidate thus favored is sure of emerging the victor. What is thus sought to be accomplished to guard against the evil of party spirit prevailing could very well be doomed to futility. The high hopes entertained by the articulate and vocal groups of young people, intellectuals and workers, may not be realized. The result would be that this unorthodox and novel provision could assume the character of a tease, an illusion like a munificent bequest in a pauper's will. If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a radical approach to a problem possibly tainted with constitutional infirmity cannot hurdle the judicial test as to its validity. It is one thing to encourage a fresh and untried solution to a problem of gravity when the probability of its success may be assumed. It is an entirely different matter to cut down the exercise of what otherwise are undeniable constitutional rights, when as in this case, the outcome might belie expectations. Considering the well-settled principle that even though the governmental process be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties, if the end can be narrowly achieved, I am far from being persuaded that to preclude political parties or other groups or associations from lending aid and support to the candidates of men in whom they can repose their trust is consistent with the constitutional rights of freedom of association and freedom of expression. Here, the danger of overbreadth, so clear and manifest as to be offensive to constitutional standards, magnified by the probability that the result would be the failure and not success of the statutory scheme, cautions against the affixing of the imprimatur of judicial approval to the challenged provision. 5. Necessarily then, from this mode of viewing the matter, it would follow that the holding of this Court in Gonzales v. Comelec 12 does not compel the conclusion reached by the majority sustaining the validity of this challenged provision. What survived the test of constitutional validity in that case, with the Court unanimous in its opinion, is the prohibition for any political party, political committee or political group to nominate candidates for any elective public office voted for at large earlier than 150 days immediately preceding election and for any other public office earlier than 90 days immediately preceding such election. 13 A corollary to the above limitation, the provision making it unlawful for any person, whether or not a voter or candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the above periods successfully hurdled, the constitutional test, although the restrictions as to the making of speeches, announcements or

commentaries or holding interviews for or against the election of any party or candidate for public office or the publishing or distributing of campaign literature or materials or the solicitation or undertaking any campaign or propaganda for or against any candidate or party, directly or indirectly, survived by the narrow margin of one vote, four members of this Court unable to discern any constitutional infirmity as against the free speech guarantee, thus resulting in failing to muster the necessary two-thirds majority for a declaration of invalidity. Insofar as election campaign or partisan political activity would limit or restrict the formation, of organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda for or against a party or candidate or, the giving, soliciting, or receiving a contribution for election campaign purposes, either directly or indirectly as well as the holding of political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies, with a similar and in view, only five members of this Court, a minority thereof voted, for their unconstitutionality. What emerges clearly, then, is that definite acts short of preventing the political parties from the choice of their candidates and thereafter working for them in effect were considered by this Court as not violative of the constitutional freedoms of speech, of press, of assembly and of association. The challenged provision in these two petitions, however, goes much farther. Political parties or any other organization or organized group are precluded from selecting and supporting candidates for delegates to the Constitutional Convention. To my mind, this is to enter a forbidden domain, Congress trespassing on a field hitherto rightfully assumed to be within the sphere of liberty. Thus, I am unable to conclude that our previous decision in Gonzales v. Commission on Elections which already was indicative of the cautious and hesitant judicial approach to lending its approval to what otherwise are invasions of vital constitutional safeguards to freedoms of belief, of expression, and of association lends support to the decision reached by the majority insofar as this challenged provision is concerned. Hence my inability to subscribe in its entirety to the opinion of the Court. I am authorized to state that the Chief Justice is in agreement with the views herein expressed. Concepcion, C.J., Villamor and Zaldivar, JJ., concur. BARREDO, J., concurring and dissenting: Without prejudice to a more extended opinion, I vote, in concurrence with the majority, to sustain the validity of the provisions of Republic Act 6132 impugned by petitioners in these cases, except Section 4 and the portion of Section 8(a) referring to political parties. As regards Section 4, I reiterate my separate opinion in the cases of Subido and others. (G.R. Nos. L-32436 and L-32439) With respect to Section 8(a), I hold that the considerations which take the restraint on the freedoms of association, assembly and speech involved in the ban on political parties to nominate and support their own candidates, reasonable and within the limits of the Constitution do not obtain when it comes to civic or non-political organizations. As I see it, the said ban, insofar as civic or non-political organizations are concerned, is a deceptive device to preserve the built-in advantages of political parties while at the same time crippling completely the other kinds of associations. The only way to accomplish the purported objective of the law of equalizing the forces that will campaign in behalf of the candidates to the constitutional convention is to maintain said ban only as against political parties, for after all, only the activities and manners of operation of these parties and/or some of their members have made necessary the imposition thereof. Under the resulting set up embodied in the provision in question, the individual candidates who have never had any political party connections or very little of it would be at an obvious disadvantage unless they are allowed to seek and use the aid of civic organizations. Neither the elaborate provisions of Republic Act 6132 regarding methods of campaign nor its other provisions intended to minimize the participation of political parties in the electorate processes of voting, counting of the votes and canvassing of the results can overcome the advantages of candidates more or less connected with political parties, particularly the major and established ones, as long as the right to form other associations and the right of these associations to campaign for their candidates are denied considering particularly the shortness of the time that is left between now and election day. The issues involved in the coming elections are grave and fundamental ones that are bound to affect the lives, rights and liberties of all the people of this country most effectively, pervasively and permanently. The only insurance of the people against political parties which may be inclined towards the Establishment and the status quo is to organize themselves to gain much needed strength and effectivity. To deny them this right is to stifle the people's only opportunity for change. It is axiomatic that issues, no matter how valid, if not related to particular candidates in an organized way, similarly as in the use of platforms by political parties, cannot have any chance of support and final adoption. Both men and issues are important, but unrelated to each other, each of them alone is insignificant, and the only way to relate them is by organization. Precisely because the issues in this election of candidates are of paramount importance second to none, it is imperative that all of the freedoms enshrined in the constitution should have the ampliest recognition for those who are minded to actively battle for them and any attempt to curtail them would endanger the very purposes for which a new constitutional convention has been conceived. Consistently with my separate opinion in the case of Gonzales and Cabigao vs. Comelec, G.R. No. L-27833, April 18, 1969 and for the reasons therein stated, I maintain that the right of suffrage which is the cornerstone of any democracy like ours is meaningless when the right to campaign in any election therein is unreasonably and unnecessarily curtailed, restrained or hampered, as is being done under the statute in dispute. It is, of course, understood that this opinion is based on my considered view, contrary to that of the majority, that as Section 8(a) stands and taking into account its genesis, the ban against political parties is separable from that against other associations within the contemplation of Section 21 of the Act which expressly refers to the separability of the application thereof to any "persons, groups or circumstances." I reserve my right to expand this explanation of my vote in the next few days.

# Separate Opinions FERNANDO, J., concurring and dissenting:

The opinion of Justice Makasiar speaking for the Court, comprehensive in scope, persuasive in character and lucid in expression, has much to recommend it. On the whole, I concur. I find difficulty, however, in accepting the conclusion that there is no basis for the challenge hurled against the validity of this provision: "No candidate for delegate to the Convention shall represent or allow himself to be represented as being a candidate of any political party or any other organization, and no political party, political group, political committee, civic, religious, professional, or other organization or organized group of whatever nature shall intervene in the nomination of any such candidate or in the filing of his certificate of candidacy or give aid or support directly or indirectly, material or otherwise, favorable to or against his campaign for election: ..." 1 It is with regret then that I dissent from that portion of the decision. 1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban on political parties and civic, professional and other organizations is concerned with the explicit provision that the freedom to form associations or societies for purposes not contrary to law shall not be abridged. 2 The right of an individual to join others of a like persuasion to pursue common objectives and to engage in activities is embraced within if not actually encouraged by the regime of liberty ordained by the Constitution. This particular freedom has an indigenous cast, its origin being traceable to the Malolos Constitution. In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas, in a 1963 article, that it is primarily the First Amendment of her Constitution, which safeguards freedom of speech and of the press, of assembly and of petition "that provides [associations] with the protection they need if they are to remain viable and continue to contribute to our Free Society." 3 Such is indeed the case, for five years earlier the American Supreme Court had already declared: "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" [embraced in] freedom of speech." 4 Not long after, in 1965, Justice Douglas as; spokesman for the American Supreme Court could elaborate further on the scope of the right of association as including "the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means, Association in that context is a form of expression of opinion; and while it is not extremely included in the First Amendment its existence is necessary in making the express guarantees fully meaningful." 5 Thus is further vitalized freedom of expression which, for Justice Laurel, is at once the instrument" and the guarantee and the bright consummate flower of all liberty" 6 and, for Justice Cardozo, "the matrix, the indispensable condition of nearly every other form of freedom." 7 2. It is in the light of the above fundamental postulates that I find merit in the plea of petitioners to annul the challenged provision. There is much to be said for the point emphatically stressed by Senator Lorenzo M. Taada, as amicus curiae, to the effect that there is nothing unlawful in a candidate for delegate to the Convention representing or allowing himself to be represented as such of any political party or any other organization as well as of such political party, political group, political committee, civic, religious, professional or other organization or organized group intervening in his nomination, in the filing of his certificate of candidacy, or giving aid or support, directly or indirectly, material or otherwise, favorable to or against his campaign for election as such delegate. I find the conclusion inescapabe therefore, that what the constitutional provisions in question allow, more specifically the right to form associations, is prohibited. The infirmity of the ban is thus apparent on its face. There is, to my mind, another avenue of approach that leads to the same conclusion. The final proviso in the same section of the Act forbids any construction that would in any wise "impair or abridge the freedom of civic, political, religious, professional, trade organizations or organized groups of whatever nature to disseminate information about, or arouse public interest in, the forthcoming Constitutional Convention, or to advocate constitutional reforms, programs, policies or proposals for amendment of the present Constitution, and no prohibition contained herein shall limit or curtail the right of their members, as long as they act individually, to support or oppose any candidate for delegate to the Constitutional Convention." 8 It is regrettable that such an explicit recognition of what cannot be forbidden consistently with the constitutional guarantees of freedom of expression and freedom of association falls short of according full respect to what is thus commanded, by the fundamental law, as they are precluded by the very same Act from giving aid or support precisely to the very individuals who can carry out whatever constitutional reforms, programs, policies or proposals for amendment they might advocate. As thus viewed, the conviction I entertain as to its lack of validity is further strengthened and fortified. 3. It would be a different matter, of course, if there is a clear and present danger of a substantive evil that would justify a limitation on such cherished freedoms. Reference has been made to Gonzales v. Commission on Elections. 9 As repression is permissible only when the danger of substantive evil is present is explained by Justice Branders thus: ... the evil apprehended is to imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. For him the apprehended evil must be "relatively serious." For "[prohibition] of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society." Justice Black would go further. He would require that the substantive evil be "extremely serious." Only thus may there be a realization of the ideal envisioned by Cardozo: "There shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme borders where thought merges into action." It received its original formulation from Holmes. Thus: "The question in every case is whether the words used in such circumstances are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." " 10 The majority of the Court would find the existence of a clear and present danger of debasing the electoral process. With due respect, I find myself unable to share such a view. The assumption would, appear to be that there is a clear and present danger of a grave substantive evil of partisanship running riot unless political parties are thus restrained. There would be a sacrifice then of the national interest involved. The Convention might not be able to live up to the high hopes entertained for an improvement of the fundamental law. It would appear though that what prompted such a ban is to assure that the present majority party would not continue to play its dominant role in the political life of the nation. The thought is entertained that otherwise, we will not have a Convention truly responsive to the needs of the hour and of the future insofar as they may be anticipated. To my mind, this is to lose sight of the fact that in the national elections of 1946, 1953, 1961 and 1965, the presidency was won by the opposition candidate. Moreover, in national elections for senators alone, that of 1951, to mention only one instance, saw a complete sweep of the field by the then minority party. It would be unjustifiable, so I am led to believe to assume that inevitably the prevailing dominant political party would continue its ascendancy in the coming Convention. Then, too, the result of the plebiscite in the two proposed amendments in 1967 indicate unmistakably that the people can, if so minded, make their wishes prevail. There is thus no assurance that the mere identification with party labels would automatically insure the success of a candidacy. Even if it be assumed that to guard against the evils of party spirit carried to excess, such a ban is called for, still no such danger is presented by allowing civil, professional or any other organization or organized group of whatever nature to field its own candidates or give aid or support, directly or indirectly

material or otherwise, to anyone running for the Convention. From such a source, no such misgivings or apprehension need arise. Nor it the fear that organizations could hastily be assembled or put up to camouflage their true colors as satellites of the political parties be valid. The electorate can see through such schemes and can emphatically register its reaction. There is, moreover, the further safeguard that whatever work the Convention may propose is ultimately subject to popular ratification. For me then the danger of a substantive evil is neither clear nor present. What causes me grave concern is that to guard against such undesirable eventuality, which may not even come to pass, a flagrant disregard of what the Constitution ordains is minimized. A desirable end cannot be coerced by unconstitutional means. 4. It is not easy to yield assent to the proposition that on a matter so essentially political as the amendment or revision of an existing Constitution, political parties or political groups are to be denied the opportunity of launching the candidacy of their choice. Well has it been said by Chief Justice Hughes: "The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government." 11 It is to carry this essential process one step farther to recognize and to implement the right of every political party or group to select the candidates who, by their election, could translate into actuality their hopes for the fundamental law that the times demand. Moreover, is it not in keeping with the rights to intellectual freedom so sedulously safeguarded by the Constitution to remove all obstacles to organized civic groups making their influence felt in the task of constitution framing, the result of which has momentuous implications for the nation? What is decisive of this aspect of the matter is not the character of the association or organized group as such but the essentially political activity thus carried out. This is not to deny the wide latitude as to the choice of means vested in Congress to attain a desirable goal. Nor can it be successfully argued that the judiciary should display reluctance in extending sympathy and understanding to such legislative determination. This is merely to stress that however worthwhile the objective, the Constitution must still be paid deference. Moreover, it may not be altogether unrealistic to consider the practical effects of the ban as thus worded as not lacking in effectivity insofar as civic, religious, professional or other organizations or organized group is concerned, but not necessarily so in the case of political party, political group or political committee. There is the commendable admission by Senator Tolentino, appearing as amicus curiae, that the political leaders of stature, in their individual capacity, could continue to assert their influence. It could very well happen, then, in not a few cases, assuming the strength of political parties, that a candidate thus favored is sure of emerging the victor. What is thus sought to be accomplished to guard against the evil of party spirit prevailing could very well be doomed to futility. The high hopes entertained by the articulate and vocal groups of young people, intellectuals and workers, may not be realized. The result would be that this unorthodox and novel provision could assume the character of a tease, an illusion like a munificent bequest in a pauper's will. If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a radical approach to a problem possibly tainted with constitutional infirmity cannot hurdle the judicial test as to its validity. It is one thing to encourage a fresh and untried solution to a problem of gravity when the probability of its success may be assumed. It is an entirely different matter to cut down the exercise of what otherwise are undeniable constitutional rights, when as in this case, the outcome might belie expectations. Considering the well-settled principle that even though the governmental process be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties, if the end can be narrowly achieved, I am far from being persuaded that to preclude political parties or other groups or associations from lending aid and support to the candidates of men in whom they can repose their trust is consistent with the constitutional rights of freedom of association and freedom of expression. Here, the danger of overbreadth, so clear and manifest as to be offensive to constitutional standards, magnified by the probability that the result would be the failure and not success of the statutory scheme, cautions against the affixing of the imprimatur of judicial approval to the challenged provision. 5. Necessarily then, from this mode of viewing the matter, it would follow that the holding of this Court in Gonzales v. Comelec 12 does not compel the conclusion reached by the majority sustaining the validity of this challenged provision. What survived the test of constitutional validity in that case, with the Court unanimous in its opinion, is the prohibition for any political party, political committee or political group to nominate candidates for any elective public office voted for at large earlier than 150 days immediately preceding election and for any other public office earlier than 90 days immediately preceding such election. 13 A corollary to the above limitation, the provision making it unlawful for any person, whether or not a voter or candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the above periods successfully hurdled, the constitutional test, although the restrictions as to the making of speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for public office or the publishing or distributing of campaign literature or materials or the solicitation or undertaking any campaign or propaganda for or against any candidate or party, directly or indirectly, survived by the narrow margin of one vote, four members of this Court unable to discern any constitutional infirmity as against the free speech guarantee, thus resulting in failing to muster the necessary two-thirds majority for a declaration of invalidity. Insofar as election campaign or partisan political activity would limit or restrict the formation, of organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda for or against a party or candidate or, the giving, soliciting, or receiving a contribution for election campaign purposes, either directly or indirectly as well as the holding of political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies, with a similar and in view, only five members of this Court, a minority thereof voted, for their unconstitutionality. What emerges clearly, then, is that definite acts short of preventing the political parties from the choice of their candidates and thereafter working for them in effect were considered by this Court as not violative of the constitutional freedoms of speech, of press, of assembly and of association. The challenged provision in these two petitions, however, goes much farther. Political parties or any other organization or organized group are precluded from selecting and supporting candidates for delegates to the Constitutional Convention. To my mind, this is to enter a forbidden domain, Congress trespassing on a field hitherto rightfully assumed to be within the sphere of liberty. Thus, I am unable to conclude that our previous decision in Gonzales v. Commission on Elections which already was indicative of the cautious and hesitant judicial approach to lending its approval to what otherwise are invasions of vital constitutional safeguards to freedoms of belief, of expression, and of association lends support to the decision reached by the majority insofar as this challenged provision is concerned. Hence my inability to subscribe in its entirety to the opinion of the Court. I am authorized to state that the Chief Justice is in agreement with the views herein expressed. Concepcion, C.J., Villamor and Zaldivar, JJ., concur. BARREDO, J., concurring and dissenting:

Without prejudice to a more extended opinion, I vote, in concurrence with the majority, to sustain the validity of the provisions of Republic Act 6132 impugned by petitioners in these cases, except Section 4 and the portion of Section 8(a) referring to political parties. As regards Section 4, I reiterate my separate opinion in the cases of Subido and others. (G.R. Nos. L-32436 and L-32439) With respect to Section 8(a), I hold that the considerations which take the restraint on the freedoms of association, assembly and speech involved in the ban on political parties to nominate and support their own candidates, reasonable and within the limits of the Constitution do not obtain when it comes to civic or non-political organizations. As I see it, the said ban, insofar as civic or non-political organizations are concerned, is a deceptive device to preserve the built-in advantages of political parties while at the same time crippling completely the other kinds of associations. The only way to accomplish the purported objective of the law of equalizing the forces that will campaign in behalf of the candidates to the constitutional convention is to maintain said ban only as against political parties, for after all, only the activities and manners of operation of these parties and/or some of their members have made necessary the imposition thereof. Under the resulting set up embodied in the provision in question, the individual candidates who have never had any political party connections or very little of it would be at an obvious disadvantage unless they are allowed to seek and use the aid of civic organizations. Neither the elaborate provisions of Republic Act 6132 regarding methods of campaign nor its other provisions intended to minimize the participation of political parties in the electorate processes of voting, counting of the votes and canvassing of the results can overcome the advantages of candidates more or less connected with political parties, particularly the major and established ones, as long as the right to form other associations and the right of these associations to campaign for their candidates are denied considering particularly the shortness of the time that is left between now and election day. The issues involved in the coming elections are grave and fundamental ones that are bound to affect the lives, rights and liberties of all the people of this country most effectively, pervasively and permanently. The only insurance of the people against political parties which may be inclined towards the Establishment and the status quo is to organize themselves to gain much needed strength and effectivity. To deny them this right is to stifle the people's only opportunity for change. It is axiomatic that issues, no matter how valid, if not related to particular candidates in an organized way, similarly as in the use of platforms by political parties, cannot have any chance of support and final adoption. Both men and issues are important, but unrelated to each other, each of them alone is insignificant, and the only way to relate them is by organization. Precisely because the issues in this election of candidates are of paramount importance second to none, it is imperative that all of the freedoms enshrined in the constitution should have the ampliest recognition for those who are minded to actively battle for them and any attempt to curtail them would endanger the very purposes for which a new constitutional convention has been conceived. Consistently with my separate opinion in the case of Gonzales and Cabigao vs. Comelec, G.R. No. L-27833, April 18, 1969 and for the reasons therein stated, I maintain that the right of suffrage which is the cornerstone of any democracy like ours is meaningless when the right to campaign in any election therein is unreasonably and unnecessarily curtailed, restrained or hampered, as is being done under the statute in dispute. It is, of course, understood that this opinion is based on my considered view, contrary to that of the majority, that as Section 8(a) stands and taking into account its genesis, the ban against political parties is separable from that against other associations within the contemplation of Section 21 of the Act which expressly refers to the separability of the application thereof to any "persons, groups or circumstances." I reserve my right to expand this explanation of my vote in the next few days. R.A. 6735 Republic of the Philippines Congress of the Philippines Metro Manila Eighth Congress

Republic Act No. 6735

August 4, 1989

AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM AND APPROPRIATING FUNDS THEREFOR Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: I. General Provisions Section 1. Title. This Act shall be known as "The Initiative and Referendum Act." Section 2. Statement of Policy. The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. Section 3. Definition of Terms. For purposes of this Act, the following terms shall mean: (a) "Initiative" is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose.

There are three (3) systems of initiative, namely: a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution; a.2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and a.3. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance. (b) "Indirect initiative" is exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action. (c) "Referendum" is the power of the electorate to approve or reject a legislation through an election called for the purpose. It may be of two classes, namely: c.1. Referendum on statutes which refers to a petition to approve or reject an act or law, or part thereof, passed by Congress; and c.2. Referendum on local law which refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies. (d) "Proposition" is the measure proposed by the voters. (e) "Plebiscite" is the electoral process by which an initiative on the Constitution is approved or rejected by the people. (f) "Petition" is the written instrument containing the proposition and the required number of signatories. It shall be in a form to be determined by and submitted to the Commission on Elections, hereinafter referred to as the Commission. (g) "Local government units" refers to provinces, cities, municipalities and barangays. (h) "Local legislative bodies" refers to the Sangguniang Panlalawigan, Sangguniang Panlungsod, Sangguniang Bayan, and Sangguniang Nayon. (i) "Local executives" refers to the Provincial Governors, City or Municipal Mayors and Punong Barangay, as the case may be. Section 4. Who may exercise. The power of initiative and referendum may be exercised by all registered voters of the country, autonomous regions, provinces, cities, municipalities and barangays. Section 5. Requirements. (a) To exercise the power of initiative or referendum, at least ten per centum (10%) of the total number of the registered voters, of which every legislative district is represented by at least three per centum (3%) of the registered voters thereof, shall sign a petition for the purpose and register the same with the Commission. (b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. (c) The petition shall state the following: c.1. contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; c.2. the proposition; c.3. the reason or reasons therefor; c.4. that it is not one of the exceptions provided herein; c.5. signatures of the petitioners or registered voters; and c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. (d) A referendum or initiative affecting a law, resolution or ordinance passed by the legislative assembly of an autonomous region, province or city is deemed validly initiated if the petition thereof is signed by at least ten per centum (10%) of the registered voters in the province or city, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein; Provided, however, That if the province or city is composed only of one (1) legislative district, then at least each municipality in a province or each barangay in a city should be represented by at least three per centum (3%) of the registered voters therein.

(e) A referendum of initiative on an ordinance passed in a municipality shall be deemed validly initiated if the petition therefor is signed by at least ten per centum (10%) of the registered voters in the municipality, of which every barangay is represented by at least three per centum (3%) of the registered voters therein. (f) A referendum or initiative on a barangay resolution or ordinance is deemed validly initiated if signed by at least ten per centum (10%) of the registered voters in said barangay. Section 6. Special Registration. The Commission on Election shall set a special registration day at least three (3) weeks before a scheduled initiative or referendum. Section 7. Verification of Signatures. The Election Registrar shall verify the signatures on the basis of the registry list of voters, voters' affidavits and voters identification cards used in the immediately preceding election. II. National Initiative and Referendum SECTION 8. Conduct and Date of Initiative or Referendum. The Commission shall call and supervise the conduct of initiative or referendum. Within a period of thirty (30) days from receipt of the petition, the Commission shall, upon determining the sufficiency of the petition, publish the same in Filipino and English at least twice in newspapers of general and local circulation and set the date of the initiative or referendum which shall not be earlier than forty-five (45) days but not later than ninety (90) days from the determination by the Commission of the sufficiency of the petition. Section 9. Effectivity of Initiative or Referendum Proposition. (a) The Proposition of the enactment, approval, amendment or rejection of a national law shall be submitted to and approved by a majority of the votes cast by all the registered voters of the Philippines. If, as certified to by the Commission, the proposition is approved by a majority of the votes cast, the national law proposed for enactment, approval, or amendment shall become effective fifteen (15) days following completion of its publication in the Official Gazette or in a newspaper of general circulation in the Philippines. If, as certified by the Commission, the proposition to reject a national law is approved by a majority of the votes cast, the said national law shall be deemed repealed and the repeal shall become effective fifteen (15) days following the completion of publication of the proposition and the certification by the Commission in the Official Gazette or in a newspaper of general circulation in the Philippines. However, if the majority vote is not obtained, the national law sought to be rejected or amended shall remain in full force and effect. (b) The proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. (c) A national or local initiative proposition approved by majority of the votes cast in an election called for the purpose shall become effective fifteen (15) days after certification and proclamation by the Commission. Section 10. Prohibited Measures. The following cannot be the subject of an initiative or referendum petition: (a) No petition embracing more than one (1) subject shall be submitted to the electorate; and (b) Statutes involving emergency measures, the enactment of which are specifically vested in Congress by the Constitution, cannot be subject to referendum until ninety (90) days after its effectivity. Section 11. Indirect Initiative. Any duly accredited people's organization, as defined by law, may file a petition for indirect initiative with the House of Representatives, and other legislative bodies. The petition shall contain a summary of the chief purposes and contents of the bill that the organization proposes to be enacted into law by the legislature. The procedure to be followed on the initiative bill shall be the same as the enactment of any legislative measure before the House of Representatives except that the said initiative bill shall have precedence over the pending legislative measures on the committee. Section 12. Appeal. The decision of the Commission on the findings of the sufficiency or insufficiency of the petition for initiative or referendum may be appealed to the Supreme Court within thirty (30) days from notice thereof. III. Local Initiative and Referendum SECTION 13. Procedure in Local Initiative. (a) Not less than two thousand (2,000) registered voters in case of autonomous regions, one thousand (1,000) in case of provinces and cities, one hundred (100) in case of municipalities, and fifty (50) in case of barangays, may file a petition with the Regional Assembly or local legislative body, respectively, proposing the adoption, enactment, repeal, or amendment, of any law, ordinance or resolution. (b) If no favorable action thereon is made by local legislative body within (30) days from its presentation, the proponents through their duly authorized and registered representative may invoke their power of initiative, giving notice thereof to the local legislative body concerned. (c) The proposition shall be numbered serially starting from one (1). The Secretary of Local Government or his designated representative shall extend assistance in the formulation of the proposition.

(d) Two or more propositions may be submitted in an initiative. (e) Proponents shall have one hundred twenty (120) days in case of autonomous regions, ninety (90) days in case of provinces and cities, sixty (60) days in case of municipalities, and thirty (30) days in case of barangays, from notice mentioned in subsection (b) hereof to collect the required number of signatures. (f) The petition shall be signed before the Election Registrar, or his designated representative, in the presence of a representative of the proponent, and a representative of the regional assemblies and local legislative bodies concerned in a public place in the autonomous region or local government unit, as the case may be. Signature stations may be established in as many places as may be warranted. (g) Upon the lapse of the period herein provided, the Commission on Elections, through its office in the local government unit concerned shall certify as to whether or not the required number of signatures has been obtained. Failure to obtain the required number is a defeat of the proposition. (h) If the required number of the signatures is obtained, the Commission shall then set a date for the initiative at which the proposition shall be submitted to the registered voters in the local government unit concerned for their approval within ninety (90) days from the date of certification by the Commission, as provided in subsection (g) hereof, in case of autonomous regions, sixty (60) days in case of the provinces and cities, forty-five (45) days in case of municipalities, and thirty (30) days in case of barangays. The initiative shall then be held on the date set, after which the results thereof shall be certified and proclaimed by the Commission on Elections. Section 14. Effectivity of Local Propositions. If the proposition is approved by a majority of the votes cast, it shall take effect fifteen (15) days after certification by the Commission as if affirmative action thereon had been made by the local legislative body and local executive concerned. If it fails to obtain said number of votes, the proposition is considered defeated. Section 15. Limitations on Local Initiatives. (a) The power of local initiative shall not be exercised more than once a year. (b) Initiative shall extend only to subjects or matters which are within the legal powers of the local legislative bodies to enact. (c) If at any time before the initiative is held, the local legislative body shall adopt in toto the proposition presented, the initiative shall be cancelled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided. Section 16. Limitations Upon Local Legislative Bodies. Any proposition or ordinance or resolution approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended, by the local legislative body concerned within six (6) months from the date therefrom, and may be amended, modified or repealed by the local legislative body within three (3) years thereafter by a vote of three-fourths (3/4) of all its members: Provided, however, that in case of barangays, the period shall be one (1) year after the expiration of the first six (6) months. Section 17. Local Referendum. Notwithstanding the provisions of Section 4 hereof, any local legislative body may submit to the registered voters of autonomous region, provinces, cities, municipalities and barangays for the approval or rejection, any ordinance or resolution duly enacted or approved. Said referendum shall be held under the control and direction of the Commission within sixty (60) days in case of provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days in case of barangays. The Commission shall certify and proclaim the results of the said referendum. Section 18. Authority of Courts. Nothing in this Act shall prevent or preclude the proper courts from declaring null and void any proposition approved pursuant to this Act for violation of the Constitution or want of capacity of the local legislative body to enact the said measure. IV. Final Provisions SECTION 19. Applicability of the Omnibus Election Code. The Omnibus Election Code and other election laws, not inconsistent with the provisions of this Act, shall apply to all initiatives and referenda. Section 20. Rules and Regulations. The Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act. Section 21. Appropriations. The amount necessary to defray the cost of the initial implementation of this Act shall be charged against the Contingent Fund in the General Appropriations Act of the current year. Thereafter, such sums as may be necessary for the full implementation of this Act shall be included in the annual General Appropriations Act. Section 22. Separability Clause. If any part or provision of this Act is held invalid or unconstitutional, the other parts or provisions thereof shall remain valid and effective. Section 23. Effectivity. This Act shall take effect fifteen (15) days after its publication in a newspaper of general circulation. Approved: August 4, 1989

Defensor Santiago vs. COMELEC, GR No. 127325, March 19, 1997

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 127325 March 19, 1997 MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioners, vs. COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their capacities as founding members of the People's Initiative for Reforms, Modernization and Action (PIRMA), respondents. SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.

DAVIDE, JR., J.: The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of Court is the right of the people to directly propose amendments to the Constitution through the system of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention, as this system of initiative was unknown to the people of this country, except perhaps to a few scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself, through the original proponent 1 and the main sponsor 2 of the proposed Article on Amendments or Revision of the Constitution, characterized this system as "innovative". 3 Indeed it is, for both under the 1935 and 1973 Constitutions, only two methods of proposing amendments to, or revision of, the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a constitutional convention. 4 For this and the other reasons hereafter discussed, we resolved to give due course to this petition. On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the COMELEC for an order 1. Fixing the time and dates for signature gathering all over the country; 2. Causing the necessary publications of said Order and the attached "Petition for Initiative on the 1987 Constitution, in newspapers of general and local circulation; 3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners and volunteers, in establishing signing stations at the time and on the dates designated for the purpose. Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative, 6 a group of citizens desirous to avail of the system intended to institutionalize people power; that he and the members of the Movement and other volunteers intend to exercise the power to directly propose amendments to the Constitution granted under Section 2, Article XVII of the Constitution; that the exercise of that power shall be conducted in proceedings under the control and supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be established all over the country, with the assistance of municipal election registrars, who shall verify the signatures affixed by individual signatories; that before the Movement and other volunteers can gather signatures, it is necessary that the time and dates to be designated for the purpose be first fixed in an order to be issued by the COMELEC; and that to adequately inform the people of the electoral process involved, it is likewise necessary that the said order, as well as the Petition on which the signatures shall be affixed, be published in newspapers of general and local circulation, under the control and supervision of the COMELEC. The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article VI, 7Section 4 of Article VII, 8 and Section 8 of Article 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 amendments which consist in the deletion from the aforecited sections of the provisions concerning term limits, and with the following proposition: DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION? According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is signed by at least twelve per cent of the total number of registered voters in the country it will be formally filed with the COMELEC.

Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin "to cause the publication of the petition, together with the attached Petition for Initiative on the 1987 Constitution (including the proposal, proposed constitutional amendment, and the signature form), and the notice of hearing in three (3) daily newspapers of general circulation at his own expense" not later than 9 December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m. At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete Q. Quadra; representatives of the People's Initiative for Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers, and representatives of, or counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory petition properly cognizable by the COMELEC. After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their "memoranda and/or oppositions/memoranda" within five days. 13 On 18 December 1996, the petitioners herein Senator Miriam Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin filed this special civil action for prohibition raising the following arguments: (1) The constitutional provision on people's initiative to amend the Constitution can only be implemented by law to be passed by Congress. No such law has been passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating Constitution Amendments by People's Initiative, which petitioner Senator Santiago filed on 24 November 1995, is still pending before the Senate Committee on Constitutional Amendments. (2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on the Constitution, on statutes, and on local legislation. However, it failed to provide any subtitle on initiative on the Constitution, unlike in the other modes of initiative, which are specifically provided for in Subtitle II and Subtitle III. This deliberate omission indicates that the matter of people's initiative to amend the Constitution was left to some future law. Former Senator Arturo Tolentino stressed this deficiency in the law in his privilege speech delivered before the Senate in 1994: "There is not a single word in that law which can be considered as implementing [the provision on constitutional initiative]. Such implementing provisions have been obviously left to a separate law. (3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media. This indicates that the Act covers only laws and not constitutional amendments because the latter take effect only upon ratification and not after publication. (4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct of initiative on the Constitution and initiative and referendum on national and local laws, is ultra vires insofar asinitiative on amendments to the Constitution is concerned, since the COMELEC has no power to provide rules and regulations for the exercise of the right of initiative to amend the Constitution. Only Congress is authorized by the Constitution to pass the implementing law. (5) The people's initiative is limited to amendments to the Constitution, not to revision thereof. Extending or lifting of term limits constitutes a revision and is, therefore, outside the power of the people's initiative. (6) Finally, Congress has not yet appropriated funds for people's initiative; neither the COMELEC nor any other government department, agency, or office has realigned funds for the purpose. To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the event the COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA would entail expenses to the national treasury for general re-registration of voters amounting to at least P180 million, not to mention the millions of additional pesos in expenses which would be incurred in the conduct of the initiative itself. Hence, the transcendental importance to the public and the nation of the issues raised demands that this petition for prohibition be settled promptly and definitely, brushing aside technicalities of procedure and calling for the admission of a taxpayer's and legislator's suit. 14 Besides, there is no other plain, speedy, and adequate remedy in the ordinary course of law. On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-extendible period of ten days from notice; and (b) issued a temporary restraining order, effective immediately and continuing until further orders, enjoining public respondent COMELEC from proceeding with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from conducting a signature drive for people's initiative to amend the Constitution. On 2 January 1997, private respondents, through Atty Quadra, filed their Comment
15

on the petition. They argue therein that:

1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC. 2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00; 3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY" PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE

HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416; 4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735; 5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS." 6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION); 7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A REEXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.). Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts off with an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on the 1987 Constitution'. . . which is not formally filed yet." What he filed on 6 December 1996 was an "Initiatory Pleading" or "Initiatory Petition," which was legally necessary to start the signature campaign to amend the Constitution or to put the movement to gather signatures under COMELEC power and function. On the substantive allegations of the petitioners, Delfin maintains as follows: (1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the conduct of initiative to amend the Constitution. The absence therein of a subtitle for such initiative is not fatal, since subtitles are not requirements for the validity or sufficiency of laws. (2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to amend the Constitution approved by the majority of the votes cast in the plebiscite shall become effective as of the day of the plebiscite. (3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which empowers the COMELEC to promulgate such rules and regulations as may be necessary to carry out the purposes of the Act. (4) The proposed initiative does not involve a revision of, but mere amendment to, the Constitution because it seeks to alter only a few specific provisions of the Constitution, or more specifically, only those which lay term limits. It does not seek to reexamine or overhaul the entire document. As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180 million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements for initiative will be a priority government expense because it will be for the exercise of the sovereign power of the people. In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of the Solicitor General contends that: (1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees that power; and its Section 3, which enumerates the three systems of initiative, includes initiative on the Constitution and defines the same as the power to propose amendments to the Constitution. Likewise, its Section 5 repeatedly mentionsinitiative on the Constitution. (2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735 because, being national in scope, that system of initiative is deemed included in the subtitle on National Initiative and Referendum; and Senator Tolentino simply overlooked pertinent provisions of the law when he claimed that nothing therein was provided for initiative on the Constitution. (3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not deal with initiative on the Constitution. (4) Extension of term limits of elected officials constitutes a mere amendment to the Constitution, not a revision thereof. (5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and under the Omnibus Election Code. The rule-making power of the COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan Authority vs. COMELEC.

On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private respondents through Atty. Quadra, as well as the latter's Manifestation stating that he is the counsel for private respondents Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed him to file his Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m. On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the motion was their Petition in Intervention, which was later replaced by an Amended Petition in Intervention wherein they contend that: (1) The Delfin proposal does not involve a mere amendment to, but a revision of, the Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve a change from a political philosophy that rejects unlimited tenure to one that accepts unlimited tenure; and although the change might appear to be an isolated one, it can affect other provisions, such as, on synchronization of elections and on the State policy of guaranteeing equal access to opportunities for public service and prohibiting political dynasties. 19 A revisioncannot be done by initiative which, by express provision of Section 2 of Article XVII of the Constitution, is limited to amendments. (2) The prohibition against reelection of the President and the limits provided for all other national and local elective officials are based on the philosophy of governance, "to open up the political arena to as many as there are Filipinos qualified to handle the demands of leadership, to break the concentration of political and economic powers in the hands of a few, and to promote effective proper empowerment for participation in policy and decision-making for the common good"; hence, to remove the term limits is to negate and nullify the noble vision of the 1987 Constitution. (3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-of-interest situation. Initiative is intended as a fallback position that may be availed of by the people only if they are dissatisfied with the performance of their elective officials, but not as a premium for good performance. 20 (4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that implements the people's initiative on amendments to the Constitution. It fails to state (a) the proper parties who may file the petition, (b) the appropriate agency before whom the petition is to be filed, (c) the contents of the petition, (d) the publication of the same, (e) the ways and means of gathering the signatures of the voters nationwide and 3% per legislative district, (f) the proper parties who may oppose or question the veracity of the signatures, (g) the role of the COMELEC in the verification of the signatures and the sufficiency of the petition, (h) the appeal from any decision of the COMELEC, (I) the holding of a plebiscite, and (g) the appropriation of funds for such people's initiative. Accordingly, there being no enabling law, the COMELEC has no jurisdiction to hear Delfin's petition. (5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution No. 2300, since the COMELEC is without authority to legislate the procedure for a people's initiative under Section 2 of Article XVII of the Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a legal basis for the Resolution, as the former does not set a sufficient standard for a valid delegation of power. On 20 January 1997, Senator Raul Roco filed his Petition in Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He likewise submits that the COMELEC was empowered under Section 20 of that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends that the respondent Commission is without jurisdiction to take cognizance of the Delfin Petition and to order its publication because the said petition is not the initiatory pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a petition for initiative which is signed by the required number of registered voters. He also submits that the proponents of a constitutional amendment cannot avail of the authority and resources of the COMELEC to assist them is securing the required number of signatures, as the COMELEC's role in an initiative on the Constitution is limited to the determination of the sufficiency of the initiative petition and the call and supervision of a plebiscite, if warranted. On 20 January 1997, LABAN filed a Motion for Leave to Intervene. The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention raising the following arguments: (1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of the 1987 Constitution. (2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on the initiative to amend the Constitution. (3) The Petition for Initiative suffers from a fatal defect in that it does not have the required number of signatures. (4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by Congress or a constitutional convention. 22 On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco and of the IBP; (c) requiring the respondents to file within a nonextendible period of five days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring LABAN to file its Petition in Intervention within a nonextendible period of three days from notice, and the respondents to comment thereon within a nonextendible period of five days from receipt of the said Petition in Intervention.

At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which the Court formulated in light of the allegations and arguments raised in the pleadings so far filed: 1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor, was intended to include or cover initiative on amendments to the Constitution; and if so, whether the Act, as worded, adequately covers such initiative. 2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on National and Local Laws) regarding the conduct of initiative on amendments to the Constitution is valid, considering the absence in the law of specific provisions on the conduct of such initiative. 3. Whether the lifting of term limits of elective national and local officials, as proposed in the draft "Petition for Initiative on the 1987 Constitution," would constitute a revision of, or an amendment to, the Constitution. 4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely intended to obtain an order (a) fixing the time and dates for signature gathering; (b) instructing municipal election officers to assist Delfin's movement and volunteers in establishing signature stations; and (c) directing or causing the publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987 Constitution. 5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is a pending case before the COMELEC. After hearing them on the issues, we required the parties to submit simultaneously their respective memoranda within twenty days and requested intervenor Senator Roco to submit copies of the deliberations on House Bill No. 21505. On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and arguments in the main Petition. It further submits that the COMELEC should have dismissed the Delfin Petition for failure to state a sufficient cause of action and that the Commission's failure or refusal to do so constituted grave abuse of discretion amounting to lack of jurisdiction. On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the House of Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17. Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in due time, their separate memoranda. 24 As we stated in the beginning, we resolved to give due course to this special civil action. For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears to pose a prejudicial procedural question. I THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE DELFIN PETITION. Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when there is a pending case before the COMELEC. The petitioners provide an affirmative answer. Thus: 28. The Comelec has no jurisdiction to take cognizance of the petition filed by private respondent Delfin. This being so, it becomes imperative to stop the Comelec from proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition for prohibition is the proper remedy. 29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. (People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of the highly divisive and adverse environmental consequences on the body politic of the questioned Comelec order. The consequent climate of legal confusion and political instability begs for judicial statesmanship. 30. In the final analysis, when the system of constitutional law is threatened by the political ambitions of man, only the Supreme Court can save a nation in peril and uphold the paramount majesty of the Constitution. 25 It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the petition. 26 The COMELEC made no ruling thereon evidently because after having heard the arguments of Delfin and the oppositors at the hearing on 12 December 1996, it required them to submit within five days their memoranda or oppositions/memoranda. 27Earlier, or specifically on 6 December 1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause the publication of the petition, together with the attached Petition for Initiative, the signature form, and the notice of hearing; and by setting the case for hearing. The COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on to the petition rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which provides:

Sec. 2. Petition for prohibition. Where the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant to desist from further proceedings in the action or matter specified therein. It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin Petition because the said petition is not supported by the required minimum number of signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition, which does not contain the required number of signatures. In light of these claims, the instant case may likewise be treated as a special civil action for certiorari under Section I of Rule 65 of the Rules of Court. In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside technicalities of procedure in cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28 A party's standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance of issues raised. In the landmark Emergency Powers Cases, this Court brushed aside this technicality because the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. II R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM. Section 2 of Article XVII of the Constitution provides: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986 Constitutional Commission, stated: Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending the Constitution is a mode of amendment which bypasses congressional action, in the last analysis it still is dependent on congressional action. Bluntly stated, the right of the people to directly propose amendments to the Constitution through the system of initiative would remain entombed in the cold niche of the Constitution until Congress provides for its implementation. Stated otherwise, while the Constitution has recognized or granted that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its implementation. This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986 Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That section reads as follows: Sec. 1. Any amendment to, or revision of, this Constitution may be proposed: (a) by the National Assembly upon a vote of three-fourths of all its members; or (b) by a constitutional convention; or (c) directly by the people themselves thru initiative as provided for in Article___ Section ___of the Constitution. 31 After several interpellations, but before the period of amendments, the Committee submitted a new formulation of the concept of initiative which it denominated as Section 2; thus: MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of the Members of the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. 32

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the legislature. Thus: FR. BERNAS. Madam President, just two simple, clarificatory questions. First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no details in the provision on how to carry this out. Do we understand, therefore, that we are leaving this matter to the legislature? MR. SUAREZ. That is right, Madam President. FR. BERNAS. And do we also understand, therefore, that for as long as the legislature does not pass the necessary implementing law on this, this will not operate? MR. SUAREZ. That matter was also taken up during the committee hearing, especially with respect to the budget appropriations which would have to be legislated so that the plebiscite could be called. We deemed it best that this matter be left to the legislature. The Gentleman is right. In any event, as envisioned, no amendment through the power of initiative can be called until after five years from the date of the ratification of this Constitution. Therefore, the first amendment that could be proposed through the exercise of this initiative power would be after five years. It is reasonably expected that within that five-year period, the National Assembly can come up with the appropriate rules governing the exercise of this power. FR. BERNAS. Since the matter is left to the legislature the details on how this is to be carried out is it possible that, in effect, what will be presented to the people for ratification is the work of the legislature rather than of the people? Does this provision exclude that possibility? MR. SUAREZ. No, it does not exclude that possibility because even the legislature itself as a body could propose that amendment, maybe individually or collectively, if it fails to muster the three-fourths vote in order to constitute itself as a constituent assembly and submit that proposal to the people for ratification through the process of an initiative. xxx xxx xxx MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to vest constituent power in the people to amend the Constitution? MR. SUAREZ. That is absolutely correct, Madam President. MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of institutionalizing popular participation in the drafting of the Constitution or in the amendment thereof, but I would have a lot of difficulties in terms of accepting the draft of Section 2, as written. Would the sponsor agree with me that in the hierarchy of legal mandate, constituent power has primacy over all other legal mandates? MR. SUAREZ. The Commissioner is right, Madam President. MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal values, the Constitution is source of all legal mandates and that therefore we require a great deal of circumspection in the drafting and in the amendments of the Constitution? MR. SUAREZ. That proposition is nondebatable. MS. AQUINO. Such that in order to underscore the primacy of constituent power we have a separate article in the constitution that would specifically cover the process and the modes of amending the Constitution? MR. SUAREZ. That is right, Madam President. MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again concede to the legislature the process or the requirement of determining the mechanics of amending the Constitution by people's initiative? MR. SUAREZ. The matter of implementing this could very well be placed in the hands of the National Assembly, not unless we can incorporate into this provision the mechanics that would adequately cover all the conceivable situations. 33 It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to AMEND not to REVISE the Constitution; thus:

MR. SUAREZ. . . . This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. 34 xxx xxx xxx MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision? MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the Committee. MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas the process of initiation to amend, which is given to the public, would only apply to amendments? MR. SUAREZ. That is right. Those were the terms envisioned in the Committee.
35

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus: MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with the following: MR. DAVIDE. Madam President, I have modified the proposed amendment after taking into account the modifications submitted by the sponsor himself and the honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and Romulo. The modified amendment in substitution of the proposed Section 2 will now read as follows: "SECTION 2. AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER Of REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER. THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of the sense contained in Section 2 of our completed Committee Report No. 7, we accept the proposed amendment. 36 The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it was a legislative act which must implement the exercise of the right. Thus: MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to set forth certain procedures to carry out the initiative. . .? MR. DAVIDE. It can. xxx xxx xxx MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking another body to set the proposition in proper form. MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement. MR. ROMULO. But the procedures, including the determination of the proper form for submission to the people, may be subject to legislation. MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here. MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated?

MR. DAVIDE. Yes. 37 Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to AMENDMENTS to NOT REVISION of the Constitution. Thus: MR. DAVIDE. With pleasure, Madam President. MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendment." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"? MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." 38 Commissioner Davide further emphasized that the process of proposing amendments through initiative must be more rigorous and difficult than the initiative on legislation. Thus: MR. DAVIDE. A distinction has to be made that under this proposal, what is involved is an amendment to the Constitution. To amend a Constitution would ordinarily require a proposal by the National Assembly by a vote of three-fourths; and to call a constitutional convention would require a higher number. Moreover, just to submit the issue of calling a constitutional convention, a majority of the National Assembly is required, the import being that the process of amendment must be made more rigorous and difficult than probably initiating an ordinary legislation or putting an end to a law proposed by the National Assembly by way of a referendum. I cannot agree to reducing the requirement approved by the Committee on the Legislative because it would require another voting by the Committee, and the voting as precisely based on a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an amendment, when the Commission shall take up the Article on the Legislative or on the National Assembly on plenary sessions. 39 The Davide modified amendments to Section 2 were subjected to amendments, and the final version, which the Commission approved by a vote of 31 in favor and 3 against, reads as follows: MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER. THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40 The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July 1986. 41 Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the Article was again approved on Second and Third Readings on 1 August 1986. 42 However, the Committee on Style recommended that the approved Section 2 be amended by changing "percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the second paragraph so that said paragraph reads: The Congress 43 shall provide for the implementation of the exercise of this right. 44 This amendment was approved and is the text of the present second paragraph of Section 2. The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section 2 of Article XVII of the Constitution is not selfexecutory. Has Congress "provided" for the implementation of the exercise of this right? Those who answer the question in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No. 6735. There is, of course, no other better way for Congress to implement the exercise of the right than through the passage of a statute or legislative act. This is the essence or rationale of the last minute amendment by the Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII then reading: The Congress 45 shall by law provide for the implementation of the exercise of this right. with The Congress shall provide for the implementation of the exercise of this right. This substitute amendment was an investiture on Congress of a power to provide for the rules implementing the exercise of the right. The "rules" means "the details on how [the right] is to be carried out." 46

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House of Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt with the initiative and referendum mentioned in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with the subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of Article X (Local Government) and initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum concerning ordinances or resolutions of local government units. The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate 50 and by the House of Representatives. 51 This approved bill is now R.A. No. 6735. But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the implementation of the exercise of the right?" A careful scrutiny of the Act yields a negative answer. First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an initiative on amendments to the Constitution. The said section reads: Sec. 2. Statement and Policy. The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (Emphasis supplied). The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither germane nor relevant to said section, which exclusively relates to initiative and referendum on national laws and local laws, ordinances, and resolutions. That section is silent as to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined only to proposals to AMEND. The people are not accorded the power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution" through the system of initiative. They can only do so with respect to "laws, ordinances, or resolutions." The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in part." 52 Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution and mentions it as one of the three systems of initiative, and that Section 5 (Requirements) restates the constitutional requirements as to the percentage of the registered voters who must submit the proposal. But unlike in the case of the other systems of initiative, the Act does not provide for the contents of a petition forinitiative on the Constitution. Section 5, paragraph (c) requires, among other things, statement of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be. It does not include, as among the contents of the petition, the provisions of the Constitution sought to be amended, in the case of initiative on the Constitution. Said paragraph (c) reads in full as follows: (c) The petition shall state the following: c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; c.2 the proposition; c.3 the reason or reasons therefor; c.4 that it is not one of the exceptions provided therein; c.5 signatures of the petitioners or registered voters; and c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. (Emphasis supplied). The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on amendments to the Constitution. Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and local laws. We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the subtitle on National Initiative and Referendum because it is national in scope. Our reading of Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the classification is not based on the scope of the initiative involved, but on its nature and character. It is "national initiative," if what is proposed to be adopted or enacted is a national law, or a law which only Congress can pass. It is "local initiative" if what is proposed to be adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass. This classification of initiative into national and local is actually based on Section 3 of the Act, which we quote for emphasis and clearer understanding:

Sec. 3. Definition of terms xxx xxx xxx There are three (3) systems of initiative, namely: a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution; a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied). Hence, to complete the classification under subtitles there should have been a subtitle on initiative on amendments to the Constitution.
53

A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads: (b) The proposition in an initiative on the Constitution approved by the majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. (c) A national or local initiative proposition approved by majority of the votes cast in an election called for the purpose shall become effective fifteen (15) days after certification and proclamation of the Commission. (Emphasis supplied). (2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of local governments; thus: Sec. 11. Indirect Initiative. Any duly accredited people's organization, as defined by law, may file a petition for indirect initiative with the House of Representatives, and other legislative bodies. . . . and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of sufficiency or insufficiency of the petition for initiative or referendum, which could be petitions for both national and localinitiative and referendum. Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and Referendum is misplaced, applies to both national and local initiative and referendum. It reads:
54

since the provision therein

Sec. 18. Authority of Courts. Nothing in this Act shall prevent or preclude the proper courts from declaring null and void any proposition approved pursuant to this Act for violation of the Constitution or want of capacity of the local legislative body to enact the said measure. Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the implementation of initiative and referendum on national and local legislation thereby giving them special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the Constitution. Anent the initiative on national legislation, the Act provides for the following: (a) The required percentage of registered voters to sign the petition and the contents of the petition; (b) The conduct and date of the initiative; (c) The submission to the electorate of the proposition and the required number of votes for its approval; (d) The certification by the COMELEC of the approval of the proposition; (e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation in the Philippines; and (f) The effects of the approval or rejection of the proposition. As regards local initiative, the Act provides for the following: (a) The preliminary requirement as to the number of signatures of registered voters for the petition; (b) The submission of the petition to the local legislative body concerned; (c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the power of initiative as a consequence thereof; (d) The formulation of the proposition;
55

(e) The period within which to gather the signatures; (f) The persons before whom the petition shall be signed; (g) The issuance of a certification by the COMELEC through its official in the local government unit concerned as to whether the required number of signatures have been obtained; (h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for their approval, which must be within the period specified therein; (i) The issuance of a certification of the result; (j) The date of effectivity of the approved proposition; (k) The limitations on local initiative; and (l) The limitations upon local legislative bodies.
56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution may be approved or rejected by the people; (d) reiterates the constitutional requirements as to the number of voters who should sign the petition; and (e) provides for the date of effectivity of the approved proposition. There was, therefore, an obvious downgrading of the more important or the paramount system of initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to the Constitution by merely paying it a reluctant lip service. 57 The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by "empowering" the COMELEC "to promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act. 58 The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non delegari potest. 59 The recognized exceptions to the rule are as follows: (1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution; (2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution; (3) Delegation to the people at large; (4) Delegation to local governments; and (5) Delegation to administrative bodies. 60 Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a form of delegation of legislative authority under no. 5 above. However, in every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently determinate and determinable to which the delegate must conform in the performance of his functions. 61 A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. 62 Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalid. III COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID. It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise of the right of the people to directly propose amendments to the Constitution through the system of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate legislation is authorized and which satisfies the "completeness" and the "sufficient standard" tests. IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN PETITION. Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to implement the right to initiate constitutional amendments, or that it has validly vested upon the COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition. Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative on the Constitution must be signed by at least 12% of the total number of registered voters of which every legislative district is represented by at least 3% of the registered voters therein. The Delfin Petition does not contain signatures of the required number of voters. Delfin himself admits that he has not yet gathered signatures and that the purpose of his petition is primarily to obtain assistance in his drive to gather signatures. Without the required signatures, the petition cannot be deemed validly initiated. The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the form of the petition; 63 (2) to issue through its Election Records and Statistics Office a certificate on the total number of registered voters in each legislative district; 64 (3) to assist, through its election registrars, in the establishment of signature stations;65 and (4) to verify, through its election registrars, the signatures on the basis of the registry list of voters, voters' affidavits, and voters' identification cards used in the immediately preceding election. 66 Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent Commission must have known that the petition does not fall under any of the actions or proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not assign to the petition a docket number. Hence, the said petition was merely entered as UND, meaning, undocketed. That petition was nothing more than a mere scrap of paper, which should not have been dignified by the Order of 6 December 1996, the hearing on 12 December 1996, and the order directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of discretion and merely wasted its time, energy, and resources. The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of elective national and local officials is an amendment to, and not a revision of, the Constitution is rendered unnecessary, if not academic. CONCLUSION This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system. WHEREFORE, judgment is hereby rendered a) GRANTING the instant petition; b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation; c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037). The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections, but is LIFTED as against private respondents. Resolution on the matter of contempt is hereby reserved. SO ORDERED. Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ., concur. Padilla, J., took no part.

Separate Opinions

PUNO, J., concurring and dissenting: I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the people's initiative to amend the Constitution. I likewise submit that the petition with respect to the Pedrosas has no leg to stand on and should be dismissed. With due respect: I First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735 should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for the intent of the legislature is the law and the controlling factor in its interpretation. 1 Stated otherwise, intent is the essence of the law, the spirit which gives life to its enactment. 2 Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the history of the law which was a consolidation of House Bill No. 21505 3 and Senate Bill No. 17. 4 Senate Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose amendments to the Constitution. In checkered contrast, House Bill No. 21505 5expressly included people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks: 6 xxx xxx xxx SPONSORSHIP REMARKS OF MR. ROCO At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the proposed measure. 1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935 Constitution saw the application of the principle of separation of powers. 2. While under the parliamentary system of the 1973 Constitution the principle remained applicable, the 1981 amendments to the Constitution of 1973 ensured presidential dominance over the Batasang Pambansa. Constitutional history then saw the shifting and sharing of legislative powers between the Legislature and the Executive departments. Transcending changes in the exercise of legislative power is the declaration in the Philippine Constitution that the Philippines is a republican state where sovereignty resides in the people and all sovereignty emanates from them. 3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution recognizes the power of the people, through the system of initiative and referendum. As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers since reserve powers are given to the people expressly. Section 32 of the same Article mandates Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its legislative powers with the people. Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the power to directly propose amendments to the Constitution through initiative, upon petition of at least 12 percent of the total number of registered voters. Stating that House Bill No. 21505 is the Committee's response to the duty imposed on Congress to implement the exercise by the people of the right to initiative and referendum, Mr. Roco recalled the beginnings of the system of initiative and referendum under Philippine Law. He cited Section 99 of the Local Government Code which vests in the barangay assembly the power to initiate legislative processes, decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all of which are variations of the power of initiative and referendum. He added that the holding of barangay plebiscites and referendum are likewise provided in Sections 100 and 101 of the same Code. Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the subject which he will later submit to the Secretary of the House be incorporated as part of his sponsorship speech. He then cited examples of initiative and referendum similar to those contained in the instant Bill among which are the constitutions of states in the United States which recognize the right of registered voters to initiate the enactment of any statute or to project any existing law or parts thereof in a referendum. These states, he said, are Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and practically all other states.

Mr. Roco explained that in certain American states, the kind of laws to which initiative and referendum apply is also without limitation, except for emergency measures, which are likewise incorporated in House Bill No. 21505. He added that the procedure provided by the Bill from the filing of the petition, the requirements of a certain percentage of supporters to present a proposition, to the submission to electors are substantially similar to the provisions in American laws. Although an infant in Philippine political structure, the system of initiative and referendum, he said, is a tried and tested system in other jurisdictions, and the Bill is patterned after American experience. He further explained that the bill has only 12 sections, and recalled that the Constitutional Commissioners saw the system of the initiative and referendum as an instrument which can be used should the legislature show itself to be indifferent to the needs of the people. This is the reason, he claimed, why now is an opportune time to pass the Bill even as he noted the felt necessity of the times to pass laws which are necessary to safeguard individual rights and liberties. At this juncture Mr. Roco explained the process of initiative and referendum as advocated in House Bill No. 21505. He stated that: 1. Initiative means that the people, on their own political judgment, submit a Bill for the consideration of the general electorate. 2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the Constitution once every five years; the initiative to amend statutes approved by Congress; and the initiative to amend local ordinances. 3. The instant Bill gives a definite procedure and allows the Commission on Elections (COMELEC) to define rules and regulations on the power of initiative. 4. Referendum means that the legislators seek the consent of the people on measures that they have approved. 5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of plebiscite by presenting a petition therefor, but under certain limitations, such as the signing of said petition by at least 10 percent of the total of registered voters at which every legislative district is represented by at least three percent of the registered voters thereof. Within 30 days after receipt of the petition, the COMELEC shall determine the sufficiency of the petition, publish the same, and set the date of the referendum within 45 to 90day period. 6. When the matter under referendum or initiative is approved by the required number of votes, it shall become effective 15 days following the completion of its publication in the Official Gazette. In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the people's call for initiative and referendum and urged the Body to approve House Bill No. 21505. At this juncture, Mr. Roco also requested that the prepared text of his speech together with the footnotes be reproduced as part of the Congressional Records. The same sentiment as to the bill's intent to implement people's initiative to amend the Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his sponsorship remarks, viz: 7 xxx xxx xxx SPONSORSHIP REMARKS OF MR. ESCUDERO Mr. Escudero first pointed out that the people have been clamoring for a truly popular democracy ever since, especially in the socalled parliament of the streets. A substantial segment of the population feels, he said, that the form of democracy is there, but not the reality or substance of it because of the increasingly elitist approach of their representatives to the country's problem. Whereupon, Mr. Escudero pointed out that the Constitution has provided a means whereby the people can exercise the reserved power of initiative to propose amendments to the Constitution, and requested that Sections 1 and 32, Article VI; Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of his sponsorship remarks. Mr. Escudero also stressed that an implementing law is needed for the aforecited Constitutional provisions. While the enactment of the Bill will give way to strong competition among cause-oriented and sectoral groups, he continued, it will hasten the politization of the citizenry, aid the government in forming an enlightened public opinion, and produce more responsive legislation. The passage of the Bill will also give street parliamentarians the opportunity to articulate their ideas in a democratic forum, he added. Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that it can be initially used for the Agrarian Reform Law. He said that the passage of House Bill No. 21505 will show that the Members can set aside their personal and political consideration for the greater good of the people. The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a Bicameral Conference Committee. 8 In the meeting of the Committee on June 6, 1989, 9 the members agreed that the two (2) bills should be consolidated and that the consolidated version should include people's initiative to amend the Constitution as contemplated by House Bill No. 21505. The transcript of the meeting states:

xxx xxx xxx CHAIRMAN GONZALES. But at any rate, as I have said, because this is new in our political system, the Senate decided on a more cautious approach and limiting it only to the local government units because even with that stage where . . . at least this has been quite popular, ano? It has been attempted on a national basis. Alright. There has not been a single attempt. Now, so, kami limitado doon. And, second, we consider also that it is only fair that the local legislative body should be given a chance to adopt the legislation bill proposed, right? Iyong sinasabing indirect system of initiative. If after all, the local legislative assembly or body is willing to adopt it in full or in toto, there ought to be any reason for initiative, ano for initiative. And, number 3, we feel that there should be some limitation on the frequency with which it should be applied. Number 4, na the people, thru initiative, cannot enact any ordinance that is beyond the scope of authority of the local legislative body, otherwise, my God, mag-aassume sila ng power that is broader and greater than the grant of legislative power to the Sanggunians. And Number 5, because of that, then a proposition which has been the result of a successful initiative can only carry the force and effect of an ordinance and therefore that should not deprive the court of its jurisdiction to declare it null and void for want of authority. Ha, di ba? I mean it is beyond powers of local government units to enact. Iyon ang main essence namin, so we concentrated on that. And that is why . . . so ang sa inyo naman includes iyon sa Constitution, amendment to the Constitution eh . . . national laws. Sa amin, if you insist on that, alright, although we feel na it will in effect become a dead statute. Alright, and we can agree, we can agree. So ang mangyayari dito, and magiging basic nito, let us not discuss anymore kung alin and magiging basic bill, ano, whether it is the Senate Bill or whether it is the House bill. Logically it should be ours sapagkat una iyong sa amin eh. It is one of the first bills approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if you insist, really iyong features ng national at saka constitutional, okay. ____ gagawin na natin na consolidation of both bills. HON. ROCO. Yes, we shall consolidate. CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so.
10

When the consolidated bill was presented to the House for approval, then Congressman Roco upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered people's initiative to amend the Constitution. The record of the House Representative states: 11 xxx xxx xxx THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized. MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House Representatives correctly provided for initiative and referendum on the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO. Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provide purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding therefore, that the two provisions were incorporated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation. MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker. MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution whereby it mandates this Congress to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution? MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987 Constitution, it is every five years. MR. ALBANO. For every five years, Mr. Speaker? MR. ROCO. Within five years, we cannot have multiple initiatives and referenda. MR. ALBANO. Therefore, basically, there was no substantial difference between the two versions? MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier, ironically was about local, provincial and municipal legislation. MR. ALBANO. And the two bills were consolidated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. Thank you, Mr. Speaker. APPROVAL OF C.C.R. ON S.B. NO. 17 AND H.B. NO. 21505 (The Initiative and Referendum Act) THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on Senate Bill No. 17 and House Bill No. 21505. Is there any objection? (Silence. The Chair hears none; the motion is approved. Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to amend the Constitution, it is our bounden duty to interpret the law as it was intended by the legislature. We have ruled that once intent is ascertained, it must be enforced even if it may not be consistent with the strict letter of the law and this ruling is as old as the mountain. We have also held that where a law is susceptible of more than one interpretation, that interpretation which will most tend to effectuate the manifest intent of the legislature will be adopted. 12 The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to implement the people's initiative to amend the Constitution. To be sure, we need not torture the text of said law to reach the conclusion that it implements people's initiative to amend the Constitution. R.A. No. 6735 is replete with references to this prerogative of the people. First, the policy statement declares: Sec. 2. Statement of Policy. The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (emphasis supplied) Second, the law defines "initiative" as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose," and "plebiscite" as "the electoral process by which an initiative on the Constitution is approved or rejected by the people. Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section 5(b) states that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least threeper centum (3%) of the registered voters therein." It also states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat its intent which it itself concedes is to implement people's initiative to propose amendments to the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be expected for laws are not always written in impeccable English. Rightly, the Constitution does not require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately. But the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally true with reference to

awkward, slovenly, or ungrammatical expressions, that is, such expressions and words will be construed as carrying the meaning the legislature intended that they bear, although such a construction necessitates a departure from the literal meaning of the words used. In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the Constitution simply because it lacks a sub-title on the subject should be given the weight of helium. Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14 All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the law is its body but its spirit is its soul. 15 II COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine whether there is undue delegation of legislative power, viz: xxx xxx xxx Although Congress may delegate to another branch of the Government the power to fill details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself it must set forth therein the policy to be executed, carried out or implemented by the delegate and (b) to fix standard the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, which is the essence of every law, and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also and this is worse to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our republican system. Section 68 of the Revised Administrative Code does not meet these well-settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the law's implementing rules and regulations of the law. As aforestated, section 2 spells out the policy of the law; viz: "The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the standards to canalize the delegated power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law states the number of signatures necessary to start a people's initiative, 18 directs how initiative proceeding is commenced, 19 what the COMELEC should do upon filing of the petition for initiative,20 how a proposition is approved, 21 when a plebiscite may be held, 22 when the amendment takes effect 23 and what matters may not be the subject of any initiative. 24 By any measure, these standards are adequate. Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out the boundaries of the delegates' authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected. The purpose of the sufficient standard is to prevent a total transference of legislative power from the lawmaking body to the delegate." 25 In enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power to enact the law implementing people's initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will show that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to the people's initiative to amend the Constitution. The debates 26 in the Constitutional Commission make it clear that the rules of procedure to enforce the people's initiative can be delegated, thus: MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the legislature to set forth certain procedures to carry out the initiative. . . ? MR. DAVIDE. It can. xxx xxx xxx MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking another body to set the proposition in proper form. MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement. MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated? MR. DAVIDE. Yes. In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In response to questions of Commissioner Romulo, Davide explained the extent of the power of the legislature over the process: it could for instance, prescribe the 'proper form before (the amendment) is submitted to the people,' it could authorize another body to check the proper form. It could also authorize the COMELEC, for instance, to check the authenticity of the signatures of petitioners. Davide concluded: 'As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.'" Quite clearly, the prohibition against the legislature is to impair the substantive right of the people to initiate amendments to the Constitution. It is not, however, prohibited from legislating the procedure to enforce the people's right of initiative or to delegate it to another body like the COMELEC with proper standard. A survey of our case law will show that this Court has prudentially refrained from invalidating administrative rules on the ground of lack of adequate legislative standard to guide their promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29 viz: xxx xxx xxx It is true that the Act does not in terms establish a particular standard to which orders of the military commander are to conform, or require findings to be made as a prerequisite to any order. But the Executive Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a single program and must be judged as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by the Executive Order the necessity of protecting military resources in the designated areas against espionage and sabotage. In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20 look at the law cannot miss them. They were not written by our legislators in invisible ink. The policy and standards can also be found in no less than section 2, Article XVII of the Constitution on Amendments or Revisions. There is thus no reason to hold that the standards provided for in R.A. No. 6735 are insufficient for in other cases we have upheld as adequate more general standards such as "simplicity and dignity," 30 "public interest," 31"public welfare," 32 "interest of law and order," 33 "justice and equity," 34 "adequate and efficient instruction,"35 "public safety," 36 "public policy", 37 "greater national interest", 38 "protect the local consumer by stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity, economy and efficiency in government." 40 A due regard and respect to the legislature, a co-equal and coordinate branch of government, should counsel this Court to refrain from refusing to effectuate laws unless they are clearly unconstitutional. III It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition, the case at bar was filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for prohibition with prayer for temporary restraining order and/or writ of preliminary injunction. The petition on its face states no cause of action against the Pedrosas. The only allegation against the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an organization was not impleaded as a respondent. Petitioners then prayed that we order the Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions for contempt against them without equivocation. One need not draw a picture to impart the proposition that in soliciting signatures to start a people's initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the Constitution which provides that ". . . amendments to this Constitution may likewise be directly proposed by the people through initiative. . ." This right springs from the principle proclaimed in section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides in the people and all government authority emanates from them." The Pedrosas are part of the people and their voice is part of the voice of the people. They may constitute but a particle of our sovereignty but no power can trivialize them for sovereignty is indivisible. But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and their organizations to effective and reasonable participation at all levels of social, political and economic decision-making shall not be abridged. The State shall by law, facilitate the establishment of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the Constitution, the Pedrosas are participating in the political decision-making process of our people. The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a question mark on their right. Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an exercise of their freedom of speech and expression and their right to petition the government for redress of grievances. We have memorialized this universal right in all our fundamental laws from the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that freedom of speech is a preferred right, the matrix of other important rights of our people. Undeniably, freedom of speech enervates the essence of the democratic creed of think and let think. For this reason, the Constitution encourages speech even if it protects the speechless.

It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change. Mankind has long recognized the truism that the only constant in life is change and so should the majority. IV In a stream of cases, this Court has rhapsodized people power as expanded in the 1987 Constitution. On October 5, 1993, we observed that people's might is no longer a myth but an article of faith in our Constitution. 41 On September 30, 1994, we postulated that people power can be trusted to check excesses of government and that any effort to trivialize the effectiveness of people's initiatives ought to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate exercise." 43 Just a few days ago, or on March 11, 1997, by a unanimous decision, 44 we allowed a recall election in Caloocan City involving the mayor and ordered that he submits his right to continue in office to the judgment of the tribunal of the people. Thus far, we have succeeded in transforming people power from an opaque abstraction to a robust reality. The Constitution calls us to encourage people empowerment to blossom in full. The Court cannot halt any and all signature campaigns to amend the Constitution without setting back the flowering of people empowerment. More important, the Court cannot seal the lips of people who are pro-change but not those who are anti-change without concerting the debate on charter change into a sterile talkaton. Democracy is enlivened by a dialogue and not by a monologue for in a democracy nobody can claim any infallibility. Melo and Mendoza, JJ., concur.

VITUG, J., concurring and dissenting: The COMELEC should have dismissed, outrightly, the Delfin Petition. It does seem to me that there is no real exigency on the part of the Court to engross, let alone to commit, itself on all the issues raised and debated upon by the parties. What is essential at this time would only be to resolve whether or not the petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his capacity as a "founding member of the Movement for People's Initiative" and seeking through a people initiative certain modifications on the 1987 Constitution, can properly be regarded and given its due course. The Constitution, relative to any proposed amendment under this method, is explicit. Section 2, Article XVII, thereof provides: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives, the petition would rather have much of its burden passed on, in effect, to the COMELEC. The petition would require COMELEC to schedule "signature gathering all over the country," to cause the necessary publication of the petition "in newspapers of general and local circulation," and to instruct "Municipal Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in establishing signing stations at the time and on the dates designated for the purpose. I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made permanent under the ponencia should be held to cover only the Delfin petition and must not be so understood as having intended or contemplated to embrace the signature drive of the Pedrosas. The grant of such a right is clearly implicit in the constitutional mandate on people initiative. The distinct greatness of a democratic society is that those who reign are the governed themselves. The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has taught us that the vitality of government lies not so much in the strength of those who lead as in the consent of those who are led. The role of free speech is pivotal but it can only have its true meaning if it comes with the correlative end of being heard. Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the Court, I most respectfully submit, to yet refrain from resolving the question of whether or not Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on right of the people to directly propose constitutional amendments. Any opinion or view formulated by the Court at this point would at best be only a nonbinding, albeit possibly persuasive, obiter dictum. I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for constitutional amendments.

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

To begin with, sovereignty under the constitution, resides in the people and all government authority emanates from them. 1 Unlike our previous constitutions, the present 1987 Constitution has given more significance to this declaration of principle for the people are now vested with power not only to propose, enact or reject any act or law passed by Congress or by the local legislative body, but to propose amendments to the constitution as well. 2To implement these constitutional edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise known as " The initiative and Referendum Act". This law, to my mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their allegation that: Republic Act No. 6735 provides for the effectivity of the law after publication in print media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not constitutional amendments, because constitutional amendments take effect upon ratification not after publication. 3 which allegation manifests petitioners' selective interpretation of the law, for under Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b) thereof is clear in providing that: The proposition in an initiative on the constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every part of the statute must be construed together with the other parts and kept subservient to the general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a whole. 5 In its definition of terms, Republic Act No. 6735 defines initiative as " the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose". 6The same section, in enumerating the three systems of initiative, included an "initiative on the constitution which refers to a petition proposing amendments to the constitution" 7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by which an initiative on the constitution is approved or rejected by the people " And as to the material requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following: A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of the registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five years thereafter. These provisions were inserted, on purpose, by Congress the intent being to provide for the implementation of the right to propose an amendment to the Constitution by way of initiative. "A legal provision", the Court has previously said, "must not be construed as to be a useless surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or having no effect whatsoever thereon". 8 That this is the legislative intent is further shown by the deliberations in Congress, thus: . . . More significantly, in the course of the consideration of the Conference Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was noted: MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House of Representatives correctly provided for initiative and referendum an the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO, Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. What does the sponsor say? MR. ROCO. Willingly, Mr. Speaker. THE SPEAKER PRO TEMPORE. The Gentleman will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation. MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker. MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution? MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it is every five years." (Id. [Journal and Record of the House of Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279, 292-293 [1994]; emphasis supplied) . . . The Senate version of the Bill may not have comprehended initiatives on the Constitution. When consolidated, though, with the House version of the Bill and as approved and enacted into law, the proposal included initiative on both the Constitution and ordinary laws. 9 Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction as what petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the enactment. At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of the required percentage of registered voters at the time the petition for initiative is filed, is a jurisdictional requirement. Thus: A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Here private respondents' petition is unaccompanied by the required signatures. This defect notwithstanding, it is without prejudice to the refiling of their petition once compliance with the required percentage is satisfactorily shown by private respondents. In the absence, therefore, of an appropriate petition before the Commission on Elections, any determination of whether private respondents' proposal constitutes an amendment or revision is premature. ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I, however, register my concurrence with the dismissal, in the meantime, of private respondents' petition for initiative before public respondent Commission on Elections until the same be supported by proof of strict compliance with Section 5 (b) of R.A. No. 6735. Melo and Mendoza, JJ., concur.

PANGANIBAN, J., concurring and dissenting: Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that: (1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory" Delfin Petition. (2) While the Constitution allows amendments to "be directly proposed by the people through initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned." (3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of initiative on amendments to the Constitution, is void." I concur with the first item above. Until and unless an initiatory petition can show the required number of signatures in this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district no public funds may be spent and no government resources may be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition absent such signatures. However, I dissent most respectfully from the majority's two other rulings. Let me explain.

Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be amended at all through a people's initiative . Not by Delfin, not by Pirma, not by anyone, not even by all the voters of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the majority holds the right hostage to congressional discretion on whether to pass a new law to implement it, when there is already one existing at present . This right to amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason . Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300 Are Sufficient to Implement Constitutional Initiatives While RA 6735 may not be a perfect law, it was as the majority openly concedes intended by the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution. 1 I completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments to the Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of people's initiatives ought to be rejected." No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735 wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and referendum on national and local laws," not by the incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort to give life to a cherished right of our people. The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for the Resolution is the same law, RA 6735. I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and realize our people's power to amend the Constitution . Petitioner Delfin and the Pedrosa Spouses Should Not Be Muzzled I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of initiative. In fact, I believe that such restraining order as against private respondents should not have been issued, in the first place. While I agree that the Comelec should be stopped from using public funds and government resources to help them gather signatures, I firmly believe that this Court has no power to restrain them from exercising their right of initiative. The right to propose amendments to the Constitution is really a species of the right of free speech and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may disagree with what you say, but I will defend to the death your right to say it." After all, freedom is not really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we hate." 5 Epilogue By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights of our people to be used as their final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as their reserved instruments to exact transparency, accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully nurtured and zealously protected. WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in proposing amendments to the Constitution. Melo and Mendoza, JJ., concur.

Separate Opinions PUNO, J., concurring and dissenting: I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the people's initiative to amend the Constitution. I likewise submit that the petition with respect to the Pedrosas has no leg to stand on and should be dismissed. With due respect: I First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735 should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for the intent of the legislature is the law and the controlling factor in its interpretation. 1 Stated otherwise, intent is the essence of the law, the spirit which gives life to its enactment. 2 Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the history of the law which was a consolidation of House Bill No. 21505 3 and Senate Bill No. 17. 4 Senate Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose amendments to the Constitution. In checkered contrast, House Bill No. 21505 5expressly included people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks: 6 xxx xxx xxx SPONSORSHIP REMARKS OF MR. ROCO At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the proposed measure. 1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935 Constitution saw the application of the principle of separation of powers. 2. While under the parliamentary system of the 1973 Constitution the principle remained applicable, the 1981 amendments to the Constitution of 1973 ensured presidential dominance over the Batasang Pambansa. Constitutional history then saw the shifting and sharing of legislative powers between the Legislature and the Executive departments. Transcending changes in the exercise of legislative power is the declaration in the Philippine Constitution that the Philippines is a republican state where sovereignty resides in the people and all sovereignty emanates from them. 3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution recognizes the power of the people, through the system of initiative and referendum. As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers since reserve powers are given to the people expressly. Section 32 of the same Article mandates Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its legislative powers with the people. Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the power to directly propose amendments to the Constitution through initiative, upon petition of at least 12 percent of the total number of registered voters. Stating that House Bill No. 21505 is the Committee's response to the duty imposed on Congress to implement the exercise by the people of the right to initiative and referendum, Mr. Roco recalled the beginnings of the system of initiative and referendum under Philippine Law. He cited Section 99 of the Local Government Code which vests in the barangay assembly the power to initiate legislative processes, decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all of which are variations of the power of initiative and referendum. He added that the holding of barangay plebiscites and referendum are likewise provided in Sections 100 and 101 of the same Code. Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the subject which he will later submit to the Secretary of the House be incorporated as part of his sponsorship speech. He then cited examples of initiative and referendum similar to those contained in the instant Bill among which are the constitutions of states in the United States which recognize the right of registered voters to initiate the enactment of any statute or to project any existing law or parts thereof in a referendum. These states, he said, are Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and practically all other states. Mr. Roco explained that in certain American states, the kind of laws to which initiative and referendum apply is also without limitation, except for emergency measures, which are likewise incorporated in House Bill No. 21505. He added that the procedure

provided by the Bill from the filing of the petition, the requirements of a certain percentage of supporters to present a proposition, to the submission to electors are substantially similar to the provisions in American laws. Although an infant in Philippine political structure, the system of initiative and referendum, he said, is a tried and tested system in other jurisdictions, and the Bill is patterned after American experience. He further explained that the bill has only 12 sections, and recalled that the Constitutional Commissioners saw the system of the initiative and referendum as an instrument which can be used should the legislature show itself to be indifferent to the needs of the people. This is the reason, he claimed, why now is an opportune time to pass the Bill even as he noted the felt necessity of the times to pass laws which are necessary to safeguard individual rights and liberties. At this juncture Mr. Roco explained the process of initiative and referendum as advocated in House Bill No. 21505. He stated that: 1. Initiative means that the people, on their own political judgment, submit a Bill for the consideration of the general electorate. 2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the Constitution once every five years; the initiative to amend statutes approved by Congress; and the initiative to amend local ordinances. 3. The instant Bill gives a definite procedure and allows the Commission on Elections (COMELEC) to define rules and regulations on the power of initiative. 4. Referendum means that the legislators seek the consent of the people on measures that they have approved. 5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of plebiscite by presenting a petition therefor, but under certain limitations, such as the signing of said petition by at least 10 percent of the total of registered voters at which every legislative district is represented by at least three percent of the registered voters thereof. Within 30 days after receipt of the petition, the COMELEC shall determine the sufficiency of the petition, publish the same, and set the date of the referendum within 45 to 90day period. 6. When the matter under referendum or initiative is approved by the required number of votes, it shall become effective 15 days following the completion of its publication in the Official Gazette. In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the people's call for initiative and referendum and urged the Body to approve House Bill No. 21505. At this juncture, Mr. Roco also requested that the prepared text of his speech together with the footnotes be reproduced as part of the Congressional Records. The same sentiment as to the bill's intent to implement people's initiative to amend the Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his sponsorship remarks, viz: 7 xxx xxx xxx SPONSORSHIP REMARKS OF MR. ESCUDERO Mr. Escudero first pointed out that the people have been clamoring for a truly popular democracy ever since, especially in the socalled parliament of the streets. A substantial segment of the population feels, he said, that the form of democracy is there, but not the reality or substance of it because of the increasingly elitist approach of their representatives to the country's problem. Whereupon, Mr. Escudero pointed out that the Constitution has provided a means whereby the people can exercise the reserved power of initiative to propose amendments to the Constitution, and requested that Sections 1 and 32, Article VI; Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of his sponsorship remarks. Mr. Escudero also stressed that an implementing law is needed for the aforecited Constitutional provisions. While the enactment of the Bill will give way to strong competition among cause-oriented and sectoral groups, he continued, it will hasten the politization of the citizenry, aid the government in forming an enlightened public opinion, and produce more responsive legislation. The passage of the Bill will also give street parliamentarians the opportunity to articulate their ideas in a democratic forum, he added. Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that it can be initially used for the Agrarian Reform Law. He said that the passage of House Bill No. 21505 will show that the Members can set aside their personal and political consideration for the greater good of the people. The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a Bicameral Conference Committee. 8 In the meeting of the Committee on June 6, 1989, 9 the members agreed that the two (2) bills should be consolidated and that the consolidated version should include people's initiative to amend the Constitution as contemplated by House Bill No. 21505. The transcript of the meeting states: xxx xxx xxx

CHAIRMAN GONZALES. But at any rate, as I have said, because this is new in our political system, the Senate decided on a more cautious approach and limiting it only to the local government units because even with that stage where . . . at least this has been quite popular, ano? It has been attempted on a national basis. Alright. There has not been a single attempt. Now, so, kami limitado doon. And, second, we consider also that it is only fair that the local legislative body should be given a chance to adopt the legislation bill proposed, right? Iyong sinasabing indirect system of initiative. If after all, the local legislative assembly or body is willing to adopt it in full or in toto, there ought to be any reason for initiative, ano for initiative. And, number 3, we feel that there should be some limitation on the frequency with which it should be applied. Number 4, na the people, thru initiative, cannot enact any ordinance that is beyond the scope of authority of the local legislative body, otherwise, my God, mag-aassume sila ng power that is broader and greater than the grant of legislative power to the Sanggunians. And Number 5, because of that, then a proposition which has been the result of a successful initiative can only carry the force and effect of an ordinance and therefore that should not deprive the court of its jurisdiction to declare it null and void for want of authority. Ha, di ba? I mean it is beyond powers of local government units to enact. Iyon ang main essence namin, so we concentrated on that. And that is why . . . so ang sa inyo naman includes iyon sa Constitution, amendment to the Constitution eh . . . national laws. Sa amin, if you insist on that, alright, although we feel na it will in effect become a dead statute. Alright, and we can agree, we can agree. So ang mangyayari dito, and magiging basic nito, let us not discuss anymore kung alin and magiging basic bill, ano, whether it is the Senate Bill or whether it is the House bill. Logically it should be ours sapagkat una iyong sa amin eh. It is one of the first bills approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if you insist, really iyong features ng national at saka constitutional, okay. ____ gagawin na natin na consolidation of both bills. HON. ROCO. Yes, we shall consolidate. CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so.
10

When the consolidated bill was presented to the House for approval, then Congressman Roco upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered people's initiative to amend the Constitution. The record of the House Representative states: 11 xxx xxx xxx THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized. MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House Representatives correctly provided for initiative and referendum on the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO. Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provide purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding therefore, that the two provisions were incorporated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation. MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution whereby it mandates this Congress to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution? MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987 Constitution, it is every five years. MR. ALBANO. For every five years, Mr. Speaker? MR. ROCO. Within five years, we cannot have multiple initiatives and referenda. MR. ALBANO. Therefore, basically, there was no substantial difference between the two versions? MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier, ironically was about local, provincial and municipal legislation. MR. ALBANO. And the two bills were consolidated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. Thank you, Mr. Speaker. APPROVAL OF C.C.R. ON S.B. NO. 17 AND H.B. NO. 21505 (The Initiative and Referendum Act) THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on Senate Bill No. 17 and House Bill No. 21505. Is there any objection? (Silence. The Chair hears none; the motion is approved. Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to amend the Constitution, it is our bounden duty to interpret the law as it was intended by the legislature. We have ruled that once intent is ascertained, it must be enforced even if it may not be consistent with the strict letter of the law and this ruling is as old as the mountain. We have also held that where a law is susceptible of more than one interpretation, that interpretation which will most tend to effectuate the manifest intent of the legislature will be adopted. 12 The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to implement the people's initiative to amend the Constitution. To be sure, we need not torture the text of said law to reach the conclusion that it implements people's initiative to amend the Constitution. R.A. No. 6735 is replete with references to this prerogative of the people. First, the policy statement declares: Sec. 2. Statement of Policy. The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (emphasis supplied) Second, the law defines "initiative" as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose," and "plebiscite" as "the electoral process by which an initiative on the Constitution is approved or rejected by the people. Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section 5(b) states that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least threeper centum (3%) of the registered voters therein." It also states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat its intent which it itself concedes is to implement people's initiative to propose amendments to the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be expected for laws are not always written in impeccable English. Rightly, the Constitution does not require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately. But the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally true with reference to awkward, slovenly, or ungrammatical expressions, that is, such expressions and words will be construed as carrying the meaning the legislature intended that they bear, although such a construction necessitates a departure from the literal meaning of the words used.

In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the Constitution simply because it lacks a sub-title on the subject should be given the weight of helium. Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14 All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the law is its body but its spirit is its soul. 15 II COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine whether there is undue delegation of legislative power, viz: xxx xxx xxx Although Congress may delegate to another branch of the Government the power to fill details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself it must set forth therein the policy to be executed, carried out or implemented by the delegate and (b) to fix standard the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, which is the essence of every law, and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also and this is worse to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our republican system. Section 68 of the Revised Administrative Code does not meet these well-settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the law's implementing rules and regulations of the law. As aforestated, section 2 spells out the policy of the law; viz: "The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the standards to canalize the delegated power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law states the number of signatures necessary to start a people's initiative, 18 directs how initiative proceeding is commenced, 19 what the COMELEC should do upon filing of the petition for initiative,20 how a proposition is approved, 21 when a plebiscite may be held, 22 when the amendment takes effect 23 and what matters may not be the subject of any initiative. 24 By any measure, these standards are adequate. Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out the boundaries of the delegates' authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected. The purpose of the sufficient standard is to prevent a total transference of legislative power from the lawmaking body to the delegate." 25 In enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power to enact the law implementing people's initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will show that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to the people's initiative to amend the Constitution. The debates 26 in the Constitutional Commission make it clear that the rules of procedure to enforce the people's initiative can be delegated, thus: MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the legislature to set forth certain procedures to carry out the initiative. . . ? MR. DAVIDE. It can. xxx xxx xxx MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking another body to set the proposition in proper form. MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement. MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here. MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated?

MR. DAVIDE. Yes. In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In response to questions of Commissioner Romulo, Davide explained the extent of the power of the legislature over the process: it could for instance, prescribe the 'proper form before (the amendment) is submitted to the people,' it could authorize another body to check the proper form. It could also authorize the COMELEC, for instance, to check the authenticity of the signatures of petitioners. Davide concluded: 'As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.'" Quite clearly, the prohibition against the legislature is to impair the substantive right of the people to initiate amendments to the Constitution. It is not, however, prohibited from legislating the procedure to enforce the people's right of initiative or to delegate it to another body like the COMELEC with proper standard. A survey of our case law will show that this Court has prudentially refrained from invalidating administrative rules on the ground of lack of adequate legislative standard to guide their promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29 viz: xxx xxx xxx It is true that the Act does not in terms establish a particular standard to which orders of the military commander are to conform, or require findings to be made as a prerequisite to any order. But the Executive Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a single program and must be judged as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by the Executive Order the necessity of protecting military resources in the designated areas against espionage and sabotage. In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20 look at the law cannot miss them. They were not written by our legislators in invisible ink. The policy and standards can also be found in no less than section 2, Article XVII of the Constitution on Amendments or Revisions. There is thus no reason to hold that the standards provided for in R.A. No. 6735 are insufficient for in other cases we have upheld as adequate more general standards such as "simplicity and dignity," 30 "public interest," 31"public welfare," 32 "interest of law and order," 33 "justice and equity," 34 "adequate and efficient instruction,"35 "public safety," 36 "public policy", 37 "greater national interest", 38 "protect the local consumer by stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity, economy and efficiency in government." 40 A due regard and respect to the legislature, a co-equal and coordinate branch of government, should counsel this Court to refrain from refusing to effectuate laws unless they are clearly unconstitutional. III It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition, the case at bar was filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for prohibition with prayer for temporary restraining order and/or writ of preliminary injunction. The petition on its face states no cause of action against the Pedrosas. The only allegation against the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an organization was not impleaded as a respondent. Petitioners then prayed that we order the Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions for contempt against them without equivocation. One need not draw a picture to impart the proposition that in soliciting signatures to start a people's initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the Constitution which provides that ". . . amendments to this Constitution may likewise be directly proposed by the people through initiative. . ." This right springs from the principle proclaimed in section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides in the people and all government authority emanates from them." The Pedrosas are part of the people and their voice is part of the voice of the people. They may constitute but a particle of our sovereignty but no power can trivialize them for sovereignty is indivisible. But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and their organizations to effective and reasonable participation at all levels of social, political and economic decision-making shall not be abridged. The State shall by law, facilitate the establishment of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the Constitution, the Pedrosas are participating in the political decision-making process of our people. The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a question mark on their right. Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an exercise of their freedom of speech and expression and their right to petition the government for redress of grievances. We have memorialized this universal right in all our fundamental laws from the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that freedom of speech is a preferred right, the matrix of other important rights of our people. Undeniably, freedom of speech enervates the essence of the democratic creed of think and let think. For this reason, the Constitution encourages speech even if it protects the speechless. It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To be sure,

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

VITUG, J., concurring and dissenting: The COMELEC should have dismissed, outrightly, the Delfin Petition. It does seem to me that there is no real exigency on the part of the Court to engross, let alone to commit, itself on all the issues raised and debated upon by the parties. What is essential at this time would only be to resolve whether or not the petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his capacity as a "founding member of the Movement for People's Initiative" and seeking through a people initiative certain modifications on the 1987 Constitution, can properly be regarded and given its due course. The Constitution, relative to any proposed amendment under this method, is explicit. Section 2, Article XVII, thereof provides: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives, the petition would rather have much of its burden passed on, in effect, to the COMELEC. The petition would require COMELEC to schedule "signature gathering all over the country," to cause the necessary publication of the petition "in newspapers of general and local circulation," and to instruct "Municipal Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in establishing signing stations at the time and on the dates designated for the purpose. I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made permanent under the ponencia should be held to cover only the Delfin petition and must not be so understood as having intended or contemplated to embrace the signature drive of the Pedrosas. The grant of such a right is clearly implicit in the constitutional mandate on people initiative. The distinct greatness of a democratic society is that those who reign are the governed themselves. The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has taught us that the vitality of government lies not so much in the strength of those who lead as in the consent of those who are led. The role of free speech is pivotal but it can only have its true meaning if it comes with the correlative end of being heard. Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the Court, I most respectfully submit, to yet refrain from resolving the question of whether or not Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on right of the people to directly propose constitutional amendments. Any opinion or view formulated by the Court at this point would at best be only a nonbinding, albeit possibly persuasive, obiter dictum. I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for constitutional amendments.

FRANCISCO, J., dissenting and concurring: There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and well-written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is inadequate to cover the system of initiative on amendments to the Constitution. To begin with, sovereignty under the constitution, resides in the people and all government authority emanates from them. 1 Unlike our previous constitutions, the present 1987 Constitution has given more significance to this declaration of principle for the people are now vested with power not only to propose, enact or reject any act or law passed by Congress or by the local legislative body, but to propose amendments to the constitution as well. 2To

implement these constitutional edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise known as " The initiative and Referendum Act". This law, to my mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their allegation that: Republic Act No. 6735 provides for the effectivity of the law after publication in print media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not constitutional amendments, because constitutional amendments take effect upon ratification not after publication. 3 which allegation manifests petitioners' selective interpretation of the law, for under Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b) thereof is clear in providing that: The proposition in an initiative on the constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every part of the statute must be construed together with the other parts and kept subservient to the general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a whole. 5 In its definition of terms, Republic Act No. 6735 defines initiative as " the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose". 6The same section, in enumerating the three systems of initiative, included an "initiative on the constitution which refers to a petition proposing amendments to the constitution" 7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by which an initiative on the constitution is approved or rejected by the people " And as to the material requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following: A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of the registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five years thereafter. These provisions were inserted, on purpose, by Congress the intent being to provide for the implementation of the right to propose an amendment to the Constitution by way of initiative. "A legal provision", the Court has previously said, "must not be construed as to be a useless surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or having no effect whatsoever thereon". 8 That this is the legislative intent is further shown by the deliberations in Congress, thus: . . . More significantly, in the course of the consideration of the Conference Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was noted: MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House of Representatives correctly provided for initiative and referendum an the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO, Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. What does the sponsor say? MR. ROCO. Willingly, Mr. Speaker. THE SPEAKER PRO TEMPORE. The Gentleman will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated? MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation. MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker. MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution? MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it is every five years." (Id. [Journal and Record of the House of Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279, 292-293 [1994]; emphasis supplied) . . . The Senate version of the Bill may not have comprehended initiatives on the Constitution. When consolidated, though, with the House version of the Bill and as approved and enacted into law, the proposal included initiative on both the Constitution and ordinary laws. 9 Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction as what petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the enactment. At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of the required percentage of registered voters at the time the petition for initiative is filed, is a jurisdictional requirement. Thus: A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Here private respondents' petition is unaccompanied by the required signatures. This defect notwithstanding, it is without prejudice to the refiling of their petition once compliance with the required percentage is satisfactorily shown by private respondents. In the absence, therefore, of an appropriate petition before the Commission on Elections, any determination of whether private respondents' proposal constitutes an amendment or revision is premature. ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I, however, register my concurrence with the dismissal, in the meantime, of private respondents' petition for initiative before public respondent Commission on Elections until the same be supported by proof of strict compliance with Section 5 (b) of R.A. No. 6735. Melo and Mendoza, JJ., concur.

PANGANIBAN, J., concurring and dissenting: Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that: (1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory" Delfin Petition. (2) While the Constitution allows amendments to "be directly proposed by the people through initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned." (3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of initiative on amendments to the Constitution, is void." I concur with the first item above. Until and unless an initiatory petition can show the required number of signatures in this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district no public funds may be spent and no government resources may be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition absent such signatures. However, I dissent most respectfully from the majority's two other rulings. Let me explain.

Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be amended at all through a people's initiative . Not by Delfin, not by Pirma, not by anyone, not even by all the voters of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the majority holds the right hostage to congressional discretion on whether to pass a new law to implement it, when there is already one existing at present . This right to amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason . Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300 Are Sufficient to Implement Constitutional Initiatives While RA 6735 may not be a perfect law, it was as the majority openly concedes intended by the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution. 1 I completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments to the Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of people's initiatives ought to be rejected." No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735 wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and referendum on national and local laws," not by the incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort to give life to a cherished right of our people. The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for the Resolution is the same law, RA 6735. I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and realize our people's power to amend the Constitution . Petitioner Delfin and the Pedrosa Spouses Should Not Be Muzzled I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of initiative. In fact, I believe that such restraining order as against private respondents should not have been issued, in the first place. While I agree that the Comelec should be stopped from using public funds and government resources to help them gather signatures, I firmly believe that this Court has no power to restrain them from exercising their right of initiative. The right to propose amendments to the Constitution is really a species of the right of free speech and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may disagree with what you say, but I will defend to the death your right to say it." After all, freedom is not really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we hate." 5 Epilogue By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights of our people to be used as their final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as their reserved instruments to exact transparency, accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully nurtured and zealously protected. WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in proposing amendments to the Constitution. Melo and Mendoza, JJ., concur. i. Ratification

1.

Doctrine of Proper Submission Tolentino vs. COMELEC, 41 SCRA 702

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-34150 October 16, 1971 ARTURO M. TOLENTINO, petitioner, vs. COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA, MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V. BORRA, Intervenors. Arturo M. Tolentino in his own behalf. Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional Convention. Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the 1971 Constitutional Convention. Intervenors in their own behalf.

BARREDO, J.: Petition for prohibition principally to restrain the respondent Commission on Elections "from undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the Philippines to eighteen years "shall be, submitted" for ratification by the people pursuant to Organic Resolution No. 1 of the Constitutional Convention of 1971, and the subsequent implementing resolutions, by declaring said resolutions to be without the force and effect of law in so far as they direct the holding of such plebiscite and by also declaring the acts of the respondent Commission (COMELEC) performed and to be done by it in obedience to the aforesaid Convention resolutions to be null and void, for being violative of the Constitution of the Philippines. As a preliminary step, since the petition named as respondent only the COMELEC, the Count required that copies thereof be served on the Solicitor General and the Constitutional Convention, through its President, for such action as they may deem proper to take. In due time, respondent COMELEC filed its answer joining issues with petitioner. To further put things in proper order, and considering that the fiscal officers of the Convention are indispensable parties in a proceeding of this nature, since the acts sought to be enjoined involve the expenditure of funds appropriated by law for the Convention, the Court also ordered that the Disbursing Officer, Chief Accountant and Auditor of the Convention be made respondents. After the petition was so amended, the first appeared thru Senator Emmanuel Pelaez and the last two thru Delegate Ramon Gonzales. All said respondents, thru counsel, resist petitioner's action. For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible confusion, and considering that with the principal parties being duly represented by able counsel, their interests would be adequately protected already, the Court had to limit the number of intervenors from the ranks of the delegates to the Convention who, more or less, have legal interest in the success of the respondents, and so, only Delegates Raul S. Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right, have been allowed to intervene jointly. The Court feels that with such an array of brilliant and dedicated counsel, all interests involved should be duly and amply represented and protected. At any rate, notwithstanding that their corresponding motions for leave to intervene or to appear as amicus curiae 1 have been denied, the pleadings filed by the other delegates and some private parties, the latter in representation of their minor children allegedly to be affected by the result of this case with the records and the Court acknowledges that they have not been without value as materials in the extensive study that has been undertaken in this case. The background facts are beyond dispute. The Constitutional Convention of 1971 came into being by virtue of two resolutions of the Congress of the Philippines approved in its capacity as a constituent assembly convened for the purpose of calling a convention to propose amendments to the Constitution namely, Resolutions 2 and 4 of the joint sessions of Congress held on March 16, 1967 and June 17, 1969 respectively. The delegates to the said Convention were all elected under and by virtue of said resolutions and the implementing legislation thereof, Republic Act 6132. The pertinent portions of Resolution No 2 read as follows: SECTION 1. There is hereby called a convention to propose amendments to the Constitution of the Philippines, to be composed of two elective Delegates from each representative district who shall have the same qualifications as those required of Members of the House of Representatives. xxx xxx xxx

SECTION 7. The amendments proposed by the Convention shall be valid and considered part of the Constitution when approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification pursuant to Article XV of the Constitution. Resolution No. 4 merely modified the number of delegates to represent the different cities and provinces fixed originally in Resolution No 2. After the election of the delegates held on November 10, 1970, the Convention held its inaugural session on June 1, 1971. Its preliminary labors of election of officers, organization of committees and other preparatory works over, as its first formal proposal to amend the Constitution, its session which began on September 27, 1971, or more accurately, at about 3:30 in the morning of September 28, 1971, the Convention approved Organic Resolution No. 1 reading thus: . CC ORGANIC RESOLUTION NO. 1 A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE VOTING AGE TO 18 BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention: Section 1. Section One of Article V of the Constitution of the Philippines is amended to as follows: Section 1. Suffrage may be exercised by (male) citizens of the Philippines not otherwise disqualified by law, who are (twenty-one) EIGHTEEN years or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election. Section 2. This amendment shall be valid as part of the Constitution of the Philippines when approved by a majority of the votes cast in a plebiscite to coincide with the local elections in November 1971. Section 3. This partial amendment, which refers only to the age qualification for the exercise of suffrage shall be without prejudice to other amendments that will be proposed in the future by the 1971 Constitutional Convention on other portions of the amended Section or on other portions of the entire Constitution. Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from its savings or from its unexpended funds for the expense of the advanced plebiscite; provided, however that should there be no savings or unexpended sums, the Delegates waive P250.00 each or the equivalent of 2-1/2 days per diem. By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent Comelec "to help the Convention implement (the above) resolution." The said letter reads: September 28, 1971 The Commission on Elections Manila Thru the Chairman Gentlemen: Last night the Constitutional Convention passed Resolution No. 1 quoted as follows: xxx xxx xxx (see above) Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as the Constitutional Convention Act of 1971, may we call upon you to help the Convention implement this resolution: Sincerely, (Sgd.) DIOSDADO P. MACAPAGAL DIOSDADO P. MACAPAGAL President On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will hold the plebiscite on condition that: (a) The Constitutional Convention will undertake the printing of separate official ballots, election returns and tally sheets for the use of said plebiscite at its expense;

(b) The Constitutional Convention will adopt its own security measures for the printing and shipment of said ballots and election forms; and (c) Said official ballots and election forms will be delivered to the Commission in time so that they could be distributed at the same time that the Commission will distribute its official and sample ballots to be used in the elections on November 8, 1971. What happened afterwards may best be stated by quoting from intervenors' Governors' statement of the genesis of the above proposal: The President of the Convention also issued an order forming an Ad Hoc Committee to implement the Resolution. This Committee issued implementing guidelines which were approved by the President who then transmitted them to the Commission on Elections. The Committee on Plebiscite and Ratification filed a report on the progress of the implementation of the plebiscite in the afternoon of October 7,1971, enclosing copies of the order, resolution and letters of transmittal above referred to (Copy of the report is hereto attached as Annex 8-Memorandum). RECESS RESOLUTION In its plenary session in the evening of October 7, 1971, the Convention approved a resolution authored by Delegate Antonio Olmedo of Davao Oriental, calling for a recess of the Convention from November 1, 1971 to November 9, 1971 to permit the delegates to campaign for the ratification of Organic Resolution No. 1. (Copies of the resolution and the transcript of debate thereon are hereto attached as Annexes 9 and 9-A Memorandum, respectively). RESOLUTION CONFIRMING IMPLEMENTATION On October 12, 1971, the Convention passed Resolution No. 24 submitted by Delegate Jose Ozamiz confirming the authority of the President of the Convention to implement Organic Resolution No. 1, including the creation of the Ad Hoc Committee ratifying all acts performed in connection with said implementation. Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other implementing resolutions thereof subsequently approved by the Convention have no force and effect as laws in so far as they provide for the holding of a plebiscite co-incident with the elections of eight senators and all city, provincial and municipal officials to be held on November 8, 1971, hence all of Comelec's acts in obedience thereof and tending to carry out the holding of the plebiscite directed by said resolutions are null and void, on the ground that the calling and holding of such a plebiscite is, by the Constitution, a power lodged exclusively in Congress, as a legislative body, and may not be exercised by the Convention, and that, under Section 1, Article XV of the Constitution, the proposed amendment in question cannot be presented to the people for ratification separately from each and all of the other amendments to be drafted and proposed by the Convention. On the other hand, respondents and intervenors posit that the power to provide for, fix the date and lay down the details of the plebiscite for the ratification of any amendment the Convention may deem proper to propose is within the authority of the Convention as a necessary consequence and part of its power to propose amendments and that this power includes that of submitting such amendments either individually or jointly at such time and manner as the Convention may direct in discretion. The Court's delicate task now is to decide which of these two poses is really in accord with the letter and spirit of the Constitution. As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They contend that the issue before Us is a political question and that the Convention being legislative body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the control of the Congress and the courts. In this connection, it is to be noted that none of the respondent has joined intervenors in this posture. In fact, respondents Chief Accountant and Auditor of the convention expressly concede the jurisdiction of this Court in their answer acknowledging that the issue herein is a justifiable one. Strangely, intervenors cite in support of this contention portions of the decision of this Court in the case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being divided in their opinions as to the other matters therein involved, were precisely unanimous in upholding its jurisdiction. Obviously, distinguished counsel have either failed to grasp the full impact of the portions of Our decision they have quoted or would misapply them by taking them out of context. There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter, those of a constitutional convention called for the purpose of proposing amendments to the Constitution, which concededly is at par with the former. A simple reading of Our ruling in that very case of Gonzales relied upon by intervenors should dispel any lingering misgivings as regards that point. Succinctly but comprehensively, Chief Justice Concepcion held for the Court thus: . As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court speaking through one of the leading members of the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel declared that "the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof." It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue submitted thereto as a political one declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution which was being submitted to the people for ratification satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Taada v. Cuenco, (L-10520, Feb. 28, 1957) and Macias v. Commission on Elections, (L-18684, Sept. 14, 1961). In the first we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to

determine the number of Senators necessary for quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act, on behalf of the party having the second largest number of votes therein of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representatives districts for the House of Representatives, upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus we rejected the theory, advanced in these four (4) cases that the issues therein raised were political questions the determination of which is beyond judicial review. Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress (Section 1, Art. VI, Constitution of the Philippines). It is part of the inherent powers of the people as the repository sovereignty in a republican state, such as ours (Section 1, Art. 11, Constitution of the Philippines) to make, and, hence, to amend their own Fundamental Law. Congress may propose amendments to the Constitution merely because the same explicitly grants such power. (Section 1, Art. XV, Constitution of the Philippines) Hence, when exercising the same, it is said that Senators and members of the House of Representatives act, not as members of Congress, but as component elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike the people, when performing the same function, (Of amending the Constitution) for their authority does not emanate from the Constitution they are the very source of all powers of government including the Constitution itself. Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that the Constitution expressly confers upon the Supreme Court, (And, inferentially, to lower courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the Constitution), despite the eminently political character of treaty-making power. In short, the issue whether or not a Resolution of Congress acting as a constituent assembly violates the Constitution is essentially justiciable not political, and, hence, subject to judicial review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag v. Lopez Vito, (supra) the latter should be deemed modified accordingly. The Members of the Court are unanimous on this point. No one can rightly claim that within the domain of its legitimate authority, the Convention is not supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner point otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is that the Constitutional Convention of 1971, as any other convention of the same nature, owes its existence and derives all its authority and power from the existing Constitution of the Philippines. This Convention has not been called by the people directly as in the case of a revolutionary convention which drafts the first Constitution of an entirely new government born of either a war of liberation from a mother country or of a revolution against an existing government or of a bloodless seizure of power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is completely without restrain and omnipotent all wise, and it is as to such conventions that the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization can belie the fact that the current convention came into being only because it was called by a resolution of a joint session of Congress acting as a constituent assembly by authority of Section 1, Article XV of the present Constitution which provides: ARTICLE XV AMENDMENTS SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for the purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification. True it is that once convened, this Convention became endowed with extra ordinary powers generally beyond the control of any department of the existing government, but the compass of such powers can be co-extensive only with the purpose for which the convention was called and as it may propose cannot have any effect as part of the Constitution until the same are duly ratified by the people, it necessarily follows that the acts of convention, its officers and members are not immune from attack on constitutional grounds. The present Constitution is in full force and effect in its entirety and in everyone of its parts the existence of the Convention notwithstanding, and operates even within the walls of that assembly. While it is indubitable that in its internal operation and the performance of its task to propose amendments to the Constitution it is not subject to any degree of restraint or control by any other authority than itself, it is equally beyond cavil that neither the Convention nor any of its officers or members can rightfully deprive any person of life, liberty or property without due process of law, deny to anyone in this country the equal protection of the laws or the freedom of speech and of the press in disregard of the Bill of Rights of the existing Constitution. Nor, for that matter, can such Convention validly pass any resolution providing for the taking of private property without just compensation or for the imposition or exacting of any tax, impost or assessment, or declare war or call the Congress to a special session, suspend the privilege of the writ of habeas corpus, pardon a convict or render judgment in a controversy between private individuals or between such individuals and the state, in violation of the distribution of powers in the Constitution. It being manifest that there are powers which the Convention may not and cannot validly assert, much less exercise, in the light of the existing Constitution, the simple question arises, should an act of the Convention be assailed by a citizen as being among those not granted to or inherent in it, according to the existing Constitution, who can decide whether such a contention is correct or not? It is of the very essence of the rule of law that somehow somewhere the Power and duty to resolve such a grave constitutional question must be lodged on some authority, or we would have to confess that the integrated system of government established by our founding fathers contains a wide vacuum no intelligent man could ignore, which is naturally unworthy of their learning, experience and craftsmanship in constitution-making. We need not go far in search for the answer to the query We have posed. The very decision of Chief Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and reinforces the irrefutable logic and wealth of principle in the opinion written for a unanimous Court by Justice Laurel in Angara vs. Electoral Commission, 63 Phil., 134, reading:

... (I)n the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmark of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. As any human production our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of check and balances and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment and the principles of good government mere political apothegms. Certainly the limitations and restrictions embodied in our Constitution are real as they should be in any living Constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of Article VIII of our Constitution. The Constitution is a definition of the powers or government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to strike conclusions unrelated to actualities. Narrowed as its functions is in this manner the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the less to be remembered that, in the language of James Madison, the system itself is not "the chief palladium of constitutional liberty ... the people who are authors of this blessing must also be its guardians ... their eyes must be ever ready to mark, their voices to pronounce ... aggression on the authority of their Constitution." In the last and ultimate analysis then, must the success of our government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than in consultation rooms and court chambers. In the case at bar, the National Assembly has by resolution (No. 8) of December 3, 1935, confirmed the election of the herein petitioner to the said body. On the other hand, the Electoral Commission has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of protests against the election, returns and qualifications of members of the National Assembly; notwithstanding the previous confirmations made by the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the power of the Electoral Commission to entertain protests against the election, returns and qualifications of members of the National Assembly, submitted after December 3, 1935 then the resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as contended by the respondents, the Electoral Commission has the sole power of regulating its proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed said date as the last day for filing protests against the election, returns and qualifications of members of the National Assembly, should be upheld. Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the National Assembly on the one hand and the Electoral Commission on the other. From the very nature of the republican government established in our country in the light of American experience and of our own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries. The Electoral Commission as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific purpose, namely, to determine all contests relating to the election, returns and qualifications of the members of the National Assembly. Although the Electoral Commission may not be interfered with, when and while acting within the limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to constitutional restriction. The Electoral Commission is not a separate department of the government, and even if it were, conflicting claims of authority under the fundamental law between departmental powers and agencies of the government are necessarily determined by the judiciary in justiciable and appropriate cases. Discarding the English type and other European types of constitutional government, the framers of our Constitution adopted the American type where the written constitution is interpreted and given effect by the judicial department. In some countries which have declined to follow the American example, provisions have been inserted in their constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This is taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition, courts are bound to assume what is logically their function. For instance, the Constitution of Poland of 1921 expressly provides that courts shall have no power to examine the validity of statutes (art. 81, Chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose constitution are silent in this respect, courts have assumed this power. This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional Charter of the Czechoslavak, Republic, February 29, 1920) and Spain (arts. 121-123, Title IX, Constitution of the Republic of 1931) especial constitutional courts are established to pass upon the validity of ordinary laws. In our case, the nature of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict of authority between two agencies created by the Constitution. Were we to decline to take cognizance of the controversy, who will determine the conflict? And if the conflict were left undecided and undetermined, would not a void be thus created in our constitutional system which may in

the long run prove destructive of the entire framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon principle, reason, and authority, we are clearly of the opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral Commission and the subject matter of the present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly." . As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these postulates just quoted do not apply only to conflicts of authority between the three existing regular departments of the government but to all such conflicts between and among these departments, or, between any of them, on the one hand, and any other constitutionally created independent body, like the electoral tribunals in Congress, the Comelec and the Constituent assemblies constituted by the House of Congress, on the other. We see no reason of logic or principle whatsoever, and none has been convincingly shown to Us by any of the respondents and intervenors, why the same ruling should not apply to the present Convention, even if it is an assembly of delegate elected directly by the people, since at best, as already demonstrated, it has been convened by authority of and under the terms of the present Constitution.. Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the present case. It goes without saying that We do this not because the Court is superior to the Convention or that the Convention is subject to the control of the Court, but simply because both the Convention and the Court are subject to the Constitution and the rule of law, and "upon principle, reason and authority," per Justice Laurel, supra, it is within the power as it is the solemn duty of the Court, under the existing Constitution to resolve the issues in which petitioner, respondents and intervenors have joined in this case. II The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of the Constitutional Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the ratification of the proposed amendment reducing to eighteen years the age for the exercise of suffrage under Section 1 of Article V of the Constitution proposed in the Convention's Organic Resolution No. 1 in the manner and form provided for in said resolution and the subsequent implementing acts and resolution of the Convention? At the threshold, the environmental circumstances of this case demand the most accurate and unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner has very clearly stated that he is not against the constitutional extension of the right of suffrage to the eighteen-yearolds, as a matter of fact, he has advocated or sponsored in Congress such a proposal, and that, in truth, the herein petition is not intended by him to prevent that the proposed amendment here involved be submitted to the people for ratification, his only purpose in filing the petition being to comply with his sworn duty to prevent, Whenever he can, any violation of the Constitution of the Philippines even if it is committed in the course of or in connection with the most laudable undertaking. Indeed, as the Court sees it, the specific question raised in this case is limited solely and only to the point of whether or not it is within the power of the Convention to call for a plebiscite for the ratification by the people of the constitutional amendment proposed in the abovequoted Organic Resolution No. 1, in the manner and form provided in said resolution as well as in the subject question implementing actions and resolution of the Convention and its officers, at this juncture of its proceedings, when as it is a matter of common knowledge and judicial notice, it is not set to adjourn sine die, and is, in fact, still in the preliminary stages of considering other reforms or amendments affecting other parts of the existing Constitution; and, indeed, Organic Resolution No. 1 itself expressly provides, that the amendment therein proposed "shall be without prejudice to other amendments that will be proposed in the future by the 1971 Constitutional Convention on other portions of the amended section or on other portions of the entire Constitution." In other words, nothing that the Court may say or do, in this case should be understood as reflecting, in any degree or means the individual or collective stand of the members of the Court on the fundamental issue of whether or not the eighteen-year-olds should be allowed to vote, simply because that issue is not before Us now. There should be no doubt in the mind of anyone that, once the Court finds it constitutionally permissible, it will not hesitate to do its part so that the said proposed amendment may be presented to the people for their approval or rejection. Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not blinded them to the absolute necessity, under the fundamental principles of democracy to which the Filipino people is committed, of adhering always to the rule of law. Surely, their idealism, sincerity and purity of purpose cannot permit any other line of conduct or approach in respect of the problem before Us. The Constitutional Convention of 1971 itself was born, in a great measure, because of the pressure brought to bear upon the Congress of the Philippines by various elements of the people, the youth in particular, in their incessant search for a peaceful and orderly means of bringing about meaningful changes in the structure and bases of the existing social and governmental institutions, including the provisions of the fundamental law related to the well-being and economic security of the underprivileged classes of our people as well as those concerning the preservation and protection of our natural resources and the national patrimony, as an alternative to violent and chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm which at times have justifiably or unjustifiably marred the demonstrations in the streets, plazas and campuses, the youth of the Philippines, in general, like the rest of the people, do not want confusion and disorder, anarchy and violence; what they really want are law and order, peace and orderliness, even in the pursuit of what they strongly and urgently feel must be done to change the present order of things in this Republic of ours. It would be tragic and contrary to the plain compulsion of these perspectives, if the Court were to allow itself in deciding this case to be carried astray by considerations other than the imperatives of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger measure than when it binds other departments of the government or any other official or entity, the Constitution imposes upon the Court the sacred duty to give meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate cases with the proper parties, and by striking down any act violative thereof. Here, as in all other cases, We are resolved to discharge that duty. During these twice when most anyone feels very strongly the urgent need for constitutional reforms, to the point of being convinced that meaningful change is the only alternative to a violent revolution, this Court would be the last to put any obstruction or impediment to the work of the Constitutional Convention. If there are respectable sectors opining that it has not been called to supplant the existing Constitution in its entirety, since its enabling provision, Article XV, from which the Convention itself draws life expressly speaks only of amendments which shall form part of it, which opinion is not without persuasive force both in principle and in logic, the seemingly prevailing view is that only the collective judgment of its members as to what is warranted by the present condition of things, as they see it, can limit the extent of the constitutional innovations the Convention may propose, hence the complete substitution of the existing constitution is not beyond the ambit of the Convention's authority. Desirable as it may be to resolve, this grave divergence of views, the Court does not consider this case to be properly the one in which it should discharge its constitutional duty in such premises. The issues raised by petitioner, even those among them in which respondents and intervenors have joined in an apparent wish to have them squarely passed upon by the Court do not necessarily impose upon Us the imperative obligation to express Our views thereon. The Court considers it to be of the utmost importance that the Convention should be untrammelled and unrestrained in the performance of its constitutionally as signed mission in the manner and form it may conceive best, and so the Court may step in to clear up doubts as to the boundaries set down by the Constitution only when and to the specific extent only that it would be necessary to do so to avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter.

Withal, it is a very familiar principle of constitutional law that constitutional questions are to be resolved by the Supreme Court only when there is no alternative but to do it, and this rule is founded precisely on the principle of respect that the Court must accord to the acts of the other coordinate departments of the government, and certainly, the Constitutional Convention stands almost in a unique footing in that regard. In our discussion of the issue of jurisdiction, We have already made it clear that the Convention came into being by a call of a joint session of Congress pursuant to Section I of Article XV of the Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now We hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section I of Article XV. This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy of the people for which it is intended must not be prepared in haste without adequate deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no less importance than the whole Constitution itself, and perforce must be conceived and prepared with as much care and deliberation. From the very nature of things, the drafters of an original constitution, as already observed earlier, operate without any limitations, restraints or inhibitions save those that they may impose upon themselves. This is not necessarily true of subsequent conventions called to amend the original constitution. Generally, the framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but more importantly, because written constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less stringent, made so by the people themselves, in regard to the process of their amendment. And when such limitations or conditions are so incorporated in the original constitution, it does not lie in the delegates of any subsequent convention to claim that they may ignore and disregard such conditions because they are as powerful and omnipotent as their original counterparts. Nothing of what is here said is to be understood as curtailing in any degree the number and nature and the scope and extent of the amendments the Convention may deem proper to propose. Nor does the Court propose to pass on the issue extensively and brilliantly discussed by the parties as to whether or not the power or duty to call a plebiscite for the ratification of the amendments to be proposed by the Convention is exclusively legislative and as such may be exercised only by the Congress or whether the said power can be exercised concurrently by the Convention with the Congress. In the view the Court takes of present case, it does not perceive absolute necessity to resolve that question, grave and important as it may be. Truth to tell, the lack of unanimity or even of a consensus among the members of the Court in respect to this issue creates the need for more study and deliberation, and as time is of the essence in this case, for obvious reasons, November 8, 1971, the date set by the Convention for the plebiscite it is calling, being nigh, We will refrain from making any pronouncement or expressing Our views on this question until a more appropriate case comes to Us. After all, the basis of this decision is as important and decisive as any can be. The ultimate question, therefore boils down to this: Is there any limitation or condition in Section 1 of Article XV of the Constitution which is violated by the act of the Convention of calling for a plebiscite on the sole amendment contained in Organic Resolution No. 1? The Court holds that there is, and it is the condition and limitation that all the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite. It being indisputable that the amendment now proposed to be submitted to a plebiscite is only the first amendment the Convention propose We hold that the plebiscite being called for the purpose of submitting the same for ratification of the people on November 8, 1971 is not authorized by Section 1 of Article XV of the Constitution, hence all acts of the Convention and the respondent Comelec in that direction are null and void. We have arrived at this conclusion for the following reasons: 1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly that either Congress sitting as a constituent assembly or a convention called for the purpose "may propose amendments to this Constitution," thus placing no limit as to the number of amendments that Congress or the Convention may propose. The same provision also as definitely provides that "such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification," thus leaving no room for doubt as to how many "elections" or plebiscites may be held to ratify any amendment or amendments proposed by the same constituent assembly of Congress or convention, and the provision unequivocably says "an election" which means only one. (2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this provision. As already stated, amending the Constitution is as serious and important an undertaking as constitution making itself. Indeed, any amendment of the Constitution is as important as the whole of it if only because the Constitution has to be an integrated and harmonious instrument, if it is to be viable as the framework of the government it establishes, on the one hand, and adequately formidable and reliable as the succinct but comprehensive articulation of the rights, liberties, ideology, social ideals, and national and nationalistic policies and aspirations of the people, on the other. lt is inconceivable how a constitution worthy of any country or people can have any part which is out of tune with its other parts.. A constitution is the work of the people thru its drafters assembled by them for the purpose. Once the original constitution is approved, the part that the people play in its amendment becomes harder, for when a whole constitution is submitted to them, more or less they can assumed its harmony as an integrated whole, and they can either accept or reject it in its entirety. At the very least, they can examine it before casting their vote and determine for themselves from a study of the whole document the merits and demerits of all or any of its parts and of the document as a whole. And so also, when an amendment is submitted to them that is to form part of the existing constitution, in like fashion they can study with deliberation the proposed amendment in relation to the whole existing constitution and or any of its parts and thereby arrive at an intelligent judgment as to its acceptability. This cannot happen in the case of the amendment in question. Prescinding already from the fact that under Section 3 of the questioned resolution, it is evident that no fixed frame of reference is provided the voter, as to what finally will be concomitant qualifications that will be required by the final draft of the constitution to be formulated by the Convention of a voter to be able to enjoy the right of suffrage, there are other considerations which make it impossible to vote intelligently on the proposed amendment, although it may already be observed that under Section 3, if a voter would favor the reduction of the voting age to eighteen under conditions he feels are needed under the circumstances, and he does not see those conditions in the ballot nor is there any possible indication whether they will ever be or not, because Congress has reserved those for future action, what kind of judgment can he render on the proposal?

But the situation actually before Us is even worse. No one knows what changes in the fundamental principles of the constitution the Convention will be minded to approve. To be more specific, we do not have any means of foreseeing whether the right to vote would be of any significant value at all. Who can say whether or not later on the Convention may decide to provide for varying types of voters for each level of the political units it may divide the country into. The root of the difficulty in other words, lies in that the Convention is precisely on the verge of introducing substantial changes, if not radical ones, in almost every part and aspect of the existing social and political order enshrined in the present Constitution. How can a voter in the proposed plebiscite intelligently determine the effect of the reduction of the voting age upon the different institutions which the Convention may establish and of which presently he is not given any idea? We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. In the context of the present state of things, where the Convention has hardly started considering the merits of hundreds, if not thousands, of proposals to amend the existing Constitution, to present to the people any single proposal or a few of them cannot comply with this requirement. We are of the opinion that the present Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election" wherein the people are in the dark as to frame of reference they can base their judgment on. We reject the rationalization that the present Constitution is a possible frame of reference, for the simple reason that intervenors themselves are stating that the sole purpose of the proposed amendment is to enable the eighteen year olds to take part in the election for the ratification of the Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the language of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, "no proper submission". III The Court has no desire at all to hamper and hamstring the noble work of the Constitutional Convention. Much less does the Court want to pass judgment on the merits of the proposal to allow these eighteen years old to vote. But like the Convention, the Court has its own duties to the people under the Constitution which is to decide in appropriate cases with appropriate parties Whether or not the mandates of the fundamental law are being complied with. In the best light God has given Us, we are of the conviction that in providing for the questioned plebiscite before it has finished, and separately from, the whole draft of the constitution it has been called to formulate, the Convention's Organic Resolution No. 1 and all subsequent acts of the Convention implementing the same violate the condition in Section 1, Article XV that there should only be one "election" or plebiscite for the ratification of all the amendments the Convention may propose. We are not denying any right of the people to vote on the proposed amendment; We are only holding that under Section 1, Article XV of the Constitution, the same should be submitted to them not separately from but together with all the other amendments to be proposed by this present Convention. IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the Constitutional Convention of 1971 and the implementing acts and resolutions of the Convention, insofar as they provide for the holding of a plebiscite on November 8, 1971, as well as the resolution of the respondent Comelec complying therewith (RR Resolution No. 695) are hereby declared null and void. The respondents Comelec, Disbursing Officer, Chief Accountant and Auditor of the Constitutional Convention are hereby enjoined from taking any action in compliance with the said organic resolution. In view of the peculiar circumstances of this case, the Court declares this decision immediately executory. No costs. Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.

Separate Opinions

MAKALINTAL, J., reserves his vote I reserve my vote. The resolution in question is voted down by a sufficient majority of the Court on just one ground, which to be sure achieves the result from the legal and constitutional viewpoint. I entertain grave doubts as to the validity of the premises postulated and conclusions reached in support of the dispositive portion of the decision. However, considering the urgent nature of this case, the lack of time to set down at length my opinion on the particular issue upon which the decision is made to rest, and the fact that a dissent on the said issue would necessarily be inconclusive unless the other issues raised in the petition are also considered and ruled upon a task that would be premature and pointless at this time I limit myself to this reservation. REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring: We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable, forthright and vigorous style. Like him, we do not express our individual views on the wisdom of the proposed constitutional amendment, which is not in issue here because it is a matter that properly and exclusively addresses itself to the collective judgment of the people. We must, however, articulate two additional objections of constitutional dimension which, although they would seem to be superfluous because of the reach of the basic constitutional infirmity discussed in extenso in the main opinion, nevertheless appear to us to be just as fundamental in character and scope.

Assuming that the Constitutional Convention has power to propose piecemeal amendments and submit each separately to the people for ratification, we are nonetheless persuaded that (1) that there is no proper submissionof title proposed amendment in question within the meaning and intendment of Section 1 of Article XV of the Constitution, and (2) that the forthcoming election is not the proper election envisioned by the same provision of the Constitution. Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on Elections 1 and Philippine Constitution Association vs. Commission on Elections, 2 expounded his view, with which we essentially agree, on the minimum requirements that must be met in order that there can be a proper submission to the people of a proposed constitutional amendment. This is what he said: ... amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word "submitted" can only mean that the government, within its maximum capabilities, should strain every effort to inform citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection." . The second constitutional objection was given expression by one of the writers of this concurring opinion, in the following words: I find it impossible to believe that it was ever intended by its framers that such amendment should be submitted and ratified by just "a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification", if the concentration of the people's attention thereon is to be diverted by other extraneous issues, such as the choice of local and national officials. The framers of the Constitution, aware of the fundamental character thereof, and of the need of giving it as much stability as is practicable, could have only meant that any amendments thereto should be debated, considered and voted upon an election wherein the people could devote undivided attention to the subject. 4 True it is that the question posed by the proposed amendment, "Do you or do you not want the 18-year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of life's verities that things which appear to be simple may turn out not to be so simple after all. A number of doubts or misgivings could conceivably and logically assail the average voter. Why should the voting age be lowered at all, in the first place? Why should the new voting age be precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-year old so that there is no need of an educational qualification to entitle him to vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed amendment is voted down by the people, will the Constitutional Convention insist on the said amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having this particular proposed amendment ratified at this particular time? Do some of the members of the Convention have future political plans which they want to begin to subserve by the approval this year of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should now also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to render compulsory military service under the colors? Will the age of contractual consent be reduced to 18 years? If I vote against this amendment, will I not be unfair to my own child who will be 18 years old, come 1973? . The above are just samplings from here, there and everywhere from a domain (of searching questions) the bounds of which are not immediately ascertainable. Surely, many more questions can be added to the already long litany. And the answers cannot be had except as the questions are debated fully, pondered upon purposefully, and accorded undivided attention. Scanning the contemporary scene, we say that the people are not, and by election time will not be, sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment. They have not been afforded ample time to deliberate thereon conscientiously. They have been and are effectively distracted from a full and dispassionate consideration of the merits and demerits of the proposed amendment by their traditional pervasive involvement in local elections and politics. They cannot thus weigh in tranquility the need for and the wisdom of the proposed amendment. Upon the above disquisition, it is our considered view that the intendment of the words, "at an election at which the amendments are submitted to the people for their ratification," embodied in Section 1 of Article XV of the Constitution, has not been met. FERNANDO, J., concurring and dissenting: There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by clarity and vigor, its manifestation of fealty to the rule of law couched in eloquent language, that commands assent. As the Constitution occupies the topmost rank in the hierarchy of legal norms, Congress and Constitutional Convention alike, no less than this Court, must bow to its supremacy. Thereby constitutionalism asserts itself. With the view I entertain of what is allowable, if not indeed required by the Constitution, my conformity does not extend as far as the acceptance of the conclusion reached. The question presented is indeed novel, not being controlled by constitutional prescription, definite and certain. Under the circumstances, with the express recognition in the Constitution of the powers of the Constitutional Convention to propose amendments, I cannot discern any objection to the validity of its action there being no legal impediment that would call for its nullification. Such an approach all the more commends itself to me considering that what was sought to be done is to refer the matter to the people in whom, according to our Constitution, sovereignty resides. It is in that sense that, with due respect, I find myself unable to join my brethren. I. It is understandable then why the decisive issue posed could not be resolved by reliance on, implicit in the petition and the answer of intervenors, such concepts as legislative control of the constitutional convention referred to by petitioner on the one hand or, on the other, the theory of conventional sovereignty favored by intervenors. It is gratifying to note that during the oral argument of petitioner and counsel for respondents and intervenors, there

apparently was a retreat from such extreme position, all parties, as should be the case, expressly avowing the primacy of the Constitution, the applicable provision of which as interpreted by this Court, should be controlling on both Congress and the Convention. It cannot be denied though that in at least one American state, that is Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised by a constitutional convention are dependent on a legislative grant, in the absence of any authority conferred directly by the fundamental law. The result is a convention that is subordinate to the lawmaking body. Its field of competence is circumscribed. It has to look to the latter for the delimitation of its permissible scope of activity. It is thus made subordinate to the legislature. Nowhere has such a view been more vigorously expressed than in the Pennsylvania case of Wood's Appeal. 1 Its holding though finds no support under our constitutional provision. It does not thereby follow that while free from legislative control, a constitutional convention may lay claim to an attribute sovereign in character. The Constitution is quite explicit that it is to the people, and to the people alone, in whom sovereignty resides. 2 Such a prerogative is therefore withheld from a convention. It is an agency entrusted with the responsibility of high import and significance it is true; it is denied unlimited legal competence though. That is what sovereignty connotes. It has to yield to the superior force of the Constitution. There can then be no basis for the exaggerated pretension that it is an alter ego of the people. It is to be admitted that there are some American state decisions, the most notable of which is Sproule v. Fredericks, 3 a Mississippi case, that dates back to 1892, that yield a different conclusion. The doctrine therein announced cannot bind us. Our Constitution makes clear that the power of a constitutional convention is not sovereign. It is appropriately termed constituent, limited as it is to the purpose of drafting a constitution or proposing revision or amendments to one in existence, subject in either case to popular approval. The view that commends itself for acceptance is that legislature and constitutional convention, alike recognized by the Constitution, are coordinate, there being no superiority of one over the other. Insofar as the constituent power of proposing amendments to the Constitution is concerned, a constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which can be the only source of valid restriction on its competence. It is true it is to the legislative body that the call to a convention must proceed, but once convened, it cannot in any wise be interfered with, much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate, and paramount task assigned to it. A convention then is to be looked upon as if it were one of the three coordinate departments which under the principle of separation of powers is supreme within its field and has exclusive cognizance of matters properly subject to its jurisdiction. A succinct statement of the appropriate principle that should govern the relationship between a constitutional convention and a legislative body under American law is that found in Orfield's work. Thus: "The earliest view seems to have been that a convention was absolute. The convention was sovereign and subject to no restraint. On the other hand, Jameson, whose views have been most frequently cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd that a convention, though not sovereign, is a body independent of the legislature; it is bound by the existing constitution, but not by the acts of the legislature, as to the extent of its constituent power. This view has become increasingly prevalent in the state decisions." 4 2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion of the Court, that any limitation on the power the Constitutional, Convention must find its source. I turn to its Article XV. It reads: "The Congress in joint session assembled, by a vote of three fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification." Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the Congress of the Philippines in the mode therein provided, and a constitutional convention that may be called into being. Once assembled, a constitutional convention, like the Congress of the Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may determine what amendments it would have the people ratify and thereafter take all the steps necessary so that the approval or disapproval of the electorate may be obtained, the convention likewise, to my mind, should be deemed possessed of all the necessary authority to assure that whatever amendments it seeks to introduce would be submitted to the people at an election called for that purpose. It would appear to me that to view the convention as being denied a prerogative which is not withheld from Congress as a constituent body would be to place it in an inferior category. Such a proposition I do not find acceptable. Congress and constitutional convention are agencies for submitting proposals under the fundamental law. A power granted to one should not be denied the other. No justification for such a drastic differentiation either in theory or practice exists. Such a conclusion has for me the added reinforcement that to require ordinary legislation before the convention could be enabled to have its proposals voted on by the people would be to place a power in the legislative and executive branches that could, whether by act or omission, result in the frustration of the amending process. I am the first to admit that such likelihood is remote, but if such a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable constitutional provision requires otherwise. Considering that a constitutional convention is not precluded from imposing additional restrictions on the powers of either the executive or legislative branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article XV in such a way that would not sanction such restraint on the authority that must be recognized as vested in a constitutional convention. There is nothing in such a view that to my mind would collide with a reasonable interpretation of Article XV. It certainly is one way by which freed from pernicious abstractions, it would be easier to accommodate a constitution to the needs of an unfolding future. That is to facilitate its being responsive to the challenge that time inevitably brings in its wake. From such an approach then, I am irresistibly led to the conclusion that the challenged resolution was well within the power of the convention. That would be to brush aside the web of unreality spun from a too-restrictive mode of appraising the legitimate scope of its competence. That would be, for me, to give added vigor and life to the conferment of authority vested in it, attended by such grave and awesome responsibility. 3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such amendment shall be valid when submitted and thereafter approved by the majority of the votes cast by the people at an election is a bar to the proposed submission. It is the conclusion arrived at by my brethren that there is to be only one election and that therefore the petition must be sustained as only when the convention has finished its work should all amendments proposed be submitted for ratification. That is not for me, and I say this with respect, the appropriate interpretation. It is true that the Constitution uses the word "election" in the singular, but that is not decisive. No undue reliance should be accorded rules of grammar; they do not exert a compelling force in constitutional interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a mode of construction does not commend itself. The words used in the Constitution are not inert; they derive vitality from the obvious purposes at which they are aimed. Petitioner's stress on linguistic refinement, while not implausible does not, for me, carry the day. It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not such as was contemplated in this article. I do not find such contention convincing. The fact that the Constitutional Convention did seek to consult the wishes of the people by the proposed submission of

a tentative amendatory provision is an argument for its validity. It might be said of course that until impressed with finality, an amendment is not to be passed upon by the electorate. There is plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs it though would not, for me, be satisfied. From its silence I deduce the inference that there is no repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will. In that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent but silently vocal. What I deem the more important consideration is that while a public official, as an agent, has to locate his source of authority in either Constitution or statute, the people, as the principal, can only be limited in the exercise of their sovereign powers by the express terms of the Constitution. A concept to the contrary would to my way of thinking be inconsistent with the fundamental principle that it is in the people, and the people alone, that sovereignty resides. 4. The constitutional Convention having acted within the scope of its authority, an action to restrain or prohibit respondent Commission on Elections from conducting the plebiscite does not lie. It should not be lost sight of that the Commission on Elections in thus being charged with such a duty does not act in its capacity as the constitutional agency to take charge of all laws relative to the conduct of election. That is a purely executive function vested in it under Article X of the Constitution. 5 It is not precluded from assisting the Constitutional Convention if pursuant to its competence to amend the fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to the electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional Convention Act, it is not to turn a deaf ear to a summons from the Convention to aid it in the legitimate discharge of its functions. 6 The aforesaid considerations, such as they are, but which for me have a force that I mind myself unable to overcome, leave me no alternative but to dissent from my brethren, with due acknowledgement of course that from their basic premises, the conclusion arrived at by them cannot be characterized as in any wise bereft of a persuasive quality of a high order.

Separate Opinions MAKALINTAL, J., reserves his vote I reserve my vote. The resolution in question is voted down by a sufficient majority of the Court on just one ground, which to be sure achieves the result from the legal and constitutional viewpoint. I entertain grave doubts as to the validity of the premises postulated and conclusions reached in support of the dispositive portion of the decision. However, considering the urgent nature of this case, the lack of time to set down at length my opinion on the particular issue upon which the decision is made to rest, and the fact that a dissent on the said issue would necessarily be inconclusive unless the other issues raised in the petition are also considered and ruled upon a task that would be premature and pointless at this time I limit myself to this reservation. REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring: We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable, forthright and vigorous style. Like him, we do not express our individual views on the wisdom of the proposed constitutional amendment, which is not in issue here because it is a matter that properly and exclusively addresses itself to the collective judgment of the people. We must, however, articulate two additional objections of constitutional dimension which, although they would seem to be superfluous because of the reach of the basic constitutional infirmity discussed in extenso in the main opinion, nevertheless appear to us to be just as fundamental in character and scope. Assuming that the Constitutional Convention has power to propose piecemeal amendments and submit each separately to the people for ratification, we are nonetheless persuaded that (1) that there is no proper submissionof title proposed amendment in question within the meaning and intendment of Section 1 of Article XV of the Constitution, and (2) that the forthcoming election is not the proper election envisioned by the same provision of the Constitution. Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on Elections 1 and Philippine Constitution Association vs. Commission on Elections, 2 expounded his view, with which we essentially agree, on the minimum requirements that must be met in order that there can be a proper submission to the people of a proposed constitutional amendment. This is what he said: ... amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word "submitted" can only mean that the government, within its maximum capabilities, should strain every effort to inform citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection." . The second constitutional objection was given expression by one of the writers of this concurring opinion, in the following words:

I find it impossible to believe that it was ever intended by its framers that such amendment should be submitted and ratified by just "a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification", if the concentration of the people's attention thereon is to be diverted by other extraneous issues, such as the choice of local and national officials. The framers of the Constitution, aware of the fundamental character thereof, and of the need of giving it as much stability as is practicable, could have only meant that any amendments thereto should be debated, considered and voted upon an election wherein the people could devote undivided attention to the subject. 4 True it is that the question posed by the proposed amendment, "Do you or do you not want the 18-year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of life's verities that things which appear to be simple may turn out not to be so simple after all. A number of doubts or misgivings could conceivably and logically assail the average voter. Why should the voting age be lowered at all, in the first place? Why should the new voting age be precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-year old so that there is no need of an educational qualification to entitle him to vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed amendment is voted down by the people, will the Constitutional Convention insist on the said amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having this particular proposed amendment ratified at this particular time? Do some of the members of the Convention have future political plans which they want to begin to subserve by the approval this year of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should now also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to render compulsory military service under the colors? Will the age of contractual consent be reduced to 18 years? If I vote against this amendment, will I not be unfair to my own child who will be 18 years old, come 1973? . The above are just samplings from here, there and everywhere from a domain (of searching questions) the bounds of which are not immediately ascertainable. Surely, many more questions can be added to the already long litany. And the answers cannot be had except as the questions are debated fully, pondered upon purposefully, and accorded undivided attention. Scanning the contemporary scene, we say that the people are not, and by election time will not be, sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment. They have not been afforded ample time to deliberate thereon conscientiously. They have been and are effectively distracted from a full and dispassionate consideration of the merits and demerits of the proposed amendment by their traditional pervasive involvement in local elections and politics. They cannot thus weigh in tranquility the need for and the wisdom of the proposed amendment. Upon the above disquisition, it is our considered view that the intendment of the words, "at an election at which the amendments are submitted to the people for their ratification," embodied in Section 1 of Article XV of the Constitution, has not been met. FERNANDO, J., concurring and dissenting: There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by clarity and vigor, its manifestation of fealty to the rule of law couched in eloquent language, that commands assent. As the Constitution occupies the topmost rank in the hierarchy of legal norms, Congress and Constitutional Convention alike, no less than this Court, must bow to its supremacy. Thereby constitutionalism asserts itself. With the view I entertain of what is allowable, if not indeed required by the Constitution, my conformity does not extend as far as the acceptance of the conclusion reached. The question presented is indeed novel, not being controlled by constitutional prescription, definite and certain. Under the circumstances, with the express recognition in the Constitution of the powers of the Constitutional Convention to propose amendments, I cannot discern any objection to the validity of its action there being no legal impediment that would call for its nullification. Such an approach all the more commends itself to me considering that what was sought to be done is to refer the matter to the people in whom, according to our Constitution, sovereignty resides. It is in that sense that, with due respect, I find myself unable to join my brethren. I. It is understandable then why the decisive issue posed could not be resolved by reliance on, implicit in the petition and the answer of intervenors, such concepts as legislative control of the constitutional convention referred to by petitioner on the one hand or, on the other, the theory of conventional sovereignty favored by intervenors. It is gratifying to note that during the oral argument of petitioner and counsel for respondents and intervenors, there apparently was a retreat from such extreme position, all parties, as should be the case, expressly avowing the primacy of the Constitution, the applicable provision of which as interpreted by this Court, should be controlling on both Congress and the Convention. It cannot be denied though that in at least one American state, that is Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised by a constitutional convention are dependent on a legislative grant, in the absence of any authority conferred directly by the fundamental law. The result is a convention that is subordinate to the lawmaking body. Its field of competence is circumscribed. It has to look to the latter for the delimitation of its permissible scope of activity. It is thus made subordinate to the legislature. Nowhere has such a view been more vigorously expressed than in the Pennsylvania case of Wood's Appeal. 1 Its holding though finds no support under our constitutional provision. It does not thereby follow that while free from legislative control, a constitutional convention may lay claim to an attribute sovereign in character. The Constitution is quite explicit that it is to the people, and to the people alone, in whom sovereignty resides. 2 Such a prerogative is therefore withheld from a convention. It is an agency entrusted with the responsibility of high import and significance it is true; it is denied unlimited legal competence though. That is what sovereignty connotes. It has to yield to the superior force of the Constitution. There can then be no basis for the exaggerated pretension that it is an alter ego of the people. It is to be admitted that there are some American state decisions, the most notable of which is Sproule v. Fredericks, 3 a Mississippi case, that dates back to 1892, that yield a different conclusion. The doctrine therein announced cannot bind us. Our Constitution makes clear that the power of a constitutional convention is not sovereign. It is appropriately termed constituent, limited as it is to the purpose of drafting a constitution or proposing revision or amendments to one in existence, subject in either case to popular approval. The view that commends itself for acceptance is that legislature and constitutional convention, alike recognized by the Constitution, are coordinate, there being no superiority of one over the other. Insofar as the constituent power of proposing amendments to the Constitution is concerned, a constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which can be the only source of valid restriction on its competence. It is true it is to the legislative body that the call to a convention must proceed, but once convened, it cannot in any wise be interfered with, much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate, and paramount task assigned to it. A convention then is to be looked upon as if it were one of the three coordinate departments which under the principle of separation of powers is supreme within its field and has exclusive cognizance of matters properly subject to its jurisdiction. A succinct statement of the appropriate principle that should govern the relationship between a constitutional convention and a legislative body under American law is that found in Orfield's work. Thus: "The earliest view seems to have

been that a convention was absolute. The convention was sovereign and subject to no restraint. On the other hand, Jameson, whose views have been most frequently cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd that a convention, though not sovereign, is a body independent of the legislature; it is bound by the existing constitution, but not by the acts of the legislature, as to the extent of its constituent power. This view has become increasingly prevalent in the state decisions." 4 2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion of the Court, that any limitation on the power the Constitutional, Convention must find its source. I turn to its Article XV. It reads: "The Congress in joint session assembled, by a vote of three fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification." Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the Congress of the Philippines in the mode therein provided, and a constitutional convention that may be called into being. Once assembled, a constitutional convention, like the Congress of the Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may determine what amendments it would have the people ratify and thereafter take all the steps necessary so that the approval or disapproval of the electorate may be obtained, the convention likewise, to my mind, should be deemed possessed of all the necessary authority to assure that whatever amendments it seeks to introduce would be submitted to the people at an election called for that purpose. It would appear to me that to view the convention as being denied a prerogative which is not withheld from Congress as a constituent body would be to place it in an inferior category. Such a proposition I do not find acceptable. Congress and constitutional convention are agencies for submitting proposals under the fundamental law. A power granted to one should not be denied the other. No justification for such a drastic differentiation either in theory or practice exists. Such a conclusion has for me the added reinforcement that to require ordinary legislation before the convention could be enabled to have its proposals voted on by the people would be to place a power in the legislative and executive branches that could, whether by act or omission, result in the frustration of the amending process. I am the first to admit that such likelihood is remote, but if such a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable constitutional provision requires otherwise. Considering that a constitutional convention is not precluded from imposing additional restrictions on the powers of either the executive or legislative branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article XV in such a way that would not sanction such restraint on the authority that must be recognized as vested in a constitutional convention. There is nothing in such a view that to my mind would collide with a reasonable interpretation of Article XV. It certainly is one way by which freed from pernicious abstractions, it would be easier to accommodate a constitution to the needs of an unfolding future. That is to facilitate its being responsive to the challenge that time inevitably brings in its wake. From such an approach then, I am irresistibly led to the conclusion that the challenged resolution was well within the power of the convention. That would be to brush aside the web of unreality spun from a too-restrictive mode of appraising the legitimate scope of its competence. That would be, for me, to give added vigor and life to the conferment of authority vested in it, attended by such grave and awesome responsibility. 3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such amendment shall be valid when submitted and thereafter approved by the majority of the votes cast by the people at an election is a bar to the proposed submission. It is the conclusion arrived at by my brethren that there is to be only one election and that therefore the petition must be sustained as only when the convention has finished its work should all amendments proposed be submitted for ratification. That is not for me, and I say this with respect, the appropriate interpretation. It is true that the Constitution uses the word "election" in the singular, but that is not decisive. No undue reliance should be accorded rules of grammar; they do not exert a compelling force in constitutional interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a mode of construction does not commend itself. The words used in the Constitution are not inert; they derive vitality from the obvious purposes at which they are aimed. Petitioner's stress on linguistic refinement, while not implausible does not, for me, carry the day. It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not such as was contemplated in this article. I do not find such contention convincing. The fact that the Constitutional Convention did seek to consult the wishes of the people by the proposed submission of a tentative amendatory provision is an argument for its validity. It might be said of course that until impressed with finality, an amendment is not to be passed upon by the electorate. There is plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs it though would not, for me, be satisfied. From its silence I deduce the inference that there is no repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will. In that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent but silently vocal. What I deem the more important consideration is that while a public official, as an agent, has to locate his source of authority in either Constitution or statute, the people, as the principal, can only be limited in the exercise of their sovereign powers by the express terms of the Constitution. A concept to the contrary would to my way of thinking be inconsistent with the fundamental principle that it is in the people, and the people alone, that sovereignty resides. 4. The constitutional Convention having acted within the scope of its authority, an action to restrain or prohibit respondent Commission on Elections from conducting the plebiscite does not lie. It should not be lost sight of that the Commission on Elections in thus being charged with such a duty does not act in its capacity as the constitutional agency to take charge of all laws relative to the conduct of election. That is a purely executive function vested in it under Article X of the Constitution. 5 It is not precluded from assisting the Constitutional Convention if pursuant to its competence to amend the fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to the electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional Convention Act, it is not to turn a deaf ear to a summons from the Convention to aid it in the legitimate discharge of its functions. 6 The aforesaid considerations, such as they are, but which for me have a force that I mind myself unable to overcome, leave me no alternative but to dissent from my brethren, with due acknowledgement of course that from their basic premises, the conclusion arrived at by them cannot be characterized as in any wise bereft of a persuasive quality of a high order. c. Judicial Review of Amendments Javellana vs. Executive Secretary, 50 SCRA 30

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-36142 March 31, 1973 JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE AND THE SECRETARY OF FINANCE, respondents. G.R. No. L-36164 March 31, 1973 VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA AND LORENZO M. TAADA, petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF THE PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE COMMISSIONER OF CIVIL SERVICE, respondents. G.R. No. L-36165 March 31, 1973. GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA ESTRADAKALAW, petitioners, vs. ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his capacity as Secretary of National Defense; General ROMEO ESPINO, in his capacity as Chief of Staff of the Armed Forces of the Philippines; TANCIO E. CASTAEDA, in his capacity as Secretary General Services; Senator GIL J. PUYAT, in his capacity as President of the Senate; and Senator JOSE ROY, his capacity, as President Pro Tempore of the of the Senate, respondents. G.R. No. L-36236 March 31, 1973 EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press Club of the Philippines], petitioner, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER & THE NATIONAL TREASURER, respondents. G.R. No. L-36283 March 31, 1973 NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL M. GONZALEZ, petitioners, vs. THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR GENERAL, respondents. Ramon A. Gonzales for petitioner Josue Javellana. Lorenzo M. Taada and Associates for petitioners Vidal Tan, et al. Taada, Salonga, Ordoez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for petitioners Gerardo Roxas, et al. Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro. Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al. Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy. Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for other respondents. RESOLUTION

CONCEPCION, C.J.: The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979, decided on January 22, 1973, to which We will hereafter refer collectively as the plebiscite cases. Background of the Plebiscite Cases. The factual setting thereof is set forth in the decision therein rendered, from which We quote: On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of which the election of delegates to said Convention was held on November 10, 1970, and the 1971 Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention, and appropriating funds therefor," as well as setting the plebiscite for said ratification or rejection of the Proposed Constitution on January 15, 1973. Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R. No. L-35925, against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential Decree "has no force and effect as law because the calling ... of such plebiscite, the setting of guidelines for the conduct of the same, the prescription of the ballots to be used and the question to be answered by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in Congress ...," and "there is no proper submission to the people of said Proposed Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and there being no sufficient time to inform the people of the contents thereof." Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the Commission on Elections (Case G.R. No. L- 35929) on December 11, 1972, by Gerardo Roxas, et al., against the Commission on Elections, the Director of Printing, the National Treasurer and the Auditor General (Case G.R. L-35940), by Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoez, et al. against the National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-35948) and by Jose W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No. L-35953); on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R. No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget Commissioner, the National Treasurer and the Auditor General (Case G.R. No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of Education, the National Treasurer and the Auditor General (Case G.R. No. L-35979). In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their answers "not later than 12:00 (o'clock) noon of Saturday, December 16, 1972." Said cases were, also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was continued on December 19, 1972. By agreement of the parties, the aforementioned last case G.R. No. L-35979 was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of the hearing, on that date, the parties in all of the aforementioned cases were given a short period of time within which "to submit their notes on the points they desire to stress." Said notes were filed on different dates, between December 21, 1972, and January 4, 1973. Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on January 15, 1978, be postponed until further notice." Said General Order No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution." In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known or announced officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections the Court deemed it more imperative to defer its final action on these cases. "In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent motion," praying that said case be decided "as soon as possible, preferably not later than January 15, 1973." It was alleged in said motion, inter alia:

"6. That the President subsequently announced the issuance of Presidential Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin Today, January 1, 1973]; "7. That thereafter it was later announced that "the Assemblies will be asked if they favor or oppose [1] The New Society; [2] Reforms instituted under Martial Law; [3] The holding of a plebiscite on the proposed new Constitution and when (the tentative new dates given following the postponement of the plebiscite from the original date of January 15 are February 19 and March 5); [4] The opening of the regular session slated on January 22 in accordance with the existing Constitution despite Martial Law." [Bulletin Today, January 3, 1973.] "8. That it was later reported that the following are to be the forms of the questions to be asked to the Citizens Assemblies: [1] Do you approve of the New Society? [2] Do you approve of the reform measures under martial law? [3] Do you think that Congress should meet again in regular session? [4] How soon would you like the plebiscite on the new Constitution to be held? [Bulletin Today, January 5, 1973]. "9. That the voting by the so-called Citizens Assemblies was announced to take place during the period from January 10 to January 15, 1973; "10. That on January 10, 1973, it was reported that on more question would be added to the four (4) question previously announced, and that the forms of the question would be as follows: [1] Do you like the New Society? [2] Do you like the reforms under martial law? [3] Do you like Congress again to hold sessions? [4] Do you like the plebiscite to be held later? [5] Do you like the way President Marcos running the affairs of the government? [Bulletin Today, January 10, 1973; emphasis an additional question.] "11. That on January 11, 1973, it was reported that six (6) more questions would be submitted to the so-called Citizens Assemblies: [1] Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests? [2] Do you approve of the new Constitution? [3] Do you want a plebiscite to be called to ratify the new Constitution? [4] Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution? [5] If the elections would not be held, when do you want the next elections to be called? [6] Do you want martial law to continue? [Bulletin Today, January 11, 1973; emphasis supplied] "12. That according to reports, the returns with respect to the six (6) additional questions quoted above will be on a form similar or identical to Annex "A" hereof; "13. That attached to page 1 of Annex "A" is another page, which we marked as Annex "A-1", and which reads:

COMMENTS ON QUESTION No. 1 In order to broaden the base of citizens' participation in government. QUESTION No. 2 But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies. QUESTION No. 3 The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution. If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified. QUESTION No. 4 We are sick and tired of too frequent elections. We are fed up with politics, of so many debates and so much expenses. QUESTION No. 5 Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country, for reforms to take root and normalcy to return. QUESTION No. 6 We want President Marcos to continue with Martial Law. We want him to exercise his powers with more authority. We want him to be strong and firm so that he can accomplish all his reform programs and establish normalcy in the country. If all other measures fail, we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly." "Attention is respectfully invited to the comments on "Question No. 3," which reads: QUESTION No. 3 The vote of the Citizens Assemblies should be considered the plebiscite on the New Constitution. If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified. This, we are afraid, and therefore allege, is pregnant with ominous possibilities. 14. That, in the meantime, speaking on television and over the radio, on January 7, 1973, the President announced that the limited freedom of debate on the proposed Constitution was being withdrawn and that the proclamation of martial law and the orders and decrees issued thereunder would thenceforth strictly be enforced [Daily Express, January 8, 1973]; 15. That petitioners have reason to fear, and therefore state, that the question added in the last list of questions to be asked to the Citizens Assemblies, namely: Do you approve of the New Constitution? in relation to the question following it: Do you still want a plebiscite to be called to ratify the new Constitution?" would be an attempt to by-pass and short-circuit this Honorable Court before which the question of the validity of the plebiscite on the proposed Constitution is now pending;

"16. That petitioners have reason to fear, and therefore allege, that if an affirmative answer to the two questions just referred to will be reported then this Honorable Court and the entire nation will be confronted with a fait accompli which has been attained in a highly unconstitutional and undemocratic manner; "17. That the fait accompli would consist in the supposed expression of the people approving the proposed Constitution; "18. That, if such event would happen, then the case before this Honorable Court could, to all intents and purposes, become moot because, petitioners fear, and they therefore allege, that on the basis of such supposed expression of the will of the people through the Citizens Assemblies, it would be announced that the proposed Constitution, with all its defects, both congenital and otherwise, has been ratified; "19. That, in such a situation the Philippines will be facing a real crisis and there is likelihood of confusion if not chaos, because then, the people and their officials will not know which Constitution is in force. "20. That the crisis mentioned above can only be avoided if this Honorable Court will immediately decide and announce its decision on the present petition; "21. That with the withdrawal by the President of the limited freedom of discussion on the proposed Constitution which was given to the people pursuant to Sec. 3 of Presidential Decree No. 73, the opposition of respondents to petitioners' prayer at the plebiscite be prohibited has now collapsed and that a free plebiscite can no longer be held." At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L-35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and L-35942, "Sedfrey A. Ordoez, et al. v. The National Treasurer, et al." The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the respondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "not later than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-35948 riled a "supplemental motion for issuance of restraining order and inclusion of additional respondents," praying "... that a restraining order be issued enjoining and restraining respondent Commission on Elections, as well as the Department of Local Governments and its head, Secretary Jose Roo; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; their deputies, subordinates and substitutes, and all other officials and persons who may be assigned such task, from collecting, certifying, and announcing and reporting to the President or other officials concerned, the so-called Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period comprised between January 10 and January 15, 1973, on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion." In support of this prayer, it was alleged "3. That petitioners are now before this Honorable Court in order to ask further that this Honorable Court issue a restraining order enjoining herein respondents, particularly respondent Commission on Elections as well as the Department of Local Governments and its head, Secretary Jose Roo; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies, subordinates and/or substitutes, from collecting, certifying, announcing and reporting to the President the supposed Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period between January 10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion; "4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void particularly insofar as such proceedings are being made the basis of a supposed consensus for the ratification of the proposed Constitution because: [a] The elections contemplated in the Constitution, Article XV, at which the proposed constitutional amendments are to be submitted for ratification, are elections at which only qualified and duly registered voters are permitted to vote, whereas, the so called Citizens' Assemblies were participated in by persons 15 years of age and older, regardless of qualifications or lack thereof, as prescribed in the Election Code; [b] Elections or plebiscites for the ratification of constitutional amendments contemplated in Article XV of the Constitution have provisions for the secrecy of choice and of vote, which is one of the safeguards of freedom of action, but votes in the Citizens' Assemblies were open and were cast by raising hands; [c] The Election Code makes ample provisions for free, orderly and honest elections, and such provisions are a minimum requirement for elections or plebiscites for the ratification of constitutional amendments, but there were no similar provisions to guide and regulate proceedings of the so called Citizens' Assemblies; [d] It is seriously to be doubted that, for lack of material time, more than a handful of the so called Citizens' Assemblies have been actually formed, because the mechanics of their organization were still being discussed a day or so before the day they were supposed to begin functioning:

"Provincial governors and city and municipal mayors had been meeting with barrio captains and community leaders since last Monday [January 8, 1973) to thresh out the mechanics in the formation of the Citizens Assemblies and the topics for discussion." [Bulletin Today, January 10, 1973] "It should be recalled that the Citizens' Assemblies were ordered formed only at the beginning of the year [Daily Express, January 1, 1973], and considering the lack of experience of the local organizers of said assemblies, as well as the absence of sufficient guidelines for organization, it is too much to believe that such assemblies could be organized at such a short notice. "5. That for lack of material time, the appropriate amended petition to include the additional officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could not be completed because, as noted in the Urgent Motion of January 12, 1973, the submission of the proposed Constitution to the Citizens' Assemblies was not made known to the public until January 11, 1973. But be that as it may, the said additional officials and agencies may be properly included in the petition at bar because: [a] The herein petitioners have prayed in their petition for the annulment not only of Presidential Decree No. 73, but also of "any similar decree, proclamation, order or instruction. so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed Constitution to a plebiscite by the so-called Citizens' Assemblies, is properly in issue in this case, and those who enforce, implement, or carry out the said Presidential Decree No. 86. and the instructions incidental thereto clearly fall within the scope of this petition; [b] In their petition, petitioners sought the issuance of a writ of preliminary injunction restraining not only the respondents named in the petition but also their "agents" from implementing not only Presidential Decree No. 73, but also "any other similar decree, order, instruction, or proclamation in relation to the holding of a plebiscite on January 15, 1973 for the purpose of submitting to the Filipino people for their ratification or rejection the 1972 Draft or proposed Constitution approved by the Constitutional Convention on November 30, 1972"; and finally, [c] Petitioners prayed for such other relief which may be just and equitable. [p. 39, Petition]. "Therefore, viewing the case from all angles, the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be reached by the processes of this Honorable Court by reason of this petition, considering, furthermore, that the Commission on Elections has under our laws the power, among others, of: (a) Direct and immediate supervision and control over national, provincial, city, municipal and municipal district officials required by law to perform duties relative to the conduct of elections on matters pertaining to the enforcement of the provisions of this Code ..." [Election Code of 1971, Sec. 3]. "6. That unless the petition at bar is decided immediately and the Commission on Elections, together with the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from collecting, certifying, reporting or announcing to the President the results of the alleged voting of the so-called Citizens' Assemblies, irreparable damage will be caused to the Republic of the Philippines, the Filipino people, the cause of freedom an democracy, and the petitioners herein because: [a] After the result of the supposed voting on the questions mentioned in paragraph 1 hereof shall have been announced, a conflict will arise between those who maintain that the 1935 Constitution is still in force, on the one hand, and those who will maintain that it has been superseded by the proposed Constitution, on the other, thereby creating confusion, if not chaos; [b] Even the jurisdiction of this Court will be subject to serious attack because the advocates of the theory that the proposed Constitution has been ratified by reason of the announcement of the results of the proceedings of the so-called Citizens' Assemblies will argue that, General Order No. 3, which shall also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, has placed Presidential Decree Nos. 73 and 86 beyond the reach and jurisdiction of this Honorable Court." On the same date January 15, 1973 the Court passed a resolution requiring the respondents in said case G.R. No. L-35948 to file "file an answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the writer of this opinion and said that, upon instructions of the President, he (the Secretary of Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been signed by the President. Thereupon, the writer returned to the Session Hall and announced to the Court, the parties in G.R. No. L-35948 inasmuch as the hearing in connection therewith was still going on and the public there present that the President had, according to information conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning. Thereupon, the writer read Proclamation No. 1102 which is of the following tenor: "BY THE PRESIDENT OF THE PHILIPPINES "PROCLAMATION NO. 1102

"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION. "WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people; "WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary; "WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues; "WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution? "WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite; "WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people; "NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect. "IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. "Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three. (Sgd.) FERDINAND E. MARCOS "President of the Philippines "By the President: "ALEJANDRO MELCHOR "Executive Secretary" Such is the background of the cases submitted determination. After admitting some of the allegations made in the petition in L35948 and denying the other allegations thereof, respondents therein alleged in their answer thereto, by way affirmative defenses: 1) that the "questions raised" in said petition "are political in character"; 2) that "the Constitutional Convention acted freely and had plenary authority to propose not only amendments but a Constitution which would supersede the present Constitution"; 3) that "the President's call for a plebiscite and the appropriation of funds for this purpose are valid"; 4) that "there is not an improper submission" and "there can be a plebiscite under Martial Law"; and 5) that the "argument that the Proposed Constitution is vague and incomplete, makes an unconstitutional delegation of power, includes a referendum on the proclamation of Martial Law and purports to exercise judicial power" is "not relevant and ... without merit." Identical defenses were set up in the other cases under consideration. Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the Members of the Court have been deliberating on the aforementioned cases and, after extensive discussions on the merits thereof, have deemed it best that each Member write his own views thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the points in issue. Hence, the individual views of my brethren in the Court are set forth in the opinions attached hereto, except that, instead of writing their separate opinions, some Members have preferred to merely concur in the opinion of one of our colleagues. 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 Court, as follows: 1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No. 73.

2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the opinion that the issue has become moot and academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold the validity of said Decree. 3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to incorporate therein the provisions contested by the petitioners in L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue has become moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the authority of the Convention. 4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had authority to continue in the performance of its functions despite the proclamation of Martial Law. In effect, Justices Barredo, Makasiar and Antonio hold the same view. 5. On the question whether the proclamation of Martial Law affected the proper submission of the proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, Justice Fernando is of the opinion that there is a repugnancy between the election contemplated under Art. XV of the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra are of the opinion that issue involves questions of fact which cannot be predetermined, and that Martial Law per se does not necessarily preclude the factual possibility of adequate freedom, for the purposes contemplated. 6. On Presidential Proclamation No. 1102, the following views were expressed: a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and myself are of the opinion that the question of validity of said Proclamation has not been properly raised before the Court, which, accordingly, should not pass upon such question. b. Justice Barredo holds that the issue on the constitutionality of Proclamation No. 1102 has been submitted to and should be determined by the Court, and that the "purported ratification of the Proposed Constitution ... based on the referendum among Citizens' Assemblies falls short of being in strict conformity with the requirements of Article XV of the 1935 Constitution," but that such unfortunate drawback notwithstanding, "considering all other related relevant circumstances, ... the new Constitution is legally recognizable and should be recognized as legitimately in force." c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, and that, accordingly, it has no force and effect whatsoever. d. Justice Antonio feels "that the Court is not competent to act" on the issue whether the Proposed Constitution has been ratified by the people or not, "in the absence of any judicially discoverable and manageable standards," since the issue "poses a question of fact. 7. On the question whether or not these cases should be dismissed, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their respective opinions. Justices Fernando, Teehankee, and the writer similarly voted, except as regards Case No. L-35948 as to which they voted to grant to the petitioners therein a reasonable period of time within which to file appropriate pleadings should they wish to contest the legality of Presidential Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the petitioners in said Case No. L-35948 for the aforementioned purpose, but he believes, in effect, that the Court should go farther and decide on the merits everyone of the cases under consideration. Accordingly, the Court acting in conformity with the position taken by six (6) of its members, 1 with three (3) members dissenting, 2 with respect to G.R. No. L-35948, only and another member 3 dissenting, as regards all of the cases dismissed the same, without special pronouncement as to costs. The Present Cases Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their subordinates or agents from implementing any of the provisions of the propose Constitution not found in the present Constitution" referring to that of 1935. 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 of all citizens and voters similarly situated," was amended on or about January 24, 1973. After reciting in substance the facts set forth in the decision in the plebiscite cases, Javellana alleged that the President had announced "the immediate implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter "are acting without, or in excess of jurisdiction in implementing the said proposed Constitution" upon the ground: "that the President, as Commander-in-Chief of the Armed Forces of the Philippines, is without authority to create the Citizens Assemblies"; that the same "are without power to approve the proposed Constitution ..."; "that the 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 Constitution was not a free election, hence null and void." Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Taada, against the Executive Secretary, the Secretaries of Finance, Justice, Land Reform, and National Defense, the Auditor General, the Budget Commissioner, the Chairman of the Presidential Commission on Reorganization, the Treasurer of the Philippines, the Commission on Elections and the Commissioner of Civil Service 4 on February 3, 1973, by Eddie Monteclaro, personally and as President of the National Press Club of the Philippines, against the Executive Secretary, the Secretary of Public Information, the Auditor General, the Budget Commissioner and the National Treasurer 5 and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive Secretary, the Secretary of National Defense, the Budget Commissioner and the Auditor General.

Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority Floor Leader of the Senate," and others as "duly elected members" thereof, filed Case G.R. No. L-36165, against the Executive Secretary, the Secretary National Defense, the Chief of Staff of the Armed Forces of the Philippines, the Secretary of General Services, the President and the President Pro Tempore of the Senate. In their 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 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 force Congress of the Philippines "must convene for its 8th Session on 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," said petitioner "along with their other colleagues, were unlawfully prevented from using the Senate Session Hall, the same having been closed by the authorities in physical possession and control the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the said day, the premises of the entire Legislative 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 President Gil J. Puyat and, in his absence, respondent President Pro Tempore Jose Roy we asked by petitioning Senators to perform their duties under the law and the Rules of the Senate, but unlawfully refrained and continue to refrain from doing so"; that the petitioners ready and willing to perform their duties as duly elected members of the Senate of the Philippines," but respondent Secretary of National Defense, Executive Secretary and Chief of Staff, "through their agents and representatives, are preventing petitioners from performing their duties as duly elected Senators of the Philippines"; that "the Senate premise in the Congress of the Philippines Building ... are 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 custody of the premises of the Legislative Building"; that respondents "have unlawfully excluded and prevented, and continue to so exclude and prevent" the petitioners "from the performance of their sworn duties, invoking the alleged approval of the 1972 (1973) Constitution of the Philippines by action of the so-called Citizens' Assemblies on January 10, 1973 to January 15, 1973, as stated in and by virtue of Proclamation No. 1102 signed and issued by the President of the Philippines"; that "the alleged creation of the Citizens' Assemblies as instrumentalities for the ratification of the Constitution of the Republic of the Philippines" is inherently illegal and palpably unconstitutional; that respondents Senate President and Senate President Pro Tempore "have unlawfully refrained and continue to refrain from and/or unlawfully neglected and continue to neglect the performance of their duties and functions as such officers under the law and the Rules of the Senate" quoted in the petition; that because of events supervening the institution of the plebiscite cases, to which reference has been made in the preceding pages, the Supreme Court dismissed said cases on January 22, 1973, by a majority vote, upon the ground that the petitions therein had become moot and academic; that the alleged ratification of the 1972 (1973) Constitution "is illegal, unconstitutional and void and ... can not have superseded and revoked the 1935 Constitution," for the reasons specified in the petition as amended; that, by acting as they did, the respondents and their "agents, representatives and subordinates ...have excluded the petitioners from an office to which" they "are lawfully entitled"; that "respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the Senate for its 8th session, assuming general jurisdiction over the Session Hall and the premises of the Senate and ... continue such inaction up to this time and ... a writ of mandamus is warranted in order to compel them to comply with the duties and functions specifically enjoined by law"; and that "against the above mentioned unlawful acts of the respondents, the petitioners have no appeal nor other speedy and adequate remedy in the ordinary course of law except by invoking the equitable remedies of mandamus and prohibition with the provisional remedy of preliminary mandatory injunction." Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the merits, a writ of preliminary mandatory injunction be issued ordering respondents Executive Secretary, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines, and the ... Secretary of General Service, as well as all their agents, representatives and subordinates to vacate the premises of the Senate of the Philippines and to deliver physical possession of the same to the President of the Senate or his authorized representative"; and that hearing, judgment be rendered declaring null and Proclamation No. 1102 ... and any order, decree, proclamation having the same import and objective, issuing writs of prohibition and mandamus, as prayed for against above-mentioned respondents, and making the writ injunction permanent; and that a writ of mandamus be issued against the respondents Gil J. Puyat and Jose Roy directing them to comply with their duties and functions as President and President Pro Tempore, respectively, of the Senate of Philippines, as provided by law and the Rules of the Senate." Required to comment on the above-mentioned petitions and/or amended petitions, respondents filed, with the leave Court first had and obtained, a consolidated comment on said petitions and/or amended petitions, alleging that the same ought to have been dismissed outright; controverting petitioners' allegations concerning the alleged lack impairment of the freedom of the 1971 Constitution Convention to approve the proposed Constitution, its alleged lack of authority to incorporate certain contested provisions thereof, the alleged lack of authority of the President to create and establish Citizens' Assemblies "for the purpose submitting to them the matter of ratification of the new Constitution," the alleged "improper or inadequate submiss of the proposed constitution," the "procedure for ratification adopted ... through the Citizens Assemblies"; a maintaining that: 1) "(t)he Court is without jurisdiction to act on these petitions"; 2) the questions raised therein are "political in character and therefore nonjusticiable"; 3) "there substantial compliance with Article XV of 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 results of the election, is conclusive upon the courts"; and 6) "(t)he amending process outlined in Article XV of the 1935 Constitution is not exclusive of other modes of amendment." Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein, alleging that "(t)he subject matter" of said case "is a highly political question which, under the circumstances, this ...Court would not be in a position to act upon judicially," and that, in view of the opinions expressed by three members of this Court in its decision in the plebiscite cases, in effect upholding the validity of Proclamation No. 1102, "further proceedings in this case may only be an academic exercise in futility." 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 10, 1973, and setting the case for hearing on February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to consider the comments of the respondents in cases G.R. Nos. L-36142, L-36164, and L-36165, as motions to dismiss the petitions therein, and to set said cases for hearing on the same date and time as L-36236. On that date, the parties in G.R. No. L-36283 10 agreed that the same be, likewise, heard, as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L-36164, L-36165 and L-36236. The hearing, which began on February 12, 1973, shortly after 9:30 a.m., was continued not only that afternoon, but, also, on February 13, 14, 15 and 16, morning and afternoon, after which the parties were granted up to February 24, 1973, noon, within which to submit their notes of oral arguments and additional arguments, as well as the documents required of them or whose presentation was reserved by them. The same resolution granted the parties until March 1, 1973, to reply to the notes filed by 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 date the Solicitor General sought an extension of time up to March 3, 1973, within which to file his notes, which was granted, with the understanding that said notes shall include his reply to the notes already filed by the petitioners in G.R. Nos. L-36164 a L-36165. Counsel for the petitioners, likewise, moved and were granted an extension of time, to expire on March 10, 1973, within which to file, as they did, their notes in reply to those submitted by the Solicitor General on March 3, 1973. On March 21, 1973, petitioners in L-36165 filed a "Manifestation a Supplemental Rejoinder," whereas the Office of the Solicitor General submitted in all these cases a "Rejoinder Petitioners' Replies." After deliberating on these cases, the members of the Court agreed that each would write his own opinion and serve a copy thereof on his colleagues, and this they did. Subsequently, the Court discussed said opinions and votes were cast thereon. Such individual opinions are appended hereto.

Accordingly, the writer will first express his person opinion on the issues before the Court. After the exposition his aforesaid opinion, the writer will make, concurrently with his colleagues in the Court, a resume of summary of the votes cast by them in these cases. Writer's Personal Opinion I. Alleged academic futility of further proceedings in G.R. L-36165. This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No. L-36165, and, also, by the Solicitor General, is 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 tanto passed into history" and "been legitimately supplanted by the Constitution now in force by virtue of Proclamation No. 1102 ..."; that Mr. Justice Antonio did not feel "that this Court competent to act" in said cases "in the absence of any judicially discoverable and manageable standards" and because "the access to relevant information is insufficient to assure the correct determination of the issue," apart from the circumstance that "the new constitution has been promulgated and great interests have already arisen under it" and that the political organ of the Government has recognized its provisions; whereas, Mr. Justice Esguerra had postulated that "(w)ithout any competent evidence ... about the circumstances attending the holding" of the "referendum or plebiscite" thru the Citizens' Assemblies, he "cannot say that it was not lawfully held" and that, accordingly, he assumed "that what the proclamation (No. 1102) says on its face is true and until overcome by satisfactory evidence" he could not "subscribe to the claim that such plebiscite was not held accordingly"; and that he accepted "as a fait accompli that the Constitution adopted (by the 1971 Constitutional Convention) on November 30, 1972, has been duly ratified. Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances, "it seems remote or improbable that the necessary eight (8) votes under the 1935 Constitution, and much less the ten (10) votes required by the 1972 (1973) Constitution, can be obtained for the relief sought in the Amended Petition" in G.R. No. L-36165. I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open court, during the hearing of these cases, that he was and is willing to be convinced that his aforementioned opinion in the plebiscite cases should be reconsidered and changed. In effect, he thus declared that he had an open mind in connection with the cases at bar, and that in deciding the same he would not necessarily adhere to said opinion if the petitioners herein succeeded in convincing him that their view should be sustained. Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935 Constitution, eight (8) votes are necessary to declare 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 Article VIII thereof reads: 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 be declared unconstitutional without the concurrence of two thirds of all the members of the Court. Pursuant to this section, the concurrence of two-thirds of all the Members of the Supreme Court is required only to declare "treaty or law" unconstitutional. Construing said provision, in a resolution dated September 16, 1949, then Chief Justice Moran, voicing the unanimous view of the Members of this Court, postulated: ... There is nothing either in the Constitution or in the Judiciary Act requiring the vote of eight Justices to nullify a rule or regulation or an executive order issued by the President. It is very significant that in the previous drafts of section 10, Article VIII of the Constitution, "executive order" and "regulation" were included among those that required for their nullification the vote of two-thirds of all the members of the Court. But "executive order" and "regulation" were later deleted from the final draft (Aruego, The Framing of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere majority of six members of this Court is enough to nullify them. 11 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, because, in these cases, the participation of the two other departments of the government the Executive and the Legislative is present, which circumstance is absent in the case of rules, regulations and executive orders. Indeed, a law (statute) passed by Congress is subject to the approval or veto of the President, whose disapproval cannot be overridden except by the vote 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 not required in the case of rules, regulations or executive orders which are exclusive acts of the President. Hence, to nullify the same, a lesser number of votes is necessary in the Supreme Court than that required to invalidate a law or treaty. Although the foregoing refers to rules, regulations and executive orders issued by the President, the dictum applies with equal force to executive proclamation, like said Proclamation No. 1102, inasmuch as the authority to issue the same is governed by section 63 of the Revised Administrative Code, which provides: Administrative acts and commands of the (Governor-General) President of the Philippines touching the organization or mode of operation of the Government or rearranging or readjusting any of the districts, divisions, parts or ports of the (Philippine Islands) Philippines and all acts and commands governing the general performance of duties by public employees or disposing of issues of general concern shall be made effective in executive orders. Executive orders fixing the dates when specific laws, resolutions, or orders are to have or cease to (have) effect and any information concerning matters of public moment determined by law, resolution, or executive orders, may be promulgated in an executive proclamation, with all the force of an executive order. 14

In fact, while executive order embody administrative acts or commands of the President, executive proclamations are mainly informative and declaratory in character, and so does counsel for respondents Gil J. Puyat and Jose Roy maintain in G.R. No. L-36165. 15 As consequence, an executive proclamation has no more than "the force of an executive order," so that, for the Supreme Court to declare such proclamation unconstitutional, under the 1935 Constitution, the same number of votes needed to invalidate an executive order, rule or regulation namely, six (6) votes would suffice. As regards the applicability of the provisions of the proposed new Constitution, approved by the 1971 Constitutional Convention, in the determination of the question whether or not it is now in force, it is obvious that such question depends upon whether or not the said new Constitution has been ratified in accordance with the requirements of the 1935 Constitution, upon the authority of which said Constitutional Convention was called and approved the proposed Constitution. It is well settled that the matter of ratification of an amendment to the Constitution should be settled by applying the provisions of the Constitution in force at the time of the alleged ratification, or the old Constitution . 16 II Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and, hence, non-justiciable question? The Solicitor General maintains in his comment the affirmative view and this is his main defense. In support thereof, he alleges that "petitioners would have this Court declare as invalid the New Constitution of the Republic" from which he claims "this Court now derives its authority"; that "nearly 15 million of 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 on it caution against interposition of the power of judicial review"; that "in the case of the New Constitution, the government has been recognized in accordance with the New Constitution"; that "the country's foreign relations are now being conducted in accordance with the new charter"; that "foreign governments have taken note of it"; that the "plebiscite cases" are "not precedents for holding questions regarding proposal and ratification justiciable"; and that "to abstain from judgment on the ultimate issue of constitutionality is not to abdicate duty." At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution invalid. What petitioners dispute is the theory that it has been validly ratified by the people, especially that they have done so in 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, as the predicates from which said conclusion was drawn; that the plebiscite or "election" required in said Article XV has not been held; that the Chief Executive has no authority, under the 1935 Constitution, to dispensewith said 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 record abundantly show that the aforementioned Assemblies could not have been held throughout the Philippines from January 10 to January 15, 1973; and that, in any event, the proceedings in said Assemblies are null and void as an alleged ratification of the new Constitution proposed by the 1971 Constitutional Convention, not only because of the circumstances under which said Assemblies had been created and held, but, also, because persons disqualified to vote under Article V of the Constitution were allowed to participate therein, because the provisions of our Election Code were not observed in said Assemblies, because the same were not held under the supervision of the Commission on Elections, in violation of section 2 of Article X of the 1935 Constitution, and because the existence of Martial Law and General Order No. 20, withdrawing or suspending the limited freedom to discuss the merits and demerits of said proposed Constitution, impaired the people's freedom in voting thereon, particularly a viva voce, as it was done in 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 their views. Referring now more specifically to the issue on whether the new Constitution proposed by the 1971 Constitutional Convention has been ratified in accordance with the provisions of Article XV of the 1935 Constitution is a political question or not, I do not hesitate to state that the answer must be in the negative. Indeed, such is the position taken by this Court, 17 in an endless line of decisions, too long to leave any room for possible doubt that said issue is inherently and essentially justiciable. Such, also, has been the consistent position of the courts of the United States of America, whose decisions have a persuasive effect in this jurisdiction, our constitutional system in the 1935 Constitution being patterned after that of the United States. Besides, no plausible reason has, to my mind, been advanced to warrant a departure from said position, consistently with the form of government established under said Constitution.. Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of the respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political nature, and We unanimously declared that the issue was ajusticiable one. With identical unanimity, We overruled the respondents' contention in the 1971 habeas corpuscases, 19 questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelona v. Baker 20 and Montenegro v. Castaeda, 21 insofar as it adhered to the former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales v. Commission on Elections, 22 the political-question theory adopted in Mabanag v. Lopez Vito. 23 Hence, respondents herein urge Us to reconsider the action thus taken by the Court and to revert to and follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez Vito. 24 The reasons adduced in support thereof are, however, substantially the same as those given in support of the political-question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence, Our decision in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis, which gained added weight by its virtual reiteration in the plebiscite cases. 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 separation of powers characteristic of the Presidential system of government the functions of which are classified or divided, by reason of their nature, into three (3) categories, namely: 1) those involving the making of laws, which are allocated to the legislative department; 2) those concerned mainly with the enforcement of such laws and of judicial decisions applying and/or interpreting the same, which belong to the executive department; and 3) those dealing with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are legally demandable and enforceable, which are apportioned to courts of justice. Within its own sphere but only within such sphere each department is supreme and independent of the others, and each is devoid of authority, not only to encroach upon the powers or field of action assigned to any of the other departments, but, also, to inquire into or pass upon the advisability or wisdom of the acts performed, measures taken or decisions made by the other departments provided that such acts, measures or decisions are withinthe area allocated thereto by the Constitution. 25

This principle of separation of powers under the presidential system goes hand in hand with the system of checks and balances, under which each department is vested by the Fundamental Law with some powers to forestall, restrain or arrest a possible or actual misuse or abuse of powers by the other departments. Hence, the appointing power of the Executive, his pardoning power, his veto power, his authority to call the Legislature or Congress to special sessions and even to prescribe or limit the object or objects of legislation that may be taken up in such sessions, etc. Conversely, Congress or an agency or arm thereof such as the commission on Appointments may approve or disapprove some appointments made by the President. It, also, has the power of appropriation, to "define, prescribe, and apportion the jurisdiction of the various courts," as well as that of impeachment. Upon the other hand, under the judicial power vested by the Constitution, the "Supreme Court and ... such inferior courts as may be established by law," may settle or decide with finality, not only justiciable controversies between private individuals or entities, but, also, disputes or conflicts between a private 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, when the latter officer or branch is charged with acting without jurisdiction or in excess thereof or in violation of law. And so, when a power vested in said officer or branch of the government is absolute or unqualified, the acts in the exercise of such power are said to be political in nature, and, consequently, non-justiciable or beyond judicial review. Otherwise, courts of justice would be arrogating upon themselves a power conferred by the Constitution upon 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: "At the threshold of the case we are met with the assertion that the questions involved are political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvassing board would then be final, regardless of the actual vote upon the amendment. The question thus raised is a fundamental one; but it has been so often decided contrary to the view contended for by the Attorney General that it would seem to be finally settled. xxx xxx xxx "... What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the government, with discretionary power to act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus theLegislature may in its discretion determine whether it will pass law or submit a proposed constitutional amendment to the people. The courts have no judicial control over such matters, not merely becausethey involve political questions, but because they are matters which the people have by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated him, free from judicial control, so long as he observes the laws act within the limits of the power conferred. Hisdiscretionary acts cannot be controllable, not primarily because they are of a politics nature, but because the Constitution and laws have placed the particular matter under his control. But every officer under constitutional government must act accordingly to law and subject its restrictions, and every departure therefrom or disregard thereof must subject him to that restraining and controlling power of the people, acting through the agency of the judiciary; for it must be remembered that the people act through courts, as well as through the executive or the Legislature . One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is necessary, to "the end that the government may be one of laws and not of men" words which Webster said were the greatest contained in any written constitutional document." (Emphasis supplied.) 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 question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy" in matters concerning the government of a State, as a body politic. "In other words, in the language of Corpus Juris Secundum (supra), it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure." Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations particularly those prescribed or imposed by the Constitution would be set at naught. What is more, the judicial inquiry into such issue and the settlement thereof are the mainfunctions of courts of justice under the Presidential form of government adopted in our 1935 Constitution, and the system of checks and balances, one of its basic predicates. As a consequence, We have neither the authority nor the discretion to decline passing upon said issue, but are under the ineluctable obligation made particularly more exacting and peremptory by our oath, as members of the highest Court of the land, to support and defend the Constitution to settle it. This explains why, in Miller v. Johnson, 28 it was held that courts have a "duty, rather than a power", to determine whether another branch of the government has "kept within constitutional limits." Not satisfied with this postulate, the court went farther and stressed that, if the Constitution provides how it may be amended as it is in our 1935 Constitution "then, unless the manner is followed, the judiciary as the interpreter of that constitution, will declare the amendment invalid." 29 In fact, this very Court speaking through Justice Laurel, an outstanding authority on Philippine Constitutional Law, as well as one of the highly respected and foremost leaders of the Convention that drafted the 1935 Constitution declared, as early as July 15, 1936, that "(i)n times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments" of the government. 30 The Solicitor General has invoked Luther v. Borden 31 in support of his stand that the issue under consideration is non-justiciable in nature. Neither the factual background of that case nor the action taken therein by the Federal Supreme Court has any similarity with or bearing on the cases under consideration. Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States against Borden and others for having forcibly entered into Luther's house, in Rhode Island, sometime in 1842. The defendants who were in the military service of said former colony of England, alleged in their defense that they had acted in obedience to the commands of a superior officer, because Luther and others were engaged in a conspiracy to overthrow the government by force and the state had been placed by competent authority under Martial Law. Such authority was the charter government of Rhode Island at the time of the Declaration of Independence, for unlike other states which adopted a new Constitution upon secession from England Rhode Island retained its form of government under a British Charter, making only such alterations, by acts of the Legislature, as were necessary to adapt it to its subsequent condition as an independent state. It was under this form of government when Rhode Island

joined other American states in the Declaration of Independence and, by subsequently ratifying the Constitution of the United States, became a member of the Union. In 1843, it adopted a new Constitution. Prior thereto, however, many citizens had become dissatisfied with the charter government. Memorials addressed by them to the Legislature having failed to bring about the desired effect, meetings were held and associations formed by those who belonged to this segment of the population which eventually resulted in a convention called for the drafting of a new Constitution to be submitted to the people for their adoption or rejection. The convention was not authorized by any law of the existing government. The delegates to such convention framed a new Constitution which was submitted to the people. Upon the return of the votes cast by them, the convention declared that said Constitution had been adopted and ratified by a majority of the people and became the paramount law and Constitution of Rhode Island. The charter government, which was supported by a large number of citizens of the state, contested, however, the validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been elected governor under the new Constitution of the rebels, prepared to assert authority by force of arms, and many citizens assembled to support him. Thereupon, the charter 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 state of affairs when the defendants, who were in the military service of the charter government and were to arrest Luther, for engaging in the support of the rebel government which was never able to exercise any authority in the state broke into his house. Meanwhile, the charter government had taken measures to call its own convention to revise the existing form of government. Eventually, a new constitution was drafted by a convention held under the authority of the charter government, and thereafter was adopted and ratified by the people. "(T)he times and places at which the votes were to be given, the persons who were to receive and return them, and the qualifications of the voters having all been previously authorized and provided for by law passed by the charter government ," the latter formally surrendered all of its powers to the new government, established under its authority, in May 1843, which had been in operation uninterruptedly since then. About a year before, or in May 1842, Dorr, at the head of a military force, had made an unsuccessful attempt to take possession of the state arsenal in Providence, but he was repulsed, and, after an "assemblage of some hundreds of armed men under his command at Chepatchet in the June following, which dispersed upon approach of the troops of the old government, no further effort was made to establish" his government. "... until the Constitution of 1843" adopted under the auspices of the charter government "went into operation, the charter government continued to assert its authority and exercise its powers and to enforce obedience throughout the state ... ." Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by the majority of the people, which the Circuit Court rejected, apart from rendering judgment for the defendants, the plaintiff took the case for review to the Federal Supreme Court which affirmed the action of the Circuit Court, stating: It is worthy of remark, however, when we are referring to the authority of State decisions, that the trial of Thomas W. Dorr took place after the constitution of 1843 went into operation. The judges who decided that case held their authority under that constitution and it is admitted on 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 State court, whose judicial authority to decide upon the constitution and laws of Rhode Island is not questioned by either party to this controversy, although the government under which it acted was framed and adopted under the sanction and laws of the charter government. The point, then, raised here has been already decided by the courts of Rhode Island. The question relates, altogether, to the constitution and laws of that State, and the well settled rule in this court is, that the courts of the United States adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of the State . Upon what ground could the Circuit Court of the United States which tried this case have departed from this rule, and disregarded and overruled the decisions of the courts of Rhode Island? Undoubtedly the courts of the United States have certain powers under the Constitution and laws of the United States which do not belong to the State courts. But the power of determining that a State government has been lawfully established, which the courts of the State disown and repudiate, is not one of them. Upon such a question the courts of the United States are bound to follow the decisions of the State tribunals, and must therefore regard the charter government as the lawful and established government during the time of this contest. 32 It is thus apparent that the context within which the case of Luther v. 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 one purely municipal in nature. Hence, the Federal Supreme Court was "bound to follow the decisions of the State tribunals" of Rhode Island upholding the constitution adopted under the authority of the charter government. Whatever else was said in that case constitutes, therefore, an obiter dictum. Besides, no decision analogous to that rendered by the State Court of Rhode Island exists in the cases at bar. Secondly, the states of the Union have a measure of internal sovereignty upon which the Federal Government may not encroach, whereas ours is a unitary form of government, under which our local governments derive their authority from the national government. Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island contained noprovision on the manner, procedure or conditions for its amendment. Then, too, the case of Luther v. Borden hinged more on the question of recognition of government, than on recognition of constitution, and there is a fundamental difference between these two (2) types of recognition, the first being generally conceded to be a political question, whereas the nature of the latter depends upon a number of factors, one of them being whether the new Constitution has been adopted in the manner prescribed in the Constitution in force at the time of the purported ratification of the former, which is essentially a justiciablequestion. There was, in Luther v. Borden, a conflict between two (2) rival governments, antagonistic to each other, which is absent in the present cases. Here, the Government established under the 1935 Constitution is the very same government whose Executive Department has 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 people. In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in 1849, on mattersother than those referring to its power to review decisions of a state court concerning the constitution and government of that state, not the Federal Constitution or Government, are manifestly neither, controlling, nor even persuasive in the present cases, having as the Federal Supreme Court admitted no authority whatsoever to pass upon such matters or to review decisions of said state court thereon. In fact, referring to that case, the Supreme Court of Minnessota had the following to say:

Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that the courts have no power to determine questions of a political character. It is interesting historically, but it has not the slightestapplication to the case at bar. When carefully analyzed, it 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 question of the construction of the Constitution of the state. ... . 33 Baker v. Carr, 34 cited by respondents, involved an action to annul a Tennessee statute apportioning the seats in the General Assembly among the counties of the State, upon the theory that the legislation violated the equal protection clause. A district court dismissed the case upon the ground, among others, that the issue was a political one, but, after a painstaking review of the jurisprudence on the matter, the Federal Supreme Court reversed the appealed decision and held that said issue was justiciable and non-political, inasmuch as:"... (d)eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution ... ." Similarly, in Powell v. McCormack, 35 the same Court, speaking through then Chief Justice Warren, reversed a decision of the Court of Appeals of New York affirming that of a Federal District Court, dismissing Powell's action for a declaratory judgment declaring thereunder that he whose qualifications were uncontested had been unlawfully excluded from the 90th Congress of the U.S. Said dismissal was predicated upon the ground, inter alia, that the issue was political, but the Federal Supreme Court held that it was clearly a justiciable one. The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the matter. Owing to the lucidity of its appraisal thereof, We append the same to this opinion as Annex A thereof. After an, exhaustive analysis of the cases on this subject, the Court concluded: The authorities are thus practically uniform in holding that whether a constitutional amendment has been properly adopted according to the requirements of an existing Constitution is a judicial question. There can be little doubt that the consensus of judicial opinion is to the effect that it is the absolute duty of the judiciary to determine whether the Constitution has been amended in the manner required by the Constitution, unless a special tribunal has been created to determine the question; and even then many of the courts hold that the tribunal cannot be permitted to illegally amend the organic law. ... . 36 In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes the method or procedure for its amendment, it is clear to my mind that the question whether or not the revised Constitution drafted by the 1971 Constitutional Convention has been ratified in accordance with said Art. XV is a justiciable one and non-political in nature, and that it is not only subject to judicial inquiry, but, also, that it is the Court's bounden duty to decide such question. The Supreme Court of the United States has meaningfully postulated that "the courts cannot reject as 'no law suit' " because it allegedly involves a political question "a bona fide controversy as to whether some action denominated "political" exceeds constitutional authority." 37 III Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the 1935 Constitution? Petitioners in L-36142 maintain the negative view, upon ground: 1) that the President "is without authority to create the Citizens' Assemblies" through which, respondents maintain, the proposed new Constitution has been ratified; that said Assemblies "are without power to approve the proposed Constitution"; 3) that the President "is without power to proclaim the ratification 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 free election, hence null and void." Apart from substantially reiterating these grounds support of said negative view, the petitioners in L-36164 contend: 1) that the President "has no power to call a plebiscite for the ratification or rejection" of the proposed new Constitution or "to appropriate funds for the holding of the said plebiscite"; 2) that the proposed new or revised Constitution "is vague and incomplete," as well as "contains provisions which are beyond the powers of the 1971 Convention to enact," thereby rendering it "unfit for ... submission the people;" 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 supposedly ratified said draft, "was too short, worse still, there was practically 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 approve of the New Constitution?" during the said days of the voting"; and that "(t)here was altogether no freedom discussion and no opportunity to concentrate on the matter submitted to them when the 1972 draft was supposedly submitted to the Citizens' Assemblies for ratification." Petitioner in L-36236 added, as arguments in support of the negative view, that : 1) "(w)ith a government-controlled press, there can never be a fair and proper submission of the proposed Constitution to the people"; and 2) Proclamation No. 1102 is null and void "(i)nasmuch as the ratification process" prescribed "in the 1935 Constitution was not followed." Besides adopting substantially some of the grounds relied upon by the petitioners in the above-mentioned cases, the petitioners in L-36283 argue that "(t)he creation of the Citizens' Assemblies as the vehicle for the ratification of the Constitution was a deception upon the people since the President announced the postponement of the January 15, 1973 plebiscite to either February 19 or March 5, 1973." 38 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 unnecessary to reproduce them here. So it is, with respect to the positions 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 other cases. 1. What is the procedure prescribed by the 1935 Constitution for its amendment?

Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely: 1. That the amendments to the Constitution be proposed either by Congress or by a convention called for that purpose, "by a vote of three-fourths of all the Members of the Senate and the House of Representatives voting separately," but "in joint session assembled"; 2. That such amendments be "submitted to the people for their ratification" at an "election"; and 3. That such amendments be "approved by a majority of the votes cast" in said election. Compliance with the first requirement is virtually conceded, although the petitioners in L-36164 question the authority of the 1971 Constitutional Convention to incorporate certain provisions into the draft of the new or revised Constitution. The main issue in these five (5) cases hinges, therefore, on whether or not the last two (2) requirements have been complied with. 2. Has the contested draft of the new or revised Constitution been submitted to the people for their ratification conformably to Art. XV of the Constitution? In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be taken into account, namely, section I of Art. V and Art. X of said Constitution. The former reads: Section 1. Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election. The National Assembly shall extend the right of suffrage to women, if in a plebiscite which shall be held for that purpose within two years after the adoption of this Constitution, not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question. Sections 1 and 2 of Art. X of the Constitution ordain in part: Section 1. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. ... xxx xxx xxx Sec. 2. The Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, alladministrative questions, affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials. All law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring fee, orderly, and honest elections. The decisions, orders, and rulings of the Commission shall be subject to review by the Supreme Court. xxx xxx xxx 39 a. Who may vote in a plebiscite under Art. V of the Constitution? Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the exercise of the right of suffrage. They claim that no other persons than "citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election," may exercise the right of suffrage in the Philippines. Upon the other hand, the Solicitor General contends that said provision merely guarantees the right of suffrage to persons possessing the aforementioned qualifications and none of the disqualifications, prescribed by law, and that said right may be vested by competent authorities in persons lacking some or all of the aforementioned qualifications, and possessing some of the aforesaid disqualifications. In support of this view, he invokes the permissive nature of the language "(s)uffrage may be exercised" used in section 1 of Art. V of the Constitution, and the provisions of the Revised Barrio Charter, Republic Act No. 3590, particularly sections 4 and 6 thereof, providing that citizens of the Philippines "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. 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 qualifications therein prescribed may not exercise such right. This view is borne out by the records of the Constitutional Convention that drafted the 1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was largely 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 laws then in force in the Philippines ... ." 40 " Said committee had recommended: 1) "That the right of suffrage should exercised only by male citizens of the Philippines." 2) "That should be limited to those who could read and write." 3) "That the duty to vote should be made obligatory." It appears that the first recommendation was discussed extensively in the Convention, and that, by way of compromise, it was eventually agreed to include, in section 1 of Art. V of the Constitution, the second sentence thereof imposing upon the National Assembly established by the original Constitution instead of the bicameral Congress subsequently created by amendment said Constitution the duty to "extend the right of suffrage women, if in a plebiscite to, be held for that purpose within two years after the adoption of this Constitution, not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question." 41

The third recommendation on "compulsory" voting was, also debated upon 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 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, and the residence qualification, as well as the disqualifications to the exercise 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. Jose M. Aruego, one of the Delegates to said Convention "readily approved in the Convention without any dissenting vote," although there was some debate on whether the Fundamental Law should specify the language or dialect that the voter could read and write, which was decided in the negative. 43 What is relevant to the issue before Us is the fact that the constitutional provision under consideration was meant to be and is a grant or conferment of a right to persons possessing the qualifications and none of the disqualifications therein mentioned, which in turn, constitute a limitation of or restriction to said right, and cannot, accordingly, be dispensed with, except by constitutional amendment. Obviously, every such constitutional grant or 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 grant and, in this sense only, may the same partake of the nature of a guarantee. But, this does not imply not even remotely, that the Fundamental Law allows Congress or anybody else to vest in those lacking the qualifications and having the disqualifications mentioned in the Constitution the right of suffrage. At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of section 1 of Art. V of the Constitution was "strongly influenced by the election laws then in force in the Philippines." Our first Election Law was Act 1582, passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into the Administrative Code of 1916 Act 2657 as chapter 20 thereof, and then in the Administrative Code of 1917 Act 2711 as chapter 18 thereof, which, in turn, was amended by Act 3387, approved on December 3, 1927. Sections 431 and 432 of said Code of 1917, prescribing, respectively, the qualifications for and disqualifications 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 recognition of the right of suffrage, and, hence, of a denial thereof to those who lacked the requisite qualification and possessed any of the statutory disqualifications. In short, the history of section 1, Art. V of the Constitution, shows beyond doubt than the same conferred not guaranteed the authority to persons having the qualifications prescribed therein and none of disqualifications to be specified in ordinary laws and, necessary implication, denied such right to those lacking any said qualifications, or having any of the aforementioned disqualifications. This view is further bolstered by the fact that the 1971 Constitutional Convention sought the submission to a plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935 Constitution, by reducing the voting age 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 on Elections, 45 granting the writs, of prohibition and injunction therein applied for, upon the ground that, under the Constitution, all of the amendments adopted by the Convention should be submitted in "an election" or a single election, not separately or in several or distinct elections, and that the proposed amendment sought to be submitted to a plebiscite was not even a 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 aforementioned partial amendment was, for legal purposes, no more than a provisional ortemporary amendment. Said partial amendment was predicated upon the generally accepted contemporary construction that, under the 1935 Constitution, persons below twenty-one (21) years of age could not exercise the right of suffrage, without a previous amendment of the Constitution. Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote in barrio assembly plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict between the last paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the "majority vote of all the barrio assemblymembers" (which include all barrio 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 budgetary, supplemental appropriations or special tax ordinances," whereas, according to the paragraph preceding the penultimate one of said section, 47 "(a)ll duly registered barrio assembly members qualified to vote" who, pursuant to section 10 of the same Act, must be citizens "of the Philippines, twenty-one years of age or over, able to read and write," and residents the barrio "during the six months immediately preceding election, duly registered in the list of voters" and " otherwise disqualified ..." just like the provisions of present and past election codes of the Philippines and Art. V of the 1935 Constitution "may vote in the plebiscite." I believe, however, that the apparent conflict should resolved in favor of the 21-year-old members of the assembly, not only because this interpretation is in accord with Art. V the Constitution, but, also, because provisions of a Constitution particularly of a written and rigid one, like ours generally accorded a mandatory status unless the intention to the contrary is manifest, which is not so as regards said Art. V for otherwise they would not have been considered sufficiently important to be included in the Fundamental Law of the land. 48 Besides, it would be illogical, if not absurd, 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 the approval of barrio assembly through aplebiscite, lesser qualifications than those prescribed in dealing with ordinary measures for which such plebiscite need not be held. It is similarly inconceivable that those who drafted the 1935 Constitution 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 or revision thereof, or of an entirely new Constitution, and permit the legislature to require lesser qualifications for such ratification, notwithstanding the fact that the object thereof much more important if not fundamental, such as the basic changes introduced in the draft of the revised Constitution adopted by the 1971 Constitutional Convention, which a intended to be in force permanently, or, at least, for many decades, and to affect the way of life of the nation and, accordingly, demands greater experience and maturity on the part of the electorate than that required for the election of public officers, 49 whose average term ranges from 2 to 6 years. It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not they possessed the other qualifications laid down 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 Code, 51 or those of Republic Act No. 3590, 52 have participated and voted in the Citizens' Assemblies that have allegedly ratified the new or revised Constitution drafted by the 1971 Constitutional Convention. 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 "members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against ... 743,869 who voted for its rejection," 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 was no need for a plebiscite and that the vote of the Barangays (Citizens 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' Assemblies for exceeded the number of registered voters under the Election Code in force in January 1973.

It is thus clear that the proceedings held in such Citizens' Assemblies and We have more to say on this point in subsequent pages were fundamentally irregular, in that persons lacking the qualifications prescribed in section 1 of Art. V of the Constitution were allowed to vote in said Assemblies. And, since there is no means by which the invalid votes of those less than 21 years of age can be separated or segregated from those of the qualified voters, the proceedings in the Citizens' Assemblies must be considered null and void. 53 It has been held that "(t)he power to reject an entire poll ... should be exercised ... in a case where it is impossibleto ascertain with reasonable certainty the true vote," as where "it is impossible to separate the legal votes from the illegal or spurious ... ." 54 In Usman v. Commission on Elections, et al., 55 We held: Several circumstances, defying exact description and dependent mainly on the factual milieu of the particular controversy, have the effect of destroying the integrity and authenticity of disputed election returns and of avoiding their prima facie value and character. If satisfactorily proven, although in a summary proceeding, such circumstances as alleged by the affected or interested parties, stamp the election returns with the indelible mark of falsity and irregularity, and, consequently, of unreliability, and justify their exclusion from the canvass. Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to the Fundamental Law to be "valid" as part thereof, and the term "votes cast" has a well-settled meaning. The term "votes cast" ... was held in Smith v. Renville County Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as an equivalent of "ballots cast." 56 The word "cast" is defined as "to deposit formally or officially." 57 It seems to us that a vote is cast when a ballot is deposited indicating a "choice." ... The word "cast" means "deposit (a ballot) formally or officially ... . ... In simple words, we would define a "vote cast" as the exercise on a ballot of the choice of the voter on the measure proposed.
58

In short, said Art. XV envisages with the term "votes cast" choices made on ballots not orally or by raising by the persons taking part in 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 characteristics, namely, uniform official ballots prepared and furnished by the Government and secrecy in the voting, with the advantage of keeping records that permit judicial inquiry, when necessary, into the accuracy of the election returns. And the 1935 Constitution has been consistently interpreted in all plebiscites for the ratification rejection of proposed amendments thereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens' Assemblies was and is null and void ab initio. b. How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites) Just as essential as compliance with said Art. V of the 19 Constitution is that of Art. X thereof, particularly its sections 1 and 2. Indeed, section 1 provides that "(t)here shall be an independent Commission on Elections ... ." The point to be stressed here is the term "independent." Indeed, why was the term used? In the absence of said constitutional provision as to the independence of the Commission, would it have been depends upon either Congress or the Judiciary? The answer must be the negative, because the functions of the Commission "enforcement and administration" of election laws are neither legislative nor judicial in nature, and, hence, beyond the field allocated to either Congress or courts of justice. Said functions are by their nature 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 the Constitution, if Art. X thereof did not explicitly declare that it (the Commission) is an "independent" body. In other words, in amending the original 1935 Constitution, by inserting therein said Art. X, on the Commission on Elections, the purpose was to make said Commission independent principally of the Chief Executive. And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as a constitutional organ, election laws in the Philippines were enforced by the then Department of the Interior, through its Executive Bureau, one of the offices under the supervision and control of said Department. The same like other departments of the Executive Branch of the Government was, in turn, under the control of the Chief Executive, before the adoption of the 1935 Constitution, and had been until the abolition of said Department, sometime ago under the control of the President of the Philippines, since the effectivity of said Fundamental Law. 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 minority party at such a great, if not decisive, disadvantage, as to deprive it, in effect, of the opportunity to defeat the political party in power, and, hence, to enable the same to perpetuate itself therein. To forestall this possibility, the original 1935 Constitution was amended by the establishment of the Commission on Elections as a constitutional body independent primarily of the President of the Philippines. The independence of the Commission was sought to be strengthened by the long term of office of its members nine (9) years, except those first appointed 59 the longest under the Constitution, second only to that of the Auditor General 60; by providing that they may not be removed from office except by impeachment, placing them, in this respect, on the same plane as the President, the Vice-President, the Justices of the Supreme Court and the Auditor General; that they may not be reappointed; that their salaries, "shall be neither increased nor diminished during their term of office"; that the decisions the Commission "shall be subject to review by the Supreme Court" only 61; that "(n)o pardon, parole, or suspension sentence for the violation of any election law may be granted without the favorable recommendation of the Commission" 62; and, that its chairman and members "shall not, during the continuance in office, engage in the practice of any profession or intervene, directly or indirectly, in the management or control of any private enterprise which in anyway may affected by the functions of their office; nor shall they, directly or indirectly, be financially interested in any contract with the Government or any subdivision or instrumentality thereof." 63 Thus, the framers of the amendment to the original Constitution of 1935 endeavored to do everything possible protect and insure the independence of each member of the Commission.

With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he Commission on Elections shall have exclusive charge of the enforcement and administration all laws relative to the conduct of elections," apart from such other "functions which may be conferred upon it by law." It further provides that the Commission "shall decide, save those involving the right to vote, all administrative question affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials." And, to forests possible conflicts or frictions between the Commission, on one hand, and the other offices or agencies of the executive department, on the other, said section 2 postulates that "(a)ll law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest elections." Not satisfied with this, it declares, in effect, that "(t)he decisions, orders, and ruling of the Commission" shall not be subject to review, except by the Supreme Court. In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388, otherwise known as the Election Code of 1971, implements the constitutional powers of the Commission on Elections and grants additional powers thereto, some of which are enumerated in sections 5 and 6 of said Act, quoted below. 64 Moreover, said Act contains, inter alia, detailed provisions regulating contributions and other (corrupt) practices; the establishment of election precincts; the designation and arrangement of polling places, including voting booths, to protect the secrecy of the ballot; formation of lists of voters, the identification and registration of voters, the proceedings therefor, as well as for the inclusion in, or exclusion or cancellation from said list and the publication thereof; the establishment of municipal, provincial and files of registered voters; the composition and appointment of board of election inspectors; the particulars of the official ballots to be used and the precautions to be taken to insure authenticity thereof; the procedure for the casting of votes; the counting of votes by boards of inspectors; the rules for the appreciation of ballots and the preparation and disposition of election returns; the constitution and operation of municipal, provincials and national boards of canvassers; the presentation of the political parties and/or their candidates in each election precinct; the proclamation of the results, including, in the case of election of public officers, election contests; and the jurisdiction of courts of justice in cases of violation of the provisions of said Election Code and the penalties for such violations. Few laws may be found with such meticulous and elaborate set of provisions aimed at "insuring free, orderly, and honest election," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the foregoing constitutional and statutory provisions was followed by the so-called Barangays or Citizens' 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, thus depriving the electorate of the right to vote secretly one of the most, fundamental and critical features of our election laws from time immemorial particularly at a time when the same was of utmostimportance, owing to the existence of Martial Law. In Glen v. Gnau, 65 involving the casting of many votes, openly, without complying with the requirements of the law pertinent thereto, it was held that the "election officers" involved "cannot be too strongly condemned" therefor and that if they "could legally dispense with such requirement ... they could with equal propriety dispense with all of them, including the one that the vote shall be by secret ballot, or even by ballot at all ... ." Moreover, upon the formal presentation to the Executive of the proposed Constitution drafted by the 1971 Constitutional Convention, or on December 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 corpus cases 66 We need not, in the case of bar, express any opinion) was issued, calling a plebiscite, to be held on January 15, 1973, at which the proposed Constitution would be submitted to the people for ratification or rejection; directing the publication of said proposed Constitution; and declaring, inter alia, that "(t)he provision of the Election Code of 1971, insofar as they are not inconsistent" with said decree excepting those "regarding right and obligations of political parties and candidates" "shall apply to the 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 plebiscites shall be conducted in the manner provided by this Code." General Order No. 20, dated January 7, 1973, postponing until further notice, "the plebiscite scheduled to be held on January 15, 1973," said nothing about the procedure to be followed in plebiscite to take place at such notice, and no other order or decree has been brought to Our attention, expressly or impliedly repealing the provisions of Presidential Decree 73, insofar as said procedure is concerned. Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 of Presidential Decree No. 73 insofar as they allow free public discussion of proposed Constitution ... temporarily suspending effects of Proclamation No. 1081 for the purposes of free open dabate on the proposed Constitution ... ." This specific mention of the portions of the decrees or orders or instructions suspended by General Order No. 20 necessarily implies that all other portions of said decrees, orders or instructions and, hence, the provisions of Presidential Decree No. 73 outlining the procedure to be followed in the plebiscite for ratification or rejection of the proposed Constitution remained in force, assuming that said Decree is valid. It is claimed that by virtue of Presidential Decree No. 86-A the text of which is quoted below 67 the Executive declared, inter alia, that the collective views expressed in the Citizens' Assemblies "shall be considered in the formulation of national policies or programs and, wherever practicable, shall be translated into concrete and specific decision"; that such Citizens' Assemblies "shall consider vital national issues ... like the holding of the plebiscite on the new Constitution ... and others in the future, which shall serve as guide or basis for action or decision by the national government"; and that the Citizens' Assemblies "shall conduct between January 10 and 15, 1973, a referendum on important national issues, including those specified in paragraph 2 hereof, and submit the results thereof to the Department of Local Governments and Community Development immediately thereafter, ... ." As in Presidential Decree No. 86, this Decree No. 86-A does not and cannot exclude the exercise of the constitutional supervisory power of the Commission on Elections or its participation in the proceedings in said Assemblies, if the same had been intended to constitute the "election" or Plebiscite required Art. V of the 1935 Constitution. The provision of Decree No. 86-A directing the immediate submission of the result thereof to the Department of Local Governments Community Development is not necessarily inconsistent with, and must be subordinate to the constitutional power of the Commission on Elections to exercise its "exclusive authority over the enforcement and administration of all 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 of the proposed Constitution. We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B, dated 1973, ordering "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 and that the initial referendum include the matter of ratification of the Constitution by the 1971 Constitutional Convention" and that "(t)he Secretary of the Department of Local Governments and Community 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 Art. X of our Fundamental Law which he does not possess. Copy of Presidential Decree No. 86-B is appended hereto as Annex B hereof. 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 provisions of the Election Code of 1971 or even of those of Presidential Decree No. 73. What is more, they were held under the supervision of the very officers and agencies of the Executive Department sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse still, said officers and agencies of the 1935 Constitution would be favored thereby, owing to the practical indefinite extension of their respective terms of office in

consequence of section 9 of the Transitory Provisions, found in Art. XVII of the proposed Constitution, without any elections therefor. And the procedure therein mostly followed is such that there is no reasonable means of checking the accuracy of the returns files by the officers who conducted said plebiscites. This is another patent violation of Art. of the Constitution which can hardly be sanctioned. And, since the provisions of this article form part of 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 aforementioned violation thereof renders null and void the contested proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the same are claimed to have ratified the revised Constitution proposed by the 1971 Constitutional Convention. "... (a)ll the authorities agree that the legal definition of an election, as well as that which is usually and ordinarily 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. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary. 68 IV Has the proposed Constitution aforementioned been approved by a majority of the people in Citizens' Assemblies allegedly held throughout the Philippines? Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is precisely being contested by petitioners herein. Respondents claim that said proclamation is "conclusive" upon this Court, or is, at least, entitled to full faith and credence, as an enrolled bill; that the proposed Constitution has been, in fact, ratified, approved or adopted by the "overwhelming" majority of the people; that Art. XV of the 1935 Constitution has thus been "substancially" complied with; and that the Court refrain from passing upon the validity of Proclamation No. 1102, not only because such question is political in nature, but, also, because should the Court invalidate the proclamation, the former would, in effect, veto the action of the people in whom sovereignty resides and from its power are derived. The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on which it is predicated, and which, moreover, is contested by the petitioners. As the Supreme Court of Minnessota has aptly put it ... every officer under a constitutional government must act according to law and subject to its restrictions, and every departure therefrom or disregard thereof must subject him to the restraining and controlling of the people, acting through the agency of the judiciary; for it must be remembered that the people act through courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action . ... . Accordingly, the issue boils downs to whether or not the Executive acted within the limits of his authority when he certified in Proclamation No. 1102 "that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines and has thereby come into effect." In this connection, it is not claimed that the Chief Executive had personal knowledge of the data he certified in said proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted to place beyond the Executive the power to supervise or even exercise any authority whatsoever over "all laws 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 proceedings for the latter are, also, referred to in said Art. XV as "elections". The Solicitor General stated, in his argument before this Court, that he had been informed that there was in each municipality a municipal association of presidents of the citizens' assemblies for each barrio of the municipality; that the president of each such municipal association formed part of a provincial or city association of presidents of such municipal associations; that the president of each one of these provincial or city associations in turn formed part of a National Association or Federation of Presidents of such Provincial or City Associations; and that one Francisco Cruz from Pasig, Rizal, as President of said National Association or Federation, reported to the President of the Philippines, in the morning of January 17, 1973, the total result of the voting in the citizens' assemblies all over the country from January 10 to January 15, 1973. The Solicitor General further intimated that the said municipal associations had reported the results of the citizens' assemblies in their respective municipalities to the corresponding Provincial Association, which, in turn, transmitted the results of the voting in the to the Department of Local Governments and Community Development, which tabulated the results of the voting in the citizens' assemblies throughout the Philippines and then turned them over to Mr. Franciso Cruz, as President or acting President of the National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported said results (tabulated by the Department of Governments and Community Development) to the Chief Executive, who, accordingly, issued Proclamation No. 1102. The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972, so that he could possibly have been a member on January 17, 1973, of a municipal association of presidents of barrio or ward citizens' assemblies, much less of a Provincial, City or National Association or Federation of Presidents of any such provincial or city associations. Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the resolution of this Court of same date, the Solicitor General was asked to submit, together with his notes on his oral argument, a true copy of aforementioned report of Mr. Cruz to the President and of "(p)roclamation, decree, instruction, order, regulation or circular, if any, creating or directing or authorizing creation, establishment or organization" of said municipal, provincial and national associations, but neither a copy of alleged report to the President, nor a copy of any "(p)roclamation, decree, instruction, order, regulation or circular," has been submitted to this Court. In the absence of said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is devoid of any factual and legalfoundation. Hence, the conclusion set forth in the dispositive portion of said Proclamation No. 1102, to the effect that the proposed new or revised Constitution had been ratified by majority of the votes cast by the people, can not possibly have any legal effect or value. The theory that said proclamation is "conclusive upon Court is clearly untenable. If it were, acts of the Executive and those of Congress could not possibly be annulled or invalidated by courts of justice. Yet, such is not the case. In fact, even a resolution of Congress declaring that a given person has been elected President or Vice-President of the Philippines as provided in the Constitution, 69 is not conclusive upon the courts. It is no more than prima facie evidence of what is attested to by said resolution. 70 If assailed directly in appropriate proceedings, such as an election protest, if and when authorized by law, as it is in the Philippines, the Court may receive evidence and declare, in accordance therewith, who was duly elected to the office

involved. 71 If prior to the creation of the Presidential Electoral Tribunal, no such protest could be filed, it was not because the resolution of Congress declaring who had been elected President or Vice-President was conclusive upon courts of justice, but because there was no law permitting the filing of such protest and declaring what court or body would hear and decide the same. So, too, a declaration to the effect that a given amendment to the Constitution or revised or new Constitution has been ratified by a majority of the votes cast therefor, may be duly assailed in court and be the object of judicial inquiry, in direct proceedings therefor such as the cases at bar and the issue raised thereinmay and should be decided in accordance with the evidence presented. The case of In re McConaughy 72 is squarely in point. "As the Constitution stood from the organization of the state" of Minnessota "all taxes were required to be raised under the system known as the 'general property tax.' Dissatisfaction with the results of this method and the development of more scientific and satisfactory methods of raising revenue induced the Legislature to submit to the people an amendment to the Constitution which provided merely that taxes shall be uniform upon the same class of subjects. This proposed amendment was submitted at the general election held in November, 1906, and in due time it was certified by the state canvassing board and proclaimed by the Governor as having been legally adopted. Acting upon the assumption that the amendment had become a part of the Constitution, the Legislature enacted statutes providing for a State Tax Commission and a mortgage registry tax, and the latter statute, upon the same theory, was held constitutional" by said Court. "The district court found that the amendment had no in fact been adopted, and on this appeal" the Supreme Court was "required to determine the correctness of that conclusion." Referring to the effect of the certification of the State Board of Canvassers created by the Legislature and of theproclamation made by the Governor based thereon, the Court held: "It will be noted that this board does no more than tabulate the reports received from the various county board and add up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the decisions of election officers, and canvassing boards are not conclusive and that the final decision must rest with the courts, unless the law declares that the decisions of the board shall be final" and there is no such law in the cases at bar. "... The correctness of the conclusion of the state board rests upon the correctness of the returns made by the county boards and it is inconceivable that it was intended that this statement of result should be final and conclusive regardless of the actual facts. The proclamation of the Governor adds nothing in the way of conclusiveness to the legal effect of the action of the canvassing board. Its purpose is to formally notify the people of the state of the result of the voting as found by the canvassing board. James on Const. Conv. (4th Ed.) sec. 523." In Bott v. Wartz, 73 the Court reviewed the statement of results of the election made by the canvassing board, in order that the true results could be judicially determined. And so did the court in Rice v. Palmer. 74 Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission on Elections, "the enforcement and administration of all laws relative to the conduct of elections," independently of the Executive, and there is not even a certification by the Commission in support of the alleged results of the citizens' assemblies relied upon in Proclamation No. 1102 apart from the fact that on January 17, 1973 neither the alleged president of the Federation of Provincial or City Barangays nor the Department of Local Governments had certified to the President the alleged result of the citizens' assemblies all over the Philippines it follows necessarily that, from a constitutional and legal viewpoint, Proclamation No. 1102 is not even prima facie evidence of the alleged ratification of the proposed Constitution. Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion of the preceding topic, the new or revised Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the provisions of the 1935 Constitution. In fact, it has not even been, ratified in accordance with said proposed Constitution, the minimum age requirement therein for the exercise of the right of suffrage being eighteen (18) years, apart from the fact that Art. VI of the proposed Constitution requires "secret" voting, which was not observed in many, if not most, Citizens' Assemblies. Besides, both the 1935 Constitution and the proposed Constitution require a "majority of the votes cast" in an election or plebiscite called for the ratification of an amendment or revision of the first Constitution or the effectivity of the proposed Constitution, and the phrase "votes cast" has been construed to mean "votes made in writing not orally, as it was in many Citizens' Assemblies.75 Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV of the Constitution has not been complied with, and since the alleged substantial compliance with the requirements thereof partakes of the nature of a defense set up by the other respondents in these cases, the burden of proving such defense which, if true, should be within their peculiar knowledge is clearly on such respondents. Accordingly, if despite the extensive notes and documents submitted by the parties herein, the members of the Court do not know or are not prepared to say whether or not the majority of the people or of those who took part in the Citizens' Assemblies have assented to the proposed Constitution, the logical step would be to give due course to these cases, require the respondents to file their answers, and the plaintiffs their reply, and, thereafter, to receive the pertinent evidence and then proceed to the determination of the issues raised thereby. Otherwise, we would be placing upon the petitioners the burden of disproving a defense set up by the respondents, who havenot so far established the truth of such defense. Even more important, and decisive, than the foregoing is the circumstance that there is ample reason to believe that many, if not most, of the people did not know that the Citizens' Assemblies were, at the time they were held, plebiscites for the ratification or rejection of the proposed Constitution. Hence, in Our decision in the plebiscite cases, We said, inter alia: Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on January 15, 1973, be postponed until further notice." Said General Order No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution. In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known or announced officially. Then again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections the Court deemed it more imperative to defer its final action on these cases .

And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972 four (4) days after the last hearing of said cases 76 the President announced the postponement of the plebiscite scheduled by Presidential Decree No. 73 to be held on January 15, 1973, after consultation with the Commission on Elections and the leaders of Congress, owing to doubts on the sufficiency of the time available to translate the proposed Constitution into some local dialects and to comply with some pre-electoral requirements, as well as to afford the people a reasonable opportunity to be posted on the contents and implications of said transcendental document. On January 7, 1973, General Order No. 20 was issued formally, postponing said plebiscite "until further notice." How can said postponement be reconciled with the theory that the proceedings in the Citizens' Assemblies scheduled to be held from January 10 to January 15, 1973, were "plebiscites," in effect, accelerated, according to the theory of the Solicitor General, for the ratification of the proposed Constitution? If said Assemblies were meant to be the plebiscites or elections envisaged in Art. XV of the Constitution, what, then, was the "plebiscite"postponed by General Order No. 20? Under these circumstances, it was only reasonable for the people who attended such assemblies to believe that the same were not an "election" or plebiscite for the ratification or adoption of said proposed Constitution. And, this belief is further bolstered up by the questions propounded in the Citizens' Assemblies, namely: [1] Do you like the New Society? [2] Do you like the reforms under martial law? [3] Do you like Congress again to hold sessions? [4] Do you like the plebiscite to be held later? [5] Do you like the way President Marcos is running the affairs of the government? [Bulletin Today, January 10, 1973; emphasis an additional question.] [6] Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests? [7] Do you approve of the new Constitution? [8] Do you want a plebiscite to be called to ratify the new Constitution? [9] Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution? [10] If the elections would not be held, when do you want the next elections to be called? [11] Do you want martial law to continue? [Bulletin Today, January 11, 1973] To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the ratification of a proposed Constitution or of a proposed amendment thereto. Secondly, neither is the language of question No. 7 "Do you approve the new Constitution?" One approves "of" the act of another which does not need such approval for the effectivity of said act, which the first person, however, finds to be good, wise satisfactory. The approval of the majority of the votes cast in plebiscite is, however, essential for an amendment to the Constitution to be valid as part thereof. Thirdly, if the proceedings in the Citizens' Assemblies constituted a plebiscite question No. 8 would have been unnecessary and improper, regardless of whether question No. 7 were answered affirmatively or negatively. If the majority of the answers to question No. 7 were in the affirmative, the proposed Constitution would have become effective and no other plebiscite could be held thereafter in connection therewith, even if the majority of the answers to question No. 8 were, also, in the affirmative. If the majority of the answers to question No. 7 were in the negative, neither may another plebiscite be held, even if the majority of the answers to question No. 8 were in the affirmative. In either case, not more than one plebiscite could be held for the ratification or rejection of the proposed Constitution. In short, the insertion of said two (2) questions apart from the other questions adverted to above indicates strongly that the proceedings therein did not partake of the nature of a plebiscite or election for the ratification or rejection of the proposed Constitution. Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by the people in the citizens' assemblies all over the Philippines, when it is, to my mind, a matter of judicial knowledge that there have been no such citizens' assemblies in many parts of Manila and suburbs, not to say, also, in other parts of the Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated January 15, 1973, to the Chief Executive, the former reported: ... 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 municipality and for the whole province. xxx xxx xxx ... Our initial plans and preparations, however, dealt only on the original five questions. Consequently, when we received an instruction on January 10 to change the questions, we urgently suspended all scheduled Citizens Assembly meetings on that day and called all Mayors, Chiefs of Offices and other government officials to another conference to discuss with them the new set of guidelines and materials to be used. On January 11, ... another instruction from the top was received to include the original five questions among those to be discussed and asked in the Citizens' Assembly meetings. With this latest order, we again had to make modifications in our instructions to all those managing and supervising the holding of the Citizens' Assembly meetings throughout the province. ... Aside from the coordinators we had from the Office of the Governor, the splendid cooperation and support extended by almost all government

officials and employees in the province, particularly of the Department of Education, PC and PACD personnel, provided us with enough hands to trouble shoot and implement sudden changes in the instructions anytime and anywhere needed. ... ... As to our people, in general, their enthusiastic participation showed their preference and readiness to accept this new method of government to people consultation in shaping up government policies. Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens' Assembly meetings ..." and call all available officials "... to discuss with them the new set of guidelines and materials to be used ... ." Then, "on January 11 ... another instruction from the top was received to include the original five questions among those be discussed and asked in the Citizens' Assembly meetings. With this latest order, we again had to make modifications in our instructions to all those managing and supervising holding of the Citizens' Assembly meetings throughout province. ... As to our people, in general, their enthusiastic participation showed their preference and readiness to accept the new method of government to people consultation in shaping up government policies." This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had still to discuss not put into operation means and ways to carry out the changing instructions from the top on how to organize the citizens' assemblies, what to do therein and even what questions or topics to propound or touch in said assemblies; 2) that the assemblies would involve no more than consultations or dialogues between people and government not decisions be made by the people; and 3) that said consultations were aimed only at "shaping up government policies" and, hence could not, and did not, partake of the nature of a plebiscite for the ratification or rejection of a proposed amendment of a new or revised Constitution for the latter does not entail the formulation of a policy of the Government, but the making of decision by the people on the new way of life, as a nation, they wish to have, once the proposed Constitution shall have been ratified. If this was the situation in Bataan one of the provinces nearest to Manila as late as January 11, 1973, one can easily imagine the predicament of the local officials and people in the remote barrios in northern and southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact, several members of the Court, including those of their immediate families and their household, although duly registered voters in the area of Greater Manila, were not even notified that citizens' assemblies would be held in the places where their respective residences were located. In the Prohibition and Amendment case, 77 attention was called to the "duty cast upon the court of taking judicial cognizance of anything affecting the existence and validity of any law or portion of the Constitution ... ." In line with its own pronouncement in another case, the Federal Supreme Court of the United States stressed, in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to an obvious mistake, when thevalidity of the law depends upon the truth of what is declared." In the light of the foregoing, I cannot see how the question under consideration can be answered or resolved otherwise than in the negative. V Have the people acquiesced in the proposed Constitution? It is urged that the present Government of the Philippines is now and has been run, since January 17, 1971, under the Constitution drafted by the 1971 Constitutional Convention; that the political department of the Government has recognized said revised Constitution; that our foreign relations are being conducted under such new or revised Constitution; that the Legislative Department has recognized the same; and that the people, in general, have, by their acts or omissions, indicated their conformity thereto. As regards the so-called political organs of the Government, gather that respondents refer mainly to the offices under the Executive Department. In a sense, the latter performs some functions which, from a constitutional viewpoint, are politics in nature, such as in recognizing a new state or government, in accepting diplomatic representatives accredited to our Government, and even in devising administrative means and ways to better carry into effect. Acts of Congress which define the goals or objectives thereof, but are either imprecise or silent on the particular measures to be resorted to in order to achieve the said goals or delegate the power to do so, expressly or impliedly, to the Executive. This, notwithstanding, the political organ of a government that purports to be republican is essentially the Congress or Legislative Department. Whatever may be the functions allocated to the Executive Department specially under a written, rigid Constitution with a republican system of Government like ours the role of that Department is inherently, basically and fundamentally executive in nature to "take care that the laws be faithfully executed," in the language of our 1935 Constitution. 79 Consequently, I am not prepared to concede that the acts the officers and offices of the Executive Department, in line with Proclamation No. 1102, connote a recognition thereof o an acquiescence thereto. Whether they recognized the proposed Constitution or acquiesce thereto or not is something that cannot legally, much less necessarily or even normally, be deduced from their acts in accordance therewith, because the are bound to obey and act in conformity with the orders of the President, under whose "control" they are, pursuant to the 1935 Constitution. They have absolutely no other choice, specially in view of Proclamation No. 1081 placing the Philippines under 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 is hardly anything he has done since the issuance of Proclamation No. 1102, on January 17, 1973 declaring that the Constitution proposed by the 1971 Constitutional Convention has been ratified by the overwhelming majority of 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 inferior courts and its personnel, which said proposed Constitution would place under the Supreme Court, and which the President has not ostensibly exercised, except as to some minor routine matters, which the Department of Justice has continued to handle, this Court having preferred to maintain the status quo in connection therewith pending final determination of these cases, in which the effectivity of the aforementioned Constitution is disputed. Then, again, a given department of the Government cannot generally be said to have "recognized" its own acts. Recognition normally connotes the acknowledgment by a party of the acts of another. Accordingly, when a subordinate officer or office of the Government complies with the commands of a superior officer or office, under whose supervision and control he or it is, the former merely obeys the latter. Strictly speaking, and from a legal and constitutional viewpoint, there is no act of recognition involved therein. Indeed, the lower officer or office, if he or it acted otherwise, would just be guilty of insubordination. Thus, for instance, the case of Taylor v. Commonwealth 80 cited by respondents herein in support of the theory of the people's acquiescence involved a constitution ordained in 1902 and "proclaimed by a convention duly called by a direct vote of the people of the state to revise and amend the

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 1. The "Governor of the State in swearing fidelity to it and proclaiming it, as directed thereby"; 2. The "Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the Convention ..."; 3. The "individual oaths of its members to support it, and by its having been engaged for nearly a year, in legislating under it and putting its provisions into operation ..."; 4. The "judiciary in taking the oath prescribed thereby to support it and by enforcing its provisions ..."; and 5. The "people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to the extent of thousands throughout the State, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States." Note that the New Constitution of Virginia, drafted by a convention whose members were elected directly by the people, was not submitted to the people for ratification or rejection thereof. But, it was recognized, not by the convention itself, but by other sectors of the Government, namely, the Governor; the Legislature not merely by individual acts of its members, but by formal joint resolution of its two (2) chambers; by the judiciary; and by the people, in the various ways specified above. What is more, there was no martial law. In the present cases, none of the foregoing acts of acquiescence was present. Worse still, there is martial law, the strict enforcement of which was announced shortly before the alleged citizens' assemblies. To top it all, in the Taylor case, the effectivity of the contested amendment was not contested judicially until about one (1) year after the amendment had been put into operation in all branches of the Government, and complied with by the people who participated in the elections held pursuant to the provisions of the new Constitution. In the cases under consideration, the legality of Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, was 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 despite General Order No. 20, issued on January 7, 1972, formally and officially suspending the plebiscite until further notice was impugned as early as January 20, 1973, when L-36142 was filed, or three (3) days after the issuance of Proclamation No. 1102. 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 Assembly established in the Transitory Provisions of said Constitution. 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 assembled, or unless the law provides otherwise, and there is no such law in the Philippines. This is a well-established principle of Administrative Law and of the Law of Public Officers, and no plausible reason has been adduced to warrant departure therefrom. 81 Indeed, if the members of Congress were generally agreeable to the proposed Constitution, why did it become necessary to padlock its premises to prevent its meeting in session on January 22, 1973, and thereafter as provided in the 1935 Constitution? It is true that, theoretically, the members of Congress, if bent on discharging their functions under said Constitution, could have met in any other place, the building in which they perform their duties being immaterial to the legality of their official acts. The force of this argument is, 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 members of Congress, on the other, some of whom expressed the wish to meet in session on January 22, 1973, as provided in the 1935 Constitution, a Daily Express columnist (Primitivo Mijares) attributed to Presidential Assistant Guillermo de Vega a statement to the effect that "'certain members of the Senate appear to be missing the point in issue' when they reportedly insisted on taking up first the question of convening Congress." The Daily Express of that date, 82 likewise, headlined, on its front page, a "Senatorial PlotAgainst 'Martial Law Government' Disclosed". Then, in its issue of December 29, 1972, the same paper imputed to the Executive an appeal "to diverse groups involved in a conspiracy to undermine" his powers" under martial law todesist from provoking a constitutional crisis ... which may result in the exercise by me of authority I have not exercised." No matter how good the intention behind these statement may have been, the idea implied therein was too clear an ominous for any member of Congress who thought of organizing, holding or taking part in a session of Congress, not to get the impression that he could hardly do so without inviting or risking the application of Martial Law to him. Under these conditions, I do not feel justified in holding that the failure of the members of Congress to meet since January 22, 1973, was due to their recognition, acquiescence in or conformity with the provisions of the aforementioned Constitution, or its alleged ratification. For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines under Martial Law, neither am I prepared to declare that the people's inaction as regards Proclamation No. 1102, and their compliance with a number of Presidential orders, decrees and/or instructions some or many of which have admittedly had salutary effects issued subsequently thereto amounts, constitutes or attests to a ratification, adoption or approval of said Proclamation No. 1102. In the words of the Chief Executive, "martial law connotes power of the gun, meant coercion by the military, and compulsion and intimidation." 83 The failure to use the gun against those who comply with the orders of the party wielding the weapon does not detract from the intimidation that Martial Law necessarily connotes. It may reflect the good, reasonable and wholesome attitude of the person who has the gun, either pointed at others, without pulling the trigger, or merely kept in its holster, 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 these conditions, is not necessarily an act of conformity or acquiescence. This is specially so when we consider that the masses are, by and large, unfamiliar with the parliamentary system, the new form of government introduced in the proposed Constitution, with the particularity that it is not even identicalto that existing in England and other parts of the world, and that even experienced lawyers and social scientistsfind it difficult to grasp the full implications of some provisions incorporated therein. As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the same refers to a document certified to the President for his action under the Constitution by the Senate President and the Speaker of the House of Representatives, and attested to by the Secretary of the Senate and the Secretary of the House of Representatives, concerning legislative measures approved by the two Houses of Congress. The argument of the Solicitor General is, roughly, this: If the enrolled bill is entitled to full faith and credence and, to this extent, it is conclusive upon the President and the judicial branch of the Government, why should Proclamation No. 1102 merit less consideration than in enrolled bill?

Before answering this question, I would like to ask the following: If, instead of being certified by the aforementioned officers of Congress, the so-called enrolled bill were certified by, say, the President of the Association of Sugar Planters and/or Millers of the Philippines, and the measure in question were a proposed legislation concerning Sugar Plantations and Mills sponsored by said Association, which even prepared the draft of said legislation, as well as lobbied actually for its approval, for which reason the officers of the Association, particularly, its aforementioned president whose honesty and integrity are unquestionable were present at the deliberations in Congress when the same approved the proposed legislation, would the enrolled bill rule apply thereto? Surely, the answer would have to be in the negative. Why? Simply, because said Association President has absolutely no official authority to perform in connection therewith, and, hence, his certification is legally, as good as non-existent. Similarly, a certification, if any, of the Secretary of the Department of Local Governments and Community Development about the tabulated results of the voting in the Citizens Assemblies allegedly held all over the Philippines and the records do not show that any such certification, to the President of the Philippines or to the President Federation or National Association of presidents of Provincial Associations of presidents of municipal association presidents of barrio or ward assemblies of citizens would not, legally and constitutionally, be worth the paper on which it is written. Why? Because said Department Secretary is not the officer designated by law to superintend plebiscites or elections held for the ratification or rejection of a proposed amendment or revision of the Constitution and, hence, to tabulate the results thereof. Worse still, it is the department which, according to Article X of the Constitution, should not and must not be all participate in said plebiscite if plebiscite there was. After citing approvingly its ruling in United States v. Sandoval, 84 the Highest Court of the United States that courts "will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power." 85 I cannot honestly say, therefore, that the people impliedly or expressly indicated their conformity to the proposed Constitution. VI Are the Parties entitled to any relief? Before attempting to answer this question, a few words be said about the procedure followed in these five (5) cases. In this connection, it should be noted that the Court has not decided whether or not to give due course to the petitions herein or to require the respondents to answer thereto. Instead, it has required the respondents to comment on the respective petitions with three (3) members of the voting to dismiss them outright and then considers comments thus submitted by the respondents as motions to dismiss, as well as set the same for hearing. This was due to the transcendental nature of the main issue raised, the necessity of deciding the same with utmost dispatch, and the main defense set up by respondents herein, namely, the alleged political nature of said issue, placing the same, according to respondents, beyond the ambit of judicial inquiry and determination. If this defense was sustained, the cases could readily be dismissed; but, owing to the importance 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 consequences, it was claimed, which would result from a decision thereon, if adverse to the Government. As a matter of fact, some of those issues had been raised in the plebiscite cases, which were dismissed as moot and academic, owing to the issuance of Proclamation No. 1102 subsequently to the filing of said cases, although before the rendition of judgment therein. Still one of the members of the Court (Justice Zaldivar) was of the opinion that the aforementioned issues should be settled in said cases, and he, accordingly, filed an opinion passing upon the merits thereof. On the other hand, three (3) members of the Court Justices Barredo, Antonio and Esguerra filed separate opinions favorable to the respondents in the plebiscite cases, Justice Barredo holding "that the 1935 Constitution has pro tanto passed into history and has been legitimately supplanted by the Constitution in force by virtue of Proclamation 1102." 86 When the petitions at bar were filed, the same three (3) members of the Court, consequently, voted for the dismissal of said petitions. The majority 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 been sufficiently discussed and argued as the nature and importance thereof demanded. The parties in the cases at bar were accordingly given every possible opportunity to do so and to elucidate on and discuss said question. Thus, apart 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 such additional arguments as they wished to submit, and reply notes or memoranda, in addition to rejoinders thereto, aside from a sizeable number of document in support of their respective contentions, or as required by the Court. The arguments, oral and written, submitted have been so extensive and exhaustive, and the documents filed in support thereof so numerous and bulky, that, for all intents and purposes, the situation is as if disregarding forms the petitions had been given due course and the cases had been submitted for decision. Accordingly, the majority of the members of the Court believe that they should express their views on the aforementioned issues as if the same were being decided on the merits, and they have done so in their individual opinion attached hereto. Hence, the resume of the votes cast and the tenor of the resolution, in the last pages hereof, despite the fact that technically the Court has not, as yet, formally given due course to the petitions herein. And, now, here are my views on the reliefs sought by the parties. In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat and Jose Roy, President and President Pro Tempore 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 head of a co-equal department, like the aforementioned officers of the Senate. In all other respects and with regard to the other respondent in said case, as well as in cases L-36142, L-36164, L-36236 and L-36283, my vote is that the petitions therein should be given due course, there being more thanprima facie showing that the proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, either strictly, substantially, or has been acquiesced in by the people or majority thereof; that said proposed Constitution is not in force and effect; and that the 1935 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 ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitution and the provisions of the Revised Election Code in force at the time of such plebiscite.

Perhaps others would feel that my position in these cases overlooks what they 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 prevail over the latter. Among consistent ends or consistent values, there always is a hierarchy, a rule of priority. We must realize that the New Society has many achievements which would have been very difficult, if not impossible, to accomplish under the old dispensation. But, in and for the judiciary, statesmanship should not prevail over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law and faithful adherence thereto are basic, fundamental and essential parts of statesmanship itself. Resume of the Votes Cast and the Court's Resolution As earlier stated, after the submittal by the members of the Court of their individual opinions and/or concurrences as appended hereto, the writer will now make, with the concurrence of his colleagues, a resume or summary of the votes cast by each of them. It should be stated that by virtue of the various approaches and views expressed during the deliberations, it was agreed to synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the votes. It was further agreed of course that each member of the Court would expound in his individual opinion and/or concurrence his own approach to the stated issues and deal with them and state (or not) his opinion thereon singly or jointly and with such priority, qualifications and modifications as he may deem proper, as well as discuss thereon other related issues which he may consider vital and relevant to the cases at bar. The five questions thus agreed upon as reflecting the basic issues herein involved are the following: 1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question? 2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict, compliance) conformably to the applicable constitutional and statutory provisions? 3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people? 4. Are petitioners entitled to relief? and 5. Is the aforementioned proposed Constitution in force? The results of the voting, premised on the individual views expressed by the members of the Court in their respect opinions and/or concurrences, are as follows: 1. On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justiciable and non-political question. Justices Makalintal and Castro did not vote squarely on this question, but, only inferentially, in their 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 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 both factual and legal angles whether or not Article XV of the 1935 Constitution been complied with." Justices Makasiar, Antonio, Esguerra, or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial inquiry." 2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the Court also hold that the Constitution proposed by the 1971 Constitutional Convention was not validly ratified in accordance with Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., "in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters. 87 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 in the light of traditional concepts regarding the meaning and intent of said Article, the referendum in the Citizens' Assemblies, specially in the manner the votes therein were cast, reported and canvassed, falls short of the requirements thereof. In view, however, of the fact that I have no means of 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 without the necessity of the usual form of plebiscite followed in past 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 votes in the belief that in doing so they did the part required of them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified." Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their view there has been in effect substantial compliance with the constitutional requirements for valid ratification. 3. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no majority vote has been reached by the Court. Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have already accepted the 1973 Constitution." Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression, and there has even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is conceded that the doctrine stated in some American decisions to the effect that independently of the validity of the

ratification, a new Constitution once accepted acquiesced in by the people must be accorded recognition by the Court, I am not at this stage prepared to state that such doctrine calls for application in view of the shortness of time that has elapsed and the difficulty of ascertaining what is the mind of the people in the absence of the freedom of debate that is a concomitant feature of martial law." 88 Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. Justices Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law, with the free expression of opinions through the usual media vehicle restricted, (they) have no means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution." 89 4. On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted 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, is the basic and ultimate question posed by these cases to resolve which considerations other than judicial, an therefore beyond the competence of this Court, 90 are relevant and unavoidable." 91 Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny respondents' motion to dismiss and to give due course to the petitions. 5. On the fifth question of whether the new Constitution of 1973 is in force: Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that it is in force by virtue of the people's acceptance thereof; Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee cast no vote thereon on the premise stated in their votes on the third question that they could not state with judicial certainty whether the people have accepted or not accepted the Constitution; and Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the Constitution proposed by the 1971 Constitutional Convention is not in force; with the result that there are not enough votes to declare that the new Constitution is not in force. ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect. It is so ordered. Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur. ANNEX A PERTINENT PORTIONS OF THE MINNESSOTA SUPREME COURT DECISION ON THE CASE IN RE McCONAUGHY "(a) An examination of the decisions shows that the courts have almost uniformly exercised the authority to determine the validity of the proposal, submission, or ratification of constitutional amendments. It has beenjudicially determined whether a proposed amendment received the constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh 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 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a proposed amendment is a single amendment, within the constitutional requirement that every amendment must be separately submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87 Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the resolution of submission upon the legislative journals invalidates the amendment (Koehler v. Hill, 60 Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v. State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the description of the amendment and the form of the ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether the method of submission sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164 Mo. 69, 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; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the submission may be well by resolution as by a legislative act approved by the executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.

568; Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what election the amendment be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516). In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: "It is contended that the determination of the question whether an amendment to the Constitution has been carried involves the exercise of political, and not judicial, power. If this be so, it follows that the promulgation of any purported amendment by the executive or any executive department is final, and that the action cannot be questioned by the judiciary; but, with reference to the conditions precedent to submitting a proposed amendment to a vote of the people, it has been repeatedly held, by courts of the highest respectability, that it is within the power of the judiciary to inquire into the question, even in a collateral proceeding . ... It is to be noted that under section 1 of article 20 of the Constitution of the state no amendment can become a part of the Constitution until ratified by a vote of the people. One prerequisite is equally as essential as the other. The amendment must first receive the requisite majority in the Legislature, and afterwards be adopted by the requisite vote. ... It is the fact of a majority vote which makes the amendment a part of the Constitution." "In considering the cases it is necessary to note whether in the particular case the court was called upon to determine between rival governments, or whether the Legislature, or some board or official, had legally performed the duty imposed by the Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the General Assembly, under the power granted by the Constitution, could change the Constitution only in the manner prescribed by it, and that it was the duty of the court to determine whether all prerequisites had been complied with. In Collier v. Frierson, 24 Ala. 100, it was held that a Constitution can be changes only by the peoplein convention or in a mode described by the Constitution itself, and that if the latter mode is adopted every requisite of the Constitution must be observed. 'It has been said," says the court, "that certain acts are to be done, certain requisitions are to be observed, before a change can be effected; but to what purpose are these acts required, or these requisitions enjoined, if the Legislature or any other department of the government candispense with them. To do so would be to violate the instrument which they are sworn to support; and every principle of public law and sound constitutional policy requires the court to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law.' "In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may form an original Constitution, or abrogate an old one and form a new one, at any time, without any political restriction, except the Constitution of the United States, but if they undertake to add an amendment, by the authority of legislation to a Constitution already in existence, they can do it only by the method pointed out by the Constitution to which the amendment is added. The power to amend a Constitution by legislative action does not confer the power 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, it was held that no amendments can be made to the Constitution of the state without a compliance with the provisions thereof, both in the passage of such amendment by the Legislature and the manner of submitting it to the people. The courts have not all agreed as to the strictness of compliance which should be required. "In the Prohibition and Amendment Case, 24 Kan. 700, the court determined judicially whether an amendment to the Constitution had been legally adopted. After approving the statement quoted from Collier v. Frierson, supra, that 'we entertain no doubt that, to change the Constitution in an other mode than by a 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 held that, 'as substance of right is grander and more potent than methods of form,' there had been substantial compliance with the constitutional requirement that a proposed amendment to the Constitution must be entered at length on the legislative journal. It appears that the joint resolution making submission simply provided that a proposition should be submitted to the electors at the general election of 1880. It did not declare that the machinery of the general election law should control, or that any particular officers or board would receive, count, or canvass the votes cast. But the existing election machinery was adequate, and the votes were received, counted, and canvassed, and the result declared as fully as though it had been in terms so ordered. These methods had been followed in the adoption of previous amendments, and was held that, conceding the irregularity of the proceedings the Legislature and the doubtful scope of the provisions for the election, yet in view of the very uncertainty of such provision the past legislative history of similar propositions, theuniversal prior acquiescence in the same forms of procedure and the popular and unchallenged acceptance of the legal pendency before the people of the question of the amendment for decision, 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 Constitution , it must be adjudged that the proposed amendment became part of the Constitution. The effect was to hold that a provision of the Constitution requiring the proposed amendment to be entered in full on the journals was directory, and not mandatory. This liberal view was approved in State v. Winnett (Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not been universally accepted. "In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting upon the Kansas case said: 'The reasoning by which the learned court reached the conclusion it did is not based on any sound legal principles, but contrary to them. Neither the argument nor the conclusion can command our assent or approval. The argument is illogical, and based on premises which are without any sound foundation, and rests merely on assumption.' See, also, the well-considered case of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. Allthese cases concede the jurisdiction of the court to determine whether, in submitting a proposed amendment to the people, the 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, the court, at the instance of a citizen and a taxpayer, restrained the Secretary of State from taking steps to submit to the people a proposed amendment to the Constitution agreed to by the Legislature on the ground that the Legislature had not acted in conformity with the Constitution and that the proposed 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, refused to exercise this authority. "The entire question received elaborate consideration in Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, which concededly had been adopted by the people, had not, before its submission, been entered in full upon the legislative journals, as required by the Constitution, and it was held that this was a materialvariance in both form and substance from the constitutional requirements, and that the amendment did not, therefore, become a part of the Constitution. As to the claim that the question was political, and not judicial, it was said that, while it is not competent for courts to inquire into the validity of the Constitution and the form of government under which they themselves exist, and from which they derive their powers, yet, where the existing Constitution prescribes a method for its own amendment, an amendment thereto, to be valid, must be adopted in strict conformity to that method; and it is the duty of the courts in a proper case, when an amendment does not relate to their own power or functions, to inquire whether, in the adoption of the amendment, the provisions of the existing Constitution have been observed, and, if not, to declare the amendment invalid and of no force. This case was followed in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064. "In University v. McIver, 72 N.C. 76, the question whether a proposed amendment to the Constitution had been legally adopted was treated as a judicial question. By the Constitution a proposed amendment was required to be approved by Legislatures before its submission to the people. In this instance a bill was passed which contained 17 amendments. The next Legislature rejected 9 and adopted 8 of the amendments, and submitted them to the people. The majority of the people voted for their adoption; but it was contended that the Constitution contemplated and required that the same bill and the same amendments, without change, should approved by both Legislatures, and that it did not follow because the second Legislature adopted separately 8 out of 17amendments adopted by the first Legislature, it would have adopted the 17, or any of them, if they had been voted upon the

second in the form adopted by the first body. The substance of the contention was that there had not been a concurrence of the two Legislatures on the same amendments, according to the letter and spirit of the Constitution. The court held that the power of the Legislature in submitting amendments could not be distinguished from the powers of convention, and that, as the people had spoken and ratified the amendments, they became a part of the Constitution. "In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to 1876 a proposed amendment to Constitution could not be submitted to the people at any other than a general election; but, as the amendment under consideration had been submitted after the Constitution been changed, it had been legally submitted and adopted. "In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an 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 under consideration changed the Constitution by providing for an elective, instead of an appointive, judiciary. It was contented that the amendments had been improperly submitted and adopted by a majority of the qualified voters voting at election, as required by the Constitution. The law did direct how the result of the election should be determined. The Legislature by joint resolution recited that the election had been duly held throughout the state, and, as it appeared from the returns made to the Secretary of State, that 21,169 votes were cast in favor of, and 8,643 votes against, the amendment, it resolved 'that said amendment be, and hereby is, insertedinto the Constitution of the state of Mississippi as a part of the Constitution.' In fact, the amendment was notsubmitted in the manner prescribed by the Constitution, and it did not receive a majority of all the qualified voters voting at the election . It was argued that the rules prescribed by the Constitution "are all for the guidance of the Legislature, and from the very nature of the thing the Legislature must be the exclusive judge of all questions to be measured or determined by these rules. Whether the question be political, and certainly a legislative one, or judicial, to be determined by the courts, this section of rules, not only of procedure, but of final judgment as well, confides to the separate magistracy of the legislative department full power to hear, consider, and adjudge that question. The Legislature puts the question to the qualified electors. The qualified electors answer back to the Legislature. "If it shall appear" to the Legislature that its question has been answered in the affirmative, the amendment is inserted and made a part of the Constitution. The Governor and the courts have no authority to speak at any stage of the proceedings between the sovereign and the Legislature, and when the matter is thus concluded it is closed, and the judiciary is as powerless to interfere as the executive.' But it was held that the question whether the proposition submitted to the voters constituted one, or more than one, amendment, whether the submission was according to the requirements of the Constitution, and whether the proposition was in fact adopted, were all judicial, and not political, questions. 'We do not,' said Chief Justice Whitfield, 'seek a jurisdiction not imposed upon us by the Constitution. We could not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the particular instance in which we are now acting, our duty to know what the Constitution of the state is, and in accordance with our oaths to support and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but one which, like all others, must be discharged." "In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was held that it was the duty of the judicial department of the government to determine whether the legislative department or its officers had observed the constitutional injunctions in attempting to amend the Constitution, and to annul their acts if they had not done so. The case is an interesting and well-considered one. The Constitution provided the manner in which proposed amendments should be submitted to the people, but did not provide a method for canvassing the votes. The Legislature having agreed to certain proposed amendments, passed an act for submitting the same to the people. This statute provided for the transmission to the Secretary of State of certificate showing the result of the voting throughout the state, and made it the duty of the Governor at the designated time summon four or more Senators, who, with the Governor, should constitute a board of state canvassers to canvass and estimate the votes for and against each amendment. This board was to determine and declare which of the proposed amendments had been adopted and to deliver a statement of the results to the Secretary of State, and "any proposed amendment, which by said certificate and determination of the board of canvassers shall appear to have received in its favor the majority of all the votes cast in the state for and against said proposed amendment, shall from the time of filing such certificate be and become an amendment to and a part of the Constitution of the state; and it shall be the duty of the Governor of the state forthwith, after such a determination, to issue a proclamation declaring which of the said proposed amendments have been adopted by the people." This board was required to file a statement of the result of the election, and the Governor to issue his proclamation declaring that the amendment had been adopted and become a part of the Constitution. At the instance of a taxpayer the Supreme Court allowed a writ ofcertiorari to remove into the court for review the statement of the results of the election made by the canvassing board, in order that it might be judicially determined whether on the facts shown in that statement the board had legally determined that the proposed amendment had been adopted. The Supreme Court decided that the concurrence of the board of state canvassers and the executive department of the government in their respective official functions placed the subject-matter beyond the cognizance of the judicial department of the state. The Court of Appeals, after a full review of the authorities, reversed this decision, and held that the questions were of a judicial nature, and properly determinable by the court on their merits. Mr. Justice Dixon, after stating the facts, said: 'It thus becomes manifest that there was present in the Supreme Court, and is now pending in this court, every element tending to maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the judicial department of the government has not the right to consider whether the legislative department and its agencies have observed constitutional injunctions in attempting to amend the Constitution, and to annul their acts in case that they have not done so. That such a proposition is not true seems to be indicated by 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 therefrom, and that the amendment in question was legally submitted and adopted. "The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the identical question which we have under consideration. In reference to the contention that the Constitution intended to delegate to the Speaker of the House of Representatives the power to determine whether an amendment had been adopted, and that the question was political, and not judicial, the court observed: "The argument has often been made in similar cases to the courts, and it is found in many dissenting opinions; but, with probably a few exceptions, it is not found in anyprevailing opinion." "In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the constitutional requirement of publication of a proposed constitutional 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." ANNEX B MALACAANG MANILA BY THE PRESIDENT OF THE PHILIPPINES

PRESIDENTIAL DECREE NO. 86-B Defining Further the Role of Barangays (Citizens Assemblies) WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit to them for resolution important national issues; WHEREAS, one of the questions persistently mention refers to the ratification of the Constitution proposed by the 1971 Constitutional Convention; WHEREAS, on the basis of the said petitions, it is evident that the people 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 fact that freedom 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 the Barangays or Citizens Assemblies; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby 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 referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention. The Secretary of the Department of Local Government and Community Development shall insure the implementation of this Order. Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and seventy-three. (SGD.) FERDINAND E. MARCOS By the President: (SGD.) ALEJANDRO MELCHOR Executive Secretary

Separate Opinions

MAKALINTAL, J., concurring: CASTRO, J., concurring: The preliminary question before this Court was whether or not the petitioners had made out a sufficient prima faciecase in their petitions to justify their being 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 for hearing the side of the respondents before that preliminary question was resolved, We required them to submit their comments on the petitions. After 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, morning and afternoon, and could not have been more exhaustive if the petitions had been given due course from the beginning. The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed by the President on January 17, 1973 (Proclamation 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 (of 1935) and the Election Code of 1971. Other grounds are relied upon by the petitioners in support of their basic proposition, but to our mind they are merely subordinate and peripheral. Article XV, Section 1, of the 1935 Constitution provides that amendments (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 majority of votes cast at an election at which the amendments submitted to the people for their ratification." At the time Constitution was approved by the Constitutional Convention on February 8, 1935, and ratified in a plebiscite held on following May 14, the word "election" had already a definite meaning in our law and jurisprudence. It was not a vague and amorphous concept, but a procedure prescribed by statute ascertaining the people's choices among 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 procedure that plebiscites were held to ratify the very same Constitution in 1935 as well as the subsequent amendments thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940 (establishment of a bicameral legislature; eligibility of the President and the Vice President for re election; creation of the Commission of Elections); 1947 (Parity Amendment); and 1967 (increase in membership of the House of Representatives and eligibility of members of Congress to run for the Constitutional Convention without forfeiture of their offices).

The Election Code of 1971, in its Section 2, states that "all elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code." This is a statutory requirement designed, as were the other election laws previously in force, to carry out the constitutional mandate relative to the exercise of the right suffrage, and with specific reference to the term "plebiscites," the provision of Article XV regarding ratification of constitutional amendments. The manner of conducting elections and plebiscites provided by the Code is spelled out in other sections thereof. Section 99 requires that qualified voters be registered in a permanent list, the qualifications being those set forth in Article V, Section 1, of the 1935 Constitution on the basis of age (21), literacy and residence. These qualifications are reiterated in Section 101 of the Election Code. Section 102 enumerates the classes of persons disqualified to vote. Succeeding sections prescribe the election paraphernalia to be used, the procedure for registering voters, the records, of registration and the custody thereof, the description and printing of official ballots, the actual casting of votes and their subsequent counting by the boards of inspectors, the rules for appreciation of ballots, and then the canvass and proclamation of the results. With specific reference to the ratification of the 1972 draft Constitution, several additional circumstances should be considered: (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, 1967, which provides: Sec. 7. The amendments proposed by the Convention shall be valid and considered part of the Constitution when approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification pursuant to Article XV of the Constitution. (2) Article XVII, Section 16, of the draft itself states: Sec. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto. The same procedure is prescribed in Article XVI, Section 2, for the ratification of any future amendment to or revision of the said Constitution. (3) After the draft Constitution was approved by the Constitutional Convention on November 30, 1972 the said body adopted Resolution No. 5843, proposing "to President Ferdinand E. Marcos that a decree be issued calling aplebiscite for the ratification of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary funds therefor." Pursuant to said Resolution the President issued Decree No. 73 on the same day, calling a plebiscite to be held on January 15, 1973, at which the proposed Constitution "shall be submitted to the people for ratification or rejection." The Decree had eighteen (18) sections in all, prescribing in detail the different steps to be taken to carry out the process of ratification, such as: (a) publication of the proposed Constitution in English and Pilipino; (b) freedom of information and discussion; (c) registration of voters: (d) appointment of boards of election inspectors and designation of watchers in each precinct; (e) 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 the provisions of the Election Code of 1971, with the Commission on Elections exercising its constitutional and statutory powers of supervision of the entire process. There can hardly be any doubt that in everybody's view from the framers of the 1935 Constitution through all the Congresses since then to the 1971 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 participated in only by qualified and duly registered voters. Indeed, so concerned was this Court with the importance and indispensability of complying with the mandate of the (1935) Constitution in this respect that in the recent case of Tolentino vs. Commission on Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a resolution of the (1971) Constitutional Convention submitting a proposed amendment for ratification to a plebiscite to be held in November 1971 was declared null and void. The amendment sought to reduce the voting age from twenty-one to eighteen years and was approved by the Convention for submission to a plebiscite ahead of and separately from 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 of such other amendments later. This Court held that such separate submission was violative of Article XV, Section 1, of the Constitution, which contemplated that "all the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite." * Thus a grammatical construction based on a singular, instead of 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 in accordance with the procedure and under all the safeguards provided in the Election Law. In the cases now before Us what is at issue is not merely the ratification of just 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 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 such ratification. The Citizens Assemblies which purportedly ratified the draft Constitution were 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 opportunities for the citizenry to express their views on important national 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, citizens of the Philippines and who are registered in the lists of Citizen Assembly members kept by the barrio, district or ward secretary." By Presidential Decree No. 86-A, dated January 5, 1973, the Assemblies were convened for a referendum between January 10 and 15, to "consider vital national issues now confronting the country, like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the convening of Congress on January 22, 1973, and the holding of elections in November 1973." On January 5, 1973 the newspapers came out with a list of four questions to be submitted to the Citizens Assemblies, the fourth one being as follows: "How soon would you like plebiscite on the new Constitution to be held?" It should be noted in this connection that the President had previously announced that he had ordered the postponement of plebiscite which he had called for January 15, 1973 (Presidential Decree No. 73) for the ratification of the Constitution, and that he was considering two new dates for the purpose February 19 or March 5; that he had ordered that the registration of voters (pursuant to Decree No. 73) be extended to accommodate new voters; and that copies of the new Constitution would be distributed in eight dialects the people. (Bulletin Today, December 24, 1972.)

On January 10, 1973 it was reported that one more question would be added to the original four which were to be submitted to the Citizens Assemblies. The question concerning plebiscite was reworded as follows: "Do you like the plebiscite to be held later?" The implication, it may likewise be noted, was that the Assemblies should express their views as to the plebiscite should be held, not as to whether or not it should be held at all. The next day, January 11, it was reported that six additional questions would be submitted, namely: (1) Do you approve of the citizens assemblies as the base of popular government to decide issues of national interest? (2) Do you approve of the new Constitution? (3) Do you want a plebiscite to be called to ratify the new Constitution? (4) Do you want the elections to be held in November, 1973 accordance with the provisions of the 1935 Constitution? (5) If the elections would not be held, when do you want the next elections to be called? (6) Do you want martial law to continue? [Bulletin Today, January 11, 1973; emphasis supplied]. Appended to the six additional questions above quoted were the suggested answers, thus: COMMENTS ON QUESTION No. 1 In order to broaden the base of citizens' participation in government. QUESTION No. 2 But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies. QUESTION No. 3 If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified. The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution. QUESTION No. 4 We are sick and tired of too frequent elections. We are fed up with politics, of so many debates and so much expenses. QUESTION No. 5 Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country, for reforms to take root and normalcy to return. QUESTION No. 6 We want President Marcos to continue with Martial Law. We want him to exercise his powers with more authority. We want him to be strong and firm so that he can accomplish all his reform program and establish normalcy in the country. If all other measures fail, we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly. So it was that on January 11, 1973, the second day of the purported 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 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. 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 Constitution nor in accordance with the Election Code of 1971. The referendum can by no means be considered as the plebiscite contemplated in Section 2 of said Code and in Article XVII, Section 16, of the draft Constitution itself, or as the election intended by Congress when it passed Resolution No. 2 on March 16, 1967 calling a Convention for the revision of the 1935 Constitution. The Citizens Assemblies were not limited to qualified, let alone registered voters, but included all citizens from the age of fifteen,

and regardless of whether or not they were illiterates, feeble-minded, or ex convicts * these being the classes of persons expressly disqualified from voting by Section 102 of the Election Code. In short, the constitutional and 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 features of the election process, was not therefore observed. No set of rules for counting the votes or of tabulating them and reporting the figures was prescribed or followed. The Commission on Elections, which is the 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 supervision or in the assessment of the results. It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of all the members of the Citizens Assemblies had voted for the adoption of the proposed Constitution there was a substantial compliance with Article XV, Section 1, of the 1935 Constitution and with the Election Code of 1971. The suggestion misses the point entirely. It is of the 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 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 been ascertained according to law is simply to beg the issue, or to assume the very fact to be established. Otherwise no election or plebiscite could be questioned for non-compliance with the provisions of the Election Law as long as it is certified that a majority of the citizens had voted favorably or adversely on whatever it was that was submitted to them to vote upon. However, a finding that the ratification of the draft Constitution by the Citizens Assemblies, as certified by the President in Proclamation No. 1102, was not in accordance with the constitutional and statutory procedure laid down for the purpose does not quite resolve the questions raised in these cases. Such a finding, in our opinion, is on a matter which is essentially justiciable, that is, 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 Constitution, of the Election Code and of other related laws and official acts. No question of wisdom or of policy is involved. But from this finding it does not necessarily follow that this Court may justifiably declare that the Constitution has not become effective, and for that reason give due course to these petitions or grant the writs herein prayed for. The effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases, to resolve which considerations other than judicial, and therefore beyond the competence of this Court, are relevant and unavoidable. Several theories have been advanced respectively by the parties. The petitioners lay stress on the invalidity of the ratification process adopted by the Citizens Assemblies and on that premise would have this Court grant the reliefs they seek. The respondents represented by the Solicitor General, whose theory may be taken as the official position of the Government, challenge the jurisdiction of this Court on the ground that the questions raised in the petitions are political and therefore non-justiciable, and that in any case popular acquiescence in the new Constitution and the prospect of unsettling acts done in reliance thereon should caution against interposition of the power of judicial review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in their respective capacities as President and President Pro Tempore of the Senate of the Philippines, and through their counsel, Senator Arturo Tolentino, likewise invoke the political question doctrine, but on a ground not concurred in by the Solicitor General, namely, that approval of the 1973 Constitution by 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 present de juregovernment under the 1973 Constitution." Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on the assumption, conceded by all, that the Constitution was in full force and effect, with the power and authority of the entire Government behind it; and the task of this Court was simply to determine whether or not the particular act or statute that was being challenged contravened some rule or mandate of that Constitution. The process employed was one of interpretation and synthesis. In the cases at bar there is no such assumption: the Constitution (1935) has been derogated and its continued existence as well as the validity of the act of derogation is issue. The legal problem posed by the situation is aggravated by the fact that the political arms of the Government the Executive Departments and the two Houses of Congress have accepted the new Constitution as effective: the former by organizing themselves and discharging their functions under it, and the latter by not convening on January 22, 1973 or at any time thereafter, as ordained by the 1935 Constitution, and in the case of a majority of the members by expressing their option to serve in the Interim National Assembly in accordance with Article XVIII, Section 2, of the 1973 Constitution. * The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be taken up and restated at same length if only because it would constitute, if sustained, the most convenient ground for the invocation of the political-question doctrine. In support of his theory, Senator Tolentino contends that after President Marcos declared martial law on September 21, 1972 (Proclamation No. 1081) he established a revolutionary government when he issued General Order No. 1 the next day, wherein he proclaimed "that I shall govern the nation and direct the operation of the entire government, including all its agencies and instrumentalities, in my capacity, and shall exercise all the powers and prerogatives appurtenant and incident to my position as such Commander-in-Chief of all the Armed Forces of the Philippines." By this order, it is pointed out, the Commander-in-Chief of the Armed Forces assumed all the powers of government executive, legislative, and judicial; and thereafter proceeded to exercise such powers by a series of Orders and Decrees which amounted to legislative enactments not justified under martial law and, in some instances, trenched upon the domain of the judiciary, by removing from its jurisdiction certain classes of cases, such as "those involving the validity, legality, or constitutionality of Proclamation No. 1081, or of any decree, order or act issued, promulgated or performed by me or by my duly designated representative pursuant thereto." (General Order No. 3 as amended by General Order No. 3-A, dated September 24, 1972.) The ratification by the Citizens Assemblies, it is averred, was the culminating act of the revolution, which thereupon converted the government into a de jure one under the 1973 Constitution. If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such ratification as well as the establishment of the government thereunder formed part of a revolution, albeit peaceful, then the issue of whether or not that Constitution has become effective and, as necessary corollary, whether or not the government legitimately functions under it instead of under the 1935 Constitution, is political and therefore nonjudicial in nature. Under such a postulate what the people did in the Citizen Assemblies should be taken as an exercise of the ultimate sovereign power. If they had risen up in arms and by force deposed the then existing government and set up a new government in its place, there could not be the least doubt that their act would be political and not subject to judicial review but only to the judgment of the same body politic act, in the context just set forth, is based on realities. If a new government gains authority and dominance through force, it can be effectively challenged only by a stronger force; judicial dictum can 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 and the people, in defiance of the existing Constitution but peacefully because of the absence of any appreciable opposition, ordained a new Constitution and succeeded in having the government operate under it. Against such a reality there can be no adequate judicial relief; and so courts forbear to take cognizance of the question but leave it to be decided through political means. The logic of the political-question doctrine is illustrated in statement of the U.S. Supreme Court in a case * relied upon, curiously enough, by the Solicitor General, who disagrees with the revolutionary government theory of Senator Tolentino. The case involved the issue of which of two opposing governments 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 State, which uniformly held that the inquiry belonged to the political power and not to the judicial. Commenting on the ruling thus arrived

at, the U.S. Supreme Court said: "And if a State court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power." In other words, since the court would have no choice but to decide in one way alone in order to be able to decide at all, the question could not be considered proper for judicial determination. It should be noted that the above statement from Luther vs. Borden would be applicable in the cases at bar only on the premise that the ratification of the Constitution was a revolutionary act and that the government now functioning it is the product of such revolution. However, we are not prepared to agree that the premise is justified. In the first, place, with specific reference to the questioned ratification, several significant circumstances may be noted. (1) The Citizens Assemblies were created, according to Presidential Decree No. 86, "to broaden the base of citizen participation in the democratic process and to afford ample opportunities for the citizenry to express their views on important national issues." (2) The President announced, according to the Daily Express of January 2, 1973, that "the referendum will be in the nature of a loose consultation with the people." (3) The question, as submitted to them on the particular point at issue here, was "Do you a approve of the Constitution?" (4) President Marcos, in proclaiming that the Constitution had been ratified, stated 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 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 to really familiarize themselves with the Constitution, much less with the many other subjects that were submitted to them. In fact the plebiscite planned for January 15, 1973 under Presidential Decree No. 73 had been postponed to an indefinite date, the reasons for the postponement being, as attributed to the President in the newspapers, that "there was little time to campaign for or 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 Commission (on Elections) on the publication requirement of the new Charter and on the position taken by national leaders" ( Daily Express, Dec. 23, 1972); and that "the postponement would give us more time to debate on the merits of the Charter." ( Bulletin Today, Dec. 24, 1972.) The circumstances above enumerated lead us to the conclusion that the Citizens Assemblies could not have understood the referendum to be for the ratification of the Constitution, but only for the expression of their views on a consultative basis. Indeed, if the expression of those views had been intended as an act of ratification (or of rejection as a logical corollary) there would have been no need for the Katipunan ng mga Barangay to recommend that the Constitution should already be deemed ratified, for recommendation imports recognition of some higher authority in whom the final decision rests. But then the President, pursuant to such recommendation, did proclaim that the Constitution had been ratified and had come into effect. The more relevant 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 Constitution to them and proclaiming that the favorable expression of their views was an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication, are necessarily involved. 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 since he declared martial law and under which the new Constitution was submitted to the Citizens Assemblies was a revolutionary one. The pivotal question is rather whether or not the effectivity of the said Constitution by virtue of Presidential Proclamation No. 1102, upon the recommendation of theKatipunan ng mga Barangay, was intended to be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and statutory provisions prescribing the procedure for ratification. We must confess that after considering all the available evidence and all the relevant circumstances we have found no reasonably reliable answer to the question. On one hand we read, for instance, the following public statements of the President: Speaking about the proclamation of martial law, he said: I reiterate what I have said in the past: there is no turning back for our people. We have committed ourselves to this revolution. We have pledged to it our future, our fortunes, our lives, our destiny. We have burned our bridges behind us. Let no man misunderstand the strength of our resolution. (A Report to the Nation, Jan. 7, 1973.) On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, the President said the following, among other things: ... We can, perhaps delimit the power of the people to speak on legal matters, on justiciable matters, on matters that may come before the experts and interpreters of the law. But we cannot disqualify the people from speaking on what we and the people consider purely political matters especially those that affect the fundamental law of the land. ... The political questions that were presented to the people are exactly those that refer to the form of government which the people want ... The implications of disregarding the people's will are too awesome to be even considered. For if any power in government should even dare to disregard the people's will there would be valid ground for revolt. ... 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 Republic; they will rise up in arms not in revolt against the Republic but in protection of the Republic which they have installed. It is quite clear when the people say, we ratify the Constitution, that they mean they will not discard, the Constitution. On January 19, 1973 the Daily Express published statement of the President made the day before, from which the following portion is quoted: ... the times are too grave and the stakes too high for us permit the customary concessions to traditional democratic process to hold back our people's clear and unequivocal resolve and mandate to meet and overcome the extraordinary challenges presented by these extraordinary times.

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 all other measures should fail, that the President be directed to organize and establish a Revolutionary Government," but in the next breath added: "... if we do ratify the Constitution, how can we speak of Revolutionary Government? They cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens' Assemblies which submitted this recommendation merely sought articulate their impatience with the status quo that has brought about anarchy, confusion and misery to the masses ..." The only alternatives which the President clearly implied by the foregoing statements were the ratification of the new Constitution and the establishment of a revolutionary government, the latter 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 that had caused "anarchy, confusion and misery." The message seems clear: rather than return to such status quo, he would heed the recommendation of the Citizens' Assemblies to establish a revolutionary government, because that would be the only other way to carry out the reforms he had envisioned and initiated reforms which, in all fairness and honesty, must be given credit for the improved quality of life in its many aspects, except only in the field of civil liberties. If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing pronouncements, it is that the step taken in connection with the ratification of the Constitution was meant to be irreversible, and that nothing anyone could say would make the least difference. And if this is a correct and accurate assessment of the situation, then we would say that since it has been brought about by political action and is now maintained by the government that is in undisputed authority and dominance, the matter lies beyond the power of judicial review. On the other hand, by avowals no less significant if not so emphatic in terms, President Marcos has professed fealty to the Constitution. In "Today's Revolution: Democracy" he says: I believe, therefore, in the necessity of Revolution as an instrument of individual and social change ... but that in a democratic society, revolution is of necessity, constitutional, peaceful, and legal. In his TV address of September 23, 1972, President Marcos told the nation: I have proclaimed martial law in accordance with the powers vested in the President by the Constitution of the Philippines. xxx xxx xxx I repeat, this is not a military takeover of civil government functions. The Government of the Republic of the Philippines which was established by our people in 1946 continues. xxx xxx xxx I assure you that I am utilizing this power vested in me by the Constitution to save the Republic and reform our society... I have had to use this constitutional power in order that we may not completely lose the civil rights and freedom which we cherish... ... We are against the wall. We must now defend the Republic with the stronger powers of the Constitution. (Vital Documents, pp. 1-12; emphasis supplied). In the report of an interview granted by the President to the Newsweek Magazine (published in the issue of January 29, 1973), the following appears: xxx xxx xxx Q. Now that you have gotten off the constitutional track, won't you be in serious trouble if you run into critical problems with your programs? R. I have never gotten off the constitutional track. Everything I am doing is in accordance with the 1935 Constitution. The only thing is that instead of 18-year-olds voting, we have allowed 15-year-olds the 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 at that age. On the matter of whether it is constitutional to proclaim martial law, it is constitutional because the Constitution provides for it in the event of invasion, insurrection, rebellion or immediate danger thereof. We may quarrel about whether what we have gone through is sufficient cause to proclaim martial law but at the very least there is a danger of rebellion because so many of our soldiers have been killed. You must remember this (martial law provision) was lifted from the American legislation that was the fundamental law of our country. xxx xxx xxx In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to the President. We have earlier made reference to subjective factors on which this Court, to our mind, is in no position to pass judgment. Among them is the President's own assessment of the will of the people as expressed through the Citizens Assemblies and of the importance of the 1973 Constitution to the successful implementation of the social and economic reforms he has started or envisioned. If he should decide that there is no turning back, that what the people recommended through the Citizens Assemblies, as they were reported to him, demand that the action he took pursuant thereto be final and irrevocable, then judicial review is out of the question.

In articulating our view that the procedure of ratification that was followed was 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 perhaps decide, if he has not already decided, whether adherence to such 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. 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 Assemblies, has found acceptance among the people, such issue being 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 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 knowing, to the point of judicial certainty, whether the people have accepted 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 judicial. That the Constitution should be deemed in effect because of popular acquiescence that is political, and therefore beyond the domain of judicial review. We therefore vote not to give due course to the instant petitions. BARREDO, J., concurring: As far as I am concerned, I regard the present petitions as no more than mere reiterations of the Supplemental Petitions filed by Counsel Lorenzo M. Taada on January 15, 1973 in the so called Plebiscite Cases decided by this Court on January 22, 1978. Of course, there are amplifications of some of the 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 illuminating arguments were heard by Us, but, in my estimation, and with due recognition of the sincerety, brilliance and eloquence of counsels, nothing more cogent and compelling than what had already been previously presented by Counsel Taada is before Us now. Accordingly, I cannot see any reason why I should change the position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these petitions were initially considered by the Court; namely, to dismiss them. In view, however, of the transcendental importance of the issues before the Court and the significance to our people and in history of the individual stands of the members of the Court in relation to said issues and to the final outcome of these cases, and considering that I reserved before the filing of a more extended opinion, I will take this opportunity to explain further why I hold that the 1973 Constitution is already in force, if only to clarify that apart from the people's right of revolution to which I made pointed reference in my previous opinion, I can see now, after further reflection, that the vote of the people in the referendum in the Citizens Assemblies held on January 10 to 15, 1973, upon the result of which Proclamation 1102 is based, may be viewed more importantly as a political act than as a purely legal one with the result that such vote to consider the 1973 Constitution as ratified without the necessity of holding a plebiscite in the form followed in the previous ratification plebiscites in 1935 of the Constitution itself, 1937 of women's suffrage, 1939 of the amendments to the Ordinance Appended to the Constitution, 1940 of the re-election of the President, the bicameral legislature and the Commission on Elections, 1947 of the parity amendment and 1967, rejecting the proposed increase in the members of the House of Representatives and eligibility of members of Congress to the Constitutional Convention, may be deemed as a valid ratification substantially in compliance with the basic intent of Article XV of the 1935 Constitution. If indeed this explanation may be considered as a modification of my rationalization then, I wish to emphasize that my position as to the fundamental issue regarding the enforceability of the new Constitution is even firmer now than ever before. As I shall elucidate anon, paramount considerations of national import have led me to the conviction that the best interests of all concerned would be best served by the Supreme Court holding that the 1973 Constitution is now in force, not necessarily as a 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 result of the referendum may be construed as a compliance with the substantiality of Article XV of the 1935 Constitution. I The facts that gave rise to these proceedings are historical and well known. Generally, they may be taken judicial notice of. They revolve around the purported ratification of the Constitution of 1973 declared in Proclamation 1102 issued by the President on January 17, 1973. Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March 16, 1967, delegates to a constitutional convention to propose amendments to the Constitution of 1935 were elected in accordance with the implementing law, Republic Act 6132, on November 10, 1970. Known as the Constitutional Convention of 1971, the assembly began its sessions on June 1, 1971. After encountering a lot of difficulties, due to bitter rivalries over important positions and committees and an incomprehensible fear of overconcentrating powers in their officers, the delegates went about their work in comparatively slow pace, and by the third quarter of 1972 had finished deliberations and second-reading voting only on an insignificant number of proposals until September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued Proclamation 1081 declaring martial law throughout the country. An attempt was made to have the Convention recessed until after the lifting of martial law, and not long after the motion of Delegate Kalaw to such effect was turned down, the activities within the assembly shifted to high gear. As if unmindful of the arrest and continued detention of several of its members, the convention gathered swift momentum in its work, and on November 30, 1972, it approved by overwhelming vote the draft of a complete constitution, instead of mere specific amendments of particular portions of the Constitution of 1935. Needless to say, before martial law was declared, there was full and unlimited coverage of the workings in the convention by the mass media. At the same time, public debates and discussions on various aspects of proposed amendments were not uncommon. Earlier, on November 22, 1972, the Convention had Resolution No. 5843 proposing "to President Ferdinand Marcos that a decree be issued calling a plebiscite for ratification of the proposed new Constitution on appropriate date as he shall determine and providing for necessary funds therefor." Acting under this authority, December 1, 1972, the President issued Presidential Decree No. 73 submitting the draft constitution for ratification by the people at a plebiscite set for January 15, 1973. This order contained provisions more or less similar to the plebiscite laws passed by Congress relative to the past plebiscites held in connection with previous proposed amendments. In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and enjoining the authorities to allow and encourage public and free discussions on proposed constitution. Not only this, subsequently, under date of December 17, 1972, the President ordered the suspension the 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 constitution were concerned. These two orders were not, however, to last very long. On January 7, 1973, the President, invoking information related to him that the area of public debate and discussion had opened by his previous orders was being taken advantage of by subversive elements to defeat the purposes for which they were issued and to foment public confusion, withdrew said orders and enjoined full and stricter implementation of martial law.

In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86 creating Citizens Assemblies "so as to afford ample opportunities for the citizenry to express their views on important national issues" and one of the questions presented to said assemblies was: "Do you 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 the plebiscite scheduled to be held January 15, 1973, be postponed until further notice". In the meanwhile also, on January 5, 1973, the President issued Presidential Decree, No. 86-A providing as follows: PRESIDENTIAL DECREE NO. 86-A STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES) WHEREAS, on the basis of preliminary and initial reports from the field as gathered from barangays (citizens assemblies) that have so far been established, the people would like to decide for themselves questions or issues, both local and national, affecting their day-to-day lives and their future; WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for expressing the views of the people on important national issues; WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and due recognition as constituting the genuine, legitimate and valid expression of the popular will; and WHEREAS, the people would like the citizens assemblies to conduct immediately a referendum on certain specified questions such as the ratification of the new Constitution, continuance of martial law, the convening of Congress on January 22, 1973, and the elections in November 1973 pursuant to the 1935 Constitution. NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippines, do hereby declare as part of the law of the land the following: 1. The present barangays (citizens assemblies) are created under Presidential Decree No. 86 dated December 31, 1972, shall constitute the base for citizen participation in governmental affairs and their collective views shall be considered in the formulation of national policies or programs and, wherever practicable, shall be translated into concrete and specific decision; 2. Such barangays (citizens assemblies) shall consider vital national issues now confronting the country, like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the convening of Congress on January 22, 1973, and the holding of elections in November 1973, and others in the future, which shall serve as guide or basis for action or decision by the national government; 3. The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a referendum on important national issues, including those specified in paragraph 2 hereof, and submit results thereof to the Department of Local Governments Community Development immediately thereafter, pursuant to express will of the people as reflected in the reports gathered from the many thousands of barangays (citizens assemblies) throughout the country. 4. This Decree shall take effect immediately. Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen hundred and seventy three. And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading thus: PRESIDENTIAL DECREE NO. 86-B DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES) WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them for resolution important national issues; WHEREAS, one of the questions persistently mentioned refers to the ratification of the Constitution proposed by the 1971 Constitutional Convention; WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submission of the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a plebiscite in itself in view of the fact that freedom 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 the Barangays or Citizens Assemblies;

NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby 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 and that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention. The Secretary of the Department of Local Governments and Community Development shall insure the implementation of this Order. Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and seventy-three. 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: (1) Do you like the New Society? (2) Do you like the reforms under martial law? (3) Do you like Congress again to hold sessions? (4) Do you like the plebiscite to be held later? (5) Do you like the way President Marcos is running the affairs of the government?. but on January 11, 1973, six questions were added as follows: (1) Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests? (2) Do you approve of the New Constitution? (3) Do you want a plebiscite to be called to ratify the new Constitution? (4) Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution? (5) If the elections would not be held, when do you want it to be called? (6) Do you want martial law to continue? It is not seriously denied that together with the question the voters were furnished "comments" on the said questions more or less suggestive of the answer desired. It may assumed that the said "comments" came from official sources, albeit specifically unidentified. As petitioners point out, the most relevant of these "comments" were the following: COMMENTS ON xxx xxx xxx QUESTION No. 2 But we do not want the Ad Interim Assembly to be convoke. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies. QUESTION No. 3 The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution. If the Citizens Assemblies approve of the new Constitution then the new Constitution should be deemed ratified. The Solicitor General claims, and there seems to be showing otherwise, that the results of the referendum were determined in the following manner: Thereafter, the results of the voting were collated and sent to the Department of Local Governments. The transmission of the results was made by telegram, telephone, the provincial government SSB System in each province connecting all towns; the SSB communication of the PACD connecting most provinces; the Department of Public Information Network System; the Weather Bureau Communication System connecting all provincial capitals and the National Civil Defense Network connecting all provincial capitals. The certificates of results were then flown to Manila to confirm the previous figures received by the aforementioned means of transmission. The certificates of results tallied with the previous figures taken with the exception of few cases of clerical errors.

The Department adopted a system of regionalizing the receiving section of the Citizens Assemblies operation at the Department wherein the identity of the barrio and the province was immediately given to a staff in charge of each region. Every afternoon at 2:00 o'clock, the 11 regions submitted the figures they received from the field to the central committee to tabulate the returns. The last figures were tabulated at 12 midnight of January 16, 1973 and early morning of January 17, 1973 and were then communicated to the President by the Department of Local Governments. The development culminated in the issuance by the President of Proclamation 1102 on January 17, 1973. Said proclamation reads: PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION. WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people; WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 6, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary; WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizen to express their views on important national issues; WHEREAS, responding to the clamor of the people an pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before Citizens' Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution? WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite; WHEREAS, since the referendum results show that more than ninety-five (95) percent of the members of the Barangays (Citizen Assemblies) are in favor of the New Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelmingly majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect. IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three. The first attempt to question the steps just enumerated taken by the President was in the so-called Plebiscite Cases, ten in number, which were filed by different petitioners during the first half of December 1972. 1 Their common target then was Presidential Decree No. 73, but before the said cases could be decided, the series of moves tending in effect to make them moot and academic insofar as they referred exclusively to the said Presidential Decree began to take shape upon the issuance of Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B, also above quoted, was issued and the six additional questions which were first publicized on January 11, 1973 were known, together with the "comments", petitioners sensed that a new and unorthodox procedure was being adopted to secure approval by the people of the new Constitution, hence Counsel Taada, not being satisfied with the fate of his urgent motion for early decision of the above ten cases dated January 12, 1973, filed on January 15, 1973, his supplemental motion seeking the prohibition against and injunction of the proceedings going on. Principal objective was to prevent that the President be furnished the report of the results of the referendum and thereby disable him from carrying out what petitioners were apprehensively foreseeing would be done the issuance of some kind of proclamation, order or decree, declaring that the new Constitution had been ratified. Reacting swiftly, the Court resolved on the same day, January 15, which was Monday, to consider the supplemental motion as a supplemental petition and to require the respondents to answer the same the next Wednesday, January 17th, before the hour of the hearing of the petition which set for 9:30 o'clock in the morning of that day. The details what happened that morning form part of the recital of facts the decision rendered by this Court in the ten cases on January 22, 1973 and need not be repeated here. Suffice it to state no that before the hearing could be closed and while Counsel Taada was still insisting on his prayer for preliminary injunction or restraining order, the Secretary of Justice arrived and personally handed to the Chief Justice a copy Proclamation 1102 which had been issued at about 11:00 o'clock that same morning. In other words, the valiant and persistent efforts of petitioners and their counsels were overtaken by adverse developments, and in the mind of the majority of the members of the Court, the cases had become academic. For my part, I took the view that even on the basis of the supplemental petition and the answer thereto filed by respondents, the Court could already decide on the fundamental issue of the validity Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Taada's pleading and argument had anticipated its issuance, but the majority felt it was not ready to resolve the matter, for lack, according them, of full ventilation, and so, the decision reserved petitioners the filing of the "appropriate" cases, evidently, the present ones. II

At the threshold, I find myself confronted by a matter which, although believed to be inconsequential by my learned brethren, I strongly feel needs special attention. I refer to the point raised by Counsel Arturo M. Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as President and President Pro Tempore of the Senate, to the effect that change in the composition of the Supreme Court provided for the 1973 Constitution, from the 11-man tribunal under the 1935 Constitution to a 15-man Court, makes of these cases which were filed after January 17, 1973 the date when Proclamation 1102 declared the new Constitution as ratified, political nature and beyond our jurisdiction. The main consideration submitted in this connection is that inasmuch as the number votes needed for a decision of this Court has been increased from six to eight in ordinary cases and from eight to ten for the declaration of unconstitutionality of a treaty, executive agreement 2 or law, the Court would have to resolve first as a prejudicial question whether the Court is acting in these cases as the 15-man or the 11-man Court, in which event, it would be faced with the dilemma that if it acts either as the former or as the latter, it would be prejudging the very matter in issue one way or the other, and, in effect, it would be choosing between two constitutions, which is a political determination not within the Court's competence. While I agree that the problem is at first blush rather involved, I do not share the view that the premises laid down by counsel necessarily preclude this Court from taking a definite stand on whether the Court is acting in these cases as the 15-Man or the 11-man Court. I feel very strongly that the issue should not be ignored or dodged, if only to make the world know that the Supreme Court of the Philippines is never incognizant of the capacity in which it is acting, much less lacking in courage or wisdom to resolve an issue that relates directly to its own composition. What a disgrace it would be to admit that this Supreme Court does not know, to use a common apt expression, whether it is fish or fowl. Withal, scholars and researchers who might go over our records in the future will inevitably examine minutely how each of us voted and upon what considerations we have individually acted, and, indeed, doubts may arise as to whether or not, despite the general result we might announce, there had been the requisite number of votes for a valid collegiate action. For instance, it may be argued that the present cases do not involve an issue of unconstitutionality, hence, if we are acting as the 11-man Court, only six votes would suffice to declare Proclamation 1102 ineffective, and if upon analysis of our respective opinions it should be inferable therefrom that six of us have considered the matter before the Court as justiciable and at the same time have found the procedure of ratification adopted in Presidential Decrees 86-A and 86-B and related orders of the President as not being in conformity with Article XV of the old Constitution, a cloud would exist as to efficacy of the dispositive portion of Our decision dismiss these cases, even if we have it understood that by the vote of justices in favor of such dismissal, We intended to mean the implementation or enforcement of the new Constitution now being done could continue. Be that as it may, I am against leaving such an important point open to speculation. By nature I am averse to ambiguity and equivocation and as a member of the Supreme Court, last thing I should knowingly countenance is uncertainty as to the juridical significance of any decision of the Court which is precisely being looked upon as the haven in which doubts are supposed to be authoritatively dispelled. Besides, from very nature of things, one thing is indubitably beyond dispute we cannot act in both capacities of a 15-man and an 11-man Court at the same time, in like manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us both in force. Our inescapable duty is to make a choice between them, according to what law and other considerations inherent to our function dictate. I cannot bear the thought that someone may someday say that the Supreme Court of the Philippines once decided a case without knowing the basis of its author to act or that it was ever wanting in judicial courage to define the same. Accordingly, with full consciousness of my limitations but compelled by my sense of duty and propriety to straighten out this grave of issue touching on the capacity in which the Court acting in these cases, I hold that we have no alternative but adopt in the present situation the orthodox rule that when validity of an act or law is challenged as being repugnant constitutional mandate, the same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stated differently, We have to proceed on the assumption that the new Constitution is in force and that We are acting in these cases as the 15-man Supreme Court provided for there Contrary to counsel's contention, there is here no prejudgment for or against any of the two constitutions. The truth of matter is simply that in the normal and logical conduct governmental activities, it is neither practical nor wise to defer the course of any action until after the courts have ascertained their legality, not only because if that were to be the rule, the functioning of government would correspondingly be undesirably hesitative and cumbersome, but more importantly, because the courts must at the first instance accord due respect to the acts of the other departments, as otherwise, the smooth running of the government would have to depend entirely on the unanimity of opinions among all its departments, which is hardly possible, unless it is assumed that only the judges have the exclusive prerogative of making and enforcing the law, aside from being its sole interpreter, which is contrary to all norms of juridical and political thinking. To my knowledge, there is yet no country in the world that has recognized judicial supremacy as its basic governmental principle, no matter how desirable we might believe the idea to be. Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on the assumption that this Court is still functioning under the 1935 Constitution. It is undeniable that the whole government, including the provincial, municipal and barrio units and not excluding the lower courts up to the Court of Appeals, is operating under the 1973 Constitution. Almost daily, presidential orders and decrees of the most legislative character affecting practically every aspect of governmental and private activity as well as the relations between the government and the citizenry are pouring out from Malacaang under the authority of said Constitution. On the other hand, taxes are being exacted and penalties in connection therewith are being imposed under said orders and decrees. Obligations have been contracted and business and industrial plans have been and are being projected pursuant to them. Displacements of public officials and employees in big numbers are going on in obedience to them. For the ten justices of the Supreme Court to constitute an island of resistance in the midst of these developments, which even unreasoning obstinacy cannot ignore, much less impede, is unimaginable, let alone the absurd and complicated consequences such a position entails in the internal workings within the judiciary amount its different components, what with the lower courts considering such orders and decrees as forming part of the law of the land in making their orders and decisions, whereas the Supreme Court is holding, as it were, their effectivity at bay if it is not being indifferent to or ignoring them. It is suggested that the President, being a man of law, committed to abide by the decision of the Supreme Court, and if the Court feels that it cannot in the meantime consider the enforcement of the new Constitution, he can wait for its decision. Accepting the truth of this assertion, it does necessarily follow that by this attitude of the President, considers the Supreme Court as still operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions for the payment of the justices in accordance with the rate fixed in the New Constitution. Not only that, official alter ego, the Secretary of Justice, has been shoving this Court, since January 18, 1973, all matters related to the administrative supervision of the lower courts which by the new charter has been transferred from the Department of Justice to the Supreme Court, and as far as I know, President has not countermanded the Secretary's steps in that direction. That, on the other hand, the President has not augmented the justices of the Court to complete the prescribed number of fifteen is, in my appraisal, of no consequence considering that with the presence of ten justices who are the Court now, there is a working quorum, and the addition of new justices cannot in anyway affect the voting on the constitutional questions now before Us because, while there sufficient justices to declare by their unanimous vote illegality of Proclamation 1102, the votes of the justices to added would only be committed to upholding the same, since they cannot by any standard be expected to vote against legality of the very Constitution under which they would be appointed.

Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We are dealing here with a whole constitution that radically modifies or alters only the form of our government from presidential parliamentary but also other constitutionally institutions vitally affecting all levels of society. It is, to mind, unrealistic to insist on that, fundamentally, the 1973 Constitution is the same 1935 Constitution, with a few improvements. A cursory perusal of the former should convince anyone that it is in essence a new one. While it does retain republicanism as the basic governmental tenet, the institutional changes introduced thereby are rather radical and its social orientation is decidedly more socialistic, just as its nationalistic features are somewhat different in certain respects. One cannot but note that the change embraces practically every part of the old charter, from its preamble down to its amending and effectivity clauses, involving as they do the statement of general principles, the citizenship and suffrage qualifications, the articles on the form of government, the judiciary provisions, the spelling out of the duties and responsibilities not only of citizens but also of officers of the government and the provisions on the national economy as well as the patrimony of the nation, not to mention the distinctive features of the general provisions. What is more, the transitory provisions notably depart from traditional and orthodox views in that, in general, the powers of government during the interim period are more or less concentrated in the President, to the extent that the continuation or discontinuance of what is now practically a one-man-rule, is even left to his discretion. Notably, the express ratification of all proclamations, orders, decrees and acts previously issued or done by the President, obviously meant to encompass those issued during martial law, is a commitment to the concept of martial law powers being implemented by President Marcos, in defiance of traditional views and prevailing jurisprudence, to the effect that the Executive's power of legislation during a regime of martial law is all inclusive and is not limited to the matters demanded by military necessity. In other words, the new constitution unlike any other constitution countenances the institution by the executive of reforms which normally is the exclusive attribute of the legislature. Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a new one, are that (1) Section 16 of its Article XVII which provides that this constitution shall "supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto" and (2) its transitory provisions expressly continue the effectivity of existing laws, offices and courts as well as the tenure of all incumbent officials, not adversely affected by it, which would have been unnecessary if the old constitution were being merely amended. The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the Judiciary (which include the Chief Justice and Associate Justices of Supreme Court) may continue in office (under the constitution) until they reach the age of seventy years, etc." By virtue of the presumptive validity of the new charter, all of form part of the 15-man-Court provided for therein correspondingly, We have in legal contemplation, ceased in the meanwhile to be members of the 11-man-Court in the 1935 Constitution. Should the Court finally decide that the Constitution is invalid, then We would automatically revert to our positions in the 11-man- Court, otherwise, We would just continue to be in our membership in the 15-manCourt, unless We feel We cannot in conscience accept the legality of existence. On the other hand, if it is assumed that We are the 11-man-Court and it happens that Our collective decision is in favor of the new constitution, it would be problematical for any dissenting justice to consider himself as included automatically in the 15-man-Court, since that would tantamount to accepting a position he does not honestly believe exists. III In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification of the 1973 Constitution it purports to declare as having taken place as a result of the referendum above-referred to is ineffective since it cannot be said on the basis of the said referendum that said Constitution has been "approved by a majority of the votes cast at an election" in the manner prescribed by Article XV the Constitution of 1935. More specifically, they maintain that the word "election" in the said Article has already acquired a definite accepted meaning out of the consistent holding in the past of ratification plebiscites, and accordingly, no other form of ratification can be considered contemplated by the framers of the Old Constitution than that which had been followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the supervision of the Commission on Elections. Furthermore, they emphatically deny the veracity of the proclaimed results of the referendum because, according to them the referendum was a farce and its results were manufactured or prefabricated, considering that Mr. Francisco Cruz, who is supposed to have submitted the final report to the President, which served as basis for Proclamation 1102, had no official authority to render the same, and it is inconceivable and humanly impossible for anyone to have been able to gather, tabulate and canvass the 15 million votes allegedly reported within the short period of time employed. Of course, they also contend that in any event, there was no proper submission because martial law per se creates constructive duress which deprives the voters of the complete freedom needed for the exercise of their right of choice and actually, there was neither time nor opportunity for real debate before they voted. On the other hand, the position of the Solicitor General as counsel for the respondents is that the matter raised in the petitions is a political one which the courts are not supposed to inquire into, and, anyway, there has been a substantial compliance with Article XV of the 1935 Constitution, inasmuch as, disregarding unessential matters of form, the undeniable fact is that the voting in the referendum resulted in the approval by the people of the New Constitution. I need not dwell at length on these variant positions of the parties. In my separate opinion in the Plebiscite Cases, I already made the observation that in view of the lack of solemnity and regularity in the voting as well as in the manner of reporting and canvassing conducted in connection with the referendum, I cannot say that Article XV of the Old Constitution has been complied with, albeit I held that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myself clearer on some relevant points, I would like to add a few considerations to what I have already said in the former cases. In my opinion in those cases, the most important point I took into account was that in the face of the Presidential certification through Proclamation 1102 itself that the New Constitution has been approved by a majority of the people and having in mind facts of general knowledge which I have judicial notice of, I am in no position to deny that the result of the referendum was as the President had stated. I can believe that the figures referred to in the proclamation may not accurate, but I cannot say in conscience that all of them are manufactured or prefabricated, simply because I saw with own eyes that people did actually gather and listen discussions, if brief and inadequate for those who are abreast of current events and general occurrences, and that they did vote. I believe I can safely say that what I have seen have also been seen by many others throughout the country and unless it can be assumed, which honestly, I do not believe to be possible, that in fact there were actually no meetings held and no voting done in more places than those wherein there were such meetings and votings, I am not prepared to discredit entirely the declaration that there was voting and that the majority of the votes were in favor of the New Constitution. If in fact there were substantially less than 14 million votes of approval, the real figure, in my estimate, could still be significant enough and legally sufficient to serve as basis for a valid ratification. It is contended, however, that the understanding was that the referendum among the Citizens Assemblies was to be in the nature merely of a loose consultation and not an outright submission for purposes of ratification. I can see that at the outset, when the first set of questions was released, such may have been the idea. It must not be lost sight of, however, that if the newspaper reports are to be believed, and I say this only because petitioners would consider the newspapers as the official gazettes of the administration, the last set of six questions were included precisely because the reaction to

the idea of mere consultation was that the people wanted greater direct participation, thru the Citizens Assemblies, in decision-making regarding matters of vital national interest. Thus, looking at things more understandingly and realistically the two questions emphasized by counsel, namely, (1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to ratify the new Constitution? should be considered no longer as loose consultations but as direct inquiries about the desire of the voters regarding the matters mentioned. Accordingly, I take it that if the majority had expressed disapproval of the new Constitution, the logical consequence would have been the complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is very plain to see that since the majority has already approved the new Constitution, a plebiscite would be superfluous. Clear as these rationalizations may be, it must have been thought that if the holding of a plebiscite was to be abandoned, there should be a direct and expressed desire of the people to such effect in order to forestall as much as possible any serious controversy regarding the non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause, of the new Constitution. Oddly enough, the "comments" accompanying the questions do strongly suggest this view. And as it turned out, the majority found no necessity in holding a plebiscite. In connection with the question, Do you approve of the New Constitution? capital is being made of the point that as so framed, the thrust of the said question does not seek an answer of fact but of opinion. It is argued that it would have been factual were it worded categorically thus Do you approve the New Constitution? The contention would have been weighty were it not unrealistic. I remember distinctly that the observation regarding the construction of the subject question was not originally made by any of the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery of the English language can rightly be the cause of envy of even professors of English. None of the other members of the Court, as far as I can recall, ever noticed how the said question is phrased, or if anyone of Us did, I am not aware that he gave it more than passing attention. What I mean is that if neither any of the distinguished and learned counsels nor any member of the Court understood the said question otherwise than calling for a factual answer instead of a mere opinion, how could anyone expect the millions of unlettered members of the Citizens Assemblies to have noticed the point brought out by Justice Castro? Truth to tell, I myself did not realize the difference until Justice Castro gave it emphasis. Besides, reading the question in the light of the accompanying "comment" corresponding to it in particular, I am certain that any one who answered the same understood it in no other sense than a direct inquiry as to whether or not, as a matter of fact, he approves the New Constitution, and naturally, affirmative answer must be taken as a categorical vote of approval thereof, considering, particularly, that according to the reported result of the referendum said answer was even coupled with the request that the President defer the convening of the Interim National Assembly. It is also contended that because of this reference in answer to that question to the deferment of the convening of the interim assembly, the said answer is at best a conditional approval not proper nor acceptable for purposes of ratification plebiscite. The contention has no basis. In interest of accuracy, the additional answer proposed in pertinent "comment" reads as follows: "But we do not want Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, as reported, was of similar tenor, it is not fair to ascribe to it the imposition of a condition. At most, the intention is no more than a suggestion or a wish. As regards said "comments", it must be considered that a martial law was declared, the circumstances surrounding making of the Constitution acquired a different and more meaningful aspect, namely, the formation of a new society. From the point of view of the President and on the basis of intelligence reports available to him, the only way to meet situation created by the subversive elements was to introduce immediately effective reforms calculated to redeem the people from the depth of retrogression and stagnation caused by rampant graft and corruption in high places, influence peddling, oligarchic political practices, private armies, anarchy, deteriorating conditions of peace and order, the so inequalities widening the gap between the rich and the poor, and many other deplorable long standing maladies crying for early relief and solution. Definitely, as in the case of rebellious movement that threatened the Quirino Administration, the remedy was far from using bullets alone. If a constitution was to be approved as an effective instrument towards the eradication of such grave problems, it had to be approved without loss of time and sans the cumbersome processes that, from the realistic viewpoint, have in the past obstructed rather than hastened the progress of the people. Stated otherwise, in the context of actualities, the evident objective in having a new constitution is to establish new directions in the pursuit of the national aspirations and the carrying out of national policies. Only by bearing these considerations in mind can the "comments" already referred to be properly appreciated. To others said "comments" may appear as evidence of corruption of the will of those who attended the assemblies, but actually, they may also be viewed in the same light as the sample ballots commonly resorted to in the elections of officials, which no one can contend are per semeans of coercion. Let us not forget that the times are abnormal, and prolonged dialogue and exchange of ideas are not generally possible, nor practical, considering the need for faster decisions and more resolute action. After all voting on a whole new constitution is different from voting on one, two or three specific proposed amendments, the former calls for nothing more than a collective view of all the provisions of the whole charter, for necessarily, one has to take the good together with the bad in it. It is rare for anyone to reject a constitution only because of a few specific objectionable features, no matter how substantial, considering the ever present possibility that after all it may be cured by subsequent amendment. Accordingly, there was need to indicate to the people the paths open to them in their quest for the betterment of their conditions, and as long as it is not shown that those who did not agree to the suggestions in the "comments" were actually compelled to vote against their will, I am not convinced that the existence of said "comments" should make any appreciable difference in the court's appraisal of the result of the referendum. I must confess that the fact that the referendum was held during martial law detracts somehow from the value that the referendum would otherwise have had. As I intimated, however, in my former opinion, it is not fair to condemn and disregard the result of the referendum barely because of martial law per se. For one thing, many of the objectionable features of martial law have not actually materialized, if only because the implementation of martial law since its inception has been generally characterized by restraint and consideration, thanks to the expressed wishes of the President that the same be made "Philippine style", which means without the rigor that has attended it in other lands and other times. Moreover, although the restrictions on the freedom of speech, the press and movement during martial law do have their corresponding adverse effects on the area of information which should be open to a voter, in its real sense what "chills" his freedom of choice and mars his exercise of discretion is suspension of the privilege of the writ of habeas corpus. The reason is simply that a man may freely and correctly vote even if the needed information he possesses as to the candidates or issues being voted upon is more or less incomplete, but when he is subject to arrest and detention without investigation and without being informed of the cause thereof, that is something else which may actually cause him to cast a captive vote. Thus it is the suspension of the writ of habeas corpus accompanying martial law that can cause possible restraint on the freedom choice in an election held during martial law. It is a fact, however, borne by history and actual experience, that in the Philippines, the suspension of the privilege of the writ habeas corpus has never produced any chilling effect upon the voters, since it is known by all that only those who run afoul the law, saving inconsequential instances, have any cause for apprehension in regard to the conduct by them of the normal activities of life. And so it is recorded that in the elections 1951 and 1971, held while the privilege of writ of habeas corpus was under suspension, the Filipino voters gave the then opposition parties overwhelming if not sweeping victories, in defiance of the respective administrations that ordered the suspensions. At this juncture, I think it is fit to make it clear that I am not trying to show that the result of the referendum may considered as sufficient basis for declaring that the New Constitution has been ratified in accordance with the amending clause of the 1935 Constitution. I reiterate that in point of law, I find neither strict nor substantial compliance. The foregoing discussion is only to counter, if I may, certain impression regarding the general conditions obtaining during and in relation to the referendum which could have in one way or another affected the exercise of the freedom of choice and the use of

discretion by the members of the Citizens Assemblies, to the end that as far as the same conditions may be relevant in my subsequent discussions of the acceptance by the people of the New Constitution they may also be considered. IV It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people. And on this premise, my considered opinion is that the Court may no longer decide these cases on the basis of purely legal considerations. Factors which are non-legal but nevertheless ponderous and compelling cannot be ignored, for their relevancy is inherent in the issue itself to be resolved. In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether or not there was proper submission under Presidential Decree No. 73 is justiciable, and I still hold that the propriety of submission under any other law or in any other form is constitutionally a fit subject for inquiry by the courts. The ruling in the decided cases relied upon by petitioners are to this effect. In view, however, of the factual background of the cases at bar which include ratification itself, it is necessary for me to point out that when it comes to ratification, I am persuaded that there should be a boundary beyond which the competence of the courts no longer has any reason for being, because the other side is exclusively political territory reserved for their own dominion by the people. The main basis of my opinion in the previous cases was acceptance by the people. Others may feel there is not enough indication of such acceptance in the record and in the circumstances the Court can take judicial notice of. For my part, I consider it unnecessary to be strictly judicial in inquiring into such fact. Being personally aware, as I have already stated, that the Citizens Assemblies did meet and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to judicial tape and measure, to find out with absolute precision the veracity of the total number of votes actually cast. After all, the claims that upon a comparison of conflicting reports, cases of excess votes may be found, even if extrapolated will not, as far as I can figure out, suffice to overcome the outcome officially announced. Rather than try to form a conclusion out of the raw evidence before Us which the parties did not care to really complete, I feel safer by referring to the results announced in the proclamation itself. Giving substantial allowances for possible error and downright manipulation, it must not be overlooked that, after all, their having been accepted and adopted by the President, based on official reports submitted to him in due course of performance of duty of appropriate subordinate officials, elevated them to the category of an act of a coordinate department of the government which under the principle separation of powers is clothed with presumptive correctness or at least entitled to a high degree of acceptability, until overcome by better evidence, which in these cases does not exist. In any event, considering that due to the unorthodoxy of the procedure adopted and the difficulty of an accurate checking of all the figures, I am unable to conceive of any manageable means of acquiring information upon which to predicate a denial, I have no alternative but to rely on what has been officially declared. At this point, I would venture to express the feeling that if it were not generally conceded that there has been sufficient showing of the acceptance in question by this time, there would have been already demonstrative and significant indications of a rather widespread, if not organized resistance in one form or another. Much as they are to be given due recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord to the filing of these cases as indicative enough of the general attitude of the people. It is true that in the opinion I had the privilege of penning the Court in Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal pronouncements to the effect that any amendment to the Constitution of 1935, to be valid, must appear to have been made in strict conformity with the requirements of Article XV thereof. What is more, that decision asserted judicial competence to inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in the correctness of those views and I would even add that I sincerely feel it reflects the spirit of the said constitutional provision. Without trying to strain any point however, I, submit the following considerations in the context of the peculiar circumstances of the cases now at bar, which are entirely different from those in the backdrop of the Tolentino rulings I have referred to. 1. Consider that in the present case what is involved is not just an amendment of a particular provision of an existing Constitution; here, it is, as I have discussed earlier above, an entirely new Constitution that is being proposed. This important circumstance makes a great deal of difference. No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the petitioner in the case I have just referred to is, now inviting Our attention to the exact language of Article XV and suggesting that the said Article may be strictly applied to proposed amendments but may hardly govern the ratification of a new Constitution. It is particularly stressed that the Article specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be valid as part of this Constitution." Indeed, how can a whole new constitution be by any manner of reasoning an amendment to any other constitution and how can it, if ratified, form part of such other constitution? In fact, in the Tolentino case I already somehow hinted this point when I made reference in the resolution denying the motion for reconsideration to the fact that Article XV must be followed "as long as any amendment is formulated and submitted under the aegis of the present Charter." Said resolution even added. "(T)his is not to say that the people may not, in the exercise of their inherent revolutionary powers, amend the Constitution or promulgate an entirely new one otherwise.". It is not strange at all to think that the amending clause of a constitution should be confined in its application only to proposed changes in any part of the same constitution itself, for the very fact that a new constitution is being adopted implies a general intent to put aside the whole of the old one, and what would be really incongrous is the idea that in such an eventuality, the new Constitution would subject its going into effect to any provision of the constitution it is to supersede, to use the language precisely of Section 6, Article XVII, the effectivity clause, of the New Constitution. My understanding is that generally, constitutions are self-born, they very rarely, if at all, come into being, by virtue of any provision of another constitution. 3 This must be the reason why every constitution has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea of the referendum and provided for such a method to be used in the ratification of the New Constitution, I would have had serious doubts as to whether Article XV could have had priority of application. 2. When an entirely new constitution is proposed to supersede the existing one, we cannot but take into consideration the forces and the circumstances dictating the replacement. From the very nature of things, the proposal to ordain a new constitution must be viewed as the most eloquent expression of a people's resolute determination to bring about a massive change of the existing order, a meaningful transformation of the old society and a responsive reformation of the contemporary institutions and principles. Accordingly, should any question arise as to its effectivity and there is some reasonable indication that the new charter has already received in one way or another the sanction of the people, I would hold that the better rule is for the courts to defer to the people's judgment, so long as they are convinced of the fact of their approval, regardless of the form by which it is expressed provided it be reasonably feasible and reliable. Otherwise stated, in such instances, the courts should not bother about inquiring into compliance with technical requisites, and as a matter of policy should consider the matter non-justiciable. 3. There is still another circumstance which I consider to be of great relevancy. I refer to the ostensible reaction of the component elements, both collective and individual, of the Congress of the Philippines. Neither the Senate nor the House of Representatives has been reported to have even made

any appreciable effort or attempt to convene as they were supposed to do under the Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being composed of experienced, knowledgeable and courageous members, it would not have been difficult for said parliamentary bodies to have conceived some ingenious way of giving evidence of their determined adherence to the Constitution under which they were elected. Frankly, much as I admire the efforts of the handful of senators who had their picture taken in front of the padlocked portals of the Senate chamber, I do not feel warranted to accord such act as enough token of resistance. As counsel Tolentino has informed the court, there was noting to stop the senators and the congressmen to meet in any other convenient place and somehow officially organize themselves in a way that can logically be considered as a session, even if nothing were done than to merely call the roll and disperse. Counsel Tolentino even pointed out that if there were not enough members to form a quorum, any smaller group could have ordered the arrest of the absent members. And with particular relevance to the present cases, it was not constitutionally indispensable for the presiding officers to issue any call to the members to convene, hence the present prayers for mandamus have no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission on Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the House of Representatives, have officially and in writing exercised the option given to them to join the Interim National Assembly under the New Constitution, thereby manifesting their acceptance of the new charter. Now, having these facts in mind, and it being obvious that of the three great departments of the government under the 1935 Constitution, two, the Executive and the Legislative, have already accepted the New Constitution and recognized its enforceability and enforcement, I cannot see how this Supreme Court can by judicial fiat hold back the political developments taking place and for the sake of being the guardian of the Constitution and the defender of its integrity and supremacy make its judicial power prevail against the decision of those who were duly chosen by the people to be their authorized spokesmen and representatives. It is not alone the physical futility of such a gesture that concerns me. More than that, there is the stark reality that the Senators and the Congressmen, no less than the President, have taken the same oath of loyalty to the Constitution that we, the Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the Constitution. If as the representatives of the people, they have already opted to accept the New Constitution as the more effective instrument for fulfillment of the national destiny, I really wonder if there is even any idealistic worth in our desperately clinging by Ourselves alone to Our sworn duty vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the new dispensation and cognizant of the decisive steps being with the least loss of time, towards their accomplishment, cannot but feel apprehensive that instead of serving the best interests of our people, which to me is in reality the real meaning of our oath of office, the Court might be standing in the way of the very thing our beloved country needs to retrieve its past glory and greatness. In other words, it is my conviction that what these cases demand most of all is not a decision demonstrative of our legal erudition and Solomonic wisdom but an all rounded judgment resulting from the consideration of all relevant circumstances, principally the political, or, in brief, a decision more political than legal, which a court can render only by deferring to the apparent judgment of the people and the announcement thereof by the political departments of the government and declaring the matter non-justiciable. 4. Viewed from the strictly legal angle and in the light of judicial methods of ascertainment, I cannot agree with the Solicitor General that in the legal sense, there has been at least substantial compliance with Article XV of the 1935 Constitution, but what I can see is that in a political sense, the answers to the referendum questions were not given by the people as legal conclusions. I take it that when they answered that by their signified approval of the New Constitution, they do not consider it necessary to hold a plebiscite, they could not have had in mind any intent to do what was constitutionally improper. Basically accustomed to proceed along constitutional channels, they must have acted in the honest conviction that what was being done was in conformity with prevailing constitutional standards. We are not to assume that the sovereign people were indulging in a futile exercise of their supreme political right to choose the fundamental charter by which their lives, their liberties and their fortunes shall be safeguarded. In other words, we must perforce infer that they meant their decision to count, and it behooves this Court to render judgment herein in that context. It is my considered opinion that viewed understandingly and realistically, there is more than sufficient ground to hold that, judged by such intent and, particularly, from the political standpoint, the ratification of the 1973 Constitution declared in Proclamation 1102 complies substantially with Article XV of the 1935 Charter, specially when it is considered that the most important element of the ratification therein contemplated is not in the word "election", which conceivably can be in many feasible and manageable forms but in the word "approved" which may be said to constitute the substantiality of the whole article, so long as such approval is reasonably ascertained. In the last analysis, therefore, it can be rightly said, even if only in a broad sense, that the ratification here in question was constitutionally justified and justifiable. 5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal grounds, the same should be dispelled by viewing the situation in the manner suggested by Counsel Tolentino and by the writer of this opinion in his separate opinion, oft-referred to above, in the Plebiscite Cases that is, as an extra constitutional exercise by the people, under the leadership of President Marcos, of their inalienable right to change their fundamental charter by any means they may deem appropriate, the moment they are convinced that the existing one is no longer responsive to their fundamental, political and social needs nor conducive to the timely attainment of their national destiny. This is not only the teaching of the American Declaration of Independence but is indeed, a truth that is self-evident. More, it should be regarded as implied in every constitution that regardless of the language of its amending clause, once the people have given their sanction to a new charter, the latter may be deemed as constitutionally permissible even from the point of view of the preceding constitution. Those who may feel restrained to consider this view out of respect to the import of Tolentino vs. Comelec, supra., would be well advised to bear in mind that the case was decided in the context of submission, not accomplished ratification. V The language of the disputed amending clause of the 1935 Constitution should not be deemed as the be all and end all the nation. More important than even the Constitution itself with all its excellent features, are the people living under it their happiness, their posterity and their national destiny. There is nothing that cannot be sacrificed in the pursuit of these objectives, which constitute the totality of the reasons for national existence. The sacred liberties and freedom enshrined in it and the commitment and consecration thereof to the forms of democracy we have hitherto observed are mere integral parts of this totality; they are less important by themselves. What seems to me to be bothering many of our countrymen now is that by denying the present petitions, the Court would be deemed as sanctioning, not only the deviations from traditional democratic concepts and principles but also the qualified curtailment of individual liberties now being practiced, and this would amount, it is feared, to a repudiation of our oath to support and defend the Constitution of 1935. This is certainly something one must gravely ponder upon. When I consider, however, that the President, the Vice President, the members of both Houses of Congress, not to speak of all executive departments and bureaus under them as well as all the lower courts, including the Court of Appeals have already accepted the New Constitution as an instrument of a meaningful nationwide-all-level change in our government and society purported to make more realistic and feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national aspirations, I am led to wonder whether or not we, as members of the Supreme Court are being true to our duty to our people by refusing to follow suit and accept the realities of the moment, despite our being convinced of the sincerity and laudableness of their objectives, only because we feel that by the people's own act of ratifying the Constitution of 1935, they have so encased themselves within its provisions and may, therefore, no longer take measures to redeem themselves from the situation brought about by the deficiencies of the old order, unless they act in strict conformity therewith. I cannot believe that any people can be so stifled and enchained. In any event, I consider it a God-given attribute of the people to disengage themselves, if necessary, from any covenant that would obstruct their taking what

subsequently appears to them to be the better road to the promotion and protection of their welfare. And once they have made their decision in that respect, whether sophisticatedly or crudely, whether in legal form or otherwise, certainly, there can be no court or power on earth that can reverse them. I would not be human if I should be insensitive to the passionate and eloquent appeals of Counsels Taada and Salonga that these cases be decided on the basis of conscience. That is exactly what I am doing. But if counsel mean that only by granting their petitions can this Court be worthily the bulwark of the people's faith in the government, I cannot agree, albeit my admiration and respect are all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to principle. Verily, they have brought out everything in the Filipino that these cases demand. In times of national emergencies and crises, not arising from foreign invasion, we need not fear playing opposite roles, as long as we are all animated by sincere love of country and aim exclusively at the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent generations, Quezon, Osmea, Roxas, Laurel and Recto, to mention only some of them, had their differences of views and they did not hesitate to take diametrically opposing sides that even reached tragic proportions, but all of them are admired and venerated. It is my faith that to act with absolute loyalty to our country and people is more important than loyalty to any particular precept or provision of the Constitution or to the Constitution itself. My oath to abide by the Constitution binds me to whatever course of action I feel sincerely is demanded by the welfare and best interests of the people. In this momentous juncture of our history, what is imperative is national unity. May God grant that the controversies the events leading to these cases have entail will heal after the decision herein is promulgated, so that all us Filipinos may forever join hands in the pursuit of our national destiny. IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions for mandamus and prohibition without costs. MAKASIAR, J., concurring: Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure for the ratification of constitutional amendments or of a new Constitution and that such procedure was no complied with, the validity of Presidential Proclamation No. 1102 is a political, not a justiciable, issue; for it is inseparably or inextricably link with and strikes at, because it is decisive of, the validity of ratification and adoption of, as well as acquiescence of people in, the 1973 Constitution and the legitimacy of the government organized and operating thereunder. And being political, it is beyond the ambit of judicial inquiry, tested by the definition of a political question enunciated in Taada, et. al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will not do violence to rights vested under the new Constitution, to international commitments forged pursuant thereto and to decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or whose jurisdiction has been altered by the 1973 Constitution and the government established thereunder, and will dissipate any confusion in the minds of the citizenry, who have been obeying the mandates of the new Constitution, as well as exercising the rights and performing the obligations defined by the new Constitution, and decrees and orders issued in implementation of the same and cooperating with the administration in the renovation of our social, economic and political system as re-structured by the 1973 Constitution and by the implementing decrees and orders (see Miller vs. Johnson, 18 SW 522, 522-526, 1892). In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf of the Court, defined a political question as one which, under the Constitution, is "to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority had been delegated to the Legislature or Executive branch of the government." (Taada, et al. vs. Cuenco, et al., supra). Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratification." Under Article XV of the 1935 Constitution, the power to propose constitutional amendments is vested in Congress or in a constitutional convention; while the power to ratify or reject such proposed amendments or new Constitution is reserved by the sovereign people. The nullification of Proclamation No. 1102 would inevitably render inoperative the 1973 Constitution, which is in fact the express prayer of the petitioners in G.R. No. L-36164. Regardless of the modality of submission or ratification or adoption even if it deviates from or violates the procedure delineated therefore by the old Constitution once the new Constitution is ratified, adopted and/or acquiesced in by the people or ratified even by a body or agency not duly authorized therefor but is subsequently adopted or recognized by the people and by the other official organs and functionaries of the government established under such a new Constitution, this Court is precluded from inquiring into the validity of such ratification, adoption or acquiescence and of the consequent effectivity of the new Constitution. This is as it should be in a democracy, for the people are the repository of all sovereign powers as well as the source of all governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is expressly restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions, thus: "Sovereignty resides in the people and all government authority emanates from them." The legality of the submission is no longer relevant; because the ratification, adoption and/or acquiescence by the people cures any infirmity in its submission or any other irregularities therein which are deemed mandatory before submission as they are considered merely directory after such ratification or adoption or acquiescence by the people. As Mr. Justice Brewer, then of the Kansas State Supreme Court and later Associate Justice of the Federal Supreme Court, stated in re Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506): " The two important, vital elements of the Legislature and a majority of the popular vote. Beyond these, other provisions are mere machineries and forms. They may not be disregarded, because by them certainty as to the essentials is secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 285 NW 59, 61-64, 1939). This was the ruling by the American Supreme Court in the 1939 case of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice Hughes, speaking for the majority, stated that: ... Thus the political departments of the government dealt with the effect of both previous rejection and attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification ... . This decision by the political departments of the Government as to the validity of the adoption of the Fourteenth amendment has been accepted. We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.

This view was likewise emphasized by Mr. Justice Black in his concurring opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join, thus: The Constitution grants Congress exclusive power to control submission of constitutional amendments. Final determination by Congress that ratification by three-fourths of the States has taken place "is conclusive upon the courts." In the exercise of that power, Congress, of course, is governed by the Constitution. However, whether submission, intervening procedure or Congressional determination of ratification conforms to the commands of the Constitution, calls for decisions by a "political department" of questions of a type which this Court has frequently designated "political." And decision of a "political question" by the "political department" to which the Constitution has committed it "conclusively binds the judges, as well as all other officers, citizens and subjects of...government." Proclamation under authority of Congress that an amendment has been ratified will carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional authority of interpretation. To the extent that the Court's opinion in the present case even impliedly assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree... (American Constitutional Issues, by Pritchett, 1962 Ed., p. 44). The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1). The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place great reliance that the courts may review the propriety of a submission of a proposed constitutional amendment before the ratification or adoption of such proposed amendment by the sovereign people , hardly applies to the cases at bar; because the issue involved in the aforesaid cases refers to only the propriety of the submission of a proposed constitutional amendment to the people for ratification, unlike the present petitions, which challenge inevitably the validity of the 1973 Constitution after its ratification or adoption thru acquiescence by the sovereign people. As heretofore stated, it is specious and pure sophistry to advance the reasoning that the present petitions pray only for the nullification of the 1973 Constitution and the government operating thereunder. It should be stressed that even in the Gonzales case, supra, We held that: Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. It is part of the inherent powers of the people as the repository of sovereignty in a republican state, such as ours to make, and hence, to amend their own Fundamental Law. Congress may propose amendments to the same explicitly grants such power. Hence, when exercising the same, it is said that Senators and Members of the House of Representatives act, not as members, but as component elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike the people, when performing the same function, for their authority does not emanate from the Constitution they are the very source of all powers of government, including the Constitution itself. (21 SCRA 787) We did not categorically and entirely overturn the doctrine in Mabanag vs. Lopez Vito (78 Phil. 1) that both the proposal to amend and the ratification of such a constitutional amendment are political in nature forming as they do the essential parts of one political scheme the amending process. WE merely stated therein that the force of the ruling in the said case of Mabanag vs. Lopez Vito has been weakened by subsequent cases. Thus, We pronounced therein: It is true that in Mabanag vs. Lopez Vito, this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution which was being submitted to the people for ratification satisfied the three fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate, Avelino vs. Cuenco, Taada vs. Cuenco and Macias vs. Commission on Elections. In the first, we held the officers and employees of the Senate Electoral Tribunal are supervision and control, not of that of the Senate President, claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives, upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus we rejected the theory advanced in these four (4) cases, that the issues therein raised were political questions the determination of which is beyond judicial review. (21 SCRA pp. 785-786); for which reason We concluded In short, the issue whether or not a resolution of Congress before acting as a constituent assembly violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial review, and to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito, the latter should be deemed modified accordingly. (p. 787, emphasis supplied.) In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA 703-714). The inevitable consequence therefore is that the validity of the ratification or adoption of or acquiescence by the people in the 1973 Constitution, remains a political issue removed from the jurisdiction of this Court to review. One more word about the Gonzales and Tolentino cases. Both primarily stressed on the impropriety of the submission of a proposed constitutional amendment. Courts do not deal with propriety or wisdom or absence of either of an official act or of a law. Judicial power concerns only with the legality or illegality, constitutionality or unconstitutionality of an act: it inquires into the existence of power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political department of the government.

The classic example of an illegal submission that did not impair the validity of the ratification or adoption of a new Constitution is the case of the Federal Constitution of the United States. It should be recalled that the thirteen (13) original states of the American Union which succeeded in liberating themselves from England after the revolution which began on April 19, 1775 with the skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) adopted their Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six thereafter, the Congress of the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitutional Convention "for the sole and express purpose of revising the articles of confederation ... ." (Appendix I, Federalist, Modern Library ed., p. 577, emphasis supplied). The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of Confederation and Perpetual Union stated specifically: The articles of this confederation shall be inviolably observed in every state, and the union shall be perpetual; nor shall any alterations at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state. (See the Federalist, Appendix II, Modern Library Ed., 1937, p. 584; emphasis supplied.) But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for the alteration for the ratification of the Federal Constitution as drafted by the Philadelphia Convention were not followed. Fearful the said Federal Constitution would not be ratified by the legislatures as prescribed, the Philadelphia Convention adopted a resolution requesting the Congress of the Confederation to pass a resolution providing that the Constitution should be submitted to elected state conventions and if ratified by the conventions in nine (9) states, not necessarily in all thirteen (13) states, the said Constitution shall take effect. Thus, history Professor Edward Earle Mead of Princeton University recorded that: It would have been a counsel of perfection to consign the new constitution to the tender mercies of the legislatures of each and all of the 13 states. Experience clearly indicated that ratification then would have had the same chance as the scriptural camel passing through the eye of a needle. It was therefore determined to recommend to Congress that the new Constitution be submitted to conventions in the several states especially elected to pass upon it and that, furthermore, the new government should go into effect if and when it should be ratified by nine of the thirteen states ... . (The Federalist, Modern Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix; emphasis supplied) Historian Samuel Eliot Morison similarly recounted: The Convention, anticipating that the influence of many state politicians would be Antifederalist, provided for ratification of the Constitution by popularly elected conventions in each state. Suspecting that Rhode Island, at least, would prove recalcitrant, it declared that the Constitution would go into effect as soon as nine states ratified. The convention method had the further advantage that judges, ministers, and others ineligible to state legislatures, could be elected to a convention. The nine-state provision was, of course, mildly revolutionary. But the Congress of the Confederation, still sitting in New York to carry on federal government until relieved, formally submitted the new constitution to the states and politely faded out before the first presidential inauguration. (The Oxford History of the Am. People, by Samuel Eliot Morison, 1965 ed., p. 312). And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last four states on May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27. by the state conventions and not by all thirteen (13) state legislatures as required by Article XIII of the Articles of Confederation and Perpetual Union aforequoted and in spite of the fact that the Federal Constitution as originally adopted suffers from two basic infirmities, namely, the absence of a bill of Rights and of a provision affirming the power of judicial review. The liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution. The doctrine of judicial review has become part of American constitutional law only by virtue of a judicial pronouncement by Chief Justice Marshall in the case of Marbury vs. Madison (1803, 1 Cranch 137). Until this date, no challenge has been launched against the validity of the ratification of the American Constitution, nor against the legitimacy of the government organized and functioning thereunder. In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), which enunciated the principle that the validity of a new or revised Constitution does not depend on the method of its submission or ratification by the people, but on the fact or fiat or approval or adoption or acquiescence by the people which fact of ratification or adoption or acquiescence is all that is essential , the Court cited precisely the case of the irregular revision and ratification by state conventions of the Federal Constitution, thus: No case identical in its facts with the case now under consideration has been called to our attention, and we have found none. We think that the principle which we apply in the instant case was very clearly applied in the creation of the constitution of the United States. The convention created by a resolution of Congress had authority to do one thing, and one only, to wit, amend the articles of confederation. This they did not do, but submitted to the sovereign power, the people, a new constitution. In this manner was the constitution of the United States submitted to the people and it became operative as the organic law of this nation when it had been properly adopted by the people. Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the constitution of the United States, has this to say: "The convention proceeded to do, and did accomplish, what they were not authorized to do by a resolution of Congress that called them together. That resolution plainly contemplated amendments to the articles of confederation, to be submitted to and passed by the Congress, and afterwards ratified by all the State legislatures, in the manner pointed out by the existing organic law. But the convention soon became convinced that any amendments were powerless to effect a cure; that the disease was too deeply seated to be reached such tentative means. They saw that the system they were called to improve must be totally abandoned, and that the national idea must be re-established at the center of their political society. It was objected by some members, that they had no

power, no authority, to construct a new government. They had no authority, if their decisions were to be final; and no authority whatsoever, under the articles of confederation, to adopt the course they did. But they knew that their labors were only to be suggestions; and that they as well as any private individuals, and any private individuals as well as they, had a right to propose a plan of government to the people for their adoption. They were, in fact, a mere assemblage of private citizens, and their work had no more binding sanction than a constitution drafted by Mr. Hamilton in his office would have had. The people, by their expressed will, transformed this suggestion, this proposal, into an organic law, and the people might have done the same with a constitution submitted to them by a single citizen." xxx xxx xxx ... When the people adopt a completely revised or new constitution, the framing or submission of the instrument is not what gives it binding force and effect. The fiat of the people and only the fiat of the people, can breathe life into a constitution . xxx xxx xxx ... We do not hesitate to say that a court is never justified in placing by implication a limitation upon the sovereign. This would be an authorized exercise of sovereign power by the court. In State v. Swift, 69 Ind. 505, 519, the Indiana Supreme Court said: "The people of a State may form an original constitution, or abrogate an old one and form a new one, at any time, without any political restriction except the constitution of the United States; ... ." (37 SE 327-328, 329, emphasis supplied.) In the 1903 case of Weston vs. Ryan, the Court held: It remains to be said that if we felt at liberty to pass upon this question, and were compelled to hold that the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any means follow that the amendment is not a part of our state Constitution. In the recent case of Taylor vs. Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia hold that their state Constitution of 1902, having been acknowledged and accepted by the officers administering the state government, and by the people, and being in force without opposition, must be regarded as an existing Constitution irrespective of the question as to whether or not the convention which promulgated it had authority so to do without submitting it to a vote of the people . In Brittle v. People, 2 Neb. 198, is a similar holding as to certain provisions of the Nebraska Constitution of 1886, which were added by the Legislature at the requirement of Congress, though never submitted to the people for their approval." (97 NW 349-350; emphasis supplied). Against the decision in the Wheeler case, supra, confirming the validity of the ratification and adoption of the American Constitution, in spite of the fact that such ratification was in clear violation of the prescription on alteration and ratification of the Articles of Confederation and Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most significant historical fact by calling the Federal Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the requirement that the Articles of Confederation and Perpetual Union can be amended only with the consent of all thirteen (13) state legislatures. This opinion does not cite any decided case, but merely refers to the footnotes on the brief historic account of the United States Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the Oxford History of the American People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of Confederation and Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in Politics, 1785-1788," Professor Morison delineates the genesis of the Federal Constitution, but does not refer to it even implicitly as revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered revolutionary from the view point of McIver if the term revolution is understood in "its wider sense to embrace decisive changes in the character of government, even though they do not involve the violent overthrow of an established order, ... ." (R.M. MacIver, The Web of Government, 1965 ed., p. 203). It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The Articles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged as it was during the war of independence was a revolutionary constitution of the thirteen (13) states. In the existing Federal Constitution of the United States which was adopted seven (7) or nine (9) years after the thirteen (13) states won their independence and long after popular support for the government of the Confederation had stabilized was not a product of a revolution. The Federal Constitution was a "creation of the brain and purpose of man" in an era of peace. It can only be considered revolutionary in the sense that it is a radical departure from its predecessor, the Articles of Confederation and Perpetual Union. It is equally absurd to affirm that the present Federal Constitution of the United States is not the successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is so obvious that no further refutation is needed. As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the validity and enforceability of the 1973 Constitution and of the government established and operating thereunder. Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). If Proclamation No. 1102 is nullified, then there is no valid ratification of the 1973 Constitution and the inevitable conclusion is that the government organized and functioning thereunder is not a legitimate government. That the issue of the legitimacy of a government is likewise political and not justiciable, had long been decided as early as the 1849 case of Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the case of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is sufficient for us to quote the decision in Pacific States Telephone and Telegraph Co., supra, penned by Mr. Chief Justice White, who re-stated: In view of the importance of the subject, the apparent misapprehension on one side and seeming misconception on the other, suggested by the argument as to the full significance of the previous doctrine, we do not content ourselves with a mere citation of the cases, but state more at length than we otherwise would the issues and the doctrine expounded in the leading and absolutely controlling case Luther v. Borden, 7 How. 1, 12 L.ed. 581.

xxx xxx xxx ... On this subject it was said (p. 38): "For if this court is authorized to enter upon this inquiry, proposed by the plaintiff, and it should be decided that the character government had no legal existence during the period of time above mentioned, if it had been annulled by the adoption of the opposing government, then the laws passed by its legislature during that time were nullities; its taxes wrongfully collected, its salaries and compensations to its officers illegally paid ; its public accounts improperly settled and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals." xxx xxx xxx "The fourth section of the fourth article of the Constitution of the United States shall guarantee to every state in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the Legislature or of the Executive (when the legislature cannot be convened) against domestic violence. "Under this article of the Constitution it rests with Congress to decide what government is established one in a state. For, as the United State guarantee to each state a republican government, Congress must necessarily decide what government is established in the state before it can determine whether it is republican or not. And when the senators and representatives of a state are admitted into the Councils of the Union, the authority of the government under which they were appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there and not in the courts." xxx xxx xxx ... We do not stop to cite other cases which indirectly or incidentally refer to the subject, but conclude by directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing of a contention made concerning the 14th Amendment, and coming to consider a proposition which was necessary to be decided concerning the nature and effect of the guaranty of S 4 of article 4, it was said (p. 578): "But it is said that the 14th Amendment must be read with S 4 of article 4, of the Constitution, providing that the United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or the Executive (when the legislature cannot be convened), against domestic violence." xxx xxx xxx "It was long ago settled that the enforcement of this guaranty belonged to the political department. Luther v. Borden , 7 How. 1, 12 L.ed. 581. In that case it was held that the question, which of the two opposing governments of Rhode Island, namely, the charter government or the government established by a voluntary convention, was the legitimate one, was a question for the determination of the political department; and when that department had decided, the courts were bound to take notice of the decision and follow it." xxx xxx xxx As the issues presented, in their very essence, are, and have long since by this Court been, definitely determined to be political and governmental, and embraced within the scope of the scope of the powers conferred upon Congress, and not, therefore within the reach of judicial power, it follows that the case presented is not within our jurisdiction , and the writ of error must therefore be, and it is, dismissed for want of jurisdiction. (223 U.S. pp. 142-151; emphasis supplied). Even a constitutional amendment that is only promulgated by the Constitutional Convention without authority therefor and without submitting the same to the people for ratification, becomes valid, when recognized, accepted and acted upon the by Chief of State and other government functionaries, as well as by the people. In the 1903 case of Taylor vs. Commonwealth (44 SE 754-755), the Court ruled: The sole ground urged in support of the contention that Constitution proclaimed in 1902 is invalid is that it was ordained and promulgated by the convention without being submitted for ratification or rejection by the people of the commonwealth. The Constitution of 1902 was ordained and proclaimed by convention duly called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work that the convention has been recognized, accepted, and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by its having been engaged for nearly a year in legislating under it and putting its provisions into operation but the judiciary in taking the oath prescribed thereby to support and by enforcing its provisions; and by the people in their primary capacity by peacefully accepting it and acquiescing in it, registering as voters under it to the extent of thousands through the state, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States. (p. 755).

The Court in the Taylor case above-mentioned further said: While constitutional procedure for adoption or proposal to amend the constitution must be duly followed, without omitting any requisite steps, courts should uphold amendment, unless satisfied that the Constitution was violated in submitting the proposal. ... Substance more than form must be regarded in considering whether the complete constitutional system for submitting the proposal to amend the constitution was observed. In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated: There may be technical error in the manner in which a proposed amendment is adopted, or in its advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes part of the Constitution. Legal complaints to the submission may be made prior to taking the vote, but, if once sanctioned, the amendment is embodied therein, and cannot be attacked, either directly or collaterally, because of any mistake antecedent thereto. Even though it be submitted at an improper time, it is effective for all purposes when accepted by the majority. Armstrong v. King, 281 Pa. 207, 126 A. 263. (130 A 409). Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon ratification or adoption or acquiescence by the people. Thus, in the 1905 case of Ex parte Birmingham and A.R. Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld this principle and stated that: "The authorities are almost uniform that this ratification of an unauthorized act by the people (and the people are the principal in this instance) renders the act valid and binding." It has likewise been held that it is not necessary that voters ratifying the new Constitution are registered in the book of voters; it is enough that they are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasis supplied). In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of Wisconsin ruled that "irregularity in the procedure for the submission of the proposed constitutional amendment will not defeat the ratification by the people." Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme Court pronounced that "the irregularity in failing to publish the proposed constitutional amendment once in each of the 4 calendar weeks next preceding the calendar week in which the election was held or once in each of the 7-day periods immediately preceding the day of the election as required by the Constitution, did not invalidate the amendment which was ratified by the people." The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they admitted irregularities or illegalities committed in the procedure for submission of the proposed constitutional amendment to the people for ratification consisted of: "(a) the alleged failure of the county election commissioners of the several counties to provide a sufficient number of ballot boxes 'secured by good and substantial locks,' as provided by Section 3249, Code of 1942, Rec., to be used in the holding of the special election on the constitutional amendment, and (b) the alleged failure of the State Election Commissioners to comply with the requirements of Code Sections 3204 and 3205 in the appointment of election commissioners in each of the 82 counties. The irregularities complained of, even if proved, were not such irregularities would have invalidated the election." (Emphasis supplied; see also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663). Even prior to the election in November, 1970 of delegates of the Constitutional Convention and during the deliberations of the Constitutional Convention from June 1, 1971 until martial law was proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973 Constitution which have long been desired by the people, had been thoroughly discussed in the various committees of the Constitutional Convention, on the floor of the Convention itself, in civic forums and in all the media of information. Many of the decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the reforms and had been ratified in Sec. 3(2) of Article XVII of the 1973 Constitution. Petitioners cannot safely state that during martial law the majority of the people cannot freely vote for these reforms and are not complying with the implementing decrees promulgated by the President. Free election is not inevitably incompatible with martial law. We had free elections in 1951 and 1971 when the opposition won six out of eight senatorial seats despite the suspension of the privileges of the writ of habeas corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which suspension implies constraint on individual freedom as the proclamation of martial law. In both situations, there is no total blackout of human rights and civil liberties. All the local governments, dominated either by Nacionalistas or Liberals, as well as officials of the Legislative and Executive branches of the government elected and/or appointed under the 1935 Constitution have either recognized or are now functioning under the 1973 Constitution, aside from the fact of its ratification by the sovereign people through the Citizens Assemblies. Ninety-five (95) of a total of one hundred ten (110) members of the House of Representatives including the Speaker and the Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the Liberal Party and fifteen (15) of a total of twenty-four (24) senators including Liberal senators Edgar U. Ilarde and John Osmea opted to serve in the Interim Assembly, according to the certification of the Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of petitioners in L36165). Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. All the other functionaries recognize the new government and are performing their duties and exercising their powers under the 1973 Constitution, including the lower courts. The civil courts, military tribunals and quasijudicial bodies created by presidential decrees have decided some criminal, civil and administrative cases pursuant to such decrees. The foreign ambassadors who were accredited to the Republic of the Philippines before martial law continue to serve as such in our country; while two new ambassadors have been accepted by the Philippines after the ratification of the 1973 Constitution on January 17, 1973. Copies of the 1973 Constitution had been furnished the United Nations Organization and practically all the other countries with which the Philippines has diplomatic relations. No adverse reaction from the United Nations or from the foreign states has been manifested. On the contrary, our permanent delegate to the United Nations Organization and our diplomatic representatives abroad appointed before martial law continue to remain in their posts and are performing their functions as such under the 1973 Constitution.

Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by requiring all election registrars to register 18-year olds and above whether literates or not, who are qualified electors under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of respondents Puyat and Roy in L-36165). In brief, it cannot be said that the people are ignoring the 1973 Constitution and the government which is enforcing the same for over 10 weeks now With the petitioners herein, secessionists, rebels and subversives as the only possible exceptions, the rest of the citizenry are complying with decrees, orders and circulars issued by the incumbent President implementing the 1973 Constitution. Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW 522: If a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the duty of the courts declare its work a nullity. This would be revolution, and this the courts of the existing government must resist until they are overturned by power, and a new government established. The convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution, and are now daily doing so. Is the question, therefore, one of a judicial character? It is our undoubted duty, if a statute be unconstitutional to so declare it; also, if a provision of the state constitution be in conflict with the federal constitution, to hold the former invalid. But this is a very different case. It may be said, however, that, for every violation of or non-compliance with the law, there should be a remedy in the courts. This is not, however, always the case. For instance, the power of a court as to the acts of the other departments of the government is not an absolute one, but merely to determine whether they have kept within constitutional limits, it is a duty rather than a power, The judiciary cannot compel a coequal department to perform a duty. It is responsible to the people; but if it does act, then, when the question is properly presented, it is the duty of the court to say whether it has conformed to the organic law. While the judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and also because, in times of great popular excitement, it is usually their last resort, yet it should at the same time be careful to overstep the proper bounds of its power, as being perhaps equally dangerous; and especially where such momentous results might follow as would be likely in this instance, if the power of the judiciary permitted, and its duty required, the overthrow of the work of the convention . After the American Revolution the state of Rhode Island retained its colonial character as its constitution, and no law existed providing for the making of a new one. In 1841 public meetings were held, resulting in the election of a convention to form a new one, to be submitted to a popular vote. The convention framed one, submitted it to a vote, and declared it adopted. Elections were held for state officers, who proceeded to organize a new government. The charter government did not acquiesce in these proceedings, and finally declared the state under martial law. It called another convention, which in 1843 formed a new constitution. Whether the charter government, or the one established by the voluntary convention, was the legitimate one, was uniformly held by the courts of the state not to be a judicial, but a political question; and the political department having recognized the one, it was held to be the duty of the judiciary to follow its decision. The supreme court of the United States, in Luther v. Borden, 7 How. 1, while not expressly deciding the principle, as it held the federal court, yet in the argument approves it, and in substance says that where the political department has decided such a matter the judiciary should abide by it. Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold that the convention, when it reassembled, had no power to make any material amendment, and that such as were made are void by reason of the people having theretofore approved the instrument. Then, next, this court must determine what amendments were material; and we find the court, in effect, making a constitution. This would be arrogating sovereignty to itself. Perhaps the members of the court might differ as to what amendments are material, and the result would be confusion and anarchy. One judge might say that all the amendments, material and immaterial, were void; another, that the convention had then the implied power to correct palpable errors, and then the court might differ as to what amendments are material. If the instrument as ratified by the people could not be corrected or altered at all, or if the court must determine what changes were material, then the instrument, as passed upon by the people or as fixed by the court would be lacking a promulgation by the convention; and, if this be essential, then the question would arise, what constitution are we now living under, and what is the organic law of the state? A suggestion of these matters shows what endless confusion and harm to the state might and likely would arise. If, through error of opinion, the convention exceeded its power, and the people are dissatisfied, they have ample remedy, without the judiciary being asked to overstep the proper limits of its power. The instrument provides for amendment and change. If a wrong has been done, it can, in the proper way in which it should be remedied, is by the people acting as a body politic. It is not a question of whether merely an amendment to a constitution, made without calling a convention, has been adopted, as required by that constitution. If it provides how it is to be done, then, unless the manner be followed, the judiciary, as the interpreter of that constitution, will declare the amendment invalid. Koehler v. Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep. 835. But it is a case where a new constitution has been formed and promulgated according to the forms of law. Great interests have already arisen under it; important rights exist by virtue of it; persons have been convicted of the highest crime known to the law, according to its provisions; the political power of the government has in many ways recognized it; and, under such circumstances, it is our duty to treat and regard it as a valid constitution, and now the organic law of our commonwealth. We need not consider the validity of the amendments made after the convention reassembled. If the making of them was in excess of its powers, yet, as the entire instrument has been recognized as valid in the manner suggested, it would be equally an abuse of power by the judiciary and violative of the rights of the people, who can and properly should remedy the matter, if not to their liking, if it were to declare the instrument of a portion invalid, and bring confusion and anarchy upon the state. (emphasis supplied). If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of the 1973 Constitution it would be exercising a veto power on the act of the sovereign people, of whom this Court is merely an agent, which to say the least, would be anomalous. This Court cannot dictate to our principal, the sovereign people, as to how the approval of the new Constitution should be manifested or expressed. The sovereign people have spoken and we must abide by their decision, regardless of our notion as to what is the proper method of giving assent to the new Charter. In this respect, WE cannot presume to know better than the incumbent Chief Executive, who, unlike the members of this Court, only last January 8, 1973, We affirmed in Osmea vs. Marcos(Pres. Election Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million electors in 1969 for another term of four years until noon of December 30, 1973 under the 1935 Constitution. This Court, not having a similar mandate by direct fiat from the sovereign

people, to execute the law and administer the affairs of government, must restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively reserved by the sovereign people themselves. The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific procedure for popular ratification of their organic law. That would be incompatible with their sovereign character of which We are reminded by Section 1, of Article II of both the 1935 and the 1973 Constitutions. The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the procedure for ratification which they themselves define in their Constitution, cannot apply to a unitary state like the Republic of the Philippines. His opinion expressed in 1868 may apply to a Federal State like the United States, in order to secure and preserve the existence of the Federal Republic of the United States against any radical innovation initiated by the citizens of the fifty (50) different states of the American Union, which states may be jealous of the powers of the Federal government presently granted by the American Constitution. This dangerous possibility does not obtain in the case of our Republic. Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus "Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu vastly different from 1868 to 1898, he might have altered his views on the matter. Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. 1102 that the people through their Citizens' Assemblies had overwhelmingly approved the new Constitution due regard to a separate, coordinate and co-equal branch of the government demands adherence to the presumption of correctness of the President's declaration. Such presumption is accorded under the law and jurisprudence to officials in the lower levels of the Executive branch, there is no over-riding reason to deny the same to the Chief of State as head of the Executive Branch. WE cannot reverse the rule on presumptions, without being presumptuous, in the face of the certifications by the Office the Secretary of the Department of Local Government and Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with manifestation filed by the Solicitor General on behalf of the respondents public officers dated March 7, 1973). There is nothing in the records that contradicts, much less overthrow the results of the referendum as certified. Much less are We justified in reversing the burden of proof by shifting it from the petitioners to the respondents. Under the rules on pleadings, the petitioners have the duty to demonstrate by clear and convincing evidence their claim that the people did not ratify through the Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And have failed to do so. No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the basis of reports relayed to him from private sources which could be biased and hearsay, aside from the fact that such reports are not contained in the record. Proclamation No. 1102 is not just an ordinary act of the Chief Executive. It is a well-nigh solemn declaration which announces the highest act of the sovereign people their imprimatur to the basic Charter that shall govern their lives hereafter may be for decades, if not for generations. Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the Citizens' Assemblies, despite their admission that the term "Filipino people" in the preamble as well as "people" in Sections 1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether literate or illiterate, whether peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex-convicts voted in the referendum, about which no proof was even offered, these sectors of our citizenry, whom petitioners seem to regard with contempt or decision and whom petitioners would deny their sovereign right to pass upon the basic Charter that shall govern their lives and the lives of their progenies, are entitled as much as the educated, the law abiding, and those who are 21 years of age or above to express their conformity or non conformity to the proposed Constitution, because their stake under the new Charter is not any less than the stake of the more fortunate among us. As a matter of fact, these citizens, whose juridical personality or capacity to act is limited by age, civil interdiction or ignorance deserve more solicitude from the State than the rest of the citizenry. In the ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts and the ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to the express affirmation in Section 1 of Article II of the Declaration of Principles that "sovereignty resides in the people and all government authority emanates from them." Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned from voting. Only those who had been sentenced to at least one year imprisonment are disenfranchised but they recover their right of suffrage upon expiration of ten years after service of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a very negligible number in any locality or barrio, including the localities of petitioners. Included likewise in the delegated authority of the President, is the prerogative to proclaim the results of the plebiscite or the voting the Citizens' Assemblies. Petitioners deny the accuracy or correctness of Proclamation No. 1102 that the 1973 Constitution was ratified by the overwhelming vote of close to 15 million citizens because there was no official certification to the results of the same from the Department of Local Governments. But there was such certification as per Annex 1 to 1-A to the Notes submitted by the Solicitor General counsel for respondents public officers. This should suffice to dispose of this point. Even in the absence of such certification, in much the same way that in passing law, Congress or the legislative body is presumed to be in possession of the facts upon which such laws are predicated (Justice Fernando, The Power of Judicial Review, 1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it should likewise be presumed that the President was in possession of the fact upon which Proclamation No. 1102 was based. This presumption is further strengthened by the fact that the Department of Local Governments, the Department National Defense and the Philippine Constabulary as well the Bureau of Posts are all under the President, which offices as his alter ego, are presumptively acting for and in behalf of the President and their acts are valid until disapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451). To deny the truth or the proclamation of the President as to the overwhelming majority vote in the Citizens' Assemblies in favor of the new Constitution, is to charge the President with falsification, which is a most grievous accusation. Under the, rules of pleadings and evidence, the petitioners have the burden of proof by preponderance of evidence in civil cases and by proof beyond reasonable doubt in criminal prosecutions, where the accused is always presumed to be innocent. Must this constitutional right be reversed simply because the petitioner all assert the contrary? Is the rule of law they pretend invoke only valid as long as it favors them? The presumption of regularity in the performance of official functions is accorded by the law and jurisprudence to acts of public officers whose category in the official hierarchy is very much lower than that of the Chief of State. What reason is there to withhold such a presumption in favor of the President? Does the fact that the President belong to the party in power and that four (4) of the five (5) senators who are petitioners in L-36165 belong to the opposition party, justify a discrimination against the President in matters of this nature? Unsupported as their word is by any credible and competent evidence under the rules of evidence, must the word of the petitioners prevail over that of the Chief Executive, because they happen to be former senators and delegates to the Constitutional Convention? More than any of the petitioners herein in all these cases, the incumbent President realizes that he risks the wrath of his people being visited upon him and the adverse or hostile verdict of history; because of the restrictions on the civil liberties of

his people, inevitable concomitants of martial law, which necessarily entail some degree of sacrifice on the part of the citizenry. Until the contrary is established or demonstrated, herein petitioners should grant that the Chief Executive is motivated by what is good for the security and stability of the country, for the progress and happiness of the people. All the petitioners herein cannot stand on the proposition that the rights under the 1935 Constitution are absolute and invulnerable to limitations that may be needed for the purpose of bringing about the reforms for which the petitioners pretend to be clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of the seven (7) petitioners in L-36164 were all participants in the political drama of this country since 1946. They are witness to the frustrations of well-meaning Presidents who wanted to effect the reforms, especially for the benefit of the landless and the laboring class how politics and political bargaining had stymied the effectuation of such reforms thru legislation. The eight (8) petitioners in L-36164 and L-36165 may not have participated in the systematic blocking of the desired reforms in Congress or outside of it; but the question may be asked as to what exactly they did to support such reforms. For the last seven (7) decades since the turn of the century, for the last thirty-five (35) years since the establishment of the Commonwealth government in 1935 and for the last twenty seven (27) years since the inauguration of the Republic on July 4, 1946, no tangible substantial reform had been effected, funded and seriously implemented, despite the violent uprisings in the thirties, and from 1946 to 1952, and the violent demonstrations of recent memory. Congress and the oligarchs acted like ostriches, "burying their heads in timeless sand. "Now the hopes for the long-awaited reforms to be within a year or to are brighter. It would seem therefore to the duty of everyone including herein petitioners to give the present leadership the opportunity to institute and carry out the needed reforms as provided for in the new or 1973 Constitution and thru the means prescribed in that same Constitution. As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing by implication a limitation upon the sovereign." This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached upon the province exclusively reserved to and by the sovereign people. This Court did not heed to the principle that the courts are not the fountain of all remedies for all wrongs. WE cannot presume that we alone can speak with wisdom as against the judgment of the people on the basic instrument which affects their very lives. WE cannot determine what is good for the people or ought to be their fundamental law. WE can only exercise the power delegated to Us by the sovereign people, to apply and interpret the Constitution and the laws for the benefit of the people, not against them nor to prejudice them. WE cannot perform an act inimical to the interest of Our principal, who at any time may directly exercise their sovereign power ratifying a new Constitution in the manner convenient to them. It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution without being a part of the government established pursuant thereto. Unlike in the Borden case, supra, where there was at least another government claiming to be the legitimate organ of the state of Rhode Island (although only on paper as it had no established organ except Dorr who represented himself to be its head; in the cases at bar there is no other government distinct from and maintaining a position against the existing government headed by the incumbent Chief Executive. (See Taylor vs. Commonwealth, supra). There is not even a rebel government duly organized as such even only for domestic purposes, let alone a rebel government engaged in international negotiations. As heretofore stated, both the executive branch and the legislative branch established under the 1935 Constitution had been supplanted by the government functioning under the 1973 Constitution as of January 17, 1973. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of the Republic of the Philippines. Can this Supreme Court legally exist without being part of any government? Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of the American Bar," because during the American civil war he apparently had the courage to nullify the proclamation of President Lincoln suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Federal Case No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in Calvert County, Maryland, of parents who were landed aristocrats as well as slave owners. Inheriting the traditional conservatism of his parents who belonged to the landed aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney General of Maryland. He also was a member of the Maryland state legislature for several terms. He was a leader of the Federalist Party, which disintegrated after the war of 1812, compelling him to join the Democratic Party of Andrew Jackson, also a slave owner and landed aristocrat, who later appointed him first as Attorney General of the United States, then Secretary of the Treasury and in 1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall, in which position he continued for 28 years until he died on October 21, 1864. His death "went largely unnoticed and unregretted." Because he himself was a slave owner and a landed aristocrat, Chief Justice Taney sympathized with the Southern States and, even while Chief Justice, hoped that the Southern States would be allowed to secede peacefully from the Union. That he had no sympathy for the Negroes was revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that the American Negro is not entitled to the rights of an American citizen and that his status as a slave is determined by his returning to a slave state. One can therefore discern his hostility towards President Lincoln when he decided Ex parte Merryman, which animosity to say the least does no befit a judicial mind. Such a man could hardly be spoken of as a hero of the American Bar, least of all of the American nation. The choice of heroes should not be expressed indiscriminately just to embellish one's rhetoric. Distinguished counsel in L-36165 appears to have committed another historical error, which may be due to his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary, Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savior of Verdun"; because he held Verdun against the 1916 offensive of the German army at the cost of 350,000 of his French soldiers, who were then demoralized and plotting mutiny. Certainly, the surviving members of the family of Marshal Petain would not relish the error. And neither would the members of the clan of Marshal Foch acknowledge the undeserved accolade, although Marshal Foch has a distinct place in history on his own merits. The foregoing clarification is offered in the interest of true scholarship and historical accuracy, so that the historians, researchers and students may not be led astray or be confused by esteemed counsel's eloquence and mastery of the spoken and written word as well as by his eminence as law professor, author of law books, political leader, and member of the newly integrated Philippine Bar. It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address likewise his challenge to the five (5) senators who are petitioners in L-36165 to also act as "heroes and idealists," to defy the President by holding sessions by themselves alone in a hotel or in their houses if they can muster a quorum or by causing the arrest of other senators to secure a quorum and thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if they believe most vehemently in the justice and correctness of their position that the 1973 Constitution has not been validly ratified, adopted or acquiesced in by the people since January 18, 1973 until the present. The proclaimed conviction of petitioners in L36165 on this issue would have a ring of credibility, if they proceeded first to hold a rump session outside the legislative building; because it is not unreasonable to demand or to exact that he who exhorts others to be brave must first demonstrate his own courage. Surely, they will not affirm that the mere filing of their petition in L-36165 already made them "heroes and idealists." The challenge likewise seems to insinuate that the members of this Court who disagree with petitioners' views are materialistic cowards or mercenary fence-sitters. The Court need not be reminded of its solemn duty and how to perform it. WE refuse to believe that petitioners and their learned as well as illustrious counsels, scholars and liberal thinkers that they are, do not recognize the sincerity of those who entertain opinions that clash with their own. Such an attitude does not sit well with the dictum that "We can differ without being difficult; we can disagree without being disagreeable," which distinguished counsel in L-36165 is wont to quote.

WE reserve the right to prepare an extensive discussion of the other points raised by petitioners, which We do not find now necessary to deal with in view of Our opinion on the main issue. IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES SHOULD BE DISMISSED. MAKASIAR, J., concurring: Pursuant to Our reservation, We now discuss the other issues raised by the petitioners. II EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION. As intimated in the aforecited cases, even the courts, which affirm the proposition that the question as to whether a constitutional amendment or the revised or new Constitution has been validly submitted to the people for ratification in accordance with the procedure prescribed by the existing Constitution, is a justiciable question,accord all presumption of validity to the constitutional amendment or the revised or new Constitution after the government officials or the people have adopted or ratified or acquiesced in the new Constitution or amendment, although there was an illegal or irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the constitutional amendment or the new Constitution should not be condemned "unless our judgment its nullity is manifest beyond reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra). Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of constitutionality must persist in the absence of factual foundation of record to overthrow such presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849). III CONSTITUTIONAL CONVENTION CO-EQUAL WITH AND INDEPENDENT OF CONGRESS, EXECUTIVE AND JUDICIARY. The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the three grand departments of the Government, namely, the legislative, the executive and the judicial. As a fourth separate and distinct branch, to emphasize its independence, the Convention cannot be dictated to by either of the other three departments as to the content as well as the form of the Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the aforesaid branches of the Government in its proceedings, including the printing of its own journals (Taada and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in that independence, for the purpose of maintaining the same unimpaired and in order that its work will not be frustrated, the Convention has the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention such prerogative, would leave it at the tender mercy of both legislative and executive branches of the Government. An unsympathetic Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional Convention to the people for ratification, much less appropriate the necessary funds therefor. That could have been the fate of the 1973 Constitution, because the same abolished the Senate by creating a unicameral National Assembly to be presided by a Prime Minister who wields both legislative and executive powers and is the actual Chief Executive, for the President contemplated in the new Constitution exercises primarily ceremonial prerogatives. The new Constitution likewise shortened abruptly the terms of the members of the present Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that the new Constitution shall take effect immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2 of the same Article XVIII secures to the members of Congress membership in the interim National Assembly as long as they opt to serve therein within thirty (30) days after the ratification of the proposed Constitution, affords them little comfort; because the convening of the interim National Assembly depends upon the incumbent President (under Sec. 3[1], Art. XVII, 1973 Constitution). Under the foregoing circumstances, the members of Congress, who were elected under the 1935 Constitution, would not be disposed to call a plebiscite and appropriate funds therefor to enable the people to pass upon the 1973 Constitution, ratification of which means their elimination from the political scene. They will not provide the means for their own liquidation. Because the Constitutional Convention, by necessary implication as it is indispensable to its independence and effectiveness, possesses the power to call a plebiscite and to appropriate funds for the purpose, it inescapably must have the power to delegate the same to the President, who, in estimation of the Convention can better determine appropriate time for such a referendum as well as the amount necessary to effect the same; for which reason the Convention thru Resolution No. 29 approved on November 22, 1972, which superseded Resolution No. 5843 adopted on November 16, 1972, proposed to the President "that a decree be issued calling a plebiscite for the ratification of the proposed new Constitution such appropriate date as he shall determine and providing for the necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constitutional Convention expected to complete its work by the end of November, 1972 that the urgency of instituting reforms rendered imperative the early approval of the new Constitution, and that the national and local leaders desire that there be continuity in the immediate transition from the old to the new Constitution. If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate subordinate rules and regulations to implement the law, this authority to delegate implementing rules should not be denied to the Constitutional Convention, a co-equal body. Apart from the delegation to the Chief Executive of the power to call a plebiscite and to appropriate funds therefor by the Constitutional Convention thru its Resolution No. 29, the organization of the Citizens' Assemblies for consultation on national issues, is comprehended within the ordinance-making power of the President under Section 63 of the Revised Administrative Code, which expressly confers on the Chief Executive the power to promulgate administrative acts and commands touching on the organization or mode of operation of the government or re-arranging or re-adjusting any district, division or part of the Philippines "or disposing of issues of general concern ... ." (Emphasis supplied). Hence, as consultative bodies representing the localities including the barrios, their creation by the President thru Presidential Decree No. 86 of December 31, 1972, cannot be successfully challenged.

The employment by the President of these Citizens' Assemblies for consultation on the 1973 Constitution or on whether there was further need of a plebiscite thereon, both issues of national concern is still within the delegated authority reposed in him by the Constitutional Convention as aforesaid. It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does not prescribe that the plebiscite must be conducted by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code. If that were the intention of the Constitutional Convention in making the delegation, it could have easily included the necessary phrase for the purpose, some such phrase like "to call a plebiscite to be supervised by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code (or with existing laws)." That the Constitutional Convention omitted such phrase, can only mean that it left to the President the determination of the manner by which the plebiscite should be conducted, who shall supervise the plebiscite, and who can participate in the plebiscite. The fact that said Resolution No. 29 expressly states "that copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the Commission on Elections for implementation," did not in effect designate the Commission on Elections as supervisor of the plebiscite. The copies of said resolution that were transmitted to the Commission on Elections at best serve merely to notify the Commission on Elections about said resolution, but not to direct said body to supervise the plebiscite. The calling as well as conduct of the plebiscite was left to the discretion of the President, who, because he is in possession of all the facts funnelled to him by his intelligence services, was in the superior position to decide when the plebiscite shall be held, how it shall be conducted and who shall oversee it. It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself recognized the validity of, or validated Presidential Proclamation No. 1081 placing the entire country under martial law by resolving to "propose to President Ferdinand E. Marcos that a decree be issued calling a plebiscite ... ." The use of the term "decree" is significant for the basic orders regulating the conduct of all inhabitants are issued in that form and nomenclature by the President as the Commander in Chief and enforcer of martial law. Consequently, the issuance by the President of Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on January 15, 1973 and appropriating funds therefor pursuant to said Resolution No. 29, is a valid exercise of such delegated authority. Such delegation, unlike the delegation by Congress of the rule-making power to the Chief Executive or to any of his subalterns, does not need sufficient standards to circumscribe the exercise of the power delegated, and is beyond the competence of this Court to nullify. But even if adequate criteria should be required, the same are contained in the "Whereas" clauses of the Constitutional Convention Resolution No. 29, thus: WHEREAS, the 1971 Constitutional Convention is expected to complete its work of drafting a proposed new Constitution for the Republic by the end of November, 1972; WHEREAS, in view of the urgency of instituting reforms, the early approval of the New Constitution has become imperative; WHEREAS, it is the desire of the national and local leaders that there be continuity in the immediate political transition from the old to the New Constitution;" (Annex "1" of Answer, Res. No. 29, Constitutional Convention). As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in the Plebiscite Cases, stated: ... Once this work of drafting has been completed, it could itself direct the submission to the people for ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congress not being in session, could the President, by the decree under question, call for such a plebiscite? Under such circumstances, a negative answer certainly could result in the work of the Convention being rendered nugatory. The view has been repeatedly expressed in many American state court decisions that to avoid such undesirable consequence the task of submission becomes ministerial, with the political branches devoid of any discretion as to the holding of an election for that purpose. Nor is the appropriation by him of the amount necessary to be considered as offensive to the Constitution. If it were done by him in his capacity as President, such an objection would indeed have been formidable, not to say insurmountable. If the appropriation were made in his capacity as agent of the Convention to assure that there be submission to the people, then such an argument loses force. The Convention itself could have done so. It is understandable why it should be thus. If it were otherwise, then a legislative body, the appropriating arm of the government, could conceivably make use of such authority to compel the Convention to submit to its wishes, on pain of being rendered financially distraught. The President then, if performing his role as its agent, could be held as not devoid of such competence. (pp. 2-3, concurring opinion of J. Fernando in L35925, etc., emphasis supplied). IV VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE 1973 CONSTITUTION (1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments during the hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable or ambiguous provisions does not affect the validity of the ratification or adoption of the 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966). Alexander Hamilton, one of the leading founders and defenders of the American Constitution, answering the critics of the Federal Constitution, stated that: "I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?" (The Federalist, Modern Library Ed., pp. xx-xxi). (2) The 1973 Constitution is likewise impugned on the ground that it contains provisions which are ultra vires or beyond the power of the Constitutional Convention to propose.

This objection relates to the wisdom of changing the form of government from Presidential to Parliamentary and including such provisions as Section 3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973 Constitution. Article IV Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law , after examination under oath or affirmation of the complainant and the witnesses may produce, and particularly describing the place to be searched, and the persons or things to be seized. Article XIV Sec. 15. Any provision of paragraph one, Section fourteen, Article Eight and of this Article notwithstanding, the Prime Minister may enter into international treaties or agreements as the national welfare and interest may require." (Without the consent of the National Assembly.) Article XVII Sec. 3(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly. xxx xxx xxx Sec. 12. All treaties, executive agreements, and contracts entered into by the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations, are hereby recognized as legal, valid and binding. When the national interest so requires, the incumbent President of the Philippines or the interim Prime Minister may review all contracts, concessions, permits, or other forms of privileges for the exploration, development, exploitation, or utilization of natural resources entered into, granted, issued or acquired before the ratification of this Constitution. In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-35953, L-35961, L-35965, & L-35979), Chief Justice Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio and the writer, overruled this objection, thus: ... Regardless of the wisdom and moral aspects of the contested provisions of the proposed Constitution, it is my considered view that the Convention was legally deemed fit to propose save perhaps what is or may be insistent with what is now known, particularly in international law, as Jus Cogens not only because the Convention exercised sovereign powers delegated thereto by the people although insofar only as the determination of the proposals to be made and formulated by said body is concerned but also, because said proposals cannot be valid as part of our Fundamental Law unless and until "approved by the majority of the votes cast at an election which" said proposals "are submitted to the people for their ratification," as provided in Section 1 of Article XV of the 1935 Constitution. (Pp. 17-18, Decision in L-35925, etc.). This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20, 1970, 35 SCRA 367) that the Constitutional Convention has the authority to "entirely overhaul the present Constitution and propose an entirely new Constitution based on an ideology foreign to the democratic system ...; because the same will be submitted to the people for ratification. Once ratified by the sovereign people, there can be no debate about the validity of the new Constitution." Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement in the Del Rosario case, supra, and added: "... it seems to me a sufficient answer that once convened, the area open for deliberation to a constitutional convention ..., is practically limitless" (citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, 247 NW 474, 262 Mich. 338 [1933]). Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "that when the people elected the delegates to the Convention and when the delegates themselves were campaigning, such limitation of the scope of their function and objective was not in their minds." V 1973 CONSTITUTION DULY ADOPTED AND PROMULGATED. Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972 without officially promulgating the said Constitution in Filipino as required by Sections 3(1) of Article XV on General Provisions of the 1973 Constitution. This claim is without merit because their Annex "M" is the Filipino version of the 1973 Constitution, like the English version, contains the certification by President Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary, that the proposed Constitution, approved on second reading on the 27th day of November, 1972 and on third reading in the Convention's 291st plenary session on November 29, 1972 and accordingly signed on November 1972 by the delegates whose signatures

are thereunder affixed. It should be recalled that Constitutional Convention President Diosdado Macapagal was, as President of the Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the petitioners in L-36165 including their counsel, former Senator Jovito Salonga, belong. Are they repudiating and disowning their former party leader and benefactor? VI ARTICLE XV OF 1935 CONSTITUTION DOES NOT PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF 1973 CONSTITUTION. (1) Article XV of the 1935 Constitution simply provides that "such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratification." But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election called by Congress at which the amendments are submitted for ratification by the qualified electors defined in Article V hereof, supervised by the Commission on Elections in accordance with the existing election law and after such amendments shall have been published in all the newspapers of general circulation for at least four months prior to such election ." This position certainly imposes limitation on the sovereign people, who have the sole power of ratification, which imposition by the Court is never justified (Wheeler vs. Board of Trustees, supra). In effect, petitioners and their counsels are amending by a strained and tortured construction Article XV of the 1935 Constitution. This is a clear case of usurpation of sovereign power they do not possess through some kind of escamotage. This Court should not commit such a grave error in the guise of judicial interpretation. In all the cases where the court held that illegal or irregular submission, due to absence of substantial compliance with the procedure prescribed by the Constitution and/or the law, nullifies the proposed amendment or the new Constitution, the procedure prescribed by the state Constitution is so detailed that it specifies that the submission should be at a general or special election, or at the election for members of the State legislature only or of all state officials only or of local officials only, or of both state and local officials; fixes the date of the election or plebiscite limits the submission to only electors or qualified electors; prescribes the publication of the proposed amendment or a new Constitution for a specific period prior to the election or plebiscite; and designates the officer to conduct the plebiscite, to canvass and to certify the results, including the form of the ballot which should so state the substance of the proposed amendments to enable the voter to vote on each amendment separately or authorizes expressly the Constitutional Convention or the legislature to determine the procedure or certain details thereof. See the State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi [1890]; and Missouri [1945]). As typical examples: Constitution of Alabama (1901): Article XVIII. Mode of Amending the Constitution Sec. 284. Legislative Proposals. Amendments may be proposed to this Constitution by the legislature in the manner following: The proposed amendments shall be read in the house in which they originate on three several days, and, if upon the third reading, threefifths of all the members elected to that house shall vote in favor thereof, the proposed amendments shall be sent to the other house, in which they shall likewise be read on three several days, and if upon the third reading, three-fifths of all the members elected that house shall vote in favor of the proposed amendments, the legislature shall order an election by the qualified electors of the state upon such proposed amendments, to be held either at the general election next succeeding the session of the legislature at which the amendments are proposed or upon another day appointed by the legislature, not less than three months after the final adjournment of the session of the legislature at which the amendments were proposed. Notice of such election, together with the proposed amendments, shall be given by proclamation of the governor, which shall be published in every county in such manner as the legislature shall direct, for at least eight successive weeks next preceding the day appointed for such election. On the day so appointed an election shall be held for the vote of the qualified electors of the state upon the proposed amendments. If such election be held on the day of the general election, the officers of such general election shall open a poll for the vote of the qualified electors upon the proposed amendments; if it be held on a day other than that of a general election, officers for such election shall be appointed; and the election shall be held in all things in accordance with the law governing general elections. In all elections upon such proposed amendments, the votes cast thereat shall be canvassed, tabulated, and returns thereof be made to the secretary of state, and counted, in the same manner as in elections for representatives to the legislature; and if it shall thereupon appear that a majority of the qualified electors who voted at such election upon the proposed amendments voted in favor of the same, such amendments shall be valid to all intents and purposes as parts of this Constitution. The result of such election shall be made known by proclamation of the governor. Representation in the legislature shall be based upon population, and such basis of representation shall not be changed by constitutional amendments. Sec. 285. Form of ballot for amendment. Upon the ballots used at all elections provided for in section 284 of this Constitution, the substance or subject matter of each proposed amendment shall be so printed that the nature thereof shall be clearly indicated. Following each proposed amendment on the ballot shall be printed the word "Yes" and immediately under that shall be printed the word "No". The choice of the elector shall be indicated by a cross mark made by him or under his direction, opposite the word expressing his desire, and no amendment shall be adopted unless it receives the affirmative vote of a majority of all the qualified electors who vote at such election. Constitution of Arkansas (1874):

Article XIX. Miscellaneous Provisions. Sec. 22. Constitutional amendments. Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all the members, elected to each house, such proposed amendments shall be entered on the journal with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State for approval or rejection , and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately. Constitution of Kansas (1861): Article XIV. Amendments. Sec. 1. Proposal of amendments; publications; elections. Propositions for the amendment of this constitution may be made by either branch of the legislature; and if two thirds of all the members elected to each house shall concur therein, such proposed amendments, together with the yeas and nays, shall be entered on the journal; and the secretary of state shall cause the same to be published in at least one newspaper in each county of the state where a newspaper is published, for three months preceding the next election for representatives, at which time, the same shall be submitted to the electors, for their approval or rejection; and if a majority of the electors voting on said amendments, at said election, shall adopt the amendments, the same shall become a part of the constitution. When more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendments separately; and not more than three propositions to amend shall be submitted at the same election. Constitution of Maryland (1867): Article XIV. Amendments to the Constitution. Sec. 1. Proposal in general assembly; publication; submission to voters; governor's proclamation. The General Assembly may propose Amendments to this Constitution; provided that each Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will stand when amended and passed by three fifths of all the members elected to each of the two Houses, by yeas and nays, to be entered on the Journals with the proposed Amendment. The bill or bills proposing amendment or amendments shall be published by order of the Governor, in at least two newspapers, in each County, where so many may be published, and where not more than one may be published, then in the newspaper, and in three newspapers published in the City of Baltimore, once a week for four weeks immediately preceding the next ensuing general election, at which the proposed amendment or amendments shall be submitted, in a form to be prescribed by the General Assembly, to the qualified voters of the State for adoption or rejection. The votes cast for and against said proposed amendment or amendments, severally, shall be returned to the Governor, in the manner prescribed in other cases, and if it shall appear to the Governor that a majority of the votes cast at said election on said amendment or amendments, severally, were cast in favor thereof, the Governor shall, by his proclamation, declare the said amendment or amendments having received said majority of votes, to have been adopted by the people of Maryland as part of the Constitution thereof, and henceforth said amendment or amendments shall be part of the said Constitution. When two or more amendments shall be submitted in the manner aforesaid, to the voters of this State at the same election, they shall be so submitted as that each amendment shall be voted on separately. Constitution of Missouri (1945): Article XII. Amending the Constitution. Sec. 2(b). Submission of amendments proposed by general assembly or by the initiative. All amendments proposed by the general assembly or by the initiative shall be submitted to the electors for their approval or rejection by official ballot title as may be provided by law, on a separate ballot without party designation, at the next general election, or at a special election called by the governor prior thereto, at which he may submit any of the amendments. No such proposed amendment shall contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith. If possible, each proposed amendment shall be published once a week for two consecutive weeks in two newspapers of different political faith in each county, the last publication to be not more than thirty nor less than fifteen days next preceding the election. If there be but one newspaper in any county, publication of four consecutive weeks shall be made. If a majority of the votes cast thereon is in favor of any amendment, the same shall take effect at the end of thirty days after the election. More than one amendment at the same election shall be so submitted as to enable the electors to vote on each amendment separately. Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed procedure for submission or ratification. As heretofore stated, it does not specify what kind of election at which the new Constitution shall be submitted; nor does it designate the Commission on Elections to supervise the plebiscite. Neither does it limit the ratification to the qualified electors as defined in Article V of the 1935 Constitution. Much less does it require the publication of the proposed Constitution for any specific period before the plebiscite nor does it even insinuate that the plebiscite should be supervised in accordance with the existing election law. (2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed Constitution to the people for ratification. It does not make any reference to the Commission on Elections as the body that shall supervise the plebiscite. And Article XV could not make any reference to the Commission on Elections because the original 1935 Constitution as ratified on May 14, 1935 by the people did not contain Article X on the Commission on Elections, which article was included therein pursuant to an amendment by that National Assembly proposed only about five (5) years later on April 11, 1940, ratified by the people on June 18, 1940 as approved by the President of the United States on December 1940 (see Sumulong vs.

Commission, 70 Phil. 703, 713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers of the 1935 Constitution as ratified May 14, 1935 intended that a body known as the Commission on Elections should be the one to supervise the plebiscite, because the Commission on Elections was not in existence then as was created only by Commonwealth Act No. 607 approved on August 22, 1940 and amended by Commonwealth Act No. 657 approved on June 21, 1941 (see Taada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170 Phil. 703, 708-715; 73 Phil. 288, 290-300; Taada & Fernando, Constitution of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II, pp. 11-19). Because before August, 1940 the Commission on Election was not yet in existence, the former Department of Interior (now Department of Local Governments and Community Development) supervised the plebiscites on the 1937 amendment on woman's suffrage, the 1939 amendment to the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of the U.S. Congress) and the three 1940 amendments on the establishment of a bicameral Congress, the re-election of the President and the Vice-President, and the creation of the Commission on Elections (ratified on June 18, 1940). The supervision of said plebiscites by the then Department of Interior was not automatic, but by virtue of an express authorization in Commonwealth Act Nos. 34, 49 and 517. If the National Assembly then intended that the Commission on Elections should also supervise the plebiscite for ratification of constitutional amendments or revision, it should have likewise proposed the corresponding amendment to Article XV by providing therein that the plebiscite on amendments shall be supervised by the Commission on Elections. 3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14, 1935 wanted that only the qualified voters under Article V of the 1935 Constitution should participate in the referendum on any amendment or revision thereof, they could have provided the same in 1935 or in the 1940 amendment by just adding a few words to Article XV by changing the last phrase to "submitted for ratification to the qualified electors as defined in Article V hereof," or some such similar phrases. Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified electors under Article V of the 1935 Constitution because the said term "people" as used in several provisions of the 1935 Constitution, does not have a uniform meaning. Thus in the preamble, the term "Filipino people" refer, to all Filipino citizens of all ages of both sexes. In Section 1 of Article II on the Declaration of Principles, the term "people" in whom sovereignty resides and from whom all government authority emanates, can only refer also to Filipino citizens of all ages and of both sexes. But in Section 5 of the same Article II on social justice, the term "people" comprehends not only Filipino citizens but also all aliens residing in the country of all ages and of both sexes. Likewise, that is the same connotation of the term "people" employed in Section 1(3) of Article III on the Bill of Rights concerning searches and seizures. When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it does so expressly as the case of the election of senators and congressmen. Section 2 Article VI expressly provides that the senators "shall be chosen at large by the qualified electors of the Philippines as may provided by law." Section 5 of the same Article VI specifically provides that congressmen shall "be elected by the qualified electors." The only provision that seems to sustain the theory of petitioners that the term "people" in Article XV should refer to the qualified electors as defined in Article V of the 1935 Constitution is the provision that the President and Vice-President shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone cannot be conclusive as to such construction, because of explicit provisions of Sections 2 and 5 of Article VI, which specifically prescribes that the senators and congressmen shall be elected by the qualified electors. As aforesaid, most of the constitutions of the various states of the United States, specifically delineate in detail procedure of ratification of amendments to or revision of said Constitutions and expressly require ratification by qualified electors, not by the generic term "people". The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35 Constitutional Convention satisfied that the amendment shall be submitted to qualified election for ratification. This proposal was not accepted indicating that the 1934-35 Constitutional Convention did intend to limit the term "people" in Article XV of the 1935 Constitution to qualified electors only . As above demonstrated, the 1934-35 Constitutional Convention limits the use of the term "qualified electors" to elections of public officials. It did not want to tie the hands of succeeding future constitutional conventions as to who should ratify the proposed amendment or revision. (4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment contemplates the automatic applicability of election laws to plebiscites on proposed constitutional amendments or revision. The very phraseology of the specific laws enacted by the National Assembly and later by Congress, indicates that there is need of a statute expressly authorizing the application of the election laws to plebiscites of this nature. Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on September 30, 1936, consists of 12 sections and, aside from providing that "there shall be held a plebiscite on Friday, April 30, 1937, on the question of woman's suffrage ... and that said amendment shall be published in the Official Gazette in English and Spanish for three consecutive issues at least fifteen (15) days prior to said election, ... and shall be posted in a conspicuous place in its municipal and provincial office building and in its polling place not later than April 22, 1937" (Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding, the holding of a special election, insofar as said provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and, that the votes cast according to the returns of the board of inspectors shall be counted by the National Assembly (Sec. 10, Com. Act No. 34). The election laws then in force before 1938 were found in Sections 392-483 of the Revised Administrative Code. Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes it expressly applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for the plebiscite on the constitutional amendments in 1939, 1940 and 1946, including the amendment creating the Commission on Elections, specifically provided that the provisions of the existing election law shall apply to such plebiscites insofar as they are not inconsistent with the aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus Commonwealth Act No. 492, enacted on September 19, 1939, calling for a plebiscite on the proposed amendments to the Constitution adopted by the National Assembly on September 15, 1939, consists of 8 sections and provides that the proposed amendments to the Constitution adopted in Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino people for approval or disapproval at a general election to be held throughout the Philippines on Tuesday, October 24, 1939"; that the amendments to said Constitution proposed in "Res. No. 38, adopted on the same

date, shall be submitted at following election of local officials," (Sec. 1, Com. Act No. 492) that the said amendments shall be published in English and Spanish in three consecutive issues of the Official Gazette at least ten (10) days prior to the elections; that copies thereof shall be posted not later than October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be conducted according to provisions of the Election Code insofar as the same may be applicable; that within thirty (30) days after the election, Speaker of the National Assembly shall request the President to call a special session of the Assembly for the purpose of canvassing the returns and certify the results thereof (Sec. 6, Com. Act No. 492). Commonwealth Act No. 517, consisting of 11 sections, was approved on April 25, 1940 and provided, among others: that the plebiscite on the constitutional amendments providing bicameral Congress, re-election of the President and Vice-President, and the creation of a Commission on Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said amendments shall be published in three consecutive issues of the Official Gazette in English and Spanish at least 20 days prior to the election and posted in every local government office building and polling place not later than May 18, 1940 (Sec. 2); that the election shall be conducted in conformity with the Election Code insofar as the same may be applicable (Sec. 3) that copies of the returns shall be forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly shall canvass the returns to certify the results at a special session to be called by President (Sec. 8). Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity amendment consists of 8 sections provides that the Amendment "shall be submitted to the people, for approval or disapproval, at a general election which shall be held on March 11, 1947, in accordance with the provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendment shall be published in English and Spanish in three consecutive issues of the Official Gazette at least 20 days prior to the election; that copies of the same shall be posted in a conspicuous place and in every polling place not later than February 11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act No. 657 creating the Commission on Elections, shall apply to the election insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days after the election, the Senate and House of Representatives shall hold a joint session to canvass the returns and certify the results thereof (Section 6, R.A. No. 73). From the foregoing provisions, it is patent that Article XV of the 1935 Constitution does not contemplate nor envision the automatic application of the election law; and even at that, not all the provisions of the election law were made applicable because the various laws aforecited contain several provisions which are inconsistent with the provisions of the Revised Election Code (Com. Act No. 357). Moreover, it should be noted that the period for the publication of the copies of the proposed amendments was about 10 days, 15 days or 20 days, and for posting at least 4 days, 8 days or 30 days. Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply to plebiscites (See. 2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388). If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution, there would be no need for Congress to expressly provide therefor in the election laws enacted after the inauguration of the Commonwealth government under the 1935 Constitution. (5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. Unlike the various State Constitutions of the American Union (with few exceptions), Article XV does not state that only qualified electors can vote in the plebiscite. As above-intimated, most of the Constitutions of the various states of the United States provide for very detailed amending process and specify that only qualified electors can vote at such plebiscite or election. Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter, which was approved on June 17, 1967 and superseded Republic Act No. 2370, expanded the membership of the barrio assembly to include citizens who are at least 18 years of age, whether literate or not, provided they are also residents of the barrio for at least 6 months (Sec. 4, R.A. No. 3590). Sec. 4. The barrio assembly. The barrio assembly shall consist of all persons who are residents of the barrio for at least six months, eighteen years of age or over, citizens of the Republic of the Philippines and who are duly registered in the list of barrio assembly members kept by the Barrio Secretary. The barrio assembly shall meet at least once a year to hear the annual report of the barrio council concerning the activities and finances of the barrio. It shall meet also at the case of the barrio council or upon written petition of at least One-Tenth of the members of the barrio assembly. No meeting of the barrio assembly shall take place unless notice is given one week prior to the meeting except in matters involving public safety or security in which case notice within a reasonable time shall be sufficient. The barrio captain, or in his absence, the councilman acting as barrio captain, or any assembly member selected during the meeting, shall act as presiding officer at all meetings of the barrio assembly. The barrio secretary or in his absence, any member designated by the presiding officer to act as secretary shall discharge the duties of secretary of the barrio assembly. For the purpose of conducting business and taking any official action in the barrio assembly, it is necessary that at least one-fifth of the members of the barrio assembly be present to constitute a quorum. All actions shall require a majority vote of these present at the meeting there being a quorum. Sec. 5. Powers of the barrio assembly. The powers of the barrio assembly shall be as follows: a. To recommend to the barrio council the adoption of measures for the welfare of the barrio; b. To decide on the holding of a plebiscite as provided for in Section 6 of this Act;

c. To act on budgetary and supplemental appropriations and special tax ordinances submitted for its approval by the barrio council; and d. To hear the annual report council concerning the activities and finances of the assembly. Sec. 6. Plebiscite. A plebiscite may be held in the barrio when authorized by a majority vote of the members present in the barrio assembly, there being a quorum, or when called by at least four members of the barrio council; Provided, however, That no plebiscite shall be held until after thirty days from its approval by either body, and such plebiscite has been given the widest publicity in the barrio, stating the date, time, and place thereof, the questions or issues to be decided, action to be taken by the voters, and such other information relevant to the holding of the plebiscite. All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Voting procedures may be made either in writing as in regular election, and/or declaration by the voters to the board of election tellers. The board of election tellers shall be the same board envisioned by section 8, paragraph 2 of this Act, in case of vacancies in this body, the barrio council may fill the same. A plebiscite may be called to decide on the recall of any member of the barrio council . A plebiscite shall be called to approve any budgetary, supplemental appropriations or special tax ordinances. For taking action on any of the above enumerated measures, majority vote of all the barrio assembly members registered in the list of barrio secretary is necessary. xxx xxx xxx Sec 10. Qualifications of voters and candidates. Every citizen of the Philippines, twenty-one years of age or over, able to read and write, who has been a resident of the barrio during the six months immediately preceding the election, duly registered in the list of voters kept by the barrio secretary, who is not otherwise disqualified, may vote or be a candidate in the barrio elections. The following persons shall not be qualified to vote: a. Any person who has been sentenced by final judgment to suffer one year or more of imprisonment, within two years after service of his sentence; b. Any person who has violated his allegiance to the Republic of the Philippines; and c. Insane or feeble-minded persons. All these barrio assembly members, who are at least 18 years of age, although illiterate, may vote at the plebiscite on the recall of any member of the barrio council or on a budgetary, supplemental appropriation, or special ordinances, a valid action on which requires "a majority vote of all of the barrio assembly members registered in the list of the barrio secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized by a majority vote of the members present in the barrio assembly, there being a quorum (par. 1, Sec. 6). However, in the case of election of barrio officials, only Filipino citizens, who are at least 21 years of age, able to read and write, residents of the barrio during the 6 months immediately preceding the election and duly registered in the list of voters kept by the barrio secretary, not otherwise disqualified, may vote (Sec. 10, R.A. No. 3590). Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may be made ... either in writing as in regular elections, and/or declaration by the voters to the board of election tellers." That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members qualified to vote may vote in the plebiscite," cannot sustain the position of petitioners in G.R. No. L-36165 that only those who are 21 years of age and above and who possess all other qualifications of a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred to in Section 6; because paragraph 3 of Section 6 does not expressly limit the voting to those with the qualifications under Section 10 as said Section 6 does not distinguish between those who are 21 or above on the one hand and those 18 or above but below 21 on the other, and whether literate or not, to constitute a quorum of the barrio assembly. Consequently, on questions submitted for plebiscite, all the registered members of the barrio assembly can vote as long as they are 18 years of age or above; and that only those who are 21 years of age or over and can read and write, can vote in the elections of barrio officials. Otherwise there was no sense in extending membership in the barrio assembly to those who are at least 18 years of age, whether literate or not. Republic Act No. 3590 could simply have restated Section 4 of Republic Act No. 2370, the old Barrio Charter, which provided that only those who are 21 and above can be members of the barrio assembly. Counsels Salonga and 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 No. 3590 and should have known the intendment of Congress in expanding the membership of the barrio assembly to include all those 18 years of age and above, whether literate or not.

If Congress in the exercise of its ordinary legislative power, not as a constituent assembly, can include 18-year olds as qualified electors for barrio plebiscites, this prerogative can also be exercised by the Chief Executive as delegate of the Constitutional Convention in regard to the plebiscite on the 1973 Constitution. As heretofore stated, the statement by the President in Presidential Proclamation No. 1102 that the 1973 Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in a referendum conducted from January 10 to 15, 1973, should be accorded the presumption of correctness; because the same was based on the certification by the Secretary of the Department of Local Government and Community Development who tabulated the results of the referendum all over the country. The accuracy of such tabulation and certification by the said Department Secretary should likewise be presumed; because it was done in the regular performance of his official functions aside from the fact that the act of the Department Secretary, as an alter ego of the President, is presumptively the act of the President himself unless the latter disapproves or reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by the Department Secretary and the Chief Executive on the results of the referendum, is further strengthened by the affidavits and certifications of Governor Isidro Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City and Councilor Eduardo T. Parades of Quezon City. The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939 amendment to the ordinance appended to the 1935 Constitution, the 1940 amendments establishing the bicameral Congress, creating the Commission on Elections and providing for two consecutive terms for the President, and the 1947 parity amendment, cannot be invoked; because those amendments were proposed by the National Assembly as expressly authorized by Article V of the 1935 Constitution respecting woman suffrage and as a constituent assembly in all the other amendments aforementioned and therefore as such, Congress had also the authority to prescribe the procedure for the submission of the proposed amendments to the 1935 Constitution. In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional Convention, which as heretofore discussed, has the equal power to prescribe the modality for the submission of the 1973 Constitution to the people for ratification or delegate the same to the President of the Republic. The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could be utilized as the basis for the extrapolation of the Citizens' Assemblies in all the other provinces, cities and municipalities in all the other provinces, cities and municipalities, and the affirmative votes in the Citizens' Assemblies resulting from such extrapolation would still constitute a majority of the total votes cast in favor of the 1973 Constitution. As claimed by petitioners in L-36165, against the certification of the Department of Local Government and Community Development that in Rizal there were 1,126,000 Yes votes and 100,310 No votes, the certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes votes against 292,530 No votes. In Cavite province, there were 249,882 Yes votes against 12,269 No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department of Local Government and Community Development), while the alleged certification of Governor Lino Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such a ratio is extended by way of extrapolation to the other provinces, cities and towns of the country, the result would still be an overwhelming vote in favor of the 1973 Constitution. The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his duly acknowledged certification dated March 16, 1973, he states that since the declaration of martial law and up to the present time, he has been under house arrest in his residence in Urdaneta Village, Makati, Rizal; that he never participated in the conduct of the Citizens' Assemblies on January 10 15, 1973 in the province of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies at that time was Vice-Governor Dominador Camerino; and that he was shown a letter for his signature during the conduct of the Citizens' Assemblies, which he did not sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973). Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15, 1973, he caused the preparation of a letter addressed to Secretary Jose Roo of the Department of Local Government and Community Development showing the results of the referendum in Pasay City; that on the same day, there were still in any Citizens' Assemblies holding referendum in Pasay City, for which reason he did not send the aforesaid letter pending submittal of the other results from the said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he indorsed the complete certificate of results on the referendum in Pasay City to the Office of the President (Annex 5-Rejoinder of Sol. Gen. dated March 20, 1973). Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also issued an affidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga Law Office asked him for the results of the referendum; that he informed her that he had in his possession unsigned copies of such results which may not be considered official as they had then no knowledge whether the original thereof had been signed by the mayor; and that in spite of his advice that said unsigned copies were not official, she requested him if she could give her the unofficial copies thereof, which he gave in good faith (Annex C-Rejoinder to the Sol. Gen.). There were 118,010 Yes votes as against 5,588 No votes in the Citizens' Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far as we know, there has been no Citizens' Assembly meeting in our Area, particularly in January of this year," does not necessarily mean that there was no such meeting in said barrio; for she may not have been notified thereof and as a result she was not able to attend said meeting. Much less can it be a basis for the claim that there was no meeting at all in the other barrios of Quezon City. The barrio captain or the secretary of the barrio assembly could have been a credible witness. Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and Coordinating Council, certified on March 12, 1973 that as such chairman he was in charge of the compilation and tabulation of the results of the referendum among the Citizens' Assemblies in Quezon City based on the results submitted to the Secretariat by the different Citizens' Assemblies; but many results of the referendum were submitted direct to the national agencies having to do with such activity and all of which he has no knowledge, participation and control (Annex 4 Rejoinder of the Sol. Gen.). Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973 that he prepared a letter to the President dated January 15, 1973 informing him of the results of the referendum in Rizal, in compliance with the instruction of the National Secretariat to submit such letter 2 or 3 days from January 10 to show the trend of voting in the Citizens' Assemblies; that the figures 614,157 and 292,530 mentioned in said letter were based on the certificates of results in his possession as of January 14, 1973, which results were made the basis of the computation of the percentage of voting trend in the province; that his letter was never intended to show the final or complete result in the referendum in the province as said referendum was then still

going on from January 14-17, 1973, for which reason the said letter merely stated that it was only a "summary result"; and that after January 15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalities of Rizal for final tabulation (Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied). Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and Community Development, issued a certificate dated March 16, 1973 that she was shown xerox copies of unsigned letters allegedly coming from Governor Lino Bocalan dated January 15, 1973 and marked "Rejoinder Annex Cavite" addressed to the President of the Philippines through the Secretary of the Department of Local Government and Community Development and another unsigned letter reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex Pasay City" addressed to the Secretary of the Department of Local Government and Community Development; that both xerox copies of the unsigned letters contain figures showing the results of the referendum of the Citizens' Assemblies in those areas; and that the said letters were not received by her office and that her records do not show any such documents received by her office (Annex 2-Rejoinder of the Sol. Gen.). Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing said unsigned letters and/or certificates as duly signed and/or containing the complete returns of the voting in the Citizens' Assemblies. The observation We made with respect to the discrepancy between the number of Yes votes and No votes contained in the summary report of Governor Rodriguez of Rizal as well as those contained in the alleged report of Governor Lino Bocalan of Cavite who repudiated the same as not having been signed by him for he was then under house arrest, on the one hand, and the number of votes certified by the Department of Local Government and Community Development, on the other, to the effect that even assuming the correctness of the figures insisted on by counsel for petitioners in L-36165, if they were extrapolated and applied to the other provinces and cities of the country, the Yes votes would still be overwhelmingly greater than the No votes, applies equally to the alleged discrepancy between the figures contained in the certification of the Secretary of the Department of Local Government and Community Development and the figures furnished to counsel for petitioners in L-36165 concerning the referendum in Camarines Sur, Bataan and Negros Occidental. The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows that there were more votes in favor of the plebiscite to be held later than those against, only serve to emphasize that there was freedom of voting among the members of the Citizens' Assemblies all over the country during the referendum from January 10 to 15, 1973 (Annex-6 Camarines Sur to Rejoinder of Petitioners in L-36165). If there was no such freedom of choice, those who wanted a plebiscite would not outnumber those against holding such plebiscite. The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of approval of the new Constitution by almost 97% by the members of the Citizens' Assemblies in Camarines Sur" (Annex-Camarines Sur to Rejoinder of Petitioners in L-36165). The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens' Assemblies voted overwhelmingly in favor of the new Constitution despite the fact that the second set of questions including the question "Do you approve of the new Constitution?" was received only on January 10. Provincial Governor Pascual stated that "orderly conduct and favorable results of the referendum" were due not only to the coordinated efforts and cooperation of all teachers and government employees in the area but also to the enthusiastic participation by the people, showing "their preference and readiness to accept this new method of government to people consultation in shaping up government policies." (Annex-Bataan to Rejoinder of Petitioners in L-36165). As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in the book of voters; it is enough that they are electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in the referendum in certain localities may exceed the number of voters actually registered for the 1971 elections, can only mean that the excess represents the qualified voters who are not yet registered including those who are at least 15 years of age and the illiterates. Although ex-convicts may have voted also in the referendum, some of them might have been granted absolute pardon or were sentenced to less than one year imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election Code). At any rate, the ex-convicts constitute a negligible number, discounting which would not tilt the scale in favor of the negative votes. Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to the Liberal Party, stated in his letter dated March 13, 1973 that he does not "feel authorized by the proper authorities to confirm or deny the data" concerning the number of participants, the Yes votes and No votes in the referendum on the new Constitution among the members of the Citizens' Assemblies in Caloocan City, does not necessarily give rise to the inference that Mayor Samson of Caloocan City is being intimidated, having been recently released from detention; because in the same letter of Mayor Samson, he suggested to counsel for petitioners in L-36165 that he can secure "the true and legitimate results of the referendum" from the Office of the President (Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed such suggestion? Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the estimated turnover in the Citizens' Assemblies referendum on January 10 to 15, 1973 by a certain Professor Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a close relative of former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165 (Annex M-as amended, to Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments and Memorandum of respondents). Professor Salonga is not a qualified statistician, which all the more impairs his credibility. Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter dated March 16, 1973 address to the Secretary of the Department of Local Government and Community Development, refutes the said computation of Professor Benjamin R. Salonga, thus: 1) I do not quite understand why (Problem 1) all qualified registered voters and the 15-20-year-old youths (1972) will have to be estimated in order to give a 101.9% estimate of the percentage participation of the "15-20 year old plus total number of qualified voters" which does not deem to answer the problem. This computation apparently fails to account for some 5.6 million persons "21 years old and over" who were not registered voters (COMELEC), but who might be qualified to participate at the Citizen's Assembly. 2) The official population projection of this office (medium assumption) for "15 year olds and over" as of January 1, 1973 is 22.506 million. If total number of participants at the Citizens' Assembly Referendum held on January 10-15, 1973 was 16.702 million, participation rate will therefore be the ratio of the latter figure to the former which gives 74.2%. 3) 1 cannot also understand c-2 "Solution to Problem 11." The "difference or implied number of 15-20 year olds" of 5,039,906 would represent really not only all 15-year olds and over who participated at the Citizens' Assembly but might not have been registered

voters at the time, assuming that all the 11,661,909 registered voted at Citizens' Assembly. Hence, the "estimate percentage participation of 15-20 years olds" of 105.6% does not seem to provide any meaningful information. To obtain the participation rate of "15-20 years old" one must divide the number in this age group, which was estimated to be 4.721 million as of January 1, 1973 by the population of "15 years old and over" for the same period which was estimated to be 22.506 million, giving 21.0%. In Problem III, it should be observed that registered voters also include names of voters who are already dead. It cannot therefore be assumed that all of them participated at the Citizens' Assembly. It can therefore be inferred that "a total number of persons 15 and over unqualified/disqualified to vote" will be more than 10,548,197 and hence the "difference or implied number of registered voters that participated" will be less than 6,153,618. I have reservations on whether an "appropriate number of qualified voters that supposedly voted" could be meaningfully estimated. 5) The last remark will therefore make the ratio (a) [Solution to Problem] more than 1.71 and that for (b), accordingly, will also be less than 36.8%." (Annex F Rejoinder). From the foregoing analysis of the Director of Census and Statistics as of January 21, 1973, the official population projection for 15-year olds and over is 22,506,000. If 16,702,000 voted in the referendum, the participation ratio would be 74.2% of 22,506,000. If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the difference between 16,702,000 who participated in the referendum and the registered electors of 11,661,909 for the November 8, 1971 elections, is 5,040,091, which may include not only the 15-year olds and above but below 21 but also the qualified electors who were not registered before the November 8, 1971 elections as well as illiterates who are 15 years old and above but below 21. Moreover, in the last Presidential election in November, 1969, We found that the incumbent President obtained over 5,000,000 votes as against about 3,000,000 votes for his rival LP Senator Sergio Osmea, Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmea, Jr. vs. Marcos, Presidential Election Contest No. 3, Jan. 8, 1973). The petitioners in all the cases at bar cannot state with justification that those who voted for the incumbent President in 1969 did not vote in favor of the 1973 Constitution during the referendum from January 10 to 15, 1973. It should also be stressed that many of the partisans of the President in the 1969 Presidential elections, have several members in their families and relatives who are qualified to participate in the referendum because they are 15 years or above including illiterates, which fact should necessarily augment the number of votes who voted for the 1973 Constitution. (6) It is also urged that martial law being the rule of force, is necessarily inconsistent with freedom of choice, because the people fear to disagree with the President and Commander-in-Chief of the Armed Forces of the Philippines and therefore cannot voice views opposite to or critical of the position of the President on the 1973 Constitution and on the mode of its ratification. It is also claimed or urged that there can be no free choice during martial law which inevitably generates fear in the individual. Even without martial law, the penal, civil or administrative sanction provided for the violation of ordinarily engenders fear in the individual which persuades the individual to comply with or obey the law. But before martial law was proclaimed, many individuals fear such sanctions of the law because of lack of effective equal enforcement or implementation thereof in brief, compartmentalized justice and extraneous pressures and influences frustrated the firm and just enforcement of the laws. The fear that is generated by martial law is merely the fear of immediate execution and swift enforcement of the law and therefore immediate infliction of the punishment or sanction prescribed by the law whenever it is transgressed during the period of martial law. This is not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973 Constitution. Those who cringe in fear are the criminals or the law violators. Surely, petitioners do not come under such category. (7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the secrecy of the ballot as by the election laws. But the 1935 Constitution does not require secret voting. We search in vain for such guarantee or prescription in said organic law. The Commission on Elections under the 1940 Amendment, embodied as Article X is merely mandated to insure "free, orderly and honest election." Congress, under its plenary lawmaking authority, could have validly prescribed in the election law open voting in the election of public officers, without trenching upon the Constitution. Any objection to such a statute concerns its wisdom or propriety, not its legality or constitutionality. Secret balloting was demanded by partisan strife in elections for elective officials. Partisanship based on party or personal loyalties does not generally obtain in a plebiscite on proposed constitutional amendments or on a new Constitution. We have seen even before and during martial law that voting in meetings of government agencies or private organizations is usually done openly. This is specially true in sessions of Congress, provincial boards, city councils, municipal boards and barrio councils when voting on national or local issues, not on personalities. Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might have been true in certain areas, but that does not necessarily mean that it was done throughout the country. The recent example of an open voting is the last election on March 3, 1973 of the National Press Club officers who were elected by acclamation presided over by its former president, petitioner Eduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no more hardboiled group of persons than newspapermen, who cannot say that voting among them by acclamation was characterized by fear among the members of the National Press Club. Moreover, petitioners would not be willing to affirm that all the members of the citizenry of this country are against the new Constitution. They will not deny that there are those who favor the same, even among the 400,000 teachers among whom officers of the Department of Education campaigned for the ratification of the new Constitution.

Not one of the petitioners can say that the common man farmer, laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus driver, pedestrian, salesman, or salesgirl does not want the new Constitution, or the reforms provided for therein. (8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This is quite inaccurate; because even before the election in November, 1970 of delegates to the Constitutional Convention, the proposed reforms were already discussed in various forums and through the press as well as other media of information. Then after the Constitutional Convention convened in June, 1971, specific reforms advanced by the delegates were discussed both in committee hearings as well as in the tri-media the press, radio and television. Printed materials on the proposed reforms were circulated by their proponents. From June, 1971 to November 29, 1972, reforms were openly discussed and debated except for a few days after the proclamation of martial law on September 21, 1972. From the time the Constitutional Convention reconvened in October, 1972 until January 7, 1973, the provisions of the new Constitution were debated and discussed in forums sponsored by private organizations universities and debated over the radio and on television. The Philippines is a literate country, second only to Japan in the Far East, and more literate perhaps than many of midwestern and southern states of the American Union and Spain. Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the illiterates listened to radio broadcasts on and discussed the provisions of the 1973 Constitution. As reported by the eminent and widely read columnist, Teodoro Valencia in his column in Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) went around the country doing a 30-minute documentary on the Philippines for American television stated that what impressed him most in his travel throughout the country was the general acceptance of the New Society by the people which he saw in his 6-week travel from Aparri to Jolo." The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express, March 3, and Sunday Express, March 4), Secretary of the United States Senate, who conducted a personal survey of the country as delegate of Senator Mike Mansfield, Chairman, Committee on US-Philippine relations, states: Martial law has paved the way for a re-ordering of the basic social structure of the Philippines. President Marcos has been prompt and sure-footed in using the power of presidential decree under martial law for this purpose. He has zeroed in on areas which have been widely recognized as prime sources of the nation's difficulties land tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly, he knows the targets. What is not yet certain is how accurate have been his shots. Nevertheless, there is marked public support for his leadership and tangible alternatives have not been forthcoming. That would suggest that he may not be striking too far from the mark. The United States business community in Manila seems to have been re-assured by recent developments ... . (Emphasis supplied.) Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute the majority of the population, do not like the reforms stipulated in the new Constitution, as well as the decrees, orders and circulars issued to implement the same. It should be recalled, as hereinbefore stated, that all these reforms were the subject of discussion both in the committee hearings and on the floor of the Constitutional Convention, as well as in public forums sponsored by concerned citizens or civic organizations at which Con-Con delegates as well as other knowledgeable personages expounded their views thereon and in all the media of information before the proclamation of martial law on September 21, 1972. This is the reason why the Constitutional Convention, after spending close to P30 million during the period from June 1, 1971 to November 29, 1972, found it expedient to accelerate their proceedings in November, 1972 because all views that could possibly be said on the proposed provisions of the 1973 Constitution were already expressed and circulated. The 1973 Constitution may contain some unwise provisions. But this objection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of the aforesaid provisions, which issue is not for this Court to decide; otherwise We will be substituting Our judgment for the judgment of the Constitutional Convention and in effect acting as a constituent assembly. VI PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE POWERS DURING MARTIAL LAW. The position of the respondent public officers that undermartial law, the President as Commander-in-Chief is vested with legislative powers, is sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83 Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs. Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no more martial law in the Philippines. ... Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part of our Constitution. The promulgation of said executive order is an exercise by the President of his powers as Commander in Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs. Styver (L-129, 42 Off. Gaz., 664) when we said "War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of war may remain pending which should be disposed of as in time of war. " An important incident to a conduct of war is the adoption measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war." (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a military commission "has jurisdiction so long as the technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of treaty of peace, and may extend beyond, by treaty agreement." (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944).

Consequently, the President as Commander-in-Chief is fully empowered to consummate this unfinished aspect of war , namely the trial and punishment of war criminals, through the issuance and enforcement of Executive Order No. 68. (83 Phil. 177-178; emphasis supplied). Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view, when, in his concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise of the power which resides in the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety." (Emphasis supplied). There is an implied recognition in the aforesaid definition of martial law that even in places where the courts can function, such operation of the courts may be affected by martial law should their "functioning ... threaten the public safety." It is possible that the courts, in asserting their authority to pass upon questions which may adversely affect the conduct of the punitive campaign against rebels, secessionists, dissidents as well as subversives, martial law may restrict such judicial function until the danger to the security of the state and of the people shall have been decimated. The foregoing view appears to be shared by Rossiter when he stated: Finally, this strong government, which in some instances might become an outright dictatorship, can have no other purposes than the preservation of the independence of the state, the maintenance of the existing constitutional order, and the defense of the political and social liberties of the people. It is important to recognize the true and limited ends of any practical application of the principle of constitutional dictatorship. Perhaps the matter may be most clearly stated in this way: the government of a free state is proceeding on its way and meeting the usual problems of peace and normal times within the limiting framework of its established constitutional order. The functions of government are parceled out among a number of mutually independent offices and institutions; the power to exercise those functions is circumscribed by well-established laws, customs, and constitutional prescriptions; and the people for whom this government was instituted are in possession of a lengthy catalogue of economic, political, and social rights which their leaders recognize as inherent and inalienable. A severe crisis arises the country is invaded by a hostile power, or a dissident segment of the citizenry revolts, or the impact of a world-wide depression threatens to bring the nation's economy in ruins. The government meets the crisis by assuming more powers and respecting fewer rights. The result is a regime which can act arbitrarily and even dictatorially in the swift adaption of measures designed to save the state and its people from the destructive effects of the particular crisis. And the narrow duty to be pursued by this strong government, this constitutional dictatorship? Simply this and nothing more: to end the crisis and restore normal times. The government assumes no power and abridges no right unless plainly indispensable to that end; it extends no further in time than the attainment of that end; and it makes no alteration in the political, social and economic structure of the nation which cannot be eradicated with the restoration of normal times. In short, the aim of constitutional dictatorship is the complete restoration of the status quo ante bellum. This historical fact does not comport with philosophical theory, that there never has been a perfect constitutional dictatorship, is an assertion that can be made without fear of contradiction. But this is true of all institutions of government, and the principle of constitutional dictatorship remains eternally valid no matter how often and seriously it may have been violated in practice. (Constitutional Dictatorship, 1948 ed., by Clinton L. Rossiter, p. 7; emphasis supplied.) Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises legislative power, whether of temporary or permanent character, thus: The measures adopted in the prosecution of a constitutional dictatorship should never be permanent in character or effect . Emergency powers are strictly conditioned by their purpose and this purpose is the restoration of normal conditions. The actions directed to this end should therefore be provisional. For example, measures of a legislative nature which work a lasting change in the structure of the state or constitute permanent derogations from existing law should not be adopted under an emergency enabling act, at least not without the positively registered approval of the legislature . Permanent laws, whether adopted in regular or irregular times, are for parliaments to enact. By this same token, the decisions and sentences of extraordinary courts should be reviewed by the regular courts after the termination of the crisis. But what if a radical act of permanent character, one working lasting changes in the political and social fabric, is indispensable to the successful prosecution of the particular constitutional dictatorship? The only answer can be: it must be resolutely taken and openly acknowledged. President Lincoln found it necessary to proceed to the revolutionary step of emancipation in aid of his conservative purpose of preserving the Union; as a constitutional dictator he had a moral right to take this radical action. Nevertheless, it is imperative that any action with such lasting effects should eventually receive the positive approval of the people or of their representatives in the legislature. (P. 303, emphasis supplied). From the foregoing citations, under martial law occasioned by severe crisis generated by revolution, insurrection or economic depression or dislocation, the government exercises more powers and respects fewer rights in order "to end the crisis and restore normal times." The government can assume additional powers indispensable to the attainment of that end the complete restoration of peace. In our particular case, eradication of the causes that incited rebellion and subversion as secession, is the sine qua non to the complete restoration of normalcy. Exercise of legislative power by the President as Commander in Chief, upon his proclamation of martial law, is justified because, as he professes, it is directed towards the institution of radical reforms essential to the elimination of the causes of rebellious, insurgent or subversive conspiracies and the consequent dismantling of the rebellious, insurgent or subversive apparatus. Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102 is indispensable to the effectuation of the reforms within the shortest possible time to hasten the restoration of normalcy. "Must the government be too strong for the liberties of the people; or must it be too weak to maintain its existence?" That was the dilemma that vexed President Lincoln during the American Civil War, when without express authority in the Constitution and the laws of the United States, he suspended one basic human freedom the privilege of the writ of habeas corpus in order to preserve with permanence the American Union, the Federal Constitution of the United States and all the civil liberties of the American people. This is the same dilemma that presently confronts the Chief Executive of the Republic of the Philippines, who, more than the Courts and Congress, must, by express constitutional mandate, secure the safety of our Republic and the rights as well as lives of the people against open rebellion, insidious subversion secession. The Chief Executive announced repeatedly that in choosing to proclaim martial law, the power expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our

national and individual survival in peace and freedom, he is in effect waging a peaceful, democratic revolution from the center against the violent revolution and subversion being mounted by the economic oligarchs of the extreme right, who resist reforms to maintain their economic hegemony, and the communist rebels a Maoist oriented secessionists of the extreme left who demand swift institution of reforms. In the exercise of his constitutional and statutory powers, to save the state and to protect the citizenry against actual and threatened assaults from insurgents, secessionists and subversives, doctrinaire concepts and principles, no matter how revered they may be by jurisprudence and time, should not be regarded as peremptory commands; otherwise the dead hand of the past will regulate and control the security and happiness of the living present. A contrary view would be to deny the selfevident proposition that constitutions and laws are mere instruments for the well-being, peace, security and prosperity of the country and its citizenry. The law as a means of social control is not static but dynamic. Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the imprisonment of the past, but the enfolding of the future. In the vein of Mr. Justice Holmes, the meaning of the words of the Constitution is not to be determined by merely opening a dictionary. Its terms must be construed in the context of the realities in the life of a nation it is intended to serve. Because experience may teach one generation to doubt the validity and efficacy of the concepts embodied in the existing Constitution and persuade another generation to abandon them entirely, heed should be paid to the wise counsel of some learned jurists that in the resolution of constitutional questions like those posed before Us the blending of idealism and practical wisdom or progressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency for human betterment" and constitutional law "is applied politics using the word in its noble sense ." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supplied). Justice Brandeis gave utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it is capable of growth or expansion and adaptation to new conditions. Growth implies changes, political, economic and social." (Brandeis Papers, Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed Powell emphasizes "practical wisdom," for "the logic of constitutional law is the common sense of the Supreme Court." (Powell, the Validity of State Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's Opus, supra; emphasis supplied). The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except change. Living organisms as well as man-made institutions are not immutable. Civilized men organize themselves into a State only for the purpose of serving their supreme interest their welfare. To achieve such end, they created an agency known as the government. From the savage era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of sophisticated electronics and nuclear weaponry, states and governments have mutated in their search for the magic instrument for their well-being. It was trial and error then as it is still now. Political philosophies and constitutional concepts, forms and kinds of government, had been adopted, overturned, discarded, re-adopted or modified to suit the needs of a given society at a particular given epoch. This is true of constitutions and laws because they are not "the infallible instruments of a manifest destiny." No matter how we want the law to be stable, it cannot stand still. As Mr. Justice Holmes aptly observed, every "constitution is an experiment as all life is an experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but experience." In the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as society is inconstant, there can be no constancy in law," and "there will be change whether we will it or not." As Justice Jose P. Laurel was wont to say, "We cannot, Canute-like, command the waves of progress to halt." Thus, political scientists and jurists no longer exalt with vehemence a "government that governs least." Adherents there are to the poetic dictum of Alexander Pope: "For forms of government let fools contest; whatever is best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In between, the shades vary from direct democracy, representative democracy, welfare states, socialist democracy, mitigated socialism, to outright communism which degenerated in some countries into totalitarianism or authoritarianism. Hence, even the scholar, who advances academic opinions unrelated to factual situations in the seclusion of his ivory tower, must perforce submit to the inexorable law of change in his views, concepts, methods and techniques when brought into the actual arena of conflict as a public functionary face to face with the practical problems of state, government and public administration. And so it is that some learned jurists, in the resolution of constitutional issues that immediately affect the lives, liberties and fortunes of the citizens and the nation, recommend the blending of idealism with practical wisdom which legal thinkers prefer to identify as progressive legal realism. The national leader, who wields the powers of government, must and has to innovate if he must govern effectively to serve the supreme interests of the people. This is especially true in times of great crises where the need for a leader with vision, imagination, capacity for decision and courageous action is greater, to preserve the unity of people, to promote their well-being, and to insure the safety and stability of the Republic. When the methods of rebellion and subversion have become covert, subtle and insidious, there should be a recognition of the corresponding authority on the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques to suppress the peril to the security of the government and the State. Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the American Constitution and former President of the United States, who personifies the progressive liberal, spoke the truth when he said that some men "ascribe men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. ... But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change, with the change of circumstances, institutions must also advance, and keep pace with the times." (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989). The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. It cannot be adequately and fairly appraised within the present ambience, charged as it is with so much tension and emotion, if not partisan passion. The analytical, objective historians will write the final verdict in the same way that they pronounced judgment on President Abraham Lincoln who suspended the privilege of the writ of habeas corpuswithout any constitutional or statutory authority therefor and of President Franklin Delano Roosevelt who approved the proclamation of martial law in 1941 by the governor of Hawaii throughout the Hawaiian territory. President Lincoln not only emancipated the Negro slaves in America, but also saved the Federal Republic of the United States from disintegration by his suspension of the privilege of the writ of habeas corpus, which power the American Constitution and Congress did not then expressly vest in him. No one can deny that the successful defense and preservation of the territorial integrity of the United States was due in part, if not to a great extent, to the proclamation of martial law over the territory of Hawaii main bastion of the outer periphery or the outpost of the American defense perimeter in the Pacific which protected the United States mainland not only from actual invasion but also from aerial or naval bombardment by the enemy. Parenthetically, the impartial observer cannot accurately conclude that the American Supreme Court acted with courage in its decision in the cases of Ex parte Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided on April 3, 1866, and opinion delivered on December 17, 1866) after the lifting of the proclamation suspending the privilege of the writ of habeas corpus, long after the Civil War and the Second World ended respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p. 799). Was the delay on the part of the American Supreme Court in deciding these cases against the position of the United States President in suspending the privilege of the writ of habeas corpus in one case and approving the proclamation of martial law in the other deliberate as an act of judicial statesmanship and recognition on their part that an adverse court ruling during the period of such a grave crisis might jeopardize the survival of the Federal Republic of the United States in its life-and-death struggle against an organized and well armed rebellion within its own borders and against a formidable enemy from without its territorial confines during the last global armageddon?

VIII DOCTRINE OF SEPARATION OF POWERS PRECLUDES MANDAMUS AGAINST SENATORS. In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat and Jose Roy to convene the Senate of the Philippines even on the assumption that the 1935 Constitution still subsists; because pursuant to the doctrine of separation of powers under the 1935 Constitution, the processes of this Court cannot legally reach a coordinate branch of the government or its head. This is a problem that is addressed to the Senate itself for resolution; for it is purely an internal problem of the Senate. If a majority of the senators can convene, they can elect a new Senate President and a new Senate President Pro Tempore. But if they have no quorum, those present can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and certainly does not justify the invocation of the power of this Court to compel action on the part of a co-equal body or its leadership. This was emphasized with sufficient clarity by this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished counsels for the petitioners in L-36164 and L-36165 are familiar. We stress that the doctrine of separation of powers and the political nature of the controversy such as this, preclude the interposition of the Judiciary to nullify an act of a coordinate body or to command performance by the head of such a co-ordinate body of his functions.. Mystifying is the posture taken by counsels for petitioners in referring to the political question doctrine almost in mockery as a magic formula which should be disregarded by this Court, forgetting that this magic formula constitutes an essential skein in the constitutional fabric of our government, which, together with other basic constitutional precepts, conserves the unity of our people, strengthens the structure of the government and assures the continued stability of the country against the forces of division, if not of anarchy. Moreover, if they have a quorum, the senators can meet anywhere. Validity of the acts of the Senate does not depend on the place of session; for the Constitution does not designate the place of such a meeting. Section 9 of Article VI imposes upon Congress to convene in regular session every year on the 4th Monday of January, unless a different date is fixed by law, or on special session called by the President. As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy in L-36165, stated, the duty to convene is addressed to all members of Congress, not merely to its presiding officers. The fact that the doors of Congress are padlocked, will not prevent the senators especially the petitioners in L-36165 if they are minded to do so, from meeting elsewhere at the Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels or theaters, in their own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitioner Gerardo Roxas in L-36165. However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly meet without the lower House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five former senators for mandamus in L-36165 is useless. And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and Roy, mandamus will lie only if there is a law imposing on the respondents the duty to convene the body. The rule imposing such a duty invoked by petitioners in L-36165 is purely an internal rule of the Senate; it is not a law because it is not enacted by both Houses and approved by the President. The Constitutional provision on the convening of Congress, is addressed to the individual members of the legislative body (Sec. 9, Art. VI of 1935 Constitution). IX TO NULLIFY PROCLAMATION NO. 1102 AND 1973 CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF SUPREME COURT. The petitioners in L-36164 and L-36236 specifically pray for a declaration that the alleged ratification of the 1973 Constitution is null and void and that the said 1973 Constitution be declared unenforceable and inoperative. As heretofore stated, Proclamation No. 1102 is an enactment of the President as Commander-in-Chief during martial law as directly delegated to him by Section 10(2) of Article VII of the 1935 Constitution. A declaration that the 1973 Constitution is unenforceable and inoperative is practically deciding that the same is unconstitutional. The proposed Constitution is an act of the Constitutional Convention, which is co-equal and coordinate with as well as independent of either Congress or the Chief Executive. Hence, its final act, the 1973 Constitution, must have the same category at the very least as the act of Congress itself. Consequently, the required vote to nullify Proclamation No. 1102 and the 1973 Constitution should be eight (8) under Section 10 of Article VIII of the 1935 Constitution in relation to Section 9 of the Judiciary Act or Republic Act No. 296, as amended, or should be ten (10) under Section 2(2) of Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), as the case may be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must be deemed to be valid, in force and operative. X ARTICLE OF FAITH WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We swear "eternal hostility towards any form of tyranny over the mind of man" as well as towards bigotry and intolerance, which are anathema to a free spirit. But human rights and civil liberties under a democratic or republican state are never absolute and never immune to restrictions essential to the common weal. A civilized society cannot long endure without peace and order, the maintenance of which is the primary function of the government. Neither can civilized society survive without the natural right to defend itself against all dangers that may destroy its life, whether in the form of invasion from without or rebellion and subversion from within. This is the

first law of nature and ranks second to none in the hierarchy of all values, whether human or governmental. Every citizen, who prides himself in being a member or a civilized society under an established government, impliedly submits to certain constraints on his freedom for the general welfare and the preservation of the State itself, even as he reserves to himself certain rights which constitute limitations on the powers of government. But when there is an inevitable clash between an exertion of governmental authority and the assertion of individual freedom, the exercise of which freedom imperils the State and the civilized society to which the individual belongs, there can be no alternative but to submit to the superior right of the government to defend and preserve the State. In the language of Mr. Justice Holmes often invoked by herein petitioners "when it comes to a decision involving its (state life, the ordinary rights of individuals must yield to what he (the President) deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. (See Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with regard to killing men in the actual clash of arms. And we think it is obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417). The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order and security for all, that should be the shibboleth; for freedom cannot be enjoyed in an environment of disorder and anarchy. The incumbent Chief Executive who was trying to gain the support for his reform program long before September 21, 1972, realized almost too late that he was being deceived by his partymates as well as by the opposition, who promised him cooperation, which promises were either offered as a bargaining leverage to secure concessions from him or to delay the institution of the needed reforms. The people have been victimized by such bargaining and dilly-dallying. To vert a terrifying blood bath and the breakdown of the Republic, the incumbent President proclaimed martial law to save the Republic from being overrun by communists, secessionists and rebels by effecting the desired reforms in order to eradicate the evils that plague our society, which evils have been employed by the communists, the rebels and secessionists to exhort the citizenry to rise against the government. By eliminating the evils, the enemies of the Republic will be decimated. How many of the petitioners and their counsels have been utilizing the rebels, secessionists and communists for their own personal or political purposes and how many of them are being used in turn by the aforesaid enemies of the State for their own purposes? If the petitioners are sincere in their expression of concern for the greater mass of the populace, more than for their own selves, they should be willing to give the incumbent Chief Executive a chance to implement the desired reforms. The incumbent President assured the nation that he will govern within the framework of the Constitution and if at any time, before normalcy is restored, the people thru their Citizens' Assemblies, cease to believe in his leadership, he will step down voluntarily from the Presidency. But if, as apprehended by the petitioners, he abuses and brutalizes the people, then to the battlements we must go to man the ramparts against tyranny. This, it is believed, he knows only too well; because he is aware that he who rides the tiger will eventually end inside the tiger's stomach. He who toys with revolution will be swallowed by that same revolution. History is replete with examples of libertarians who turned tyrants and were burned at stake or beheaded or hanged or guillotined by the very people whom they at first championed and later deceived. The most bloody of such mass executions by the wrath of a wronged people, was the decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French revolution, like Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the lessons of history. HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED. ESGUERRA, J., concurring: These petitions seek to stop and prohibit the respondents Executive Officers from implementing the Constitution signed on November 30, 1972; in L36165, to compel respondents Gil Puyat and Jose J. Roy, President and President Pro-Tempore, respectively, of the Senate under the 1935 Constitution, to convene the Senate in regular session which should have started on January 22, 1973; to nullify Proclamation No. 1102 of the President, issued on January 17, 1973, which declared the ratification of the Constitution on November 30, 1972, by the Filipino people, through the barangays or Citizens Assemblies established under Presidential Decree No. 86 issued on December 31, 1972, which were empowered under Presidential Decree No. 86-A, issued on January 5, 1973, to act in connection with the ratification of said Constitution. Grounds for the petitions are as follows: 1. That the Constitutional Convention was not a free forum for the making of a Constitution after the declaration of Martial Law on September 21, 1972. 2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution because they are highly unwise and objectionable and the people were not sufficiently informed about them. 3. The President had no authority to create and empower the Citizens' Assemblies to ratify the new Constitution at the referendum conducted in connection therewith, as said assemblies were merely for consultative purposes, and 4. The provisions of Article XV of the 1935 Constitution prescribing the manner of amending the same were not duly observed. The petitions were not given due course immediately but were referred to the Solicitor General as counsel for the respondents for comment, with three members of the Court, including the undersigned, voting to dismiss them outright. The comments were considered motions to dismiss which were set for hearing and extensively argued. Thereafter both parties submitted their notes and memoranda on their oral arguments. I. The issues raised for determination, on which the resolution of the Motion to Dismiss hinges, are as follows: 1. Is the question presented political and, hence, beyond the competence of this Court to decide, or is it justiciable and fit for judicial determination? 2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending process prescribed by Article XV of the 1935 Constitution?

3. Has the new Constitution been accepted and acquiesced in by the Filipino people? 4. Is the new Constitution actually in force and effect? 5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners entitled to the reliefs prayed for? II. The pivotal question in these cases is whether the issue raised is highly political and, therefore, not justiciable. I maintain that this Court should abstain from assuming jurisdiction, but, instead, as an act of judicial statesmanship, should dismiss the petitions. In resolving whether or not the question presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a logical conclusion. For after the acceptance of a new Constitution and acquiescence therein by the people by putting it into practical operation, any question regarding its validity should be foreclosed and all debates on whether it was duly or lawfully ushered into existence as the organic law of the state become political and not judicial in character. The undisputed facts that led to the issuance of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and dissenting opinions in the Plebiscite cases decided on January 22, 1973, and need not be repeated here. Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A, claiming that the ratification of the new Constitution pursuant to the said decrees is invalid and of no effect. Presidential Decree No. 86 organized the barangays or Citizens Assemblies composed of all citizens at least fifteen years of age, and through these assemblies the proposed 1972 Constitution was submitted to the people for ratification. Proclamation No. 1102 of the President announced or declared the result of the referendum or plebiscite conducted through the Citizens Assemblies, and that 14,976,561 members thereof voted for the ratification of the new Constitution and 743,869 voted against it. Petitioners assail these two acts of the President as unauthorized and devoid of legal effect. But looking through the veneer of judicial conformity with which the petitions have been adroitly contrived, what is sought to be invalidated is the new Constitution itself the very framework of the present Government since January 17, 1973. The reason is obvious. The Presidential decrees set up the means for the ratification and acceptance of the new Constitution and Proclamation No. 1102 simply announced the result of the referendum or plebiscite by the people through the Citizens Assemblies. The Government under the new Constitution has been running on its tracks normally and apparently without obstruction in the form of organized resistance capable of jeopardizing its existence and disrupting its operation. Ultimately the issue is whether the new Constitution may be set aside by this Court. But has it the power and authority to assume such a stupendous task when the result of such invalidation would be to subject this nation to divisive controversies that may totally destroy the social order which the Government under the new Constitution has been admirably protecting and promoting under Martial Law? That the new Constitution has taken deep root and the people are happy and contended with it is a living reality which the most articulate critics of the new order cannot deny. 95 out of 108 members of the House of Representatives have opted to serve in the interim National Assembly provided for under the new Constitution. 15 out of 24 Senators have done likewise. The members of the Congress did not meet anymore last January 22, 1973, not because they were really prevented from so doing but because of no serious effort on their parts to assert their offices under the 1935 Constitution. In brief, the Legislative Department under the 1935 Constitution is a thing of the past. The Executive Department has been fully reorganized; the appointments of key executive officers including those of the Armed Forces were extended and they took an oath to support and defend the new Constitution. The courts, except the Supreme Court by reason of these cases, have administered justice under the new constitution. All government offices have dealt with the public and performed their functions according to the new Constitution and laws promulgated thereunder. If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its assumption of jurisdiction when no power has ... conferred upon it the jurisdiction to declare the Constitution or any part thereof null and void? It is the height of absurdity and impudence for a court to wage open war against the organic act to which it owes its existence. The situation in which this Court finds itself does not permit it to pass upon the question whether or not the new Constitution has entered into force and has superseded the 1935 Constitution. If it declares that the present Constitution has not been validly ratified, it has to uphold the 1935 Constitution as still the prevailing organic law. The result would be too anomalous to describe, for then this Court would have to declare that it is governed by one Constitution or the 1935 Constitution, and the legislative and executive branches by another or the 1972 Constitution. If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion in these cases when it would have no other choice but to uphold the new Constitution as against any other one? In the circumstances it would be bereft of judicial attributes as the matter would then be not meet for judicial determination, but one addressed to the sovereign power of the people who have already spoken and delivered their mandate by accepting the fundamental law on which the government of this Republic is now functioning. To deny that the new Constitution has been accepted and actually is in operation would be flying in the face of reason and pounding one's bare head against a veritable stone wall or a heavily reinforced concrete, or simply "kicking the deadly pricks" with one's bare foot in an effort to eliminate the lethal points. When a Constitution has been in operation for sometime, even without popular ratification at that, submission of the people thereto by the organization of the government provided therein and observance of its prescriptions by public officers chosen thereunder, is indicative of approval. Courts should be slow in nullifying a Constitution claimed to have been adopted not in accordance with constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347]. In Miller vs. Johnson, supra, the Court said: ... But it is a case where a new constitution has been formed and promulgated according to the forms of law. Great interests have already arisen under it; important rights exist by virtue of it; persons have been convicted of the highest crimes known to the law, according to its provisions; the political power of the government has in many ways recognized it; and, under such circumstances, it is our duty to treat and regard it as a valid constitution, and now the organic law of our state . We need not consider the validity of the amendments made after the convention reassembled. If the making of them was in excess of its power, yet as the entire instrument has been recognized as valid in the manner suggested, it would be equally an abuse of power by the judiciary, and violative of the rights of the people, who can and properly should remedy the matter, if not to their liking, if it were to declare the instrument or a portion invalid, and bring confusion and anarchy upon the state. (Emphasis supplied)

In Smith vs. Good, supra, the Court said: It is said that a state court is forbidden from entering upon such an inquiry when applied to a new constitution, and not an amendment, because the judicial power presupposes an established government, and if the authority of that government is annulled and overthrown, the power of its courts is annulled with it; therefore, if a state court should enter upon such an inquiry, come to the conclusion that the government under which it acted had been displaced by an opposing government, it would cease to be a court, and it would be incapable of pronouncing a judicial decision upon the question before it; but, if it decides at all, it must necessarily affirm the existence of the government under which it exercises its judicial powers. (Emphasis supplied) These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed. 581, 598 (1849) where it was held: Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of government from which it is derived. And if the authority of the government is annulled and overthrown, the power of its courts and other officers is annulled with it. And if a State court should enter upon the inquiry proposed in this case, and should come to conclusion that the government under which it acted had been put aside and displaced by an opposing government it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power. The foreign relations of the Republic of the Philippines have been normally conducted on the basis of the new Constitution and no state with which we maintain diplomatic relations has withdrawn its recognition of our government. (For particulars about executive acts done under the new Constitution, see pages 22-25 of the Comments of the Solicitor General, dated February 3, 1973.) Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by this Court would smack of plain political meddling which is described by the United States Supreme Court as "entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it would be the part of wisdom for this Court to adopt the proper attitude towards political upheavals and realize that the question before Us is political and not fit for judicial determination. For a political question is one entrusted to the people for judgment in their sovereign capacity (Taada vs. Cuenco, G.R. No. L10520, Feb. 28,1967; 100 Phil. 1101), or to a co-equal and coordinate branch of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a political question when there would be "the impossibility of undertaking independent resolutions without expressing a lack of respect due to coordinate branches of government", or when there is "the potentiality of embarrassment from multifarious pronouncements by various departments on one question." To preserve the prestige and eminence that this Court has long enjoyed as the "ultimate organ of the "Supreme Law of the Land" in that vast range of legal problems often strongly entangled in popular feeling on which this Court must pronounce", let us harken to the following admonition of Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663: The Court's authority possessed neither of the purse nor the sword ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and appearance, from political entanglements and abstention from injecting itself into the clash of political forces in political settlement . ..." (Emphasis supplied) The people have accepted and submitted to a Constitution to replace the 1935 Constitution. The new organic law is now in the plenitude of its efficacy and vigor. We are now living under its aegis and protection and only the cynics will deny this. This Court should not in the least attempt to act as a superlegislature or a super-board of canvassers and sow confusion and discord among our people by pontificating there was no valid ratification of the new Constitution. The sober realization of its proper role and delicate function and its consciousness of the limitations on its competence, especially situations like this, are more in keeping with the preservation of our democratic tradition than the blatant declamations of those who wish the Court to engage in their brand of activism and would not mind plunging it into the whirlpool of passion and emotion in an effort to capture the intoxicating applause of the multitude. For all the foregoing, I vote to dismiss all petitions. ZALDIVAR, J., concurring and dissenting: In these five cases, the main issue to be resolved by Court is whether or not the Constitution proposed by the Constitutional Convention of 1971 had been ratified in accordance with the provisions of Article XV of the 1935 Constitution. In the plebiscite cases, which were decided by this Court on January 22, 1973 1, I held the view that this issue could be properly resolved by this Court, and that it was in the public interest that this Court should declare then whether or not the proposed Constitution had been validly ratified. The majority of this Court, however, was of the view that the issue was not squarely raised in those cases, and so the Court, as a body, did make any categorical pronouncement on the question of whether or not the Constitution proposed by the 1971 Convention was validly ratified. I was the only one who expressed the opinion that the proposed Constitution was not validly ratified and therefore "it should not be given force and effect." The Court is now called upon to declare, and to inform the people of this country, whether or not that proposed Constitution had been validly ratified and had come into effect. The Solicitor General, however, contends that this Court has no jurisdiction to resolve the issue that we have mentioned because that issue is a political question that cannot be decided by this Court. This contention by the Solicitor General is untenable. A political question relates to "those questions which under the Constitution are to be decided by the people in their sovereign capacity or in regard to which full discretionary authority has been delegated to the legislative, or to the executive, branch of the government. 2 The courts have the power to determine whether the acts of the executive are authorized by the Constitution and the laws whenever they are brought before the court in a judicial proceeding. The judicial department of the government exercises a sort of controlling, or rather restraining, power over the two other departments of the government. Each of the three departments, within its proper constitutional sphere, acts independently of the other, and restraint is only placed on one department when that sphere is actually transcended. While a court may not restrain the executive from committing an unlawful act, it may, when the legality of such an act is brought

before it in a judicial proceeding, declare it to be void, the same as it may declare a law enacted by the legislature to be unconstitutional. 3 It is a settled doctrine that every officer under a constitutional government must act according to law and subject to its restrictions, and every departure therefrom, or disregard thereof, must subject him to the restraining and controlling power of the people, acting through the agency of the judiciary. It must be remembered that the people act through the courts, as well as through the executive or the legislature. One department is just as representative as the other, and judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official actions 4. In the case of Gonzales v. Commission on Elections5, this Court ruled that the issue as to whether or not a resolution of Congress acting as a constituent assembly violates the Constitution is not a political question and is therefore subject to judicial review. In the case of Avelino v. Cuenco 6, this Court held that the exception to the rule that courts will not interfere with a political question affecting another department is when such political question involves an issue as to the construction and interpretation of the provision of the constitution. And so, it has been held that the question of whether a constitution shall be amended or not is a political question which is not in the power of the court to decide, but whether or not the constitution has been legally amended is a justiciable question. 7 My study on the subject of whether a question before the court is political or judicial, based on decisions of the courts in the United States where, after all, our constitutional system has been patterned to a large extent made me arrive at the considered view that it is in the power of this Court, as the ultimate interpreter of the Constitution, to determine the validity of the proposal, the submission, and the ratification of any change in the Constitution. Ratification or non-ratification of a constitutional amendment is a vital element in the procedure to amend the constitution, and I believe that the Court can inquire into, and decide on, the question of whether or not an amendment to the constitution, as in the present cases, has been ratified in accordance with the requirements prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe that the question of whether or not the Constitution proposed by the 1971 Constitutional Convention had been validly ratified or not is a justiciable question. The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases, before Us involve a political, or a judicial, question. I fully concur with his conclusion that the question involved in these cases is justiciable. On the question now of whether or not the Constitution proposed by the 1971 Constitutional Convention has been validly ratified, I am reproducing herein pertinent portions of my dissenting opinion in the plebiscite cases: The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines, which reads: "Section 1. The Congress in joint session assembled by a vote of three fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to the Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification." It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16, 1967, the Congress of the Philippines Resolution No. 2 calling a convention to propose amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows: "Section 7. The amendments proposed by the Convention shall be valid and considered part of the Constitution when approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification pursuant to Article XV of the Constitution. It follows that from the very resolution of the Congress of the Philippines which called for the 1971 Constitutional Convention, there was a clear mandate that the amendments proposed by the 1971 Convention, in order to be valid and considered part of the Constitution, must be approved by majority of the votes cast in an election at which they are submitted to the people for the ratification as provided in the Constitution. This Court, in the case of Tolentino vs. Commission Elections, L-35140, October 16, 1971 (41 SCRA 715), speaking through Mr. Justice Barredo, said: "The Constitutional Convention of 1971, as any other convention of the same nature,owes its existence and all its authority and power from the existing Constitution of the Philippines. This Convention has not been called by the people directly as in the case of a revolutionary convention which drafts the first Constitution of an entirely new government born of either a war of liberation from a mother country or of revolution against an existing government or of a bloodless seizure of power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is completely without restraint and omnipotent all wise, and it as to such conventions that the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization can belie the fact that the current convention came into being only because it was called by a resolution of a joint session of Congress acting as a constituent assembly by authority of Section 1, Article XV of the present Constitution ... ." xxx xxx xxx "As to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now we hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV ." In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the barangays voted for the adoption of the proposed Constitution, as

against 743,869 who voted for its rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the barangays throughout the Philippines, the President proclaimed that the Constitution proposed by the 1971 Convention has been ratified and has thereby come into effect. It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of Article XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be produced before this Court to show that no elections were held in accordance with the provisions of the Election Code. Proclamation No. 1102 unequivocally states that the proposed Constitution of 1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935 Constitution. The election contemplated in said constitutional provision is an election held in accordance with the provisions of the election law, where only the qualified and registered voters of the country would cast their votes, where official ballots prepared for the purpose are used, where the voters would prepare their ballots in secret inside the voting booths in the polling places established in the different election precincts throughout the country, where the election is conducted by election inspectors duly appointed in accordance with the election law, where the votes are canvassed and reported in a manner provided for in the election law. It was this kind of election that was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to the Constitution to increase the number of Members of the House of Representatives and to allow the Members of Congress to run in the elections for Delegates to the Constitutional Convention of 1971 were rejected. I cannot see any valid reason why the practice or procedure in the past, in implementing the constitutional provision requiring the holding, of an election to ratify or reject an amendment to the Constitution, has not been followed in the case of the Constitution proposed by the 1971 Constitutional Convention. It is my view that the President of the Philippines cannot by decree order the ratification of the proposed 1972 Constitution thru a voting in the barangays and make said result the basis for proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No. 1102 was issued in complete disregard or in violation, of the provisions of Section 1 of Article X of the 1935 Constitution. Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the barangays answered that there was no need for a plebiscite but that the vote of the barangays should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the provision of Section 1, Article XV of the Constitution was completely disregarded. The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained through the election processes as provided by law. "An election is the embodiment of the popular will, the expression of the sovereign power of the people. In common parlance, an election is the act of casting and receiving the ballots, counting them, and making the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637). "Election" implies a choice by an electoral body at the time and substantially in the manner and with the safeguards provided by law with respect to some question or issue. (Leffel v. Brown, Com. P1., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5). "... the statutory method whereby qualified voters or electors pass on various public matters submitted to them the election of officers, national, state, county, township the passing on various other questions submitted for their determination." (29 C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358). "Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234). "The right to vote may be exercised only on compliance with such statutory requirements as have been set by the legislature." (People ex rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied). In this connection I herein quote the pertinent provisions of the Election Code of 1971: "Sec. 2. Applicability of this Act. All elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code." "Sec 99. Necessity of registration to be entitled to vote. In order that a qualified voter may vote in any regular or special election or in any plebiscite, he must be registered in the permanent list of voters for the city, municipality or municipal district in which he resides: Provided, that no person shall register more than once without first applying for cancellation of his previous registration." (Emphasis supplied). (Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388)

It is stated in Proclamation No. 1102 that the voting was done by the members of citizens assemblies who are 15 years of age or over. Under the provision of Section I of Article V of the 1935 Constitution, the age requirement to be a qualified voter is 21 years or over. But what is more noteworthy is the fact that the voting in the barangays, except in very few instances, was done by the raising of hands by the persons indiscriminately gathered to participate in the voting, where even children below 15 years of age were included. This is a matter of common observation, or of common knowledge, which the Court may take judicial notice of. To consider the votes in the barangays as expressive of the popular will and use them as the basis in declaring whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which is would mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so important a question as to whether the Constitution, which is the supreme law of the land, should be ratified or not, must not be decided by simply gathering people and asking them to raise their hands in answer to the question of whether the vote for or against a proposed Constitution. The election as provided by law should be strictly observed in determining the will of the sovereign people in a democracy. In our Republic, the will of the people must be expressed through the ballot in a manner that is provided by law. It is said that in a democracy, the will of the people is the supreme law. Indeed, the people are sovereign, but the will of the people must be expressed in a manner as the law and the demands a well-ordered society require. The rule of law must prevail even over the apparent will of the majority of the people, if that will had not been expressed, or obtained, in accordance with the law. Under the rule of law, public questions must be decided in accordance with the Constitution and the law. This is specially true in the case of adoption of a constitution or in the ratification of an amendment to the Constitution. The following citations are, to me, very relevant in the effort to determine whether the proposed Constitution of 1972 had been validly ratified, or not: "When it is said that "the people" have the right to alter or amend the constitution, it must not be understood that term necessarily includes all the inhabitants of the state. Since the question of the adoption or rejection of a proposed new constitution or constitutional amendment must be answered a vote, the determination of it rests with those who, by existing constitution, are accorded the right of suffrage. But the qualified electors must be understood in this, as in many other cases, as representing those who have not the right to participate in the ballot. If a constitution should be abrogated and a new one adopted, by the whole mass of people in a state acting through representatives not chosen by the "people" in political sense of the term, but by the general body of the populace, the movement would be extra-legal." (BIack's Constitutional Law, Second Edition, pp. 47-48). "The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority. The people of the Union created a national constitution, and conferred upon it powers of sovereignty on certain subjects, and the people of each State created a State government, to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law." (Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v. Jones, 3 So. 2d. 761, 782). "The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend a constitution, may cure, render innocuous, all or any antecedent failures to observe commands of that Constitution in respect of the formulation or submission of proposed amendments thereto, does not prevail in Alabama, where the doctrine of the stated theory was denied, in obvious effect, by the pronouncement 60 years ago of broad, wholesome constitutional principles in Collier v. Frierson, supra, as quoted in the original opinion, ante. The people themselves are bound by the Constitution; and, being so bound, are powerless, whatever their numbers, to change or thwart its mandates, except through the peaceful means of a constitutional convention, or of an amendment according to the mode therein prescribed, or through the exertion of the original right of revolution. "The Constitution may be set aside by revolution, but it can only be amended in the way it provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et al., 87 So. 375, 385, 387, On Rehearing). "The fact that a majority voted for the amendment, unless the vote was taken as provided by the Constitution, is not sufficient to make a change in that instrument. Whether a proposed amendment has been legally adopted is a judicial question, for the court must uphold and enforce the Constitution as written until it is amended in the way which it provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A. 560;McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104). "Provisions of a constitution regulating its own amendment, ... are not merely directory, but are mandatory; and a strict observance of every substantial mandatory; and a strict observance of every substantial requirement is essential to the validity of the proposed amendment. These provisions are as binding on the people as on the legislature, and the former are powerless by vote of acceptance to give legal sanction to an amendment the submission of which was made in disregard of the limitations contained in the constitution." (16 C.J.S. 35-36. cited in Graham v. Jones, 3 So. 2d 761, 782). "It is said that chaos and confusion in the government affairs of the State will result from the Court's action in declaring the proposed constitutional amendment void. This statement is grossly and manifestly inaccurate. If confusion and chaos should ensue, it will not be due to the action of the Court but will be the result of the failure of the drafters joint resolution to observe, follow and obey the plain essential provisions of the Constitution. Furthermore, to say that, the Court disregards its sworn duty to enforce the Constitution, chaos and confusion

will result, is an inherently weak argument in favor of the alleged constitutionality of the proposed amendment. It is obvious that, if the Court were to countenance the violations of the sacramental provisions Constitution, those who would thereafter desire to violate it disregard its clear mandatory provisions would resort to the scheme of involving and confusing the affairs of the State then simply tell the Court that it was powerless to exercise one of its primary functions by rendering the proper decree to make the Constitution effective." (Graham v. Jones, 3 So. 2d. 761, 793-794). In our jurisprudence I find an instance where this Court did not allow the will of the majority to prevail, because the requirements of the law were not complied with. In the case of Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of candidacy before the expiration of the period for the filing of the same. However, on October 10, 1947, after the period for the filing of the certificate of candidacy, Monsale withdrew his certificate of candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by withdrawing the withdrawal of certificate of candidacy. The Commission on Elections, November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes cast for Monsale upon the ground that the votes cast for him were stray votes, because he was considered as having no certificate of candidacy. On the other hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the proceedings in the trial court, it appeared that Monsale had obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the decision of the lower court. This Court declared that because Monsale withdrew his certificate of candidacy, his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not restore the effectiveness of his certificate of candidacy, and this Court declared Nico the winner in spite of the fact that Monsale had obtained more votes than he. We have cited this Monsale case to show that the will of the majority of the voters would not be given effect, as declared by this Court, if certain legal requirements have not been complied with in order to render the votes valid and effective to decide the result of an election. And so, in the cases now before this Court, the fact that the voting in the citizens assemblies (barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was reported that 14,976,561 members of the citizens assemblies voted for the adoption as against 743,869 for the rejection, because the votes thus obtained were not in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law mast be upheld. My last observation: One of the valid grounds against the holding of the plebiscite on January 15, 1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people to exercise their right of choice because of the existence of martial law in our country. The same ground holds true as regards to the voting of the barangays on January 10 to 15, 1973. More so, because by General Order No. 20, issued on January 7, 1973, the President of the Philippines ordered "that the provisions of Section 3 of Presidential Decree No. 73 in so far as they allow free public discussion of the proposed constitution, as well as my order of December 17, 1972 temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open debate on the proposed constitution, be suspended in the meantime." It is, therefore, my view that voting in the barangays on January 10, 1973 was not free, and so this is one added reason why the results of the voting in the barangays should not be made the basis for proclamation of the ratification of the proposed Constitution. It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935 Constitution, and so it is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Constitutional Convention should be considered as not yet ratified by the people of this Republic, and so it should not be given force and effect. It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a substantial compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor General maintains that the primary thrust of the provision of Article XV of the 1935 Constitution is that "to be valid, amendments must gain the approval of the majority recognition of the democratic postulate that sovereign resides in the people." It is not disputed that in a democratic sovereignty resides in the people. But the term "people" must be understood in its constitutional meaning, and they are "those persons who are permitted by the Constitution to exercise the elective franchise." 8 Thus, in Section 2 of Article VII of the 1935 Constitution, it is provided that "the President shall hold his office during a term of four years and, together with the Vice-President chosen for the same term, shall be elected by direct vote of the people..." Certainly under that constitutional provision, the "people" who elect directly the President and the Vice-President are no other than the persons who, under the provisions of the same Constitution, are granted the right to vote. In like manner the provision in Section 1 of Article II of the 1935 Constitution which says "Sovereignty resides in the people and all government authority emanates from them", the "people" who exercise the sovereign power are no other than the persons who have the right to vote under the Constitution. In the case of Garchitorena vs. Crescini 9, this Court, speaking through Mr. Justice Johnson, said, "In democracies, the people, combined, represent the sovereign power of the State. Their sovereign authority is expressed through the ballot, of the qualified voters, in duly appointed elections held from time to time, by means of which they choose their officials for definite fixed periods, and to whom they entrust, for the time being, as their representatives, the exercise of the powers of government." In the case of Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice Laurel, said, "As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the modality and form devised, must continue to be the means by which the great reservoir of power must be emptied into the receptacular agencies wrought by the people through their Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority." And in the case of Abanil v. Justice of the Peace of Bacolod, 11 this Court said: "In the scheme of our present republican government, the people are allowed to have a voice therein through the instrumentality of suffrage to be availed of by those possessing certain prescribed qualifications. The people, in clothing a citizen with the elective franchise for the purpose of securing a consistent and perpetual administration of the government they ordain, charge him with the performance of a duty in the nature of a public trust, and in that respect constitute him a representative of the whole people. This duty requires that the privilege thus bestowed exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intelligent zeal for the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that when we talk of sovereign people, what is meant are the people who act through the duly qualified and registered voters who vote during an election that is held as provided in the Constitution or in the law.

The term "election" as used in Section 1 of Article XV of the 1935 Constitution should be construed along with the term "election" as used in the Provisions of Section 4 of the Philippine Independence Act of the Congress of the United States, popularly known as the Tydings-McDuffie Law (Public Act No. 127). Said Section 4 of the Tydings-McDuffie Law provides as follows: Section 4. After the President of the United States certified that the constitution conforms with the provisions of this act, it shall be submitted to the people of the Philippine Islands for their ratification or rejection at an election to he held within months after the date of such certification, on a date to be fixed by the Philippine Legislature at which election, the qualified voters of the Philippine Islands shall have an opportunity to vote directly or against the proposed constitution and ordinances append thereto. Such election shall be held in such manner as may prescribed by the Philippine Legislature to which the return of the election shall be made. The Philippine Legislature shall certify the result to the Governor-General of the Philippine Islands, together with a statement of the votes cast, and a copy of said constitution ordinances. If a majority of the votes cast shall be for the constitution, such vote shall be deemed an expression of the will of the people of the Philippine Independence, and the Governor-General shall, within thirty days after receipt of the certification from the Philippine Legislature, issue a proclamation for the election of officers of the government of the Commonwealth of the Philippine Islands provided for in the Constitution... It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word "election" in Section I Article XV of the 1935 Constitution they had no other idea in mind except the elections that were periodically held in the Philippines for the choice of public officials prior to the drafting of the 1935 Constitution, and also the "election" mentioned in the Independence Act at which "the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or against the proposed constitution..." It is but logical to expect that the framers of the 1935 Constitution would provide a mode of ratifying an amendment to that Constitution similar to the mode of ratifying the original Constitution itself. It is clear therefore, that the ratification or any amendment to the 1935 Constitution could only be done by holding an election, as the term "election" was understood, and practiced, when the 1935 Constitution as drafted. The alleged referendum in the citizens assemblies participated in by persons aged 15 years or more, regardless of whether they were qualified voters or not, voting by raising their hands, and the results of the voting reported by the barrio or ward captain, to the municipal mayor, who in turn submitted the report to the provincial Governor, and the latter forwarding the reports to the Department of Local Governments, all without the intervention of the Commission on Elections which is the constitutional body which has exclusive charge of the enforcement and administration of all laws, relative to the conduct of elections was not only a non-substantial compliance with the provisions of Section 1 of Article XV of the 1935 Constitution but a downright violation of said constitutional provision. It would be indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a substantial compliance with the requirements prescribed in Section 1 of Article XV of the 1935 Constitution. It is further contended by the Solicitor General, that even if the Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution, the fact is that after the President of the Philippines had issued Proclamation No. 1102 declaring that the said proposed Constitution "has been ratified by overwhelming majority of all the votes cast by the members of all the barangays (citizens assemblies) throughout the Philippines and had thereby come into effect" the people have accepted the new Constitution. What appears to me, however, is that practically it is only the officials and employees under the executive department of the Government who have been performing their duties apparently in observance of the provisions of the new Constitution. It could not be otherwise, because the President of the Philippines, who is the head of the executive department, had proclaimed that the new Constitution had come into effect, and his office had taken the steps to implement the provisions of the new Constitution. True it is, that some 92 members of the House of Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed their option to serve in the interim National Assembly that is provided for in Section 2 of Article XVII of the proposed Constitution. It must be noted, however, that of the 15 senators who expressed their option to serve in the interim National Assembly only one them took his oath of office; and of the 92 members of the House of Representatives who opted to serve in the interim National Assembly, only 22 took their oath of office. The fact that only one Senator out of 24, and only 22 Representative out of 110, took their oath of office, is an indication that only a small portion of the members of Congress had manifested the acceptance of the new Constitution. It is in the taking of the oath of office where the affiant says that he swears to "support and defend the Constitution" that the acceptance of the Constitution is made manifest. I agree with counsel petitioners in L-36165 (Gerardo Roxas, et al. v. Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the interim National Assembly did only ex abundante cautela, or by way of a precaution, making sure, that in the event the new Constitution becomes definitely effective and the interim National Assembly convened, they can participate in legislative work in the capacity as duly elected representatives of the people, which otherwise they could not do if they did not manifest their option to serve, and that option had to be made within 30 day from January 17, 1973, the date when Proclamation No. 110 was issued. Of course, if the proposed Constitution does not become effective, they continue to be members of Congress under the 1935 Constitution. Let it be considered that the members of the House of Representatives were elected in 1969 to serve a term which will yet expire on December 31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of some of them will yet expire on December 31, 1973, some on December 31, 1975, and the rest on December 31, 1977. Let if be noted that 9 Senators did not opt to serve in the interim National Assembly, and 18 members of the House of Representatives also did not opt to serve in the interim National Assembly. Neither can it be said that the people have accepted the new Constitution. I cannot, in conscience, accept the reported affirmative votes in the citizens assemblies as a true and correct expression by the people of their approval, or acceptance, of the proposed Constitution. I have my serious doubts regarding the freedom of the people to express their views regarding the proposed Constitution during the voting in the citizens assemblies, and I have also my serious doubts regarding the truthfulness and accuracy of the reports of the voting in the citizens assemblies. This doubt has been engendered in my mind after a careful examination and study of the records of these cases, particularly with respect to the reports of the voting in the citizens assemblies. Perhaps, it may be said that the people, or the inhabitants of this country, have acquiesced to the new Constitution, in the sense that they have continued to live peacefully and orderly under the government that has been existing since January 17, 1973 when it was proclaimed that the new Constitution came into effect. But what could the people do? In the same way that the people have lived under martial law since September 23, 1972, they also have to live under the government as it now exists, and as it has existed since the declaration of martial law on September 21, 1972, regardless of what Constitution is operative whether it is the 1935 Constitution or the new Constitution. Indeed, there is nothing that the people can do under the circumstances actually prevailing in our country today circumstances, known to all, and which I do not consider necessary to state in this opinion. I cannot agree, therefore, with my worthy colleagues in the Court who hold the view that the people have accepted the new Constitution, and that because the people have accepted it, the new Constitution should be considered as in force, regardless of the fact that it was not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not come into effect. I do not say, however, that the proposed Constitution is invalid. To me, the validity of the proposed Constitution is not in issue in the cases before Us. What the petitioners assail is not the validity of the proposed Constitution but the validity of Presidential Proclamation No. 1102 which declares the proposed Constitution as having been ratified and has come into effect. It being my considered view that the ratification of the proposed Constitution, as proclaimed in Proclamation No. 1102,

is not in accordance with the provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and should not be given force and effect. Their proposed Constitution, therefore, should be considered as not yet validly ratified, and so it is not in force. The proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV of the 1935 Constitution. Incidentally, I must state that the Constitution is still in force, and this Court is still functioning under the 1935 Constitution. I sincerely believe that the proposed Constitution may still be submitted to the people in an election or plebiscite held in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we have adverted to in this opinion, this was the mandate of Congress when, on March 16, 1967, it passed Resolution No. 2 calling a convention to propose amendments to the 1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippines has reassured the nation that the government of our Republic since the declaration of martial law is not a revolutionary government, and that he has been acting all the way in consonance with his powers under the Constitution. The people of this Republic has reason to be happy because, according to the President, we still have a constitutional government. It being my view that the 1935 Constitution is still in force, I believe Congress may still convene and pass a law calling for an election at which the Constitution proposed by the 1971 Constitutional Convention will be submitted to the people their ratification or rejection. A plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our people that we still have in our country the Rule of Law and that the democratic system of government that has been implanted in our country by the Americans, and which has become part of our social and political fabric, is still a reality. The views that I have expressed in this opinion are inspired by a desire on my part to bring about stability in democratic and constitutional system in our country. I feel that if this Court would give its imprimatur to the ratification of the proposed Constitution, as announced in Proclamation No. 1102, it being very clear that the provisions of Section 1 of Article XV of the 1935 Constitution had not been complied with, We will be opening the gates for a similar disregard of the Constitution in the future. What I mean is that if this Court now declares that a new Constitution is now in force because the members of the citizens assemblies had approved the said new Constitution, although that approval was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to the Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said proposed amendment is submitted to the people in any manner and what will matter is that a basis is claimed that there was approval by the people. There will not be stability in our constitutional system, and necessarily no stability in our government. As a member of this Court I only wish to contribute my humble efforts to prevent the happening of such a situation in the future. It appearing to me that the announced ratification of the proposed Constitution through the voting in the citizens assemblies is a clear violation of the 1935 Constitution, what I say in this opinion is simply an endeavor on my part to be true to my oath of office to defend and support the 1935 Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, said: Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, and the protection and vindication of popular rights will be safe and secure in their reverential guardianship. I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our land, because, as Justice George Sutherland of the U. S. Supreme Court said: (t)he saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time. I concur fully with the personal views expressed by the Chief Justice in the opinion that he has written in these cases. Along with him, I vote to deny the motion to dismiss and give due course to the petitions in these cases. FERNANDO, J., dissenting: No question more momentous, none impressed with such transcendental significance is likely to confront this Court in the near or distant future as that posed by these petitions. For while the specific substantive issue is the validity of Presidential Proclamation No. 1102, an adverse judgment may be fraught with consequences that, to say the least, are far-reaching in its implications. As stressed by respondents, "what petitioners really seek to invalidate is the new Constitution." 1 Strict accuracy would of course qualify such statement that what is in dispute, as noted in the opinion of the Chief Justice, goes only as far as the validity of its ratification. It could very well be though that the ultimate outcome is not confined within such limit, and this is not to deny that under its aegis, there have been marked gains in the social and economic sphere, but given the premise of continuity in a regime under a fundamental law, which itself explicitly recognizes the need for change and the process for bringing it about, 2 it seems to me that the more appropriate course is this Court to give heed to the plea of petitioners that the most serious attention be paid to their submission that the challenged executive act fails to meet the test of constitutionality. Under the circumstances, with regret and with due respect for the opinion of my brethren, I must perforce dissent. It would follow therefore that the legal position taken by the Chief Justice as set forth with his usual lucidity and thoroughness has, on the whole, my concurrence, subject, of course, to reservations insofar as it contains views and nuances to which I have in the past expressed doubts. Nonetheless, I feel that a brief expression of the reasons for the stand I take would not be amiss. In coping with its responsibility arising from the function of judicial review, this Court is not expected to be an oracle given to utterances of eternal verities, but certainly it is more than just a keen but passive observer of the contemporary scene. It is, by virtue of its role under the separation of powers concept, involved not necessarily as a participant in the formation of government policy, but as an arbiter of its legality. Even then, there is realism in what Lerner did say about the American Supreme Court as "the focal point of a set of dynamic forces which [could play] havoc with the landmarks of the American state and determine the power configuration of the day." 3 That is why there is this caveat. In the United States as here, the exercise of the power of judicial review is conditioned on the necessity that the decision of a case or controversy before it so requires. To repeat, the Justices of the highest tribunal are not, as Justice Frankfurter made clear, "architects of policy. They can nullify the policy of others, they are incapable of fashioning their own solutions for social problems." 4 Nonetheless, as was stressed by Professors Black 5 and Murphy, 6 a Supreme Court by the conclusion it reaches and the decision it renders does not merely check the coordinate branches, but also by its approval stamps with legitimacy the action taken. Thus in affirming constitutional supremacy, the political departments could seek the aid of the judiciary. For the assent it gives to what has been done conduces to its support in a regime where the rule of law holds sway. In discharging such a role, this Court must necessarily take in account not only what the exigent needs of the present demand but what may lie ahead in the unexplored and unknown vistas of the future. It must guard against the pitfall of lack of understanding of the dominant forces at work to seek a better life for all, especially those suffering from the pangs of poverty and disease, by a blind determination to adhere to the status quo. It would be tragic, and a clear case of its being recreant to its trust, if the suspicion can with reason be entertained that its approach amounts merely to a militant vigilantism that is violently opposed to any form of social change. It follows then that it does not suffice that recourse be had only to what passes for scholarship in the law that could be marred by inapplicable erudition and

narrow legalism. Even with due recognition, such factors, however, I cannot, for reasons to be set more lengthily and in the light of the opinion of the Chief Justice, reach the same result as the majority of my brethren. For, in the last analysis, it is my firm conviction that the institution of judicial review speaks too clearly for the point to be missed that official action, even with due allowance made for the good faith that invariably inspires the step taken, has to face the gauntlet of a court suit whenever there is a proper case with the appropriate parties. 1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would seek a dismissal of these petitions. For them, the question raised is political and thus beyond the jurisdiction of this Court. Such an approach cannot be indicted for unorthodoxy. It is implicit in the concept of the rule of law that rights belong to the people and the government possesses powers only. Essentially then, unless such an authority may either be predicated on express or implied grant in the Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its validity. Respondents through Solicitor-General Mendoza would deny our competence to proceed further. It is their view, vigorously pressed and plausibly asserted, that since what is involved is not merely the effectivity of an amendment but the actual coming into effect of a new constitution, the matter is not justiciable. The immediate reaction is that such a contention is to be tested in the light of the fundamental doctrine of separation of powers that it is not only the function but the solemn duty of the judiciary to determine what the law is and to apply it in cases and controversies that call for decision. 7 Since the Constitution pre-eminently occupies the highest rung in the hierarchy of legal norms, it is in the judiciary, ultimately this Tribunal, that such a responsibility is vested. With the 1935 Constitution containing, as above noted, an explicit article on the subject of amendments, it would follow that the presumption to be indulged in is that the question of whether there has been deference to its terms is for this Court to pass upon. What is more, the Gonzales, 8 Tolentino 9 and Planas 10 cases speak unequivocally to that effect. Nor is it a valid objection to this conclusion that what was involved in those cases was the legality of the submission and not ratification, for from the very language of the controlling article, the two vital steps are proposal and ratification, which as pointed out in Dillon v. Gloss, 11 "cannot be treated as unrelated acts, but as succeeding steps in a single endeavor." 12 Once an aspect thereof is viewed as judicial, there would be no justification for considering the rest as devoid of that character. It would be for me then an indefensible retreat, deriving no justification from circumstances of weight and gravity, if this Court were to accede to what is sought by respondents and rule that the question before us is political. On this point, it may not be inappropriate to refer to a separate opinion of mine in Lansang v. Garcia. 13 Thus: "The term has been made applicable to controversies clearly non-judicial and therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its cognizance, as to which there has been a prior legislative or executive determination to which deference must be paid. It has likewise been employed loosely to characterize a suit where the party proceeded against is the President or Congress, or any branch thereof. If to be delimited with accuracy, "political questions" should refer to such as would under the Constitution be decided by the people in their sovereign capacity or in regard to full discretionary authority is vested either in the President or Congress. It is thus beyond the competence of the judiciary to pass upon. Unless clearly falling within the formulation, the decision reached by the political branches whether in the form of a congressional act or an executive order could be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity. It is not to be lost sight of that such a power comes into play if there be an appropriate proceeding that may be filed only after each coordinate branch has acted. Even when the Presidency or Congress possesses plenary powers, its improvident exercise or the abuse thereof, if shown, may give rise to a justiciable controversy. For the constitutional grant of authority is usually unrestricted. There are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise of judicial review could inquire into the question of whether or not either of the two coordinate branches has adhered to what is laid down by the Constitution. The question thus posed is judicial rather than political." 14 The view entertained by Professor Dodd is not too dissimilar. For him such a term "is employed to designate certain types of functions committed to the political organs of government (the legislative and executive departments, or either of them) and not subject to judicial investigation." 15 After a thorough study of American judicial decisions, both federal and state, he could conclude: "The field of judicial nonenforceability is important, but is not large when contrasted with the whole body of written constitutional texts. The exceptions from judicial enforceability fall primarily within the field of public or governmental interests." 16 Nor was Professor Weston's formulation any different. As was expressed by him: "Judicial questions, in what may be thought the more useful sense, are those which the sovereign has set to be decided in the courts. Political questions, similarly, are those which the sovereign has entrusted to the so-called political departments of government or has reserved to be settled by its own extra-governmental action." 17 What appears undeniable then both from the standpoint of Philippine as well as American decisions is the care and circumspection required before the conclusion is warranted that the matter at issue is beyond judicial cognizance, a political question being raised. 2. The submission of respondents on this subject of political question, admittedly one of complexity and importance, deserves to be pursued further. They would derive much aid and comfort from the writings of both Professor Bickel 18 of Yale and Professor Freund 19 of Harvard, both of whom in turn are unabashed admirers of Justice Brandeis. Whatever be the merit inherent in their lack of enthusiasm for a more active and positive role that must be played by the United States Supreme Court in constitutional litigation, it must be judged in the light of our own history. It cannot be denied that from the well nigh four decades of constitutionalism in the Philippines, even discounting an almost similar period of time dating from the inception of American sovereignty, there has sprung a tradition of what has been aptly termed as judicial activism. Such an approach could be traced to the valedictory address before the 1935 Constitutional Convention of Claro M. Recto. He spoke of the trust reposed in the judiciary in these words: "It is one of the paradoxes of democracy that the people at times place more confidence in instrumentalities of the State other than those directly chosen by them for the exercise of their sovereignty." 20 It would thus appear that even then this Court was expected not to assume an attitude of timidity and hesitancy when a constitutional question is posed. There was the assumption of course that it would face up to such a task, without regard to political considerations and with no thought except that of discharging its trust. Witness these words Justice Laurel in an early landmark case, People v. Vera, 21 decided in 1937: "If it is ever necessary for us to make vehement affirmance during this formative period of political history, it is that we are independent of the Executive no less than of the Legislative department of our government independent in the performance of our functions, undeterred by any consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it." 22 The hope of course was that such assertion of independence impartiality was not mere rhetoric. That is a matter more appropriately left to others to determine. It suffices to stake that what elicits approval on the part of our people of a judiciary ever alert to inquire into alleged breaches of the fundamental law is the realization that to do so is merely to do what is expected of it and that thereby there is no invasion of spheres appropriately belonging to the political branches. For it needs to be kept in kind always that it can act only when there is a suit with proper parties before it, wherein rights appropriate for judicial enforcement are sought to be vindicated. Then, too, it does not approach constitutional questions with dogmatism or apodictic certainty nor view them from the shining cliffs of perfection. This is not to say though that it is satisfied with an empiricism untroubled by the search for jural consistency and rational coherence. A balance has to be struck. So juridical realism requires. Once allowance made that for all its care and circumspection this Court manned by human beings fettered by fallibility, nonetheless earnestly and sincerely striving to do right, the public acceptance of its vigorous pursuit of the task of assuring that the Constitution be obeyed is easy to understand. It has not in the past shirked its responsibility to ascertain whether there has been compliance with and fidelity to constitutional requirements. Such is the teaching of a host of cases from Angara v. Electoral Commission 23 to Planas v. Commission on Elections. 24 It should continue to exercise its jurisdiction, even in the face of a plausible but not sufficiently persuasive insistence that the matter before it is political. Nor am I persuaded that the reading of the current drift in American legal scholarship by the Solicitor-General and his equally able associates presents the whole picture. On the question of judicial review, it is not a case of black and white; there are shaded areas. It goes too far, in my view, if the

perspective is one of dissatisfaction, with its overtones of distrust. This expression of disapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legal essays. The Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the literature about judicial review. Many of those who have talked, lectured, and written about the Constitution have been troubled by a sense that judicial review is undemocratic." 25 He went on to state: "Judicial review, they have urged, is an undemocratic shoot on an otherwise respectable tree. It should be cut off, or at least kept pruned and inconspicuous." 26 His view was precisely the opposite. Thus: "The power of constitutional review, to be exercised by some part of the government, is implicit in the conception of a written constitution delegating limited powers. A written constitution would promote discord rather than order in society if there were no accepted authority to construe it, at the least in case of conflicting action by different branches of government or of constitutionally unauthorized governmental action against individuals. The limitation and separation of powers, if they are to survive, require a procedure for independent mediation and construction to reconcile the inevitable disputes over the boundaries of constitutional power which arise in the process of government." 27 More than that, he took pains to emphasize: "Whether another method of enforcing the Constitution could have been devised, the short answer is that no such method developed. The argument over the constitutionality of judicial review has long since been settled by history. The power and duty of the Supreme Court to declare statutes or executive action unconstitutional in appropriate cases is part of the living Constitution. 'The course of constitutional history,' Mr. Justice Frankfurter recently remarked, 'has cast responsibilities upon the Supreme Court which it would be "stultification" for it to evade.' " 28 Nor is it only Dean Rostow who could point Frankfurter, reputed to belong to the same school of thought opposed to judicial activism, if not its leading advocate during his long stay in the United States Supreme Court, as one fully cognizant of the stigma that attaches to a tribunal which neglects to meet the demands of judicial review. There is a statement of similar importance from Professor Mason: "In Stein v. New YorkFrankfurter remarked, somewhat self-consciously perhaps, that the 'duty of deference cannot be allowed imperceptibly to slide into abdication.' " 29 Professor Konefsky, like Dean Rostow, could not accept characterization of judicial review as undemocratic. Thus his study of Holmes and Brandeis, the following appears: "When it is said that judicial review is an undemocratic feature of our political system, it ought also to be remembered that architects of that system did not equate constitutional government with unbridled majority rule. Out of their concern for political stability and security for private rights, ..., they designed a structure whose keystone was to consist of barriers to the untrammeled exercise of power by any group. They perceived no contradiction between effective government and constitutional checks. To James Madison, who may legitimately be regarded as the philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he viewed as the chief problem in erecting a system of free representative government: 'In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.' " 30 There is thus an inevitability to the flowering of judicial review. Could it be that the tone of discontent apparent in the writings of eminent authorities on the subject evince at the most fears that the American Supreme Court might overstep the bounds allotted to the judiciary? It cannot be a denial of the fitness of such competence being vested in judges and of their being called upon to fulfill such a trust whenever appropriate to the decision of a case before them. That is why it has been correctly maintained that notwithstanding the absence of any explicit provision in the fundamental law of the United States Constitution, that distinguished American constitutional historian, Professor Corwin, could rightfully state that judicial review "is simply incidental to the power of courts to interpret the law, of which the Constitution is part, in connection with the decision of cases." 31 This is not to deny that there are those who would place the blame or the credit, depending upon one's predilection, on Marshall's epochal opinion in Marbury v. Madison. 32 Curtis belonged to that persuasion. As he put it: "The problem was given no answer by the Constitution. A hole was left where the Court might drive in the peg of judicial supremacy, if it could. And that is what John Marshall did." 33 At any rate there was something in the soil of American juristic thought resulting in this tree of judicial power so precariously planted by Marshall striking deep roots and showing wonderful vitality and hardiness. It now dominates the American legal scene. Through it, Chief Justice Hughes, before occupying that exalted position, could state in a lecture: "We are under a Constitution, but the Constitution is what the judges say it is ... ." 34 The above statement is more than just an aphorism that lends itself to inclusion in judicial anthologies or bar association speeches. It could and did provoke from Justice Jackson, an exponent of the judicial restraint school of thought, this meaningful query: "The Constitution nowhere provides that it shall be what the judges say it is. How, did it come about that the statement not only could be but could become current as the most understandable comprehensive summary of American Constitutional law?" 35 It is no wonder that Professor Haines could pithily and succinctly sum up the place of the highest American tribunal in the scheme of things in this wise: "The Supreme Court of the United States has come to be regarded as the unique feature of the American governmental system." 36 Let me not be misunderstood. There is here no attempt to close one's eyes to a discernible tendency on the part of some distinguished faculty minds to look askance at what for them may be inadvisable extension of judicial authority. For such indeed is the case as reflected in two leading cases of recent vintage, Baker v. Carr, 37 decided in 1962 and Powell v. MacCormack, 38 in 1969, both noted in the opinion of the Chief Justice. The former disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 about the American Supreme Court declining jurisdiction on the question of apportionment as to do so would cut very deep into the very being of Congress." 40 For him, the judiciary "ought not to enter this political thicket." Baker has since then been followed; it has spawned a host of cases. 41 Powell, on the question of the power of a legislative body to exclude from its ranks a person whose qualifications are uncontested, for many the very staple of what is essentially political, certainly goes even further than the authoritative Philippine decision of Vera v. Avelino, 42 It does look then that even in the United States, the plea for judicial self-restraint, even if given voice by those competent in the field of constitutional law, has fallen on deaf ears. There is in the comments of respondents an excerpt from Professor Freund quoting from one of his essays appearing in a volume published in 1968. It is not without interest to note that in another paper, also included therein, he was less than assertive about the necessity for self-restraint and apparently mindful of the claims of judicial activism. Thus: "First of all, the Court has a responsibility to maintain the constitutional order, the distribution of public power, and the limitations on that power." 43 As for Professor Bickel, it has been said that as counsel for the New York Times in the famous Vietnam papers case, 44 he was less than insistent on the American Supreme Court exercising judicial self-restraint. There are signs that the contending forces on such question, for some an unequal contest, are now quiescent. The fervor that characterized the expression of their respective points of view appears to have been minimized. Not that it is to be expected that it will entirely disappear, considering how dearly cherished are, for each group, the convictions, prejudices one might even say, entertained. At least what once was fitly characterized as the booming guns of rhetoric, coming from both directions, have been muted. Of late, scholarly disputations have been centered on the standards that should govern the exercise of the power of judicial review. In his celebrated Holmes lecture in 1959 at the Harvard Law School, Professor Wechsler advocated as basis for decision what he termed neutral principles of constitutional law. 45 It has brought forth a plethora of law review articles, the reaction ranging from guarded conformity to caustic criticism. 46 There was, to be sure, no clear call to a court in effect abandoning the responsibility incumbent on it to keep governmental agencies within constitutional channels. The matter has been put in temperate terms by Professor Frank thus: "When allowance has been made for all factors, it nevertheless seems to me that the doctrine of political questions ought to be very sharply confined to where the functional reasons justify it and that in a give involving its expansion there should be careful consideration also of the social considerations which may militate against it. The doctrine has a certain specious charm because of its nice intellectualism and because of the fine deference it permits to expertise, to secret knowledge, and to the prerogatives of others. It should not be allowed to grow as a merely intellectual plant." 47 It is difficult for me at least, not to be swayed by appraisal, coming from such impeccable sources of the worth and significance of judicial review in the United States. I cannot resist the conclusion then that the views advanced on this subject by distinguished counsel for petitioners, with Senators Lorenzo M. Taada and Jovito Salonga at the van, rather than the advocacy of the Solicitor-General, possess the greater weight and carry persuasion. So much then for the invocation of the political question principle as a bar to the exercise of our jurisdiction.

3. That brings me to the issue of the validity of the ratification. The crucial point that had to be met is whether Proclamation No. 1102 manifests fidelity to the explicit terms of Article XV. There is, of course, the view not offensive to reason that a sense of the realities should temper the rigidity of devotion to the strict letter of the text to allow deference to its spirit to control. With due recognition of its force in constitutional litigation, 48 if my reading of the events and the process that led to such proclamation, so clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it cannot be confidently asserted that there was such compliance. It would be to rely on conjectural assumptions that did founder on the rock of the undisputed facts. Any other conclusion would, for me, require an interpretation that borders on the strained. So it has to be if one does not lose sight of how the article on amendments is phrased. A word, to paraphrase Justice Holmes may not be a crystal, transparent and unchanged, but it is not, to borrow from Learned Hand, that eminent jurist, a rubber band either. It would be unwarranted in my view then to assert that the requirements of the 1935 Constitution have been met. There are American decisions, 49 and they are not few in number, which require that there be obedience to the literal terms of the applicable provision. It is understandable why it should be thus. If the Constitution is the supreme law, then its mandate must be fulfilled. No evasion is tolerated. Submission to its commands can be shown only if each and every word is given meaning rather than ignored or disregarded. This is not to deny that a recognition conclusive effect attached to the electorate manifesting its will to vote affirmatively on the amendments proposed poses an obstacle to the judiciary being insistent on the utmost regularity. Briefly stated, substantial compliance is enough. A great many American State decisions may be cited in support of such a doctrine. 50 Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be misread, so that this Court is called upon to give meaning and perspective to what could be considered words of vague generality, pregnant with uncertainty, still whatever obscurity it possesses is illumined when the light of the previous legislation is thrown on it. In the first Commonwealth Act, 51 submitting to the Filipino people for approval or disapproval certain amendments to the original ordinance appended to the 1935 Constitution, it was made that the election for such purpose was to "be conducted in conformity with the provisions of the Election Code insofar as the same may be applicable." 52 Then came the statute, 53 calling for the plebiscite on the three 1940 amendments providing for the plebiscite on the three 1930 amendments providing for a bicameral Congress or a Senate and a House of Representatives to take the place of a unicameral National Assembly, 54 reducing the term of the President to four years but allowing his re-election with the limitation that he cannot serve more than eight consecutive years, 55and creating an independent Commission on Elections. 56 Again, it was expressly provided that the election "shall be conducted in conformity with the provisions of the Election Code in so far as the same may be applicable." 57The approval of the present parity amendment was by virtue of a Republic Act 58 which specifically made applicable the then Election Code. 59 There is a similar provision in the legislation, 60 which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an increase in the membership of the House of Representatives a maximum of one hundred eighty and assured the eligibility of senators and representatives to become members of such constituent body without forfeiting their seats, as proposed amendments to be voted on in the 1967 elections. 61 That is the consistent course of interpretation followed by the legislative branch. It is most persuasive, if not controlling. The restraints thus imposed would set limits to the Presidential action taken, even on the assumption that either as an agent of the Constitutional Convention or under his martial law prerogatives, he was not devoid of power to specify the mode of ratification. On two vital points, who can vote and how they register their will, Article XV had been given a definitive construction. That is why I fail to see sufficient justification for this Court affixing the imprimatur of its approval on the mode employed for the ratification of the revised Constitution as reflected in Proclamation No. 1102. 4. Nor is the matter before us solely to be determined by the failure to comply with the requirements of Article XV. Independently of the lack of validity of the ratification of the new Constitution, if it be accepted by the people, in whom sovereignty resides according to the Constitution, 62 then this Court cannot refuse to yield assent to such a political decision of the utmost gravity, conclusive in its effect. Such a fundamental principle is meaningless if it does not imply, to follow Laski, that the nation as a whole constitutes the "single center of ultimate reference," necessarily the possessor of that "power that is able to resolve disputes by saying the last word." 63 If the origins of the democratic polity enshrined in the 1935 Constitution with the declaration that the Philippines is a republican state could be traced back to Athens and to Rome, it is no doubt true, as McIver pointed out, that only with the recognition of the nation as the separate political unit in public law is there the juridical recognition of the people composing it "as the source of political authority." 64 From them, as Corwin did stress, emanate "the highest possible embodiment of human will," 65 which is supreme and must be obeyed. To avoid any confusion and in the interest of clarity, it should be expressed in the manner ordained by law. Even if such is not the case, however, once it is manifested, it is to be accepted as final and authoritative. The government which is merely an agency to register its commands has no choice but to submit. Its officials must act accordingly. No agency is exempt such a duty, not even this Court. In that sense, the lack of regularity in the method employed to register its wishes is fatal in its consequences. Once the fact of acceptance by people of a new fundamental law is made evident, the judiciary is left with no choice but to accord it recognition. The obligation to render it obeisance falls on the courts as well. There are American State decisions that enunciate such a doctrine. While certainly not controlling, they are not entirely bereft of persuasive significance. In Miller v. Johnson, 66 decided in 1892, it was set forth in the opinion of Chief Justice Holt that on May 3, 1890, an act was passed in Kentucky, providing for the calling of a convention for the purpose of framing a new constitution and the election of delegates. It provided that before any form of constitution made by them should become operative, it should be submitted to the vote of the state and ratified by a majority of those voting. The constitution then in force authorized the legislature, the preliminary steps having been taken, to call a convention "for the purpose of readopting, amending, or changing" it contained no provision giving the legislature the power to require a submission of its work to a vote of the people. The convention met in September, 1890. By April, 1891, it completed a draft of a constitution, submitted it to a popular vote, and then adjourned until September following. When the convention reassembled, the delegates made numerous changes in instrument. As thus amended, it was promulgated by the convention of September 28, 1891, as the new constitution. An action was brought to challenge its validity. It failed in the lower court. In affirming such judgment dismissing the action, Chief Justice Holt stated: "If a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This would be revolution, and this the courts of the existing government must resist until they are overturned by power, and a new government established. The convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution, and are now daily doing so. ... While the judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and also because; in times of great popular excitement, it is usually their last resort, yet it should at the same time be careful not to overstep the proper bounds of its power, as being perhaps equally dangerous; and especially where such momentous results might follow as would be likely in this instance, if the power of the judiciary permitted, and its duty requires, the overthrow of the work of the convention." 67 In Taylor v. Commonwealth, 68 a 1903 decision, it was contended that the Virginia Constitution reclaimed in 1902 is invalid as it was ordained and promulgated by the convention without being submitted for ratification or rejection by the people. The Court rejected such a view. As stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordained and proclaimed by a convention duly called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of the convention has been recognized, accepted, and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its provisions; and the people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to the extent of thousands throughout the state, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States. The Constitution having been thus

acknowledged and accepted by the office administering the government and by the people of the state, and there being no government in existence under the Constitution of 1869 opposing or denying its validity, we have no difficulty in holding that the Constitution in question, which went into effect at noon on the 10th day of July, 1902, is the only rightful, valid, and existing Constitution of this state, and that to it all the citizens of Virginia owe their obedience and loyal allegiance." 69 It cannot be plausibly asserted then that premises valid in law are lacking for the claim that the revised Constitution has been accepted by the Filipino people. What is more, so it has been argued, it is not merely a case of its being implied. Through the Citizens Assemblies, there was a plebiscite with the result as indicated in Proclamation No. 1102. From the standpoint of respondents then, they could allege that there was more than just mere acquiescence by the sovereign people. Its will was thus expressed formally and unmistakably. It may be added that there was nothing inherently objectionable in the informal method followed in ascertaining its preference. Nor is the fact that Filipinos of both sexes above the age of fifteen were given the opportunity to vote to be deplored. The greater the base of mass participation, the more there is fealty to the democratic concept. It does logically follow likewise that such circumstances being conceded, then no justifiable question may be raised. This Court is to respect what had thus received the people's sanction. That is not for me though whole of it. Further scrutiny even then is not entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had as to whether such indeed was the result. This is no more than what the courts do in election cases. There are other factors to bear in mind. The fact that the President so certified is well-nigh conclusive. There is in addition the evidence flowing from the conditions of peace and stability. There thus appears to be conformity to the existing order of things. The daily course of events yields such a conclusion. What is more, the officials under the 1935 Constitution, including practically all Representatives and a majority of the Senators, have signified their assent to it. The thought persists, however, that as yet sufficient time has not elapsed to be really certain. Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment of popular will did take place during a period of martial law. It would have been different had there been that freedom of debate with the least interference, thus allowing a free market of ideas. If it were thus, it could be truly said that there was no barrier to liberty of choice. It would be a clear-cut decision either way. One could be certain as to the fact of the acceptance of the new or of adherence to the old. This is not to deny that votes are cast by individuals with their personal concerns uppermost in mind, worried about their immediate needs and captive to their existing moods. That is inherent in any human institution, much more so in a democratic polity. Nor is it open to any valid objection because in the final analysis the state exists for the individuals who in their collectivity compose it. Whatever be their views, they are entitled to respect. It is difficult for me, however, at this stage to feel secure in the conviction that they did utilize the occasion afforded to give expression to what was really in their hearts. This is not to imply that such doubt could not be dispelled by evidence to the contrary. If the petitions be dismissed however, then such opportunity is forever lost. 5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed brethren who vote for the dismissal of these petitions. I cannot yield an affirmative response to the plea of respondents to consider the matter closed, the proceedings terminated once and for all. It is not an easy decision to reach. It has occasioned deep thought and considerable soul-searching. For there are countervailing considerations that exert a compulsion not easy to resist. It can be asserted with truth, especially in the field of social and economic rights, that with the revised Constitution, there is an auspicious beginning for further progress. Then too it could resolve what appeared to be the deepening contradictions of political life, reducing at times governmental authority to near impotence and imparting a sense of disillusionment in democratic processes. It is not too much to say therefore that there had indeed been the revision of a fundamental law to vitalize the very values out of which democracy grows. It is one which has all the earmarks of being responsive to the dominant needs of the times. It represents an outlook cognizant of the tensions of a turbulent era that is the present. That is why for some what was done represented an act of courage and faith, coupled with the hope that the solution arrived at is a harbinger of a bright and rosy future. It is such a comfort then that even if my appraisal of the situation had commanded a majority, there is not, while these lawsuits are being further considered, the least interference, with the executive department. The President in the discharge of all his functions is entitled to obedience. He remains commander-in-chief with all the constitutional powers it implies. Public officials can go about their accustomed tasks in accordance with the revised Constitution. They can pursue even the tenor of their ways. They are free to act according to its tenets. That was so these past few weeks, even petitions were filed. There was not at any time any thought of any restraining order. So it was before. That is how things are expected to remain even if the motions to dismiss were not granted. It might be asked though, suppose the petitions should prevail? What then? Even so, the decision of this Court need not be executory right away. Such a disposition of a case before this Court is not novel. That was how it was done in the Emergency Powers Act controversy. 70 Once compliance is had with the requirements of Article XV of the 1935 Constitution, to assure that the coming force of the revised charter is free from any taint of infirmity, then all doubts are set at rest. For some, to so view the question before us is to be caught in a web of unreality, to cherish illusions that cannot stand the test of actuality. What is more, it may give the impression of reliance on what may, for the practical man of affairs, be no more than gossamer distinctions and sterile refinements unrelated to events. That may be so, but I find it impossible to transcend what for me are the implications of traditional constitutionalism. This is not to assert that an occupant of the bench is bound to apply with undeviating rigidity doctrines which may have served their day. He could at times even look upon them as mere scribblings in the sands to be washed away by the advancing tides of the present. The introduction of novel concepts may be carried only so far though. As Cardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains." 71 Moreover what made it difficult for this Court to apply settled principles, which for me have not lost their validity, is traceable to the fact that the revised Constitution was made to take effect immediately upon ratification. If a period of time were allowed to elapse precisely to enable the judicial power to be exercised, no complication would have arisen. Likewise, had there been only one or two amendments, no such problem would be before us. That is why I do not see sufficient justification for the orthodoxies of constitutional law not to operate. Even with full realization then that the approach pursued is not all that it ought to have been and the process of reasoning not without its shortcomings, the basic premises of a constitutional democracy, as I understand them and as set forth in the preceding pages, compel me to vote the way I did. TEEHANKEE, J., dissenting: The masterly opinion of the Chief Justice wherein he painstakingly deals with the momentous issues of the cases at bar in all their complexity commands my concurrence. I would herein make an exposition of the fundamental reasons and considerations for my stand.

The unprecedented and precedent-setting issue submitted by petitioners for the Court's resolution is the validity and constitutionality of Presidential Proclamation No. 1102 issued on January 17, 1973, certifying and proclaiming that the Constitution proposed by the 1971 Constitutional Convention "has been ratified by an overwhelming majority of all the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect." More specifically, the issue submitted is whether the purported ratification of the proposed Constitution by means of the Citizens Assemblies has substantially complied with the mandate of Article XV of the existing Constitution of 1935 that duly proposed amendments thereto, in toto or parts thereof, "shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the peoplefor their ratification." 1 A necessary corollary issue is whether the purported ratification of the proposed Constitution as signed on November 30, 1972 by the 1971 Constitutional Convention may be said also to have substantially complied with its own mandate that "(T)his Constitution shall take immediately upon its ratification by a majority of the votes cast in aplebiscite called for the purpose and except as herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five and all amendments thereto." 2 Respondents contend that "(A)lthough apparently what is sought to be annulled is Proclamation No. 1102, what petitioners really seek to invalidate is the new Constitution", and their actions must be dismissed, because: "the Court may not inquire into the validity of the procedure for ratification" which is "political in character" and that "what is sought to be invalidated is not an act of the President but of the people; "(T)he fact of approval of the new Constitution by an overwhelming majority of the votes cast asdeclared and certified in Proclamation No. 1102 is conclusive on the courts; "Proclamation No. 1102 was issued by the President in the exercise of legislative power under martial law. ... Alternatively, or contemporaneously, he did so as "agent" of the Constitutional Convention;" "alleged defects, such as absence of secret voting, enfranchisement of persons less than 21 years, non supervision (by) the Comelec are matters not required by Article XV of the 1935 Constitution"; (sic) "after ratification, whatever defects there might have been in the procedure are overcome andmooted (and muted) by the fact of ratification"; and "(A)ssuming finally that Article XV of the 1935 Constitution was not strictly followed, the ratification of the new Constitution must nonetheless be respected. For the procedure outlined in Article XV was not intended to be exclusive of other procedures, especially one which contemplates popular and direct participation of the citizenry ... ." 3 To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102 would really be "invalidating the new Constitution", the terms and premises of the issues have to be defined. Respondents themselves assert that "Proclamation No. 1102 ... is plainly merely declaratory of the fact that the 1973 Constitution has been ratified and has come into force. 4 The measure of the fact of ratification is Article XV of the 1935 Constitution. This has been consistently held by the Court in the Gonzales: 5 and Tolentino 6 cases. In the Tolentino case, this Court emphasized "that the provisions of Section 1 of Article XV of the Constitution, dealing with the procedure or manner of amending the fundamental law are binding upon the Convention and the other departments of the government. It must be added that ... they are no less bindingupon the people." 7 In the same Tolentino case, this Court further proclaimed that "as long as any amendment is formulated and submitted under the aegis of the present Charter, any proposal for such amendment which is not in conformity with the letter, spirit and intent of the Charter for effecting amendments, cannot receive the sanction of this Court." 8 As continues to be held by a majority of this Court, proposed amendments to the Constitution "should be ratified in only one way, that is, in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters" 9 and under the supervision of the Commission on Elections. 10 Hence, if the Court declares Proclamation 1102 null and void because on its face, the purported ratification of the proposed Constitution has not faithfully nor substantially observed nor complied with the mandatory requirements of Article XV of the (1935) Constitution, it would not be "invalidating" the proposed new Constitution but would be simply declaring that the announced fact of ratification thereof by means of the Citizens Assemblies referendums does not pass the constitutional test and that the proposed new Constitution has not constitutionally come into existence. Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory" of the disputed fact of ratification, they cannot assume the very fact to be established and beg the issue by citing the self-same declaration as proof of the purported ratification therein declared.

What complicates the cases at bar is the fact that the proposed 1972 Constitution was enforced as having immediately taken effect upon the issuance on January 17, 1973 of Proclamation 1102 and the question of whether "confusion and disorder in government affairs would (not) result" from a judicial declaration of nullity of the purported ratification is raised by the Solicitor-General on behalf of respondents. A comparable precedent of great crisis proportions is found in the Emergency Powers cases, 11 wherein the Court in its Resolution of September 16, 1949 after judgment was initially not obtained on August 26, 1949 for lack of the required six (6) votes, finally declared in effect that the pre-war emergency powers delegated by Congress to the President, under Commonwealth Act 671 in pursuance of Article VI, section 26 of the Constitution, had ceased and became inoperative at the latest in May, 1946 when Congress met in its first regular session on May 25, 1946. Then Chief Justice Manuel V. Moran recited the great interests and important rights that had arisen under executive orders "issued in good faith and with the best of intentions by three successive Presidents, and some of them may have already produced extensive effects on the life of the nation" in the same manner as may have arisen under the bona fide acts of the President now in the honest belief that the 1972 Constitution had been validly ratified by means of the Citizens Assemblies referendums and indicated the proper course and solution therefor, which were duly abided by and confusion and disorder as well as harm to public interest and innocent parties thereby avoided as follows: Upon the other hand, while I believe that the emergency powers had ceased in June 1945, I am not prepared to hold that all executive orders issued thereafter under Commonwealth Act No. 671, are per se null and void. It must be borne in mind that these executive orders had been issued in good faith and with the best of intentions by three successive Presidents, and some of them may have already produced extensive effects in the life of the nation. We have, for instance, Executive Order No. 73, issued on November 12, 1945, appropriating the sum of P6,750,000 for public works; Executive Order No. 86, issued on January 7, 1946, amending a previous order regarding the organization of the Supreme Court ; Executive Order No. 89, issued on January 1, 1946, reorganizing Courts of First Instance; Executive Order No. 184, issued on November 19, 1948, controlling rice and palay to combat hunger; and other executive orders appropriating funds for other purposes. The consequences of a blanket nullification of all these executive orders will be unquestionably serious and harmful. And I hold that before nullifying them, other important circumstances should be inquired into, as for instance, whether or not they have been ratified by Congress expressly or impliedly, whether their purposes have already been accomplished entirely or partially, and in the last instance, to what extent; acquiescence of litigants; de facto officers; acts and contracts of parties acting in good faith; etc. It is my opinion that each executive order must be viewed in the light of its peculiar circumstances, and, if necessary and possible, nullifying it, precautionary measures should be taken to avoid harm to public interest and innocent parties. 12 Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and Guerrero petitions holding null and void the executive orders on rentals and export control but to defer judgment on the Rodriguez and Barredo petitions for judicial declarations of nullity of the executive orders appropriating the 1949-1950 fiscal year budget for the government and P6 million for the holding of the 1949 national elections. After rehearsing, he further voted to also declare null and void the last two executive orders appropriating funds for the 1949 budget and elections, completing the "sufficient majority" of six against four dissenting justices "to pronounce a valid judgment on that matter." 13 Then Chief Justice Moran, who penned the Court's majority resolution, explained his vote for annulment despite the great difficulties and possible "harmful consequences" in the following passage, which bears re-reading: However, now that the holding of a special session of Congress for the purpose of remedying the nullity of the executive orders in question appears remote and uncertain, I am compelled to, and do hereby, give my unqualified concurrence in the decision penned by Mr. Justice Tuason declaring that these two executive orders were issued without authority of law. While in voting for a temporary deferment of the judgment I was moved by the belief that positive compliance with the Constitution by the other branches of the Government, which is our prime concern in all these cases, would be effected, and indefinite deferment will produce the opposite result because it would legitimize a prolonged or permanent evasion of our organic law. Executive orders which are, in our opinion, repugnant to the Constitution, would be given permanent life, opening the way or practices which may undermine our constitutional structure. The harmful consequences which, as I envisioned in my concurring opinion, would come to pass should the said executive orders be immediately declared null and void are still real. They have not disappeared by reason of the fact that a special session of Congress is not now forthcoming. However, the remedy now lies in the hands of the Chief Executive and of Congress, for the Constitution vests in the former the power to call a special session should the need for one arise, and in the latter, the power to pass a valid appropriations act. That Congress may again fail to pass a valid appropriations act is a remote possibility, for under the circumstances it fully realizes its great responsibility of saving the nation from breaking down; and furthermore, the President in the exercise of his constitutional powers may, if he so desires, compel Congress to remain in special session till it approves the legislative measures most needed by the country. Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent way of life in this country, if each of the great branches of the Government, within its own allocated sphere, complies with its own constitutional duty, uncompromisingly and regardless of difficulties. Our Republic is still young, and the vital principles underlying its organic structure should be maintained firm and strong, hard as the best of steel, so as to insure its growth and development along solid lines of a stable and vigorous democracy. 14 The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the rental and export control executive orders) likewise observed that "(T)he truth is that under our concept of constitutional government, in times of extreme perils more than in normal circumstances 'the various branches, executive, legislative, and judicial,' given the ability to act, are called upon 'to perform the duties discharge the responsibilities committed to respectively.' " 15

It should be duly acknowledged that the Court's task of discharging its duty and responsibility has been considerably lightened by the President's public manifestation of adherence to constitutional processes and of working within the proper constitutional framework as per his press conference of January 20,1973, wherein he stated that "(T)he Supreme Court is the final arbiter of the Constitution. It can and will probably determine the validity of this Constitution. I did not want to talk about this because actually there is a case pending before the Supreme Court. But suffice it to say that I recognize the power of the Supreme Court. With respect to appointments, the matter falls under a general provision which authorizes the Prime Minister to appoint additional members to the Supreme Court. Until the matter of the new Constitution is decided, I have no intention of utilizing that power." 16 Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that the questions of whether the submission of the proposed constitutional amendment of the State Constitution providing for an elective, instead of an appointive, judiciary and whether the proposition was in fact adopted, were justifiable and not political questions, we may echo the words therein of Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution. We could not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the particular instance in which we are now acting, our duty to know what the Constitution of the state is, and in accordance with our oaths to support and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but one which, like all others, must be discharged." 17 In confronting the issues at bar, then, with due regard for my colleagues' contrary views, we are faced with the hard choice of maintaining a firm and strict perhaps, even rigid stand that the Constitution is a "superior paramount law, unchangeable by ordinary means" save in the particular mode and manner prescribed therein by the people, who, in Cooley's words, so "tied up (not only) the hands of their official agencies, but their own hands as well" 18 in the exercise of their sovereign will or a liberal and flexible stand that would consider compliance with the constitutional article on the amending process as merely directory rather than mandatory. The first choice of a strict stand, as applied to the cases at bar, signifies that the Constitution may be amended in toto or otherwise exclusively "by approval by a majority of the votes cast an election at which the amendments are submitted to the people for their ratification", 19 participated in only by qualified and duly registered voters twenty-one years of age or over 20 and duly supervised by the Commission on Elections, 21 in accordance with the cited mandatory constitutional requirements. The alternative choice of a liberal stand would permit a disregard of said requirements on the theory urged by respondents that "the procedure outlined in Article XV was not intended to be exclusive of other procedures especially one which contemplates popular and direct participation of the citizenry", 22 that the constitutional age and literacy requirements and other statutory safeguards for ascertaining the will of the majority of the people may likewise be changed as "suggested, if not prescribed, by the people (through the Citizens Assemblies) themselves", 23 and that the Comelec is constitutionally "mandated to oversee ... elections (of public officers) andnot plebiscites." 24 To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case of Marbury vs. Madison 25 the U.S. Supreme Court's power of judicial review and to declare void laws repugnant to the Constitution, there is no middle ground between these two alternatives. As Marshall expounded it: "(T)he Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act, contrary to the Constitution, is not law; if the latter part be true, then written constitutions are absurd attempts on the part of a people, to limit a power, in its own nature, illimitable." As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936 landmark case of Angara vs. Electoral Commission, 26 "(T)he Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations of good government and restrictions embodied in our Constitution are real as they should be in any living Constitution." Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments ... but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and guarantees to them." II Marshall was to utter much later in the equally historic 1819 case of McCulloch vs. Maryland 27 the "climactic phrase," 28 "we must never forget that it is a constitution we are expounding," termed by Justice Frankfurter as "the single most important utterance in the literature of constitutional law most important because most comprehensive and comprehending." 29 This enduring concept to my mind permeated to this Court's exposition and rationale in the hallmark case of Tolentino, wherein we rejected the contentions on the Convention's behalf "that the issue ... is a political question and that the Convention being a legislative body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the control of Congress and the Courts." 30 This Court therein made its unequivocal choice of strictly requiring faithful (which really includes substantial) compliance with the mandatory requirements of the amending process. 1. In denying reconsideration of our judgment of October 16, 1971 prohibiting the submittal in an advance election of 1971 Constitutional Convention's Organic Resolution No. 1 proposing to amend Article V, section 1 of the Constitution by lowering the voting age to 18 years (vice 21 years) 30a "without prejudice to other amendments that will be proposed in the future ... on other portions of the amended section", this Court stated that "the constitutional provision in question (as proposed) presents no doubt which may be resolved in favor of respondents and intervenors. We do not believe such doubt can exist only because it is urged that the end sought to be achieved is to be desired. Paraphrasing no less than the President of Constitutional Convention of 1934, Claro M. Recto, let those who would put aside, invoking grounds at best controversial, any mandate of the fundamental law purportedly in order to attain some laudable objective bear in mind that someday somehow others with purportedly more laudable objectives may take

advantage of the precedent and continue the destruction of the Constitution, making those who laid down the precedent of justifying deviations from the requirements of the Constitution the victims of their own folly." 31 2. This Court held in Tolentino that: ... as to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now We hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV. This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy of the people for deliberation and study. It is obvious that correspondingly,any amendment of the Constitution is of no less importance than the whole Constitution itself, and perforce must be conceived and prepared with as much care and deliberation. From the very nature of things, the drafters of an original constitution, as already observed earlier, operate without any limitations, restraints or inhibitions save those that they may impose upon themselves. This is not necessarily true of subsequent conventions called to amend the original constitution. Generally, the framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but more importantly, because written constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less stringent, made so by the people themselves, in regard to the process of their amendment. And when such limitations or conditions are so incorporated in the original constitution, it does not lie in the delegates of any subsequent convention to claim that they may ignore and disregard such conditions because they are powerful and omnipotent as their original counterparts. 32 3. This Court in Tolentino likewise formally adopted the doctrine of proper submission first advanced in Gonzales vs. Comelec 33, thus: We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for anintelligent appraisal of the nature of amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. In the context of the present state of things, where the Convention hardly started considering the merits of hundreds, if not thousands, proposals to amend the existing Constitution, to present to people any single proposal or a few of them cannot comply with this requirement. We are of the opinion that the present Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election" wherein the people are in the dark as to frame of reference they can base their judgment on. We reject the rationalization that the present Constitution is a possible frame of reference, for the simple reason that intervenors themselves are stating the sole purpose of the proposed amendment is to enable the eighteen year olds to take part in the election for the ratification of the Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the language of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, 'no proper submission.' " 34 4. Four other members of the Court 35 in a separate concurrence in Tolentino, expressed their "essential agreement" with Justice Sanchez' separate opinion in Gonzales on the need for "fair submission (and) intelligent rejection" as "minimum requirements that must be met in order that there can be a proper submission to the people of a proposed constitutional amendment" thus: ... amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word "submitted" can only mean that the government, within its maximum capabilities, should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For as we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection. 36 They stressed further the need for undivided attention, sufficient information and full debate, conformably to the intendment of Article XV, section 1 of the Constitution, in this wise: A number of doubts or misgivings could conceivably and logically assail the average voter. Why should the voting age be lowered at all, in the first place? Why should the new voting age be precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-year old, so that there is no need of an educational qualification to entitle him to vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed amendment is voted down by the people, will the Constitutional Convention insist on the said amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having this particular proposed amendment ratified at this particular time? Do some of the members of the Convention have future political plans which they want to begin to subserve by the approval this year of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should not also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to compulsory military service under the colors? Will the contractual consent be reduced to 18 years? If I vote against the amendment, will I not be unfair to my own child who will be 18 years old, come 1973?

The above are just samplings from here, there and everywhere from a domain (of searching questions) the bounds of which are not immediately ascertainable. Surely, many more questions can be added to the already long litany. And the answers cannot except as the questions are debated fully, pondered upon purposefully, and accorded undivided attention. Scanning the contemporary scene, we say that the people are not, and by election time will not be, sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment. They have not been afforded ample time to deliberate thereon conscientiously. They have been and are effectively distracted from afull and dispassionate consideration of the merits and demerits of the proposed amendment by their traditional pervasive involvement in local elections and politics. They cannot thus weigh in tranquility the need for and the wisdom proposed amendment. 37 5. This Court therein dismissed the plea of disregarding mandatory requirements of the amending process "in favor of allowing the sovereign people to express their decision on the proposed amendments" as "anachronistic in the real constitutionalism and repugnant to the essence of the rule of law," in the following terms: ... The preamble of the Constitution says that the Constitution has been ordained by the 'Filipino people, imploring the aid of Divine Providence.' Section 1 of Article XV is nothing than a part of the Constitution thusordained by the people. Hence, in construing said section, We must read it as if the people had said, 'This Constitution may be amended, but it is our will that the amendment must be proposed and submitted to Us for ratification only in the manner herein provided.' ... Accordingly, the real issue here cannot be whether or not the amending process delineated by the present Constitution may be disregarded in favor of allowing the sovereign people to express their decision on the proposed amendments, if only because it is evident that the very idea of departing from the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of law; rather, it is whether or not the provisional nature of the proposed amendment and the manner of its submission to the people for ratification or rejection conform with the mandate of the peoplethemselves in such regard, as expressed in, the Constitution itself. 38 6. This Court, in not heeding the popular clamor, thus stated its position: "(I)t would be tragic and contrary to the plain compulsion of these perspectives, if the Court were to allow itself in deciding this case to be carried astray by considerations other than the imperatives of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger measure than when it binds other departments of the government or any other official or entity, the Constitution imposes upon the Court the sacred duty to give meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate cases with the proper parties and by striking down any act violative thereof. Here, as in all other cases, We are resolved to discharge that duty. 39 7. The Chief Justice, in his separate opinion in Tolentino concurring with this Court's denial of the motion for reconsideration, succinctly restated this Court's position on the fundamentals, as follows: On the premature submission of a partial amendment proposal, with a "temporary provisional or tentative character": "... a partial amendment would deprive the voters of the context which is usually necessary for them to make a reasonably intelligent appraisal of the issue submitted for their ratification or rejection. ... Then, too, the submission to a plebiscite of a partial amendment, without adefinite frame of reference, is fraught with possibilities which may jeopardize the social fabric. For one thing, it opens the door to wild speculations. It offers ample opportunities for overzealous leaders and members of opposing political camps to unduly exaggerate the pros and cons of the partial amendment proposed. In short, it is apt to breed false hopes and create wrong impressions. As a consequence, it is bound to unduly strain the people's faith in the soundness and validity of democratic processes and institutions. On the plea to allow submission to the sovereign people of the "fragmentary and incomplete" proposal, although inconsistent with the letter and spirit of the Constitution: "The view, has, also, advanced that the foregoing considerations are not decisive on the issue before Us, inasmuch as thepeople are sovereign, and the partial amendment involved in this case is being submitted to them. The issue before Us is whether or not said partial amendment may be validly submitted to the people for ratification "in a plebiscite coincide with the local elections in November 1971," and this particular issue will not be submitted to the people. What is more, the Constitution does not permit its submission to the people. The question sought to be settled in the scheduled plebiscite is whether or not the people are in favor of the reduction of the voting age. On a "political" rather than "legalistic" approach: "Is this approach to the problem too "legalistic?" This term has possible connotations. It may mean strict adherence to the law, which in the case at bar is the Supreme Law of the land. On point, suffice it to say that, in compliance with the specific man of such Supreme Law, the members of the Supreme Court taken the requisite "oath to support and defend the Constitution." ... Then, again, the term "legalistic" may be used to suggest inversely that the somewhat strained interpretation of the Constitution being urged upon this Court be tolerated or, at least, overlooked, upon the theory that the partial amendment on voting age is badly needed and reflects the will of the people, specially the youth. This course of action favors, in effect, adoption of apolitical approach, inasmuch as the advisability of the amendment and an appraisal of the people's feeling thereon political matters. In fact, apart from the obvious message of the mass media, and, at times, of the pulpit, the Court has been literally bombarded with scores of handwritten letters, almost all of which bear the penmanship and the signature of girls, as well as letterhead of some sectarian educational institutions, generally stating that the writer is 18 years of age and urging that she or he be allowed to vote. Thus, the pressure of public opinion has brought to bear heavily upon the Court for a reconsideration of its decision in the case at bar. As above stated, however, the wisdom of the amendment and the popularity thereof are political questions beyond our province. In fact, respondents and the intervenors originally maintained that We have no jurisdiction to entertain the petition herein, upon the ground that the issue therein raised is a political one. Aside from the absence of authority to pass upon political question, it is obviously improper and unwise for the bench to develop into such questions owing to the danger of getting involved in politics, more likely of a partisan nature, and, hence, of impairing the image and the usefulness of courts of justice as objective and impartial arbiters of justiciable controversies.

Then, too, the suggested course of action, if adopted, would constitute a grievous disservice to the people and the very Convention itself. Indeed, the latter and the Constitution it is in the process of drafting stand essentially for the Rule of Law. However, as the Supreme Law of the land, a Constitution would not be worthy of its name, and the Convention called upon to draft it would be engaged in a futile undertaking, if we did not exact faithful adherence to the fundamental tenets set forth in the Constitution and compliance with its provisions were not obligatory. If we, in effect, approved, consented to or even overlooked a circumvention of said tenets and provisions, because of the good intention with which Resolution No. 1 is animated, the Court would thereby become theJudge of the good or bad intentions of the Convention and thus be involved in a question essentially political in nature. This is confirmed by the plea made in the motions for reconsideration in favor of the exercise of judicial statesmanship in deciding the present case. Indeed, "politics" is the word commonly used to epitomize compromise, even with principles, for the sake of political expediency or the advancement of the bid for power of a given political party. Upon the other hand, statesmanship is the expression usually availed of to refer to high politics or politics on the highest level. In any event, politics, political approach, political expediency and statesmanship are generally associated, and often identified, with the dictum that " the end justifies the means." I earnestly hope that the administration of justice in this country and the Supreme Court, in particular, will adhere to or approve or indorse such dictum." 40 Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he primary purpose for the submission of the proposed amendment lowering the voting age to the plebiscite on November 8, 1971 is to enable the youth 18 to 20 years who comprise more than three (3) million of our population to participate in the ratification of the new Constitution in so far as "to allow young people who would be governed by the Constitution to be given a say on what kind of Constitution they will have" is a laudable end, ... those urging the vitality and importance of the proposed constitutional amendment and its approval ahead of the complete and final draft of the Constitution must seek a valid solution to achieve it in a manner sanctioned by the amendatory process ordained by our people in the present Constitution" 41 so that there may be "submitted, not piece-meal, but by way of complete and final amendments as an integrated whole (integrated either with the subsisting Constitution or with the new proposed Constitution)..." 9. The universal validity of the vital constitutional precepts and principles above-enunciated can hardly be gainsaid. I fail to see the attempted distinction of restricting their application to proposals for amendments of particular provisions of the Constitution and not to so-called entirely new Constitutions. Amendments to an existing Constitution presumably may be only of certain parts or in toto, and in the latter case would rise to an entirely new Constitution. Where this Court held in Tolentino that "any amendment of the Constitution is of no less importance than the whole Constitution itself and perforce must be conceived and prepared with as much care and deliberation", it would appeal that the reverse would equally be true; which is to say, that the adoption of a whole new Constitution would be of no less importance than any particular amendment and therefore the necessary care and deliberation as well as the mandatory restrictions and safeguards in the amending process ordained by the people themselves so that "they (may) be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies" must necessarily equally apply thereto. III 1. To restate the basic premises, the people provided in Article XV of the Constitution for the amending process only "by approval by a majority of the votes cast at an election at which the (duly proposed) amendments are submitted to the people for their ratification." The people ordained in Article V, section 1 that only those thereby enfranchised and granted the right of suffrage may speak the " will of the body politic", viz, qualified literate voters twenty one years of age or over with one year's residence in the municipality where they have registered. The people, not as yet satisfied, further provided by amendment duly approved in 1940 in accordance with Article XV, for the creation of an independent Commission on Elections with "exclusive charge" for the purpose of "insuring free, orderly and honest elections" and ascertaining the true will of the electorate and more, as ruled by this Court in Tolentino, in the case of proposed constitutional amendments, insuring proper submission to the electorate of such proposals. 42 2. A Massachussets case 43 with a constitutional system and provisions analogous to ours, best defined the uses of the term "people" as a body politic and "people" in the political sense who are synonymous with the qualified voters granted the right to vote by the existing Constitution and who therefore are "the sole organs through which the will of the body politic can be expressed." It was pointed out therein that "(T)he word 'people' may have somewhat varying significations dependent upon the connection in which it is used. In some connections in the Constitution it is confined to citizens and means the same as citizens. It excludes aliens. It includes men, women and children. It comprehends not only the sane, competent, law-abiding and educated, but also those who are wholly or in part dependents and charges upon society by reason of immaturity, mental or moral deficiency or lack of the common essentials of education. All these persons are secured fundamental guarantees of the Constitution in life, liberty and property and the pursuit of happiness, except as these may be limited for the protection of society." In the sense of "body politic (as) formed by voluntary association of individuals" governed by a constitution and common laws in a "social compact ... for the common good" and in another sense of "people" in a "practical sense" for "political purposes" it was therein fittingly stated that in this sense, "people" comprises many who, by reason of want of years, of capacity or of the educational requirements of Article 20 of the amendments of the Constitution, can have no voice in any government and who yet are entitled to all the immunities and protection established by the Constitution. ' People' in this aspect is coextensive with the body politic. But it is obvious that 'people' cannot be used with this broad meaning of political signification. The 'people' in this connection means that part of the entire body of inhabitants who under the Constitution are intrusted with the exercise of the sovereign power and the conduct of government. The 'people' in the Constitution in a practical sense means those who under the existing Constitution possess the right to exercise the elective franchise and who, while that instrument remains in force unchanged, will be the sole organs through which the will of the body politic can be expressed. 'People' for political purposes must be considered synonymous with qualified voters.' " As was also ruled by the U.S. Supreme Court, "... While the people are thus the source of political power, their governments, national and state, have been limited by constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulse of mere majorities." 44 From the text of Article XV of our Constitution, requiring approval of amendment proposals "by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification", it seems obvious as above-stated that "people" as therein used must be considered

synonymous with "qualified voters" as enfranchised under Article V, section 1 of the Constitution since only "people" who are qualified voters can exercise the right of suffrage and cast their votes. 3. Sound constitutional policy and the sheer necessity of adequate safeguards as ordained by the Constitution and implementing statutes to ascertain and record the will of the people in free, orderly and honest elections supervised by the Comelec make it imperative that there be strict adherence to the constitutional requirements laid down for the process of amending in toto or in part the supreme law of the land. Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for the holding of barrio plebiscites thus: "SEC. 6. Plebiscite. A plebiscite may be held in the barrio when authorized by a majority vote of the members present in the barrio assembly, there being a quorum, or when called by at least four members of the barrio council: Provided, however, That no plebiscite shall be held until after thirty days from its approval by either body, and such plebiscite has been given the widest publicity in the barrio, stating the date, time and place thereof, the questions or issues to be decided, action to be taken by the voters, and such other information relevant to the holding of the plebiscite." 46 As to voting at such barrio plebiscites, the Charter further requires that "(A)ll duly registered barrio assembly members qualified to vote may vote in the plebiscite. Voting procedures may be made either in writing as in regular elections, and/or declaration by the voters to the board of election tellers." 47 The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may be called to decide on the recall of any member of the barrio council. A plebiscite shall be called to approve any budgetary, supplemental appropriations or special tax ordinances" and the required majority vote is specified: "(F)or taking action on any of the above enumerated measures, majority vote of all the barrio assembly members registered in the list of the barrio secretary is necessary." 48 The qualifications for voters in such barrio plebiscites and elections of barrio officials 49 comply with the suffrage qualifications of Article V, section 1 of the Constitution and provide that "(S)EC. 10. Qualifications of Voters and Candidates. Every citizen of the Philippines, twenty one years of age or over, able to read and write, who has been a resident of the barrio during the six months immediately preceding the election, duly registered in the list of voters by the barrio secretary, who is not otherwise disqualified, may vote or be a candidate in the barrio elections." 50 IV 1. Since it appears on the face of Proclamation 1102 that the mandatory requirements under the above-cited constitutional articles have not been complied with and that no election or plebiscite for ratification as therein provided as well as in section 16 of Article XVII of the proposed Constitution itself 51 has been called or held, there cannot be said to have been a valid ratification. 2. Petitioners raised serious questions as to the veracity and genuineness of the reports or certificates of results purportedly showing unaccountable discrepancies in seven figures in just five provinces 52 between the reports as certified by the Department of Local Governments and the reports as directly submitted by the provincial and city executives, which latter reports respondents disclaimed inter alia as not final and complete or as not signed; 53whether the reported votes of approval of the proposed Constitution conditioned upon the non-convening of the interim National Assembly provided in Article XVII, section 1 thereof, 54 may be considered as valid; the allegedly huge and uniform votes reported; and many others. 3. These questions only serve to justify and show the basic validity of the universal principle governing written constitutions that proposed amendments thereto or in replacement thereof may be ratified only in the particular mode or manner prescribed therein by the people. Under Article XV, section 1 of our Constitution, amendments thereto may be ratified only in the one way therein provided, i.e. in an election or plebiscite held in accordance with law and duly supervised by the Commission on Elections, and which is participated in only by qualified and duly registered voters. In this manner, the safeguards provided by the election code generally assure the true ascertainment of the results of the vote and interested parties would have an opportunity to thresh out properly before the Comelec all such questions in pre-proclamation proceedings. 4. At any rate, unless respondents seriously intend to question the very statements and pronouncements in Proclamation 1102 itself which shows on its face, as already stated, that the mandatory amending process required by the (1935) Constitution was not observed, the cases at bar need not reach the stage of answering the host of questions, raised by petitioners against the procedure observed by the Citizens Assemblies and the reported referendum results since the purported ratification is rendered nugatory by virtue of such non-observance. 5. Finally, as to respondents' argument that the President issued Proclamation 1102 "as "agent" of the Constitutional Convention" 55 under Resolution No. 5844 approved on November 22, 1973, and "as agent of the Convention the President could devise other forms of plebiscite to determine the will of the majority vis-a-vis the ratification of the proposed Constitution." 56 The minutes of November 22, 1972, of the Convention, however, do not at all support this contention. On the contrary, the said minutes fully show that the Convention's proposal and "agency" was that the President issue a decree precisely calling a plebiscite for the ratification of the proposed new Constitution on an appropriate date, under the charge of the Comelec, and with a reasonable period for an information campaign, as follows: 12. Upon recognition by the Chair, Delegate Duavit moved for the approval of the resolution, the resolution portion of which read as follows: "RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional Convention propose to President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary funds therefor, and that copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the Commission on Elections for implementation." He suggested that in view of the expected approval of the final draft of the new Constitution by the end of November 1972 according to the Convention's timetable, it would be necessary to lay the groundwork for the appropriate agencies of the government to undertake the necessary preparation for the plebiscite.

xxx xxx xxx 12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was unnecessary because section 15, Article XVII on the Transitory Provision, which had already been approved on second and third readings, provided that the new constitution should be ratified in a plebiscite called for the purpose by the incumbent President. Delegate Duavit replied that the provision referred to did notinclude the appropriation of funds for the plebiscite and that, moreover, the resolution was intended to serve formal notice to the President and the Commission on Elections to initiate the necessary preparations. xxx xxx xxx 12.4 Interpellating, Delegate Madarang suggested that a reasonable period for an information campaign was necessary in order to properly apprise the people of the implications and significance of the new charter. Delegate Duavit agreed, adding that this was precisely why the resolution was modified to give the President the discretion to choose the most appropriate date for the plebiscite. 12.5 Delegate Laggui asked whether a formal communication to the President informing him of the adoption of the new Constitution would not suffice considering that under Section 15 of the Transitory Provisions, the President would be duty-bound to call a plebiscite for its ratification. Delegate Duavit replied in the negative, adding that the resolution was necessary to serve notice to the proper authorities to prepare everything necessary for the plebiscite. 12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the holding of theplebiscite would be laid down by the Commission on Elections in coordination with the President. 12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a partial lifting of martial law in order to allow the people to assemble peaceably to discuss the new Constitution. Delegate Duavit suggested that the Committee on Plebiscite and Ratification could coordinate with the COMELEC on the matter. 12.8 Delegate Guzman moved for the previous question. The Chair declared that there was one more interpellant and that a prior reservation had been made for the presentation of such a motion. 1.8a Delegate Guzman withdrew his motion. 12.9 Delegate Astilla suggested in his interpellation that there was actually no need for such a resolution in view of the provision of section 15, Article XVII on the Transitory Provisions. Delegate Duavit disagreed, pointing out that the said provision did not provide for the funds necessary for the purpose. 13. Delegate Ozamiz then moved to close the debate and proceed to the period of amendment. 13.1 Floor Leader Montejo stated that there were no reservations to amend the resolution. 13.2 Delegate Ozamiz then moved for the previous question. Submitted to a vote, the motion was approved. Upon request of the Chair, Delegate Duavit restated the resolution for voting. 14.1. Delegate Ordoez moved for nominal voting. Submitted to a vote, the motion was lost. 14.2. Thereupon, the Chair submitted the resolution to a vote. It was approved by a show of hands. I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions. Promulgated: June 4, 1973 * ANTONIO, J., concurring: In conformity with my reservation, I shall discuss the grounds for my concurrence. I It is my view that to preserve the independence of the State, the maintenance of the existing constitutional order and the defense of the political and social liberties of the people, in times of a grave emergency, when the legislative branch of the government is unable to function or its functioning would itself threaten the public safety, the Chief Executive may promulgate measures legislative in character, for the successful prosecution of such objectives. For the "President's power as Commander- in-chief has been transformed from a simple power of military command to a vast reservoir of indeterminate powers in time of emergency. ... In other words, the principal canons of constitutional interpretation are ... set aside so far as concerns both the scope of the national power and the capacity of the President to gather unto himself all constitutionally available powers in order the more effectively to focus them upon the task of the hour." (Corwin, The President: Office & Powers, pp. 317, 318, [1948]).
57

1. The proclamation of martial rule, ushered the commencement of a crisis government in this country. In terms of power, crisis government in a constitutional democracy entails the concentration of governmental power. "The more complete the separation of powers in a constitutional system, the more difficult, and yet the more necessary" according to Rossiter, "will be their fusion in time of crisis... The power of the state in crisis must not only be concentrated and expanded, it must be freed from the normal system of constitutional and legal limitations. One of the basic features of emergency powers is the release of the government from the paralysis of constitutional restraints" (Rossiter, Constitutional Dictatorship, p. 290). It is clearly recognized that in moments of peril the effective action of the government is channeled through the person of the Chief Executive. "Energy in the executive," according to Hamilton, "is essential to the protection of the community against foreign attacks ... to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy." (The Federalist, Number 70). "The entire strength of the nation", said Justice Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the constitution to its care." The marshalling and employment of the "strength of the nation" are matters for the discretion of the Chief Executive. The President's powers in time of emergency defy precise definition since their extent and limitations are largely dependent upon conditions and circumstances. 2. The power of the President to act decisively in a crisis has been grounded on the broad conferment upon the Presidency of the Executive power, with the added specific grant of power under the "Commander-in-Chief" clause of the constitution. The contours of such powers have been shaped more by a long line of historical precedents of Presidential action in times of crisis, rather than judicial interpretation. Lincoln wedded his powers under the "commander-in-chief" clause with his duty "to take care that the laws be faithfully executed," to justify the series of extraordinary measures which he took the calling of volunteers for military service, the augmentation of the regular army and navy, the payment of two million dollars from unappropriated funds in the Treasury to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence", the blockade of southern ports, the suspension of the writ of habeas corpus, the arrest and detention of persons "who were represented to him" as being engaged in or contemplating "treasonable practices" all this for the most partwithout the least statutory authorization. Those actions were justified by the imperatives of his logic, that the President may, in an emergency thought by him to require it, partially suspend the constitution. Thus his famous question: "Are all laws but one to be unexecuted, and the Government itself go to pieces lest that one be violated?" The actions of Lincoln "assert for the President", according to Corwin, "an initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war emergency." (Corwin, The President: Office & Powers, p. 280 [1948]). The facts of the civil war have shown conclusively that in meeting the domestic problems as a consequence of a great war, an indefinite power must be attributed to the President to take emergency measures. The concept of "emergency" under which the Chief Executive exercised extraordinary powers underwent correlative enlargement during the first and second World Wars. From its narrow concept as an "emergency" in time of war during the Civil War and World War I, the concept has been expanded in World War II to include the "emergency" preceding the war and even after it. "The Second World War" observed Corwin and Koenig, was the First World War writ large, and the quasi-legislative powers of Franklin Roosevelt as "Commander-in-Chief in wartime"... burgeoned correspondingly. The precedents were there to be sure, most of them from the First World War, but they proliferated amazingly. What is more, Roosevelt took his first step toward war some fifteen months before our entrance into shooting war. This step occurred in September, 1940, when he handed over fifty so-called overage destroyers to Great Britain. The truth is, they were not overage, but had been recently reconditioned and recommissioned. ... Actually, what President Roosevelt did was to take over for the nonce Congress's power to dispose of property of the United States (Article IV, Section 3) and to repeal at least two statutes." (Corwin & Koenig, The Presidency Today, New York University Press, 1956; sf Corwin, The President: Office and Powers, 1948.) The creation of public offices is a power confided by the constitution to Congress. And yet President Wilson, during World War I on the basis of his powers under the "Commander-in-Chief" clause created "offices" which were copied in lavish scale by President Roosevelt in World War II. In April 1942, thirty-five "executive agencies" were purely of Presidential creation. On June 7, 1941 on the basis of his powers as "Commander-in-Chief", he issued an executive order seizing the North American Aviation plant of Inglewood, California, where production stopped as a consequence of a strike. This was justified by the government as the exercise of presidential power growing out of the "duty constitutionally and inherently resting upon the President to exert his civil and military as well as his moral authority to keep the defense efforts of the United States a going concern" as well as "to obtain supplies for which Congress has appropriated money, and which it has directed the President to obtain." On a similar justification, other plants and industries were taken over by the government. It is true that in Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United States did not sustain the claims that the President could, as the Nation's Chief Executive and Commander-inChief of the armed forces, validly order the seizure of most of the country's steel mills. The Court however did not face the naked question of the President's power to seize steel plants in the absence of any congressional enactment or expressions of policy. The majority of the Court found that this legislative occupation of the field made untenable the President's claim of authority to seize the plants as an exercise of inherent executive power or as Commander-in-Chief. Justice Clark, in his concurrence to the main opinion of the Court, explicitly asserted that the President does possess, in the absence of restrictive legislation, a residual or resultant power above or in consequence of his granted powers, to deal with emergencies that he regards as threatening the national security. The same view was shared with vague qualification by Justices Frankfurter and Jackson, two of the concurring Justices. The three dissenting Justices, speaking through Chief Justice Vinson, apparently went further by quoting with approval a passage extracted from the brief of the government in the case of United States vs. Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the power of the President to order withdrawals from the public domain not only without Congressional sanction but even contrary to Congressional statutes. It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to support the view that the President in times of a grave crisis does not possess a residual power above or in consequence of his granted powers, to deal with emergencies that he regards as threatening the national security. The lesson of the Steel Seizure case, according to Corwin and Koenig, "Unquestionably ... tends to supplement presidential emergency power to adopt temporary remedial legislation when Congress has been, in the judgment of the President, unduly remiss in taking cognizance of and acting on a given situation." (Corwin and Koenig, The Presidency Today, New York University Press, 1956). The accumulation of precedents has thus built up the presidential power under emergency conditions to "dimensions of executive prerogative as described by John Locke, of a power to wit, to fill needed gaps in the law, or even to supersede it so far as may be requisite to realize the fundamental law of nature and government, namely, that as much as may be all the members of society are to be preserved ." (Corwin and Koenig, The Presidency Today). In the light of the accumulated precedents, how could it be reasonably argued therefore, that the President had no power to issue Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these measures were considered indispensable to effect the desired reforms at the shortest time possible and hasten the restoration of normalcy? It is unavailing for petitioners to contend that we are not faced by an actual "shooting war" for today's concept of the emergency which justified the exercise of those powers has of necessity been expanded to meet the exigencies of new dangers and crisis that directly threaten the nation's continued and constitutional existence. For as Corwin observed: "... today the concept of 'war' as a special type of emergency warranting the realization of constitutional limitations tends to spread, as it were, in both directions, so that there is not only "the war

before the war," but the 'war after the war.' Indeed, in the economic crisis from which the New Deal may be said to have issued, the nation was confronted in the opinion of the late President with an 'emergency greater than war'; and in sustaining certain of the New Deal measures the Court invoked the justification of 'emergency.' In the final result constitutional practices of wartime have moulded the Constitution to greater or less extent for peacetime as well, seem likely to do so still more pronouncedly under fresh conditions of crisis." (Corwin, Ibid. p. 318.) The same view was expressed by Rossiter thus: The second crisis is rebellion, when the authority of a constitutional government is resisted openly by large numbers of citizens who are engaged in violent insurrection against enforcement of its laws or are bent on capturing it illegally or destroying it altogether. The third crisis, one recognized particularly in modern times as sanctioning emergency action by constitutional governments, is economic depression. The economic troubles which plagued all the countries of the world in the early thirties involved governmental methods of an unquestionably dictatorial character in many democracies. It was thereby acknowledged that an economic existence as a war or a rebellion. And these are not the only cases which have justified extraordinary governmental action in nations like the United States. Fire, flood, drought, earthquake, riots, great strikes have all been dealt with by unusual and of dictatorial methods. Wars are not won by debating societies, rebellions are not suppressed by judicial injunctions, reemployment of twelve million jobless citizens will not be effected through a scrupulous regard for the tenets of free enterprise, hardships caused by the eruptions of nature cannot be mitigated letting nature take its course. The Civil War, the depression of 1933 and the recent global conflict were not and could not have been successfully resolved by governments similar to those of James Buchanan, William Howard Taft, or Calvin Coolidge. (Rossiter, Constitutional Dictatorship Crisis of Government in the Modern Democracies, p. 6 [1948). II We are next confronted with the insistence of Petitioners that the referendum in question not having been done inaccordance with the provisions of existing election laws, which only qualified voters who are allowed to participate, under the supervision of the Commission on Elections, the new Constitution, should therefore be a nullity. Such an argument is predicated upon an assumption, that Article XV of the 1935 Constitution provides the method for the revision of the constitution, and automatically apply in the final approval of such proposed new Constitution the provisions of the election law and those of Article V and X of the old Constitution. We search in vain for any provision in the old charter specifically providing for such procedure in the case of a total revision or a rewriting of the whole constitution. 1. There is clearly a distinction between revision and amendment of an existing constitution. Revision may involve a rewriting of the whole constitution. The act of amending a constitution, on the other hand, envisages a change of only specific provisions. The intention of an act to amend is not the change of the entire constitution but only theimprovement of specific parts of the existing constitution of the addition of provisions deemed essential as a consequence of new constitutions or the elimination of parts already considered obsolete or unresponsive to the needs of the times. 1 The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental charter embodying new political, social and economic concepts. According to an eminent authority on Political Law, "The Constitution of the Philippines and that of the United States expressly provide merely for methods of amendment. They are silent on the subject of revision. But this is not a fatal omission. There is nothing that can legally prevent a convention from actually revising the Constitution of the Philippines or of the United States even were such conventions called merely for the purpose of proposing and submitting amendments to the people. For in the final analysis, it is the approval of the people that gives validity to any proposal of amendment or revision." (Sinco, Philippine Political Law, p. 49). Since the 1935 Constitution does not specifically provide for the method or procedure for the revision or for the approval of a new constitution, should it now be held, that the people have placed such restrictions on themselves that they are not disabled from exercising their right as the ultimate source of political power from changing the old constitution which, in their view, was not responsive to their needs and in adopting a new charter of government to enable them to rid themselves from the shackles of traditional norms and to pursue with new dynamism the realization of their true longings and aspirations, except in the manner and form provided by Congress for previous plebiscites? Was not the expansion of the base of political participation, by the inclusion of the youth in the process of ratification who after all constitute the preponderant majority more in accord with the spirit and philosophy of the constitution that political power is inherent in the people collectively? As clearly expounded by Justice Makasiar, in his opinion, in all the cases cited where the Courts held that the submission of the proposed amendment was illegal due to the absence of substantial compliance with the procedure prescribed by the constitution, the procedure prescribed by the state Constitution, is so detailed, that specified the manner in which such submission shall be made, the persons qualified to vote for the same, the date of election and other definite standards, from which the court could safely ascertain whether or not the submission was in accordance with the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the dissenting opinions involved in the application of the provisions of the state Constitution of Minnesota which clearly prescribed in detail the procedure under which the Constitution may be amended or revised. 2 This is not true with our Constitution. In the case of revision there are no "standards meet for judicial judgment." 3 The framers of our Constitution were free to provide in the Constitution the method or procedure for the revision or rewriting of the entire constitution, and if such was their intention, they could and should have so provided. Precedents were not wanting. The constitutions of the various states of the American Union did provide for procedures for their amendment and methods for their revision. 4 Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the 1935 Charter. To declare what the law is, or has been, is a judicial power, but to declare what the law shall be is not within Our judicial competence and authority. Upon the other hand, since our fundamental charter has not provided the method or procedure for the revision or complete change of the Constitution, it is evident that the people have reserved such power in themselves. They decided to exercise it not through their legislature, but through a Convention expressly chosen for that purpose. The Convention as an independent and sovereign body has drafted not an amendment but a completely new Constitution, which decided to submit to the people for approval, not through an act of Congress, but by means of decrees to be promulgated by the President. In view of the inability of Congress to act, it was within the constitutional powers of the President, either as agent of the Constitutional Convention, or under his authority under martial law, to promulgate the necessary measures for the ratification of the proposed new Constitution. The adoption the new Charter was considered as a necessary basis for all the reforms set in motion under the new society, to root out the causes of unrest. The imperatives of the emergency underscored the urgency of its adoption. The people in accepting such procedure and in voting overwhelmingly for the approval of the new Constitution have, in effect, ratified the method and procedure taken. "When the people adopt completely revised or new

constitution," said the Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the instrument is not what gives it binding force and effect. The fiat of the people, and only the fiat of the people, can breathe life into a constitution." This has to be so because, in our political system, all political power is inherent in the people and free governments are founded on their authority and instituted for their benefit. Thus Section 1 of Article II of the 1935 Constitution declares that: "Sovereignty resides in the people and all government authority emanate from them." Evidently the term people refers to the entire citizenry and not merely to the electorate, for the latter is only a fraction of the people and is only an organ of government for the election of government officials. III The more compelling question, however is: Has this Court the authority to nullify an entire Constitution that is already effective as it has been accepted and acquiesced in by the people as shown by their compliance with the decree promulgated thereunder, their cooperation in its implementation, and is now maintained by the Government that is in undisputed authority and dominance? Of course it is argued that acquiescence by the people can be deduced from their acts of conformity, because under a regime of martial law the people are bound to obey and act in conformity with the orders of the President, and has absolutely no other choice. The flaw of this argument lies in its application of a mere theoretical assumption based on the experiences of other nations on an entirely different factual setting. Such an assumption flounders on the rock of reality. It is true that as a general rule martial law is the use of military forces to perform the functions of civil government. Some courts have viewed it as a military regime which can be imposed in emergency situations. In other words, martial rule exists when the military rises superior to the civil power in the exercise of some or all the functions of government. Such is not the case in this country. The government functions thru its civilian officials. The supremacy of the civil over the military authority is manifest. Except for the imposition of curfew hours and other restrictions required for the security of the State, the people are free to pursue their ordinary concerns. In short, the existing regime in this Country, does not contain the oppressive features, generally associated with a regime of Martial law in other countries. "Upon the other hand the masses of our people have accepted it, because of its manifold blessings. The once downtrodden rice tenant has at long last been emancipated a consummation devoutly wished by every Philippine President since the 1930's. The laborer now holds his head high because his rights are amply protected and respected." * A new sense of discipline has swiftly spread beyond the corridors of government into the social order. Responding to the challenges of the New Society, the people have turned in half a million loose firearms, paid their taxes on undeclared goods and income in unprecedented numbers and amount, lent their labors in massive cooperation in land reform, in the repair of dikes, irrigation ditches, roads and bridges, in reforestation, in the physical transformation of the environment to make ours a cleaner and greener land. "The entire country is turning into one vast garden growing food for the body, for thought and for the soul." * More important the common man has at long last been freed from the incubus of fear. "Martial law has paved the way for a re-ordering of the basic social structure of the Philippines" reported Frank Valeo to the United States Senate. "President Marcos has been prompt and sure-footed in using the power of presidential decree under martial law for this purpose. He has zeroed in on areas which have been widely recognized as prime sources of the nation's difficulties land tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows his targets ... there is marked public support for his leadership..." (Bulletin Today, March 3 and 4, 1973).. In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April 11 issue of The New York Times: During his first Presidential term (1965-1969), Mr. Marcos was discouraged by the failure of legislators to approve urgently needed reforms. He found his second term further frustrated by spread riots, a Maoist uprising in Luzon and a much more serious Moslem insurrection in the southern islands from Mindanao across the Sulu archipelago to the frontier regions of Malaysia and Indonesia. Manila claims this war is Maoist-coordinated. Mr. Marcos has now in effect taken all the reins of power and makes no promise as to when he will relinquish them. But, while fettering a free press, terminating Congress and locking up some opponents (many of whom were later amnestied), he has hauled the Philippines out of stagnation. Sharecropping is being ended as more than three million acres of arable land are redistributed with state funds. New roads have been started. The educational system is undergoing revision, a corruption is diminished. In non-communist Asia it is virtually impossible to wholly end it and this disagreeable phenomenon still reaches very high. Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarian middle-class to replace the archaic sharecropper-absentee landlord relationship. He is even pushing for a birth control program with the tacit acceptance of the Catholic Church. He has started labor reforms and increased wages. (Daily Express, April 15, 1973) As explained in this writer's opinion of April 24, 1973 on the "Constancia" and "Manifestation" of counsel for petitioners: The new Constitution is considered effective "if the norms created in conformity with it are by and large applied and obeyed. As soon as the old Constitution loses its effectiveness and the new Constitution has become effective, the acts that appear with the subjective meaning of creating or applying legal norms are no longer interpreted by presupposing the old basic norm, but by presupposing the new one. The statutes issued under the old Constitution and not taken over are no longer regarded as valid, and the organs authorized by the old Constitution no longer competent." (Kelsen, Pure Theory of Law, [1967].) The essentially political nature of the question is at once made manifest by understanding that in the final analysis, what is assailed is not merely the validity of Proclamation No. 1102 of the President, which is merely declaratory of the fact of approval or ratification, but the legitimacy of the government. It is addressed more to the framework and political character of this Government which now functions under the new Charter. It seeks to nullify a Constitution that is already effective.

In such a situation, We do not see how the question posed by petitioners could be judicially decided. "Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power." (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.) In other words, where a complete change in the fundamental law has been effected through political action, the Court whose existence is affected by such change is, in the words of Mr. Melville Fuller Weston, "precluded from passing upon the fact of change by a logical difficulty which is not to be surmounted." 5 Such change in the organic law relates to the existence of a prior point in the Court's "chain of title" to its authority and "does not relate merely to a question of the horizontal distribution of powers." 6 It involves in essence a matter which "the sovereign has entrusted to the so-called political departments of government or has reserved to be settled by its own extra governmental action." 7 The non-judicial character of such a question has been recognized in American law. "From its earliest opinions this Court has consistently recognized," said Justice Frankfurter, in his illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies which do not lend themselves to judicial standards and judicial remedies. To classify the various instances as "political questions" is rather a form of stating this conclusion than revealing of analysis ... The crux of the matter is that courts are not fit instruments of decision where what is essentially at stake is the composition of those large contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of governments are made and unmade." The diversity of views contained in the opinions of the members of this Court, in the cases at bar, cannot be a case on "right" or "wrong" views of the Constitution. It is one of attitudes and values. For there is scarcely any principle, authority or interpretation which has not been countered by the opposite. At bottom, it is the degree of one's faith in the nation's leadership and in the maturity of judgment of our people. IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this Court in its judgment of March question becomes wholly moot except for this consideration, that, when the judges as individuals or as a body of individuals come to decide which king or which constitution they will support and assert to represent, it may often be good judgment for them to follow the lead of the men who as a practical matter are likely to be looked to by the people as more representative of themselves and conversely are likely to be more directly in touch with popular sentiment. If, however, the judges hold too strong views of their own to be able to take this course, they may follow their own leads at their own hazard. No question of law is involved. (Political Questions, 38 Harvard Law Review [1924-25], pp. 305-309.) 31, 1973 are fully justified. Barredo, Makasiar and Esguerra, JJ., concur. APPENDIX TO OPINION (G.R. Nos. L-36142, 36164, 36165, 36236 & 36283) PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY PROVIDING FOR AMENDMENT AND REVISION @ 1. Alaska (1959) Art. XIII. Amendment and Revision. Sec. 1. Amendments. Amendments to this constitution may be proposed by a two-thirds vote of each house of the legislature. The secretary of state shall prepare a ballot title and proposition summarizing each proposed amendment, and shall place them on the ballot for the next statewide election. If a majority of the votes cast on the proposition favor the amendment, it becomes effective thirty days after the certification of the election returns by the secretary of state. Sec. 2. Convention. The legislature may call constitutional conventions at any time. Sec. 3. Call by referendum. If during any ten-year period a constitutional convention has not been held, the secretary of state shall place on the ballot for the next general election the question: "Shall there be a Constitutional Convention?" If a majority of the votes cast on the question are in the negative, the question need not be placed on the ballot until the end of the next ten-year period. If a majority of the votes cast on the question are in the affirmative, delegates to the convention shall be chosen at the next regular statewide election, unless the legislature provides for the election of the election delegates at a special election. The secretary of state shall issue the call for the convention. Unless other provisions have been made by law, the call shall conform as nearly as possible to the act calling the Alaska Constitutional Convention of 1955, including, but not limited to, number of members, districts, election and certification of delegates, and submission and ratification of revisions and ordinances. ... . Sec. 4. Powers. Constitutional conventions shall have plenary power to amend or revise the constitution, subject only to ratification by the people. No call for a constitutional convention shall limit these powers of the convention. 2. California (1879) Art. XVIII. Amending and Revising the Constitution. Sec. 1. Constitutional amendments. Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in their Journals, with the yeas and nays taken thereon; and it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people in such manner, and at such time, and after such publication as may be deemed expedient. Should more amendments than one be submitted at the same election they shall be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately. If the people shall

approve and ratify such amendment or amendments, or any of them, by a majority of the qualified electors voting thereon such amendment or amendments shall become a part of this constitution. Sec. 2. Constitutional convention. Whenever two-thirds of the members elected to each branch of the Legislature shall deem it necessary to revise this Constitution, they shall recommend to the electors to vote at the next general for or against a Convention for that purpose, and if a majority of the electors voting at such election on the proposition for a Convention shall vote in favor thereof, the Legislature shall, at its next session, provide by law for calling the same. The Convention shall consist of a number of delegates not to exceed that of both branches of the Legislature, who shall be chosen in the same manner, and have the same qualifications, as Members of the Legislature. The delegates so elected shall meet within three months after their election at such place as the Legislature may direct. At a special election to be provided for by law, the Constitution that may be agreed upon by such Convention shall be submitted to the people for their ratification or rejection, in such manner as the Convention may determine . The returns of such election shall, in such manner as the Convention shall direct, be certified to the Executive of the State, who shall call to his assistance the Controller, Treasurer, and Secretary of State, and compare the returns so certified to him; and it shall be the duty of the Executive to declare, by his proclamation, such Constitution, as may have been ratified by a majority of all the votes cast at such special election, to be the Constitution of the State of California. 3. Colorado (1876) Art. XIX. Amendments. Sec. 1. Constitutional convention; how called. The general assembly may at any time be a vote of two-thirds of the members elected to each house, recommend to the electors of the state, to vote at the next general election for or against a convention to revise, alter and amend this constitution; and if a majority of those voting on the question shall declare in favor of such convention, the general assembly shall, at the next session, provide for the calling thereof. The number of members of the convention shall be twice that of the senate and they shall be elected in the same manner, at the same places, and in the same districts. The general assembly shall, in the act calling the convention, designate the day, hour and place of its meeting; fix the pay of its members and officers, and provide for the payment of the same, together with the necessary expenses of the convention. Before proceeding, the members shall take an oath to support the constitution of the United States, and of the state of Colorado, and to faithfully discharge their duties as members of the convention. The qualifications of members shall be the same as of members of the senate; and vacancies occurring shall be filled in the manner provided for filling vacancies in the general assembly. Said convention shall meet within three months after such election and prepare suchrevisions, alterations or amendments to the constitution as may be deemed necessary; which shall be submitted to the electors for their ratification or rejection at an election appointed by the convention for that purpose, not less than two nor more than six months after adjournment thereof; and unless so submitted and approved by a majority of the electors voting at the election, no such revision, alteration or amendment shall take effect. Sec. 2. Amendments to constitution; how adopted. Any amendment or amendments to this constitution may be proposed in either house of the general assembly, and if the same shall be voted for by two-thirds of all the members elected to each house, such proposed amendment or amendments, together with the ayes and noes of each house hereon, shall be entered in full on their respective journals; the proposed amendment or amendments shall be published with the laws of that session of the general assembly, and the secretary of state shall also cause the said amendment or amendments to be published in full in not more than one newspaper of general circulation in each county, for four successive weeks previous to the next general election for members of the general assembly; and at said election the said amendment or amendments shall be submitted to the qualifiedelectors of the state for their approval or rejection, and such as are approved by a majority of those voting thereon shall become part of this constitution. Provided, that if more than one amendment be submitted at any general election, each of said amendments shall be voted upon separately and votes thereon cast shall be separately counted the same as though but one amendment was submitted. But the general assembly shall have no power to propose amendments to more than six articles of this constitution at the same session. 4. Delaware (1897) Art. XVI. Amendments and Conventions. Sec. 1. Proposal of constitutional amendments in general assembly; procedure. Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives; and if the same shall be agreed to by two-thirds of all the members elected to each House, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and the Secretary of State shall cause such proposed amendment or amendments to be published three months before the next general election in at least three newspapers in each County in which such newspaper shall be published; and if in the General Assembly next after the said election such proposed amendment or amendments shall upon yea and nay vote be agreed to by two-thirds of all the members elected to each House, the same shall thereupon become part of the Constitution . Sec. 2. Constitutional conventions; procedure; compensation of delegates; quorum; powers and duties; vacancies . The General Assembly by a twothirds vote of all the members elected to each House may from time to time provide for the submission to the qualified electors of the State at the general election next thereafter the question, "Shall there be a Convention to revise the Constitution and amend the same?;" and upon such submission, if a majority of those voting on said question shall decide in favor of a Convention for such purpose, the General Assembly at its next session shall provide for the election of delegates to such convention at the next general election. Such Convention shall be composed of forty-one delegates, one of whom shall be chosen from each Representative District by the qualified electors thereof, and two of whom shall be chosen from New Castle County, two from Kent County and two from Sussex County by the qualified electors thereof respectively. The delegates so chosen shall convene at the Capital of the State on the first Tuesday in September next after their election. Every delegate shall receive for his services such compensation as shall be provided by law. A majority of the Convention shall constitute a quorum for the transaction of business. The Convention shall have the power to appoint such officers, employees and assistants as it may be deem necessary, and fix their compensation, and provide for the printing of its documents, journals, debates and proceedings. The Convention shall determine the rules of its proceedings, and be the judge of the elections, returns and qualifications of its members. Whenever there shall be a vacancy in the office of delegate from any district or county by reason of failure to elect, ineligibility, death, resignation or otherwise, a writ of election to fill such vacancy shall be issued by the Governor, and such vacancy shall be filled by the qualified electors of such district or county. 5. Florida (1887) Art. XVII. Amendments. Sec. 1. Method of amending constitution. Either branch of the Legislature, at any regular session, or at any special or extra-ordinary session thereof called for such purpose either in the governor's original call or any amendment thereof, may propose the revision or amendment of any portion or portions of this Constitution. Any such revision or amendment may relate to one subject or any number of subjects, but no amendment shall consist of more than one revised article of the Constitution.

If the proposed revision or amendment is agreed to by three-fifths of the members elected to each house, it shall be entered upon their respective journals with the yeas and nays and published in one newspaper in each county where a newspaper is published for two times, one publication to be made not earlier than ten weeks and the other not later than six weeks, immediately preceding the election at which the same is to be voted upon, and thereupon submitted to the electors of the State for approval or rejection at the next general election, provided, however, that such revision or amendment may be submitted for approval or rejection in a special election under the conditions described in and in the manner provided by Section 3 of Article XVII of the Constitution. If a majority of the electors voting upon the amendment adopt such amendment the same shall become a part of this Constitution. Sec. 2. Method of revising constitution. If at any time the Legislature, by a vote of two-thirds of all the members of both Houses, shall determine that a revision of this Constitution is necessary, such determination shall be entered upon their respective Journals, with yea's and nay's thereon. Notice of said action shall be published weekly in one newspaper in every county in which a newspaper is published, for three months preceding the next general election of Representatives, and in those countries where no newspaper is published, notice shall be given by posting at the several polling precincts in such counties for six weeks next preceding said election. The electors at said election may vote for or against the revision in question. If a majority of the electors so voting be in favor of revision, the Legislature chosen at such election shall provide by law for a Convention to revise the Constitution, said Convention to be held within six months after the passage of such law. The Convention shall consist of a number equal to the membership of the House of Representatives, and shall be apportioned among the several counties in the same manner as members of said House. 6. Idaho (1890) Art. XIX. Amendments. Sec. 1. How amendments may be proposed. Any amendment or amendments to this Constitution may be proposed in either branch of the legislature, and if the same shall be agreed to by two-thirds of all the members of each of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election, and cause the same to be published without delay for at least six consecutive weeks, prior to said election, in not less than one newspaper of the general circulation published in each county; and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this Constitution. Sec. 3. Revision or amendments by convention. Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the electors to vote at the next general election, for or against a convention, and if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall at the next session provide by law for calling the same; and such convention shall consist of a number of members, not less than double the number of the most numerous branch of the legislature. 7. Iowa (1857) Art. X. Amendments to the Constitution. Sec. 3. Convention. At the general election to be held in the year one thousand eight hundred and seventy, and in each tenth year thereafter, and also at such times as the General Assembly may, by law, provide, the question, "Shall there be a Convention to revise the Constitution, and amend the same?" shall be decided by the electors qualified to vote for members of the General Assembly; and in case a majority of the electors so qualified, voting at such election, for and against such proposition, shall decide in favor of a Convention for such purpose, the General Assembly, at its next session, shall provide by law for the election of delegates to such Convention. 8. Michigan (1909) Art. XVII. Amendments and Revision. Sec. 1. Amendments to constitution; proposal by legislature; submission to electors. Any amendment or amendments to this constitution may be proposed in the senate or house of representatives. If the same shall be agreed to by 2/3 of the members elected to each house, such amendment or amendments shall be entered on the journals, respectively, with the yeas and nays taken thereon; and the same shall be submitted to the electors at the next spring or autumn election thereafter, as the legislature shall direct; and, if a majority of the electors qualified to vote for members of the legislature voting thereon shall ratify and approve such amendment or amendments, the same shall become part of the constitution. Sec. 4. General revision; convention; procedure. At the Biennial Spring Election to be held in the year 1961, in each sixteenth year thereafter and at such times as may be provided by law, the question of a General Revision of the Constitution shall be submitted to the Electors qualified to vote for members of the Legislature. In case a majority of the Electors voting on the question shall decide in favor of a Convention for such purpose, at an Election to be held not later than four months after the Proposal shall have been certified as approved, the Electors of each House of Representatives District as then organized shall Elect One Delegate for each Electors of each Senatorial District as then organized shall Elect One Delegate for each State Senator to which the District is entitled. The Delegates so elected shall convene at the Capital City on the First Tuesday in October next succeeding such election, and shall continue their sessions until the business of the convention shall be completed. A majority of the delegates elected shall constitute a quorum for the transaction of business. ... Noproposed constitution or amendment adopted by such convention shall be submitted to the electors for approval as hereinafter provided unless by the assent of a majority of all the delegates elected to the convention, the yeas and nays being entered on the journal. Any proposed constitution or amendments adopted by such convention shall be submitted to the qualified electors in the manner provided by such convention on the first Monday in April following the final adjournment of the convention; but, in case an interval of at least 90 days shall not intervene between such final adjournment and the date of such election. Upon the approval of such constitution or amendments by a majority of the qualified electors voting thereon such constitution or amendments shall take effect on the first day of January following the approval thereof. 9. Minnesota (1857) Art. XIV. Amendments to the Constitution. Sec. 1. Amendments to constitution; majority vote of electors voting makes amendment valid . Whenever a majority of both houses of the legislature shall deem it necessary to alter or amend this Constitution, they may proposed such alterations or amendments, which proposed amendments shall be published with the laws which have been passed at the same session, and said amendments shall be submitted to the people for their approval or rejection at any general election, and if it shall appear, in a manner to be provided by law, that a majority of all the electors voting at said election shall have voted for and ratified such alterations or amendments, the same shall be valid to all intents and purposes as a part of this Constitution. If two or more alterations or amendments shall be submitted at the same time, it shall be so regulated that the voters shall vote for or against each separately.

Sec. 2. Revision of constitution. Whenever two-thirds of the members elected to each branch of the legislature shall think it necessary to call a convention to revise this Constitution, they shall recommend to the electors to vote at the next general election for members of the legislature, for or against a convention; and if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall, at their next session, provide by law for calling the same. The convention shall consist of as many members as the House of Representatives, who shall be chosen in the same manner, and shall meet within three months after their election for the purpose aforesaid. Sec. 3. Submission to people of revised constitution drafted at convention. Any convention called to revise this constitution shall submit any revision thereof by said convention to the people of the State of Minnesota for their approval or rejection at the next general election held not less than 90 days after the adoption of such revision, and, if it shall appear in the manner provided by law that three-fifths of all the electors voting on the question shall have voted for and ratified such revision, the same shall constitute a new constitution of the State of Minnesota. Without such submission and ratification, said revision shall be of no force or effect. Section 9 of Article IV of the Constitution shall not apply to election to the convention. 10. Nevada (1864) Art. 16. Amendments. Sec. 1. Constitutional amendments; procedure. Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly; and if the same shall be agreed to by a Majority of all the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their respective journals, with the Yeas and Nays taken thereon, and referred to the Legislature then next to be chosen, and shall be published for three months next preceding the time of making such choice. And if in the Legislature next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people, in such manner and at such time as the Legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the Legislature voting thereon, such amendment or amendments shall become a part of the Constitution. Sec. 2. Convention for revision of constitution; procedure. If at any time the Legislature by a vote of two-thirds of the Members elected to each house, shall determine that it is necessary to cause a revision of this entire Constitution they shall recommend to the electors at the next election for Members of the Legislature, to vote for or against a convention, and if it shall appear that a majority of the electors voting at such election, shall have voted in favor of calling a Convention, the Legislature shall, at its next session provide by law for calling a Convention to be holden within six months after the passage of such law, and such Convention shall consist of a number of Members not less that of both branches of the legislature. In determining what is a majority of the electors voting such election, reference shall be had to the highest number of vote cast at such election for the candidates of any office or on any question. 11. New Hamspire (1784) Art. 99. Revision of constitution provided for. It shall be the duty of the selectmen, and assessors, of the several towns and places in this state, in warning the first annual meetings for the choice of senators, after the expiration of seven years from the adoption of this constitution, as amended, to insert expressly in the warrant this purpose, among the others for the meeting, to wit, to take the sense of the qualified voters on the subject of a revision of the constitution; and, the meeting being warned accordingly, and not otherwise, the moderator shall take the sense of the qualified voters present as to the necessity of a revision; and a return of the number of votes for and against such necessity, shall be made by the clerk sealed up, and directed to the general court at their then next session; and if, it shall appear to the general court by such return, that the sense of the people of the state has taken, and that, in the opinion of the majority of the qualified voters in the state, present and voting at said meetings, there is a necessity for a revision of the constitution, it shall be the duty of the general court to call a convention for that purpose, otherwise the general court shall direct the sense of the people to be taken, and then proceed in the manner before mentioned. The delegates to be chosen in the same manner, and proportioned, as the representatives to the general court; provided that no alterations shall be made in this constitution, before the same shall be laid before the towns and unincorporated places, and approved by two thirds of the qualified voters present and voting on the subject. 12. Oklahoma (1907) Art. XXIV. Constitutional Amendments. Sec. 1. Amendments proposed by legislature; a submission to vote. Any amendment or amendments to this Constitution may be proposed in either branch of the Legislature, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall, with yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their approval or rejection, at the next regular general election, except when the Legislature, by a two-thirds vote of each house, shall order a special election for that purpose. If a majority of all the electors voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of this Constitution. If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or against them separately. No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more than one general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that in the submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each proposed article shall be deemed a single proposals or proposition Sec. 2. Constitutional convention to propose amendments or new constitution. No convention shall be called by the Legislature to propose alterations, revisions, or amendments to this Constitution, or to propose a new Constitution, unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular or special election, and any amendments, alterations, revisions, or new Constitution, proposed by such convention, shall be submitted to the electors of the State at a general or special election and be approved by a majority of the electors voting thereon, before the same shall become effective Provided, That the question of such proposed convention shall be submitted to the people at least once in every twenty years. 13. Oregon (1859) Art. XVII. Amendments and Revisions. Sec. 1. Method of amending constitution. Any amendment or amendments to this Constitution may be proposed in either branch of the legislative assembly, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or

amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the secretary of state to the people for their approval or rejection, at the next regular election, except when the legislative assembly shall order a special election for that purpose. If a majority of the electors voting on any such amendment shall vote in favor thereof, it shall thereby become a part of this Constitution. The votes for and against such amendment, or amendments, severally, whether proposed by the legislative assembly or by initiative petition, shall be canvassed by the secretary of state in the presence of the governor, and if it shall appear to the governor that the majority of the votes cast at said election on said amendment, or amendments, severally, are cast in favor thereof, it shall be his duty forthwith after such canvass, by his proclamation, to declare the said amendment, or amendments, severally, having received said majority of votes to have been adopted by the people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of the Constitution from the date of such proclamation. When two or more amendments shall be submitted in the manner aforesaid to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately. No convention shall be called to amend or propose amendments to this Constitution, or to propose a new Constitution, unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular general election. This article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative petition therefor. Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution granted by section 1, Article IV, and section 1 of this Article, a revision of all or part of this Constitution may be proposed in either house of the Legislative Assembly and, if the proposed revision is agreed to by at least two-thirds of all the members of each house, the proposed revision shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their approval or rejection, notwithstanding section 1, Article IV of this Constitution, at the next regular state-wide primary election, except when the Legislative Assembly orders a special election for that purpose. A proposed revision may deal with more than one subject and shall be voted upon as one question. The votes for and against the proposed revision shall be canvassed by the Secretary of State in the presence of the Governor and, if it appears to the Governor that the majority of the votes cast in the election on the proposed revision are in favor of the proposed revision, he shall, promptly following the canvass, declare, by his proclamation, that the proposed revision has received a majority of votes and has been adopted by the people as the Constitution of the State of Oregon, as the case may be. The revision shall be in effect as the Constitution or as a part of this Constitution from the date of such proclamation. 14. Utah (1896) Art. 23. Amendments. Sec. 1. Amendments; method of proposal and approval. Any amendments to his Constitution may be proposed in either house of the Legislature, and if two-thirds of all the members elected of the two houses, shall vote in favor thereof, such proposed amendment or amendments shall be entered on their respective journals with the yeas and nays taken thereon; and the Legislature shall cause the same to be published in at least one newspaper in every county of the State, where a newspaper is published, for two months immediately preceding the next general election, at which time the said amendment or amendments shall be submitted to the electors of the State, for their approval or rejection, and if a majority of the electors voting thereon shall approve the same, such amendment or amendments shall become part of this Constitution. If two or more amendments are proposed, they shall be so submitted as to enable the electors to vote on each of them separately. Sec. 2. Revision of the Constitution by convention. Whenever two-thirds of the members, elected to each branch of the Legislature, shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the electors to vote at the next general election, for or against a convention, and, if a majority of all the electors, voting at such election, shall vote for a convention. The Legislature, at its next session, shall provide by law for calling the same. The convention shall consist of not less than the number of members in both branches of the Legislature. 15. Wyoming (1890) Art. XX. Amendments. Sec. 1. Procedure for amendments. Any amendment or amendments to this Constitution may be proposed in either branch of the legislature, and, if the same shall be agreed to by two-thirds of all the members of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election, in at least one newspaper of general circulation, published in each county, and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this constitution. Sec. 2. How voted for. If two or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against each of them separately. Sec. 3. Constitutional convention; provision for. Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this constitution, they shall recommend to the electors to vote at the next general election for or against a convention, and if a majority of all the electors voting at such election shall have voted for a convention, the legislature shall at the next session provide by a law for calling the same; and such convention shall consist of a number of members, not less than double that of the most numerous branch of the legislature. Sec. 4. New constitution. Any constitution adopted by such convention shall have no validity until it has been submitted to and adopted by the people.

Separate Opinions MAKALINTAL, J., concurring: CASTRO, J., concurring: The preliminary question before this Court was whether or not the petitioners had made out a sufficient prima faciecase in their petitions to justify their being 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 for hearing the side of the respondents before that preliminary question was resolved, We required them to submit their comments on the petitions. After 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, morning and afternoon, and could not have been more exhaustive if the petitions had been given due course from the beginning. The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed by the President on January 17, 1973 (Proclamation 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 (of 1935) and the Election Code of 1971. Other grounds are relied upon by the petitioners in support of their basic proposition, but to our mind they are merely subordinate and peripheral. Article XV, Section 1, of the 1935 Constitution provides that amendments (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 majority of votes cast at an election at which the amendments submitted to the people for their ratification." At the time Constitution was approved by the Constitutional Convention on February 8, 1935, and ratified in a plebiscite held on following May 14, the word "election" had already a definite meaning in our law and jurisprudence. It was not a vague and amorphous concept, but a procedure prescribed by statute ascertaining the people's choices among 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 procedure that plebiscites were held to ratify the very same Constitution in 1935 as well as the subsequent amendments thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940 (establishment of a bicameral legislature; eligibility of the President and the Vice President for re election; creation of the Commission of Elections); 1947 (Parity Amendment); and 1967 (increase in membership of the House of Representatives and eligibility of members of Congress to run for the Constitutional Convention without forfeiture of their offices). The Election Code of 1971, in its Section 2, states that "all elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code." This is a statutory requirement designed, as were the other election laws previously in force, to carry out the constitutional mandate relative to the exercise of the right suffrage, and with specific reference to the term "plebiscites," the provision of Article XV regarding ratification of constitutional amendments. The manner of conducting elections and plebiscites provided by the Code is spelled out in other sections thereof. Section 99 requires that qualified voters be registered in a permanent list, the qualifications being those set forth in Article V, Section 1, of the 1935 Constitution on the basis of age (21), literacy and residence. These qualifications are reiterated in Section 101 of the Election Code. Section 102 enumerates the classes of persons disqualified to vote. Succeeding sections prescribe the election paraphernalia to be used, the procedure for registering voters, the records, of registration and the custody thereof, the description and printing of official ballots, the actual casting of votes and their subsequent counting by the boards of inspectors, the rules for appreciation of ballots, and then the canvass and proclamation of the results. With specific reference to the ratification of the 1972 draft Constitution, several additional circumstances should be considered: (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, 1967, which provides: Sec. 7. The amendments proposed by the Convention shall be valid and considered part of the Constitution when approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification pursuant to Article XV of the Constitution. (2) Article XVII, Section 16, of the draft itself states: Sec. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto. The same procedure is prescribed in Article XVI, Section 2, for the ratification of any future amendment to or revision of the said Constitution. (3) After the draft Constitution was approved by the Constitutional Convention on November 30, 1972 the said body adopted Resolution No. 5843, proposing "to President Ferdinand E. Marcos that a decree be issued calling aplebiscite for the ratification of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary funds therefor." Pursuant to said Resolution the President issued Decree No. 73 on the same day, calling a plebiscite to be held on January 15, 1973, at which the proposed Constitution "shall be submitted to the people for ratification or rejection." The Decree had eighteen (18) sections in all, prescribing in detail the different steps to be taken to carry out the process of ratification, such as: (a) publication of the proposed Constitution in English and Pilipino; (b) freedom of information and discussion; (c) registration of voters: (d) appointment of boards of election inspectors and designation of watchers in each precinct; (e) 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 the provisions of the Election Code of 1971, with the Commission on Elections exercising its constitutional and statutory powers of supervision of the entire process. There can hardly be any doubt that in everybody's view from the framers of the 1935 Constitution through all the Congresses since then to the 1971 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 participated in only by qualified and duly registered voters. Indeed, so concerned was this Court with the importance and indispensability of complying with the mandate of the (1935) Constitution in this respect that in the recent case of Tolentino vs. Commission on Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a resolution of the (1971) Constitutional Convention submitting a proposed amendment for ratification to a plebiscite to be held in November 1971 was declared null and void. The amendment sought to reduce the voting age from twenty-one to eighteen years and was approved by the Convention for submission to a plebiscite ahead of and separately from 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 of such other amendments later. This Court held that such separate submission was violative of Article XV, Section 1, of the Constitution, which contemplated that "all the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite." * Thus a grammatical construction based on a singular, instead of 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 in accordance with the procedure and under all the safeguards provided in the Election Law.

In the cases now before Us what is at issue is not merely the ratification of just 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 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 such ratification. The Citizens Assemblies which purportedly ratified the draft Constitution were 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 opportunities for the citizenry to express their views on important national 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, citizens of the Philippines and who are registered in the lists of Citizen Assembly members kept by the barrio, district or ward secretary." By Presidential Decree No. 86-A, dated January 5, 1973, the Assemblies were convened for a referendum between January 10 and 15, to "consider vital national issues now confronting the country, like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the convening of Congress on January 22, 1973, and the holding of elections in November 1973." On January 5, 1973 the newspapers came out with a list of four questions to be submitted to the Citizens Assemblies, the fourth one being as follows: "How soon would you like plebiscite on the new Constitution to be held?" It should be noted in this connection that the President had previously announced that he had ordered the postponement of plebiscite which he had called for January 15, 1973 (Presidential Decree No. 73) for the ratification of the Constitution, and that he was considering two new dates for the purpose February 19 or March 5; that he had ordered that the registration of voters (pursuant to Decree No. 73) be extended to accommodate new voters; and that copies of the new Constitution would be distributed in eight dialects the people. (Bulletin Today, December 24, 1972.) On January 10, 1973 it was reported that one more question would be added to the original four which were to be submitted to the Citizens Assemblies. The question concerning plebiscite was reworded as follows: "Do you like the plebiscite to be held later?" The implication, it may likewise be noted, was that the Assemblies should express their views as to the plebiscite should be held, not as to whether or not it should be held at all. The next day, January 11, it was reported that six additional questions would be submitted, namely: (1) Do you approve of the citizens assemblies as the base of popular government to decide issues of national interest? (2) Do you approve of the new Constitution? (3) Do you want a plebiscite to be called to ratify the new Constitution? (4) Do you want the elections to be held in November, 1973 accordance with the provisions of the 1935 Constitution? (5) If the elections would not be held, when do you want the next elections to be called? (6) Do you want martial law to continue? [Bulletin Today, January 11, 1973; emphasis supplied]. Appended to the six additional questions above quoted were the suggested answers, thus: COMMENTS ON QUESTION No. 1 In order to broaden the base of citizens' participation in government. QUESTION No. 2 But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies. QUESTION No. 3 If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified. The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution. QUESTION No. 4 We are sick and tired of too frequent elections. We are fed up with politics, of so many debates and so much expenses. QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country, for reforms to take root and normalcy to return. QUESTION No. 6 We want President Marcos to continue with Martial Law. We want him to exercise his powers with more authority. We want him to be strong and firm so that he can accomplish all his reform program and establish normalcy in the country. If all other measures fail, we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly. So it was that on January 11, 1973, the second day of the purported 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 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. 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 Constitution nor in accordance with the Election Code of 1971. The referendum can by no means be considered as the plebiscite contemplated in Section 2 of said Code and in Article XVII, Section 16, of the draft Constitution itself, or as the election intended by Congress when it passed Resolution No. 2 on March 16, 1967 calling a Convention for the revision of the 1935 Constitution. The Citizens Assemblies were not limited to qualified, let alone registered voters, but included all citizens from the age of fifteen, and regardless of whether or not they were illiterates, feeble-minded, or ex convicts * these being the classes of persons expressly disqualified from voting by Section 102 of the Election Code. In short, the constitutional and 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 features of the election process, was not therefore observed. No set of rules for counting the votes or of tabulating them and reporting the figures was prescribed or followed. The Commission on Elections, which is the 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 supervision or in the assessment of the results. It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of all the members of the Citizens Assemblies had voted for the adoption of the proposed Constitution there was a substantial compliance with Article XV, Section 1, of the 1935 Constitution and with the Election Code of 1971. The suggestion misses the point entirely. It is of the 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 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 been ascertained according to law is simply to beg the issue, or to assume the very fact to be established. Otherwise no election or plebiscite could be questioned for non-compliance with the provisions of the Election Law as long as it is certified that a majority of the citizens had voted favorably or adversely on whatever it was that was submitted to them to vote upon. However, a finding that the ratification of the draft Constitution by the Citizens Assemblies, as certified by the President in Proclamation No. 1102, was not in accordance with the constitutional and statutory procedure laid down for the purpose does not quite resolve the questions raised in these cases. Such a finding, in our opinion, is on a matter which is essentially justiciable, that is, 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 Constitution, of the Election Code and of other related laws and official acts. No question of wisdom or of policy is involved. But from this finding it does not necessarily follow that this Court may justifiably declare that the Constitution has not become effective, and for that reason give due course to these petitions or grant the writs herein prayed for. The effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases, to resolve which considerations other than judicial, and therefore beyond the competence of this Court, are relevant and unavoidable. Several theories have been advanced respectively by the parties. The petitioners lay stress on the invalidity of the ratification process adopted by the Citizens Assemblies and on that premise would have this Court grant the reliefs they seek. The respondents represented by the Solicitor General, whose theory may be taken as the official position of the Government, challenge the jurisdiction of this Court on the ground that the questions raised in the petitions are political and therefore non-justiciable, and that in any case popular acquiescence in the new Constitution and the prospect of unsettling acts done in reliance thereon should caution against interposition of the power of judicial review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in their respective capacities as President and President Pro Tempore of the Senate of the Philippines, and through their counsel, Senator Arturo Tolentino, likewise invoke the political question doctrine, but on a ground not concurred in by the Solicitor General, namely, that approval of the 1973 Constitution by 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 present de juregovernment under the 1973 Constitution." Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on the assumption, conceded by all, that the Constitution was in full force and effect, with the power and authority of the entire Government behind it; and the task of this Court was simply to determine whether or not the particular act or statute that was being challenged contravened some rule or mandate of that Constitution. The process employed was one of interpretation and synthesis. In the cases at bar there is no such assumption: the Constitution (1935) has been derogated and its continued existence as well as the validity of the act of derogation is issue. The legal problem posed by the situation is aggravated by the fact that the political arms of the Government the Executive Departments and the two Houses of Congress have accepted the new Constitution as effective: the former by organizing themselves and discharging their functions under it, and the latter by not convening on January 22, 1973 or at any time thereafter, as ordained by the 1935 Constitution, and in the case of a majority of the members by expressing their option to serve in the Interim National Assembly in accordance with Article XVIII, Section 2, of the 1973 Constitution. * The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be taken up and restated at same length if only because it would constitute, if sustained, the most convenient ground for the invocation of the political-question doctrine. In support of his theory, Senator Tolentino contends that after President Marcos declared martial law on September 21, 1972 (Proclamation No. 1081) he established a revolutionary government when he issued General Order No. 1 the next day, wherein he proclaimed "that I shall govern the nation and direct the operation of the entire government, including all its agencies and instrumentalities, in my capacity, and shall exercise all the powers and prerogatives appurtenant and incident to my position as such Commander-in-Chief of all the Armed Forces of the Philippines." By this order, it is pointed out, the Commander-in-Chief of the Armed Forces assumed all the powers of government executive, legislative, and judicial; and thereafter proceeded to exercise such powers by a series of Orders and Decrees which amounted to legislative enactments not justified under martial law and, in some instances, trenched upon the domain of the judiciary, by removing from its jurisdiction certain classes of cases, such as "those involving the validity, legality, or constitutionality of

Proclamation No. 1081, or of any decree, order or act issued, promulgated or performed by me or by my duly designated representative pursuant thereto." (General Order No. 3 as amended by General Order No. 3-A, dated September 24, 1972.) The ratification by the Citizens Assemblies, it is averred, was the culminating act of the revolution, which thereupon converted the government into a de jure one under the 1973 Constitution. If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such ratification as well as the establishment of the government thereunder formed part of a revolution, albeit peaceful, then the issue of whether or not that Constitution has become effective and, as necessary corollary, whether or not the government legitimately functions under it instead of under the 1935 Constitution, is political and therefore nonjudicial in nature. Under such a postulate what the people did in the Citizen Assemblies should be taken as an exercise of the ultimate sovereign power. If they had risen up in arms and by force deposed the then existing government and set up a new government in its place, there could not be the least doubt that their act would be political and not subject to judicial review but only to the judgment of the same body politic act, in the context just set forth, is based on realities. If a new government gains authority and dominance through force, it can be effectively challenged only by a stronger force; judicial dictum can 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 and the people, in defiance of the existing Constitution but peacefully because of the absence of any appreciable opposition, ordained a new Constitution and succeeded in having the government operate under it. Against such a reality there can be no adequate judicial relief; and so courts forbear to take cognizance of the question but leave it to be decided through political means. The logic of the political-question doctrine is illustrated in statement of the U.S. Supreme Court in a case * relied upon, curiously enough, by the Solicitor General, who disagrees with the revolutionary government theory of Senator Tolentino. The case involved the issue of which of two opposing governments 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 State, which uniformly held that the inquiry belonged to the political power and not to the judicial. Commenting on the ruling thus arrived at, the U.S. Supreme Court said: "And if a State court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power." In other words, since the court would have no choice but to decide in one way alone in order to be able to decide at all, the question could not be considered proper for judicial determination. It should be noted that the above statement from Luther vs. Borden would be applicable in the cases at bar only on the premise that the ratification of the Constitution was a revolutionary act and that the government now functioning it is the product of such revolution. However, we are not prepared to agree that the premise is justified. In the first, place, with specific reference to the questioned ratification, several significant circumstances may be noted. (1) The Citizens Assemblies were created, according to Presidential Decree No. 86, "to broaden the base of citizen participation in the democratic process and to afford ample opportunities for the citizenry to express their views on important national issues." (2) The President announced, according to the Daily Express of January 2, 1973, that "the referendum will be in the nature of a loose consultation with the people." (3) The question, as submitted to them on the particular point at issue here, was "Do you a approve of the Constitution?" (4) President Marcos, in proclaiming that the Constitution had been ratified, stated 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 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 to really familiarize themselves with the Constitution, much less with the many other subjects that were submitted to them. In fact the plebiscite planned for January 15, 1973 under Presidential Decree No. 73 had been postponed to an indefinite date, the reasons for the postponement being, as attributed to the President in the newspapers, that "there was little time to campaign for or 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 Commission (on Elections) on the publication requirement of the new Charter and on the position taken by national leaders" ( Daily Express, Dec. 23, 1972); and that "the postponement would give us more time to debate on the merits of the Charter." ( Bulletin Today, Dec. 24, 1972.) The circumstances above enumerated lead us to the conclusion that the Citizens Assemblies could not have understood the referendum to be for the ratification of the Constitution, but only for the expression of their views on a consultative basis. Indeed, if the expression of those views had been intended as an act of ratification (or of rejection as a logical corollary) there would have been no need for the Katipunan ng mga Barangay to recommend that the Constitution should already be deemed ratified, for recommendation imports recognition of some higher authority in whom the final decision rests. But then the President, pursuant to such recommendation, did proclaim that the Constitution had been ratified and had come into effect. The more relevant 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 Constitution to them and proclaiming that the favorable expression of their views was an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication, are necessarily involved. 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 since he declared martial law and under which the new Constitution was submitted to the Citizens Assemblies was a revolutionary one. The pivotal question is rather whether or not the effectivity of the said Constitution by virtue of Presidential Proclamation No. 1102, upon the recommendation of theKatipunan ng mga Barangay, was intended to be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and statutory provisions prescribing the procedure for ratification. We must confess that after considering all the available evidence and all the relevant circumstances we have found no reasonably reliable answer to the question. On one hand we read, for instance, the following public statements of the President: Speaking about the proclamation of martial law, he said: I reiterate what I have said in the past: there is no turning back for our people. We have committed ourselves to this revolution. We have pledged to it our future, our fortunes, our lives, our destiny. We have burned our bridges behind us. Let no man misunderstand the strength of our resolution. (A Report to the Nation, Jan. 7, 1973.) On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, the President said the following, among other things:

... We can, perhaps delimit the power of the people to speak on legal matters, on justiciable matters, on matters that may come before the experts and interpreters of the law. But we cannot disqualify the people from speaking on what we and the people consider purely political matters especially those that affect the fundamental law of the land. ... The political questions that were presented to the people are exactly those that refer to the form of government which the people want ... The implications of disregarding the people's will are too awesome to be even considered. For if any power in government should even dare to disregard the people's will there would be valid ground for revolt. ... 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 Republic; they will rise up in arms not in revolt against the Republic but in protection of the Republic which they have installed. It is quite clear when the people say, we ratify the Constitution, that they mean they will not discard, the Constitution. On January 19, 1973 the Daily Express published statement of the President made the day before, from which the following portion is quoted: ... the times are too grave and the stakes too high for us permit the customary concessions to traditional democratic process to hold back our people's clear and unequivocal resolve and mandate to meet and overcome the extraordinary challenges presented by these extraordinary times. 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 all other measures should fail, that the President be directed to organize and establish a Revolutionary Government," but in the next breath added: "... if we do ratify the Constitution, how can we speak of Revolutionary Government? They cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens' Assemblies which submitted this recommendation merely sought articulate their impatience with the status quo that has brought about anarchy, confusion and misery to the masses ..." The only alternatives which the President clearly implied by the foregoing statements were the ratification of the new Constitution and the establishment of a revolutionary government, the latter 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 that had caused "anarchy, confusion and misery." The message seems clear: rather than return to such status quo, he would heed the recommendation of the Citizens' Assemblies to establish a revolutionary government, because that would be the only other way to carry out the reforms he had envisioned and initiated reforms which, in all fairness and honesty, must be given credit for the improved quality of life in its many aspects, except only in the field of civil liberties. If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing pronouncements, it is that the step taken in connection with the ratification of the Constitution was meant to be irreversible, and that nothing anyone could say would make the least difference. And if this is a correct and accurate assessment of the situation, then we would say that since it has been brought about by political action and is now maintained by the government that is in undisputed authority and dominance, the matter lies beyond the power of judicial review. On the other hand, by avowals no less significant if not so emphatic in terms, President Marcos has professed fealty to the Constitution. In "Today's Revolution: Democracy" he says: I believe, therefore, in the necessity of Revolution as an instrument of individual and social change ... but that in a democratic society, revolution is of necessity, constitutional, peaceful, and legal. In his TV address of September 23, 1972, President Marcos told the nation: I have proclaimed martial law in accordance with the powers vested in the President by the Constitution of the Philippines. xxx xxx xxx I repeat, this is not a military takeover of civil government functions. The Government of the Republic of the Philippines which was established by our people in 1946 continues. xxx xxx xxx I assure you that I am utilizing this power vested in me by the Constitution to save the Republic and reform our society... I have had to use this constitutional power in order that we may not completely lose the civil rights and freedom which we cherish... ... We are against the wall. We must now defend the Republic with the stronger powers of the Constitution. (Vital Documents, pp. 1-12; emphasis supplied). In the report of an interview granted by the President to the Newsweek Magazine (published in the issue of January 29, 1973), the following appears: xxx xxx xxx Q. Now that you have gotten off the constitutional track, won't you be in serious trouble if you run into critical problems with your programs?

R. I have never gotten off the constitutional track. Everything I am doing is in accordance with the 1935 Constitution. The only thing is that instead of 18-year-olds voting, we have allowed 15-year-olds the 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 at that age. On the matter of whether it is constitutional to proclaim martial law, it is constitutional because the Constitution provides for it in the event of invasion, insurrection, rebellion or immediate danger thereof. We may quarrel about whether what we have gone through is sufficient cause to proclaim martial law but at the very least there is a danger of rebellion because so many of our soldiers have been killed. You must remember this (martial law provision) was lifted from the American legislation that was the fundamental law of our country. xxx xxx xxx In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to the President. We have earlier made reference to subjective factors on which this Court, to our mind, is in no position to pass judgment. Among them is the President's own assessment of the will of the people as expressed through the Citizens Assemblies and of the importance of the 1973 Constitution to the successful implementation of the social and economic reforms he has started or envisioned. If he should decide that there is no turning back, that what the people recommended through the Citizens Assemblies, as they were reported to him, demand that the action he took pursuant thereto be final and irrevocable, then judicial review is out of the question. In articulating our view that the procedure of ratification that was followed was 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 perhaps decide, if he has not already decided, whether adherence to such 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. 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 Assemblies, has found acceptance among the people, such issue being 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 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 knowing, to the point of judicial certainty, whether the people have accepted 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 judicial. That the Constitution should be deemed in effect because of popular acquiescence that is political, and therefore beyond the domain of judicial review. We therefore vote not to give due course to the instant petitions. BARREDO, J., concurring: As far as I am concerned, I regard the present petitions as no more than mere reiterations of the Supplemental Petitions filed by Counsel Lorenzo M. Taada on January 15, 1973 in the so called Plebiscite Cases decided by this Court on January 22, 1978. Of course, there are amplifications of some of the 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 illuminating arguments were heard by Us, but, in my estimation, and with due recognition of the sincerety, brilliance and eloquence of counsels, nothing more cogent and compelling than what had already been previously presented by Counsel Taada is before Us now. Accordingly, I cannot see any reason why I should change the position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these petitions were initially considered by the Court; namely, to dismiss them. In view, however, of the transcendental importance of the issues before the Court and the significance to our people and in history of the individual stands of the members of the Court in relation to said issues and to the final outcome of these cases, and considering that I reserved before the filing of a more extended opinion, I will take this opportunity to explain further why I hold that the 1973 Constitution is already in force, if only to clarify that apart from the people's right of revolution to which I made pointed reference in my previous opinion, I can see now, after further reflection, that the vote of the people in the referendum in the Citizens Assemblies held on January 10 to 15, 1973, upon the result of which Proclamation 1102 is based, may be viewed more importantly as a political act than as a purely legal one with the result that such vote to consider the 1973 Constitution as ratified without the necessity of holding a plebiscite in the form followed in the previous ratification plebiscites in 1935 of the Constitution itself, 1937 of women's suffrage, 1939 of the amendments to the Ordinance Appended to the Constitution, 1940 of the re-election of the President, the bicameral legislature and the Commission on Elections, 1947 of the parity amendment and 1967, rejecting the proposed increase in the members of the House of Representatives and eligibility of members of Congress to the Constitutional Convention, may be deemed as a valid ratification substantially in compliance with the basic intent of Article XV of the 1935 Constitution. If indeed this explanation may be considered as a modification of my rationalization then, I wish to emphasize that my position as to the fundamental issue regarding the enforceability of the new Constitution is even firmer now than ever before. As I shall elucidate anon, paramount considerations of national import have led me to the conviction that the best interests of all concerned would be best served by the Supreme Court holding that the 1973 Constitution is now in force, not necessarily as a 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 result of the referendum may be construed as a compliance with the substantiality of Article XV of the 1935 Constitution. I The facts that gave rise to these proceedings are historical and well known. Generally, they may be taken judicial notice of. They revolve around the purported ratification of the Constitution of 1973 declared in Proclamation 1102 issued by the President on January 17, 1973. Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March 16, 1967, delegates to a constitutional convention to propose amendments to the Constitution of 1935 were elected in accordance with the implementing law, Republic Act 6132, on November 10, 1970. Known as the Constitutional Convention of 1971, the assembly began its sessions on June 1, 1971. After encountering a lot of difficulties, due to bitter rivalries over important positions and committees and an incomprehensible fear of overconcentrating powers in their officers, the delegates went about their work in comparatively slow pace, and by the third quarter of 1972 had finished deliberations and second-reading voting only on an insignificant number of proposals until September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued Proclamation 1081 declaring martial law throughout the country. An attempt was made to have the Convention recessed until after the lifting of martial law, and not long after the

motion of Delegate Kalaw to such effect was turned down, the activities within the assembly shifted to high gear. As if unmindful of the arrest and continued detention of several of its members, the convention gathered swift momentum in its work, and on November 30, 1972, it approved by overwhelming vote the draft of a complete constitution, instead of mere specific amendments of particular portions of the Constitution of 1935. Needless to say, before martial law was declared, there was full and unlimited coverage of the workings in the convention by the mass media. At the same time, public debates and discussions on various aspects of proposed amendments were not uncommon. Earlier, on November 22, 1972, the Convention had Resolution No. 5843 proposing "to President Ferdinand Marcos that a decree be issued calling a plebiscite for ratification of the proposed new Constitution on appropriate date as he shall determine and providing for necessary funds therefor." Acting under this authority, December 1, 1972, the President issued Presidential Decree No. 73 submitting the draft constitution for ratification by the people at a plebiscite set for January 15, 1973. This order contained provisions more or less similar to the plebiscite laws passed by Congress relative to the past plebiscites held in connection with previous proposed amendments. In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and enjoining the authorities to allow and encourage public and free discussions on proposed constitution. Not only this, subsequently, under date of December 17, 1972, the President ordered the suspension the 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 constitution were concerned. These two orders were not, however, to last very long. On January 7, 1973, the President, invoking information related to him that the area of public debate and discussion had opened by his previous orders was being taken advantage of by subversive elements to defeat the purposes for which they were issued and to foment public confusion, withdrew said orders and enjoined full and stricter implementation of martial law. In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86 creating Citizens Assemblies "so as to afford ample opportunities for the citizenry to express their views on important national issues" and one of the questions presented to said assemblies was: "Do you 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 the plebiscite scheduled to be held January 15, 1973, be postponed until further notice". In the meanwhile also, on January 5, 1973, the President issued Presidential Decree, No. 86-A providing as follows: PRESIDENTIAL DECREE NO. 86-A STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES) WHEREAS, on the basis of preliminary and initial reports from the field as gathered from barangays (citizens assemblies) that have so far been established, the people would like to decide for themselves questions or issues, both local and national, affecting their day-to-day lives and their future; WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for expressing the views of the people on important national issues; WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and due recognition as constituting the genuine, legitimate and valid expression of the popular will; and WHEREAS, the people would like the citizens assemblies to conduct immediately a referendum on certain specified questions such as the ratification of the new Constitution, continuance of martial law, the convening of Congress on January 22, 1973, and the elections in November 1973 pursuant to the 1935 Constitution. NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippines, do hereby declare as part of the law of the land the following: 1. The present barangays (citizens assemblies) are created under Presidential Decree No. 86 dated December 31, 1972, shall constitute the base for citizen participation in governmental affairs and their collective views shall be considered in the formulation of national policies or programs and, wherever practicable, shall be translated into concrete and specific decision; 2. Such barangays (citizens assemblies) shall consider vital national issues now confronting the country, like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the convening of Congress on January 22, 1973, and the holding of elections in November 1973, and others in the future, which shall serve as guide or basis for action or decision by the national government; 3. The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a referendum on important national issues, including those specified in paragraph 2 hereof, and submit results thereof to the Department of Local Governments Community Development immediately thereafter, pursuant to express will of the people as reflected in the reports gathered from the many thousands of barangays (citizens assemblies) throughout the country. 4. This Decree shall take effect immediately. Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen hundred and seventy three. And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading thus:

PRESIDENTIAL DECREE NO. 86-B DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES) WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them for resolution important national issues; WHEREAS, one of the questions persistently mentioned refers to the ratification of the Constitution proposed by the 1971 Constitutional Convention; WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submission of the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a plebiscite in itself in view of the fact that freedom 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 the Barangays or Citizens Assemblies; NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby 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 and that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention. The Secretary of the Department of Local Governments and Community Development shall insure the implementation of this Order. Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and seventy-three. 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: (1) Do you like the New Society? (2) Do you like the reforms under martial law? (3) Do you like Congress again to hold sessions? (4) Do you like the plebiscite to be held later? (5) Do you like the way President Marcos is running the affairs of the government?. but on January 11, 1973, six questions were added as follows: (1) Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests? (2) Do you approve of the New Constitution? (3) Do you want a plebiscite to be called to ratify the new Constitution? (4) Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution? (5) If the elections would not be held, when do you want it to be called? (6) Do you want martial law to continue? It is not seriously denied that together with the question the voters were furnished "comments" on the said questions more or less suggestive of the answer desired. It may assumed that the said "comments" came from official sources, albeit specifically unidentified. As petitioners point out, the most relevant of these "comments" were the following: COMMENTS ON xxx xxx xxx QUESTION No. 2 But we do not want the Ad Interim Assembly to be convoke. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies.

QUESTION No. 3 The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution. If the Citizens Assemblies approve of the new Constitution then the new Constitution should be deemed ratified. The Solicitor General claims, and there seems to be showing otherwise, that the results of the referendum were determined in the following manner: Thereafter, the results of the voting were collated and sent to the Department of Local Governments. The transmission of the results was made by telegram, telephone, the provincial government SSB System in each province connecting all towns; the SSB communication of the PACD connecting most provinces; the Department of Public Information Network System; the Weather Bureau Communication System connecting all provincial capitals and the National Civil Defense Network connecting all provincial capitals. The certificates of results were then flown to Manila to confirm the previous figures received by the aforementioned means of transmission. The certificates of results tallied with the previous figures taken with the exception of few cases of clerical errors. The Department adopted a system of regionalizing the receiving section of the Citizens Assemblies operation at the Department wherein the identity of the barrio and the province was immediately given to a staff in charge of each region. Every afternoon at 2:00 o'clock, the 11 regions submitted the figures they received from the field to the central committee to tabulate the returns. The last figures were tabulated at 12 midnight of January 16, 1973 and early morning of January 17, 1973 and were then communicated to the President by the Department of Local Governments. The development culminated in the issuance by the President of Proclamation 1102 on January 17, 1973. Said proclamation reads: PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION. WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people; WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 6, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary; WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizen to express their views on important national issues; WHEREAS, responding to the clamor of the people an pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before Citizens' Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution? WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite; WHEREAS, since the referendum results show that more than ninety-five (95) percent of the members of the Barangays (Citizen Assemblies) are in favor of the New Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelmingly majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect. IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three. The first attempt to question the steps just enumerated taken by the President was in the so-called Plebiscite Cases, ten in number, which were filed by different petitioners during the first half of December 1972. 1 Their common target then was Presidential Decree No. 73, but before the said cases could be decided, the series of moves tending in effect to make them moot and academic insofar as they referred exclusively to the said Presidential Decree began to take shape upon the issuance of Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B, also above quoted, was issued and the six additional questions which were first publicized on January 11, 1973 were known, together with the "comments", petitioners sensed that a new and unorthodox procedure was being adopted to secure approval by the people of the new Constitution, hence Counsel Taada, not being satisfied with the fate of his urgent motion for early decision of the above ten cases dated January 12, 1973, filed on January 15, 1973, his supplemental motion seeking the prohibition against and injunction of the proceedings going on. Principal objective was to prevent that the President be

furnished the report of the results of the referendum and thereby disable him from carrying out what petitioners were apprehensively foreseeing would be done the issuance of some kind of proclamation, order or decree, declaring that the new Constitution had been ratified. Reacting swiftly, the Court resolved on the same day, January 15, which was Monday, to consider the supplemental motion as a supplemental petition and to require the respondents to answer the same the next Wednesday, January 17th, before the hour of the hearing of the petition which set for 9:30 o'clock in the morning of that day. The details what happened that morning form part of the recital of facts the decision rendered by this Court in the ten cases on January 22, 1973 and need not be repeated here. Suffice it to state no that before the hearing could be closed and while Counsel Taada was still insisting on his prayer for preliminary injunction or restraining order, the Secretary of Justice arrived and personally handed to the Chief Justice a copy Proclamation 1102 which had been issued at about 11:00 o'clock that same morning. In other words, the valiant and persistent efforts of petitioners and their counsels were overtaken by adverse developments, and in the mind of the majority of the members of the Court, the cases had become academic. For my part, I took the view that even on the basis of the supplemental petition and the answer thereto filed by respondents, the Court could already decide on the fundamental issue of the validity Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Taada's pleading and argument had anticipated its issuance, but the majority felt it was not ready to resolve the matter, for lack, according them, of full ventilation, and so, the decision reserved petitioners the filing of the "appropriate" cases, evidently, the present ones. II At the threshold, I find myself confronted by a matter which, although believed to be inconsequential by my learned brethren, I strongly feel needs special attention. I refer to the point raised by Counsel Arturo M. Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as President and President Pro Tempore of the Senate, to the effect that change in the composition of the Supreme Court provided for the 1973 Constitution, from the 11-man tribunal under the 1935 Constitution to a 15-man Court, makes of these cases which were filed after January 17, 1973 the date when Proclamation 1102 declared the new Constitution as ratified, political nature and beyond our jurisdiction. The main consideration submitted in this connection is that inasmuch as the number votes needed for a decision of this Court has been increased from six to eight in ordinary cases and from eight to ten for the declaration of unconstitutionality of a treaty, executive agreement 2 or law, the Court would have to resolve first as a prejudicial question whether the Court is acting in these cases as the 15-man or the 11-man Court, in which event, it would be faced with the dilemma that if it acts either as the former or as the latter, it would be prejudging the very matter in issue one way or the other, and, in effect, it would be choosing between two constitutions, which is a political determination not within the Court's competence. While I agree that the problem is at first blush rather involved, I do not share the view that the premises laid down by counsel necessarily preclude this Court from taking a definite stand on whether the Court is acting in these cases as the 15-Man or the 11-man Court. I feel very strongly that the issue should not be ignored or dodged, if only to make the world know that the Supreme Court of the Philippines is never incognizant of the capacity in which it is acting, much less lacking in courage or wisdom to resolve an issue that relates directly to its own composition. What a disgrace it would be to admit that this Supreme Court does not know, to use a common apt expression, whether it is fish or fowl. Withal, scholars and researchers who might go over our records in the future will inevitably examine minutely how each of us voted and upon what considerations we have individually acted, and, indeed, doubts may arise as to whether or not, despite the general result we might announce, there had been the requisite number of votes for a valid collegiate action. For instance, it may be argued that the present cases do not involve an issue of unconstitutionality, hence, if we are acting as the 11-man Court, only six votes would suffice to declare Proclamation 1102 ineffective, and if upon analysis of our respective opinions it should be inferable therefrom that six of us have considered the matter before the Court as justiciable and at the same time have found the procedure of ratification adopted in Presidential Decrees 86-A and 86-B and related orders of the President as not being in conformity with Article XV of the old Constitution, a cloud would exist as to efficacy of the dispositive portion of Our decision dismiss these cases, even if we have it understood that by the vote of justices in favor of such dismissal, We intended to mean the implementation or enforcement of the new Constitution now being done could continue. Be that as it may, I am against leaving such an important point open to speculation. By nature I am averse to ambiguity and equivocation and as a member of the Supreme Court, last thing I should knowingly countenance is uncertainty as to the juridical significance of any decision of the Court which is precisely being looked upon as the haven in which doubts are supposed to be authoritatively dispelled. Besides, from very nature of things, one thing is indubitably beyond dispute we cannot act in both capacities of a 15-man and an 11-man Court at the same time, in like manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us both in force. Our inescapable duty is to make a choice between them, according to what law and other considerations inherent to our function dictate. I cannot bear the thought that someone may someday say that the Supreme Court of the Philippines once decided a case without knowing the basis of its author to act or that it was ever wanting in judicial courage to define the same. Accordingly, with full consciousness of my limitations but compelled by my sense of duty and propriety to straighten out this grave of issue touching on the capacity in which the Court acting in these cases, I hold that we have no alternative but adopt in the present situation the orthodox rule that when validity of an act or law is challenged as being repugnant constitutional mandate, the same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stated differently, We have to proceed on the assumption that the new Constitution is in force and that We are acting in these cases as the 15-man Supreme Court provided for there Contrary to counsel's contention, there is here no prejudgment for or against any of the two constitutions. The truth of matter is simply that in the normal and logical conduct governmental activities, it is neither practical nor wise to defer the course of any action until after the courts have ascertained their legality, not only because if that were to be the rule, the functioning of government would correspondingly be undesirably hesitative and cumbersome, but more importantly, because the courts must at the first instance accord due respect to the acts of the other departments, as otherwise, the smooth running of the government would have to depend entirely on the unanimity of opinions among all its departments, which is hardly possible, unless it is assumed that only the judges have the exclusive prerogative of making and enforcing the law, aside from being its sole interpreter, which is contrary to all norms of juridical and political thinking. To my knowledge, there is yet no country in the world that has recognized judicial supremacy as its basic governmental principle, no matter how desirable we might believe the idea to be. Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on the assumption that this Court is still functioning under the 1935 Constitution. It is undeniable that the whole government, including the provincial, municipal and barrio units and not excluding the lower courts up to the Court of Appeals, is operating under the 1973 Constitution. Almost daily, presidential orders and decrees of the most legislative character affecting practically every aspect of governmental and private activity as well as the relations between the government and the citizenry are pouring out from Malacaang under the authority of said Constitution. On the other hand, taxes are being exacted and penalties in connection therewith are being imposed under said orders and decrees. Obligations have been contracted and business and industrial plans have been and are being projected pursuant to them. Displacements of public officials and employees in big numbers are going on in obedience to them. For the ten justices of the Supreme Court to constitute an island of resistance in the midst of these developments, which even unreasoning obstinacy cannot ignore, much less impede, is unimaginable, let alone the absurd and complicated consequences such a position entails in the internal workings within the judiciary amount

its different components, what with the lower courts considering such orders and decrees as forming part of the law of the land in making their orders and decisions, whereas the Supreme Court is holding, as it were, their effectivity at bay if it is not being indifferent to or ignoring them. It is suggested that the President, being a man of law, committed to abide by the decision of the Supreme Court, and if the Court feels that it cannot in the meantime consider the enforcement of the new Constitution, he can wait for its decision. Accepting the truth of this assertion, it does necessarily follow that by this attitude of the President, considers the Supreme Court as still operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions for the payment of the justices in accordance with the rate fixed in the New Constitution. Not only that, official alter ego, the Secretary of Justice, has been shoving this Court, since January 18, 1973, all matters related to the administrative supervision of the lower courts which by the new charter has been transferred from the Department of Justice to the Supreme Court, and as far as I know, President has not countermanded the Secretary's steps in that direction. That, on the other hand, the President has not augmented the justices of the Court to complete the prescribed number of fifteen is, in my appraisal, of no consequence considering that with the presence of ten justices who are the Court now, there is a working quorum, and the addition of new justices cannot in anyway affect the voting on the constitutional questions now before Us because, while there sufficient justices to declare by their unanimous vote illegality of Proclamation 1102, the votes of the justices to added would only be committed to upholding the same, since they cannot by any standard be expected to vote against legality of the very Constitution under which they would be appointed. Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We are dealing here with a whole constitution that radically modifies or alters only the form of our government from presidential parliamentary but also other constitutionally institutions vitally affecting all levels of society. It is, to mind, unrealistic to insist on that, fundamentally, the 1973 Constitution is the same 1935 Constitution, with a few improvements. A cursory perusal of the former should convince anyone that it is in essence a new one. While it does retain republicanism as the basic governmental tenet, the institutional changes introduced thereby are rather radical and its social orientation is decidedly more socialistic, just as its nationalistic features are somewhat different in certain respects. One cannot but note that the change embraces practically every part of the old charter, from its preamble down to its amending and effectivity clauses, involving as they do the statement of general principles, the citizenship and suffrage qualifications, the articles on the form of government, the judiciary provisions, the spelling out of the duties and responsibilities not only of citizens but also of officers of the government and the provisions on the national economy as well as the patrimony of the nation, not to mention the distinctive features of the general provisions. What is more, the transitory provisions notably depart from traditional and orthodox views in that, in general, the powers of government during the interim period are more or less concentrated in the President, to the extent that the continuation or discontinuance of what is now practically a one-man-rule, is even left to his discretion. Notably, the express ratification of all proclamations, orders, decrees and acts previously issued or done by the President, obviously meant to encompass those issued during martial law, is a commitment to the concept of martial law powers being implemented by President Marcos, in defiance of traditional views and prevailing jurisprudence, to the effect that the Executive's power of legislation during a regime of martial law is all inclusive and is not limited to the matters demanded by military necessity. In other words, the new constitution unlike any other constitution countenances the institution by the executive of reforms which normally is the exclusive attribute of the legislature. Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a new one, are that (1) Section 16 of its Article XVII which provides that this constitution shall "supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto" and (2) its transitory provisions expressly continue the effectivity of existing laws, offices and courts as well as the tenure of all incumbent officials, not adversely affected by it, which would have been unnecessary if the old constitution were being merely amended. The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the Judiciary (which include the Chief Justice and Associate Justices of Supreme Court) may continue in office (under the constitution) until they reach the age of seventy years, etc." By virtue of the presumptive validity of the new charter, all of form part of the 15-man-Court provided for therein correspondingly, We have in legal contemplation, ceased in the meanwhile to be members of the 11-man-Court in the 1935 Constitution. Should the Court finally decide that the Constitution is invalid, then We would automatically revert to our positions in the 11-man- Court, otherwise, We would just continue to be in our membership in the 15-manCourt, unless We feel We cannot in conscience accept the legality of existence. On the other hand, if it is assumed that We are the 11-man-Court and it happens that Our collective decision is in favor of the new constitution, it would be problematical for any dissenting justice to consider himself as included automatically in the 15-man-Court, since that would tantamount to accepting a position he does not honestly believe exists. III In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification of the 1973 Constitution it purports to declare as having taken place as a result of the referendum above-referred to is ineffective since it cannot be said on the basis of the said referendum that said Constitution has been "approved by a majority of the votes cast at an election" in the manner prescribed by Article XV the Constitution of 1935. More specifically, they maintain that the word "election" in the said Article has already acquired a definite accepted meaning out of the consistent holding in the past of ratification plebiscites, and accordingly, no other form of ratification can be considered contemplated by the framers of the Old Constitution than that which had been followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the supervision of the Commission on Elections. Furthermore, they emphatically deny the veracity of the proclaimed results of the referendum because, according to them the referendum was a farce and its results were manufactured or prefabricated, considering that Mr. Francisco Cruz, who is supposed to have submitted the final report to the President, which served as basis for Proclamation 1102, had no official authority to render the same, and it is inconceivable and humanly impossible for anyone to have been able to gather, tabulate and canvass the 15 million votes allegedly reported within the short period of time employed. Of course, they also contend that in any event, there was no proper submission because martial law per se creates constructive duress which deprives the voters of the complete freedom needed for the exercise of their right of choice and actually, there was neither time nor opportunity for real debate before they voted. On the other hand, the position of the Solicitor General as counsel for the respondents is that the matter raised in the petitions is a political one which the courts are not supposed to inquire into, and, anyway, there has been a substantial compliance with Article XV of the 1935 Constitution, inasmuch as, disregarding unessential matters of form, the undeniable fact is that the voting in the referendum resulted in the approval by the people of the New Constitution. I need not dwell at length on these variant positions of the parties. In my separate opinion in the Plebiscite Cases, I already made the observation that in view of the lack of solemnity and regularity in the voting as well as in the manner of reporting and canvassing conducted in connection with the referendum, I cannot say that Article XV of the Old Constitution has been complied with, albeit I held that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myself clearer on some relevant points, I would like to add a few considerations to what I have already said in the former cases.

In my opinion in those cases, the most important point I took into account was that in the face of the Presidential certification through Proclamation 1102 itself that the New Constitution has been approved by a majority of the people and having in mind facts of general knowledge which I have judicial notice of, I am in no position to deny that the result of the referendum was as the President had stated. I can believe that the figures referred to in the proclamation may not accurate, but I cannot say in conscience that all of them are manufactured or prefabricated, simply because I saw with own eyes that people did actually gather and listen discussions, if brief and inadequate for those who are abreast of current events and general occurrences, and that they did vote. I believe I can safely say that what I have seen have also been seen by many others throughout the country and unless it can be assumed, which honestly, I do not believe to be possible, that in fact there were actually no meetings held and no voting done in more places than those wherein there were such meetings and votings, I am not prepared to discredit entirely the declaration that there was voting and that the majority of the votes were in favor of the New Constitution. If in fact there were substantially less than 14 million votes of approval, the real figure, in my estimate, could still be significant enough and legally sufficient to serve as basis for a valid ratification. It is contended, however, that the understanding was that the referendum among the Citizens Assemblies was to be in the nature merely of a loose consultation and not an outright submission for purposes of ratification. I can see that at the outset, when the first set of questions was released, such may have been the idea. It must not be lost sight of, however, that if the newspaper reports are to be believed, and I say this only because petitioners would consider the newspapers as the official gazettes of the administration, the last set of six questions were included precisely because the reaction to the idea of mere consultation was that the people wanted greater direct participation, thru the Citizens Assemblies, in decision-making regarding matters of vital national interest. Thus, looking at things more understandingly and realistically the two questions emphasized by counsel, namely, (1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to ratify the new Constitution? should be considered no longer as loose consultations but as direct inquiries about the desire of the voters regarding the matters mentioned. Accordingly, I take it that if the majority had expressed disapproval of the new Constitution, the logical consequence would have been the complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is very plain to see that since the majority has already approved the new Constitution, a plebiscite would be superfluous. Clear as these rationalizations may be, it must have been thought that if the holding of a plebiscite was to be abandoned, there should be a direct and expressed desire of the people to such effect in order to forestall as much as possible any serious controversy regarding the non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause, of the new Constitution. Oddly enough, the "comments" accompanying the questions do strongly suggest this view. And as it turned out, the majority found no necessity in holding a plebiscite. In connection with the question, Do you approve of the New Constitution? capital is being made of the point that as so framed, the thrust of the said question does not seek an answer of fact but of opinion. It is argued that it would have been factual were it worded categorically thus Do you approve the New Constitution? The contention would have been weighty were it not unrealistic. I remember distinctly that the observation regarding the construction of the subject question was not originally made by any of the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery of the English language can rightly be the cause of envy of even professors of English. None of the other members of the Court, as far as I can recall, ever noticed how the said question is phrased, or if anyone of Us did, I am not aware that he gave it more than passing attention. What I mean is that if neither any of the distinguished and learned counsels nor any member of the Court understood the said question otherwise than calling for a factual answer instead of a mere opinion, how could anyone expect the millions of unlettered members of the Citizens Assemblies to have noticed the point brought out by Justice Castro? Truth to tell, I myself did not realize the difference until Justice Castro gave it emphasis. Besides, reading the question in the light of the accompanying "comment" corresponding to it in particular, I am certain that any one who answered the same understood it in no other sense than a direct inquiry as to whether or not, as a matter of fact, he approves the New Constitution, and naturally, affirmative answer must be taken as a categorical vote of approval thereof, considering, particularly, that according to the reported result of the referendum said answer was even coupled with the request that the President defer the convening of the Interim National Assembly. It is also contended that because of this reference in answer to that question to the deferment of the convening of the interim assembly, the said answer is at best a conditional approval not proper nor acceptable for purposes of ratification plebiscite. The contention has no basis. In interest of accuracy, the additional answer proposed in pertinent "comment" reads as follows: "But we do not want Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, as reported, was of similar tenor, it is not fair to ascribe to it the imposition of a condition. At most, the intention is no more than a suggestion or a wish. As regards said "comments", it must be considered that a martial law was declared, the circumstances surrounding making of the Constitution acquired a different and more meaningful aspect, namely, the formation of a new society. From the point of view of the President and on the basis of intelligence reports available to him, the only way to meet situation created by the subversive elements was to introduce immediately effective reforms calculated to redeem the people from the depth of retrogression and stagnation caused by rampant graft and corruption in high places, influence peddling, oligarchic political practices, private armies, anarchy, deteriorating conditions of peace and order, the so inequalities widening the gap between the rich and the poor, and many other deplorable long standing maladies crying for early relief and solution. Definitely, as in the case of rebellious movement that threatened the Quirino Administration, the remedy was far from using bullets alone. If a constitution was to be approved as an effective instrument towards the eradication of such grave problems, it had to be approved without loss of time and sans the cumbersome processes that, from the realistic viewpoint, have in the past obstructed rather than hastened the progress of the people. Stated otherwise, in the context of actualities, the evident objective in having a new constitution is to establish new directions in the pursuit of the national aspirations and the carrying out of national policies. Only by bearing these considerations in mind can the "comments" already referred to be properly appreciated. To others said "comments" may appear as evidence of corruption of the will of those who attended the assemblies, but actually, they may also be viewed in the same light as the sample ballots commonly resorted to in the elections of officials, which no one can contend are per semeans of coercion. Let us not forget that the times are abnormal, and prolonged dialogue and exchange of ideas are not generally possible, nor practical, considering the need for faster decisions and more resolute action. After all voting on a whole new constitution is different from voting on one, two or three specific proposed amendments, the former calls for nothing more than a collective view of all the provisions of the whole charter, for necessarily, one has to take the good together with the bad in it. It is rare for anyone to reject a constitution only because of a few specific objectionable features, no matter how substantial, considering the ever present possibility that after all it may be cured by subsequent amendment. Accordingly, there was need to indicate to the people the paths open to them in their quest for the betterment of their conditions, and as long as it is not shown that those who did not agree to the suggestions in the "comments" were actually compelled to vote against their will, I am not convinced that the existence of said "comments" should make any appreciable difference in the court's appraisal of the result of the referendum. I must confess that the fact that the referendum was held during martial law detracts somehow from the value that the referendum would otherwise have had. As I intimated, however, in my former opinion, it is not fair to condemn and disregard the result of the referendum barely because of martial law per se. For one thing, many of the objectionable features of martial law have not actually materialized, if only because the implementation of martial law since its inception has been generally characterized by restraint and consideration, thanks to the expressed wishes of the President that the same be made "Philippine style", which means without the rigor that has attended it in other lands and other times. Moreover, although the restrictions on the freedom of speech, the press and movement during martial law do have their corresponding adverse effects on the area of information which should be open to a voter, in its real sense what "chills" his freedom of choice and mars his exercise of discretion is suspension of the privilege of the writ

of habeas corpus. The reason is simply that a man may freely and correctly vote even if the needed information he possesses as to the candidates or issues being voted upon is more or less incomplete, but when he is subject to arrest and detention without investigation and without being informed of the cause thereof, that is something else which may actually cause him to cast a captive vote. Thus it is the suspension of the writ of habeas corpus accompanying martial law that can cause possible restraint on the freedom choice in an election held during martial law. It is a fact, however, borne by history and actual experience, that in the Philippines, the suspension of the privilege of the writ habeas corpus has never produced any chilling effect upon the voters, since it is known by all that only those who run afoul the law, saving inconsequential instances, have any cause for apprehension in regard to the conduct by them of the normal activities of life. And so it is recorded that in the elections 1951 and 1971, held while the privilege of writ of habeas corpus was under suspension, the Filipino voters gave the then opposition parties overwhelming if not sweeping victories, in defiance of the respective administrations that ordered the suspensions. At this juncture, I think it is fit to make it clear that I am not trying to show that the result of the referendum may considered as sufficient basis for declaring that the New Constitution has been ratified in accordance with the amending clause of the 1935 Constitution. I reiterate that in point of law, I find neither strict nor substantial compliance. The foregoing discussion is only to counter, if I may, certain impression regarding the general conditions obtaining during and in relation to the referendum which could have in one way or another affected the exercise of the freedom of choice and the use of discretion by the members of the Citizens Assemblies, to the end that as far as the same conditions may be relevant in my subsequent discussions of the acceptance by the people of the New Constitution they may also be considered. IV It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people. And on this premise, my considered opinion is that the Court may no longer decide these cases on the basis of purely legal considerations. Factors which are non-legal but nevertheless ponderous and compelling cannot be ignored, for their relevancy is inherent in the issue itself to be resolved. In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether or not there was proper submission under Presidential Decree No. 73 is justiciable, and I still hold that the propriety of submission under any other law or in any other form is constitutionally a fit subject for inquiry by the courts. The ruling in the decided cases relied upon by petitioners are to this effect. In view, however, of the factual background of the cases at bar which include ratification itself, it is necessary for me to point out that when it comes to ratification, I am persuaded that there should be a boundary beyond which the competence of the courts no longer has any reason for being, because the other side is exclusively political territory reserved for their own dominion by the people. The main basis of my opinion in the previous cases was acceptance by the people. Others may feel there is not enough indication of such acceptance in the record and in the circumstances the Court can take judicial notice of. For my part, I consider it unnecessary to be strictly judicial in inquiring into such fact. Being personally aware, as I have already stated, that the Citizens Assemblies did meet and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to judicial tape and measure, to find out with absolute precision the veracity of the total number of votes actually cast. After all, the claims that upon a comparison of conflicting reports, cases of excess votes may be found, even if extrapolated will not, as far as I can figure out, suffice to overcome the outcome officially announced. Rather than try to form a conclusion out of the raw evidence before Us which the parties did not care to really complete, I feel safer by referring to the results announced in the proclamation itself. Giving substantial allowances for possible error and downright manipulation, it must not be overlooked that, after all, their having been accepted and adopted by the President, based on official reports submitted to him in due course of performance of duty of appropriate subordinate officials, elevated them to the category of an act of a coordinate department of the government which under the principle separation of powers is clothed with presumptive correctness or at least entitled to a high degree of acceptability, until overcome by better evidence, which in these cases does not exist. In any event, considering that due to the unorthodoxy of the procedure adopted and the difficulty of an accurate checking of all the figures, I am unable to conceive of any manageable means of acquiring information upon which to predicate a denial, I have no alternative but to rely on what has been officially declared. At this point, I would venture to express the feeling that if it were not generally conceded that there has been sufficient showing of the acceptance in question by this time, there would have been already demonstrative and significant indications of a rather widespread, if not organized resistance in one form or another. Much as they are to be given due recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord to the filing of these cases as indicative enough of the general attitude of the people. It is true that in the opinion I had the privilege of penning the Court in Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal pronouncements to the effect that any amendment to the Constitution of 1935, to be valid, must appear to have been made in strict conformity with the requirements of Article XV thereof. What is more, that decision asserted judicial competence to inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in the correctness of those views and I would even add that I sincerely feel it reflects the spirit of the said constitutional provision. Without trying to strain any point however, I, submit the following considerations in the context of the peculiar circumstances of the cases now at bar, which are entirely different from those in the backdrop of the Tolentino rulings I have referred to. 1. Consider that in the present case what is involved is not just an amendment of a particular provision of an existing Constitution; here, it is, as I have discussed earlier above, an entirely new Constitution that is being proposed. This important circumstance makes a great deal of difference. No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the petitioner in the case I have just referred to is, now inviting Our attention to the exact language of Article XV and suggesting that the said Article may be strictly applied to proposed amendments but may hardly govern the ratification of a new Constitution. It is particularly stressed that the Article specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be valid as part of this Constitution." Indeed, how can a whole new constitution be by any manner of reasoning an amendment to any other constitution and how can it, if ratified, form part of such other constitution? In fact, in the Tolentino case I already somehow hinted this point when I made reference in the resolution denying the motion for reconsideration to the fact that Article XV must be followed "as long as any amendment is formulated and submitted under the aegis of the present Charter." Said resolution even added. "(T)his is not to say that the people may not, in the exercise of their inherent revolutionary powers, amend the Constitution or promulgate an entirely new one otherwise.". It is not strange at all to think that the amending clause of a constitution should be confined in its application only to proposed changes in any part of the same constitution itself, for the very fact that a new constitution is being adopted implies a general intent to put aside the whole of the old one, and what would be really incongrous is the idea that in such an eventuality, the new Constitution would subject its going into effect to any provision of the constitution it is to supersede, to use the language precisely of Section 6, Article XVII, the effectivity clause, of the New Constitution. My understanding is that generally, constitutions are self-born, they very rarely, if at all, come into being, by virtue of any provision of another constitution. 3 This must be the reason why every constitution has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea of the referendum and

provided for such a method to be used in the ratification of the New Constitution, I would have had serious doubts as to whether Article XV could have had priority of application. 2. When an entirely new constitution is proposed to supersede the existing one, we cannot but take into consideration the forces and the circumstances dictating the replacement. From the very nature of things, the proposal to ordain a new constitution must be viewed as the most eloquent expression of a people's resolute determination to bring about a massive change of the existing order, a meaningful transformation of the old society and a responsive reformation of the contemporary institutions and principles. Accordingly, should any question arise as to its effectivity and there is some reasonable indication that the new charter has already received in one way or another the sanction of the people, I would hold that the better rule is for the courts to defer to the people's judgment, so long as they are convinced of the fact of their approval, regardless of the form by which it is expressed provided it be reasonably feasible and reliable. Otherwise stated, in such instances, the courts should not bother about inquiring into compliance with technical requisites, and as a matter of policy should consider the matter non-justiciable. 3. There is still another circumstance which I consider to be of great relevancy. I refer to the ostensible reaction of the component elements, both collective and individual, of the Congress of the Philippines. Neither the Senate nor the House of Representatives has been reported to have even made any appreciable effort or attempt to convene as they were supposed to do under the Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being composed of experienced, knowledgeable and courageous members, it would not have been difficult for said parliamentary bodies to have conceived some ingenious way of giving evidence of their determined adherence to the Constitution under which they were elected. Frankly, much as I admire the efforts of the handful of senators who had their picture taken in front of the padlocked portals of the Senate chamber, I do not feel warranted to accord such act as enough token of resistance. As counsel Tolentino has informed the court, there was noting to stop the senators and the congressmen to meet in any other convenient place and somehow officially organize themselves in a way that can logically be considered as a session, even if nothing were done than to merely call the roll and disperse. Counsel Tolentino even pointed out that if there were not enough members to form a quorum, any smaller group could have ordered the arrest of the absent members. And with particular relevance to the present cases, it was not constitutionally indispensable for the presiding officers to issue any call to the members to convene, hence the present prayers for mandamus have no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission on Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the House of Representatives, have officially and in writing exercised the option given to them to join the Interim National Assembly under the New Constitution, thereby manifesting their acceptance of the new charter. Now, having these facts in mind, and it being obvious that of the three great departments of the government under the 1935 Constitution, two, the Executive and the Legislative, have already accepted the New Constitution and recognized its enforceability and enforcement, I cannot see how this Supreme Court can by judicial fiat hold back the political developments taking place and for the sake of being the guardian of the Constitution and the defender of its integrity and supremacy make its judicial power prevail against the decision of those who were duly chosen by the people to be their authorized spokesmen and representatives. It is not alone the physical futility of such a gesture that concerns me. More than that, there is the stark reality that the Senators and the Congressmen, no less than the President, have taken the same oath of loyalty to the Constitution that we, the Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the Constitution. If as the representatives of the people, they have already opted to accept the New Constitution as the more effective instrument for fulfillment of the national destiny, I really wonder if there is even any idealistic worth in our desperately clinging by Ourselves alone to Our sworn duty vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the new dispensation and cognizant of the decisive steps being with the least loss of time, towards their accomplishment, cannot but feel apprehensive that instead of serving the best interests of our people, which to me is in reality the real meaning of our oath of office, the Court might be standing in the way of the very thing our beloved country needs to retrieve its past glory and greatness. In other words, it is my conviction that what these cases demand most of all is not a decision demonstrative of our legal erudition and Solomonic wisdom but an all rounded judgment resulting from the consideration of all relevant circumstances, principally the political, or, in brief, a decision more political than legal, which a court can render only by deferring to the apparent judgment of the people and the announcement thereof by the political departments of the government and declaring the matter non-justiciable. 4. Viewed from the strictly legal angle and in the light of judicial methods of ascertainment, I cannot agree with the Solicitor General that in the legal sense, there has been at least substantial compliance with Article XV of the 1935 Constitution, but what I can see is that in a political sense, the answers to the referendum questions were not given by the people as legal conclusions. I take it that when they answered that by their signified approval of the New Constitution, they do not consider it necessary to hold a plebiscite, they could not have had in mind any intent to do what was constitutionally improper. Basically accustomed to proceed along constitutional channels, they must have acted in the honest conviction that what was being done was in conformity with prevailing constitutional standards. We are not to assume that the sovereign people were indulging in a futile exercise of their supreme political right to choose the fundamental charter by which their lives, their liberties and their fortunes shall be safeguarded. In other words, we must perforce infer that they meant their decision to count, and it behooves this Court to render judgment herein in that context. It is my considered opinion that viewed understandingly and realistically, there is more than sufficient ground to hold that, judged by such intent and, particularly, from the political standpoint, the ratification of the 1973 Constitution declared in Proclamation 1102 complies substantially with Article XV of the 1935 Charter, specially when it is considered that the most important element of the ratification therein contemplated is not in the word "election", which conceivably can be in many feasible and manageable forms but in the word "approved" which may be said to constitute the substantiality of the whole article, so long as such approval is reasonably ascertained. In the last analysis, therefore, it can be rightly said, even if only in a broad sense, that the ratification here in question was constitutionally justified and justifiable. 5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal grounds, the same should be dispelled by viewing the situation in the manner suggested by Counsel Tolentino and by the writer of this opinion in his separate opinion, oft-referred to above, in the Plebiscite Cases that is, as an extra constitutional exercise by the people, under the leadership of President Marcos, of their inalienable right to change their fundamental charter by any means they may deem appropriate, the moment they are convinced that the existing one is no longer responsive to their fundamental, political and social needs nor conducive to the timely attainment of their national destiny. This is not only the teaching of the American Declaration of Independence but is indeed, a truth that is self-evident. More, it should be regarded as implied in every constitution that regardless of the language of its amending clause, once the people have given their sanction to a new charter, the latter may be deemed as constitutionally permissible even from the point of view of the preceding constitution. Those who may feel restrained to consider this view out of respect to the import of Tolentino vs. Comelec, supra., would be well advised to bear in mind that the case was decided in the context of submission, not accomplished ratification. V The language of the disputed amending clause of the 1935 Constitution should not be deemed as the be all and end all the nation. More important than even the Constitution itself with all its excellent features, are the people living under it their happiness, their posterity and their national destiny. There is nothing that cannot be sacrificed in the pursuit of these objectives, which constitute the totality of the reasons for national existence. The sacred

liberties and freedom enshrined in it and the commitment and consecration thereof to the forms of democracy we have hitherto observed are mere integral parts of this totality; they are less important by themselves. What seems to me to be bothering many of our countrymen now is that by denying the present petitions, the Court would be deemed as sanctioning, not only the deviations from traditional democratic concepts and principles but also the qualified curtailment of individual liberties now being practiced, and this would amount, it is feared, to a repudiation of our oath to support and defend the Constitution of 1935. This is certainly something one must gravely ponder upon. When I consider, however, that the President, the Vice President, the members of both Houses of Congress, not to speak of all executive departments and bureaus under them as well as all the lower courts, including the Court of Appeals have already accepted the New Constitution as an instrument of a meaningful nationwide-all-level change in our government and society purported to make more realistic and feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national aspirations, I am led to wonder whether or not we, as members of the Supreme Court are being true to our duty to our people by refusing to follow suit and accept the realities of the moment, despite our being convinced of the sincerity and laudableness of their objectives, only because we feel that by the people's own act of ratifying the Constitution of 1935, they have so encased themselves within its provisions and may, therefore, no longer take measures to redeem themselves from the situation brought about by the deficiencies of the old order, unless they act in strict conformity therewith. I cannot believe that any people can be so stifled and enchained. In any event, I consider it a God-given attribute of the people to disengage themselves, if necessary, from any covenant that would obstruct their taking what subsequently appears to them to be the better road to the promotion and protection of their welfare. And once they have made their decision in that respect, whether sophisticatedly or crudely, whether in legal form or otherwise, certainly, there can be no court or power on earth that can reverse them. I would not be human if I should be insensitive to the passionate and eloquent appeals of Counsels Taada and Salonga that these cases be decided on the basis of conscience. That is exactly what I am doing. But if counsel mean that only by granting their petitions can this Court be worthily the bulwark of the people's faith in the government, I cannot agree, albeit my admiration and respect are all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to principle. Verily, they have brought out everything in the Filipino that these cases demand. In times of national emergencies and crises, not arising from foreign invasion, we need not fear playing opposite roles, as long as we are all animated by sincere love of country and aim exclusively at the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent generations, Quezon, Osmea, Roxas, Laurel and Recto, to mention only some of them, had their differences of views and they did not hesitate to take diametrically opposing sides that even reached tragic proportions, but all of them are admired and venerated. It is my faith that to act with absolute loyalty to our country and people is more important than loyalty to any particular precept or provision of the Constitution or to the Constitution itself. My oath to abide by the Constitution binds me to whatever course of action I feel sincerely is demanded by the welfare and best interests of the people. In this momentous juncture of our history, what is imperative is national unity. May God grant that the controversies the events leading to these cases have entail will heal after the decision herein is promulgated, so that all us Filipinos may forever join hands in the pursuit of our national destiny. IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions for mandamus and prohibition without costs. MAKASIAR, J., concurring: Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure for the ratification of constitutional amendments or of a new Constitution and that such procedure was no complied with, the validity of Presidential Proclamation No. 1102 is a political, not a justiciable, issue; for it is inseparably or inextricably link with and strikes at, because it is decisive of, the validity of ratification and adoption of, as well as acquiescence of people in, the 1973 Constitution and the legitimacy of the government organized and operating thereunder. And being political, it is beyond the ambit of judicial inquiry, tested by the definition of a political question enunciated in Taada, et. al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will not do violence to rights vested under the new Constitution, to international commitments forged pursuant thereto and to decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or whose jurisdiction has been altered by the 1973 Constitution and the government established thereunder, and will dissipate any confusion in the minds of the citizenry, who have been obeying the mandates of the new Constitution, as well as exercising the rights and performing the obligations defined by the new Constitution, and decrees and orders issued in implementation of the same and cooperating with the administration in the renovation of our social, economic and political system as re-structured by the 1973 Constitution and by the implementing decrees and orders (see Miller vs. Johnson, 18 SW 522, 522-526, 1892). In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf of the Court, defined a political question as one which, under the Constitution, is "to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority had been delegated to the Legislature or Executive branch of the government." (Taada, et al. vs. Cuenco, et al., supra). Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratification." Under Article XV of the 1935 Constitution, the power to propose constitutional amendments is vested in Congress or in a constitutional convention; while the power to ratify or reject such proposed amendments or new Constitution is reserved by the sovereign people. The nullification of Proclamation No. 1102 would inevitably render inoperative the 1973 Constitution, which is in fact the express prayer of the petitioners in G.R. No. L-36164. Regardless of the modality of submission or ratification or adoption even if it deviates from or violates the procedure delineated therefore by the old Constitution once the new Constitution is ratified, adopted and/or acquiesced in by the people or ratified even by a body or agency not duly authorized therefor but is subsequently adopted or recognized by the people and by the other official organs and functionaries of the government established under such a new Constitution, this Court is precluded from inquiring into the validity of such ratification, adoption or acquiescence and of the consequent effectivity of the new Constitution. This is as it should be in a democracy, for the people are the repository of all sovereign powers as well as the source of all governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is expressly restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions, thus: "Sovereignty resides in the people and all government authority emanates from them." The legality of the submission is no longer relevant; because the ratification, adoption and/or acquiescence by the people cures any infirmity in its submission or any other irregularities therein which are deemed mandatory before submission as they are considered merely directory after such ratification or adoption or acquiescence by the people. As Mr. Justice Brewer, then of the Kansas State Supreme Court and later Associate Justice of the

Federal Supreme Court, stated in re Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506): " The two important, vital elements of the Legislature and a majority of the popular vote. Beyond these, other provisions are mere machineries and forms. They may not be disregarded, because by them certainty as to the essentials is secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 285 NW 59, 61-64, 1939). This was the ruling by the American Supreme Court in the 1939 case of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice Hughes, speaking for the majority, stated that: ... Thus the political departments of the government dealt with the effect of both previous rejection and attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification ... . This decision by the political departments of the Government as to the validity of the adoption of the Fourteenth amendment has been accepted. We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment. This view was likewise emphasized by Mr. Justice Black in his concurring opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join, thus: The Constitution grants Congress exclusive power to control submission of constitutional amendments. Final determination by Congress that ratification by three-fourths of the States has taken place "is conclusive upon the courts." In the exercise of that power, Congress, of course, is governed by the Constitution. However, whether submission, intervening procedure or Congressional determination of ratification conforms to the commands of the Constitution, calls for decisions by a "political department" of questions of a type which this Court has frequently designated "political." And decision of a "political question" by the "political department" to which the Constitution has committed it "conclusively binds the judges, as well as all other officers, citizens and subjects of...government." Proclamation under authority of Congress that an amendment has been ratified will carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional authority of interpretation. To the extent that the Court's opinion in the present case even impliedly assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree... (American Constitutional Issues, by Pritchett, 1962 Ed., p. 44). The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1). The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place great reliance that the courts may review the propriety of a submission of a proposed constitutional amendment before the ratification or adoption of such proposed amendment by the sovereign people , hardly applies to the cases at bar; because the issue involved in the aforesaid cases refers to only the propriety of the submission of a proposed constitutional amendment to the people for ratification, unlike the present petitions, which challenge inevitably the validity of the 1973 Constitution after its ratification or adoption thru acquiescence by the sovereign people. As heretofore stated, it is specious and pure sophistry to advance the reasoning that the present petitions pray only for the nullification of the 1973 Constitution and the government operating thereunder. It should be stressed that even in the Gonzales case, supra, We held that: Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. It is part of the inherent powers of the people as the repository of sovereignty in a republican state, such as ours to make, and hence, to amend their own Fundamental Law. Congress may propose amendments to the same explicitly grants such power. Hence, when exercising the same, it is said that Senators and Members of the House of Representatives act, not as members, but as component elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike the people, when performing the same function, for their authority does not emanate from the Constitution they are the very source of all powers of government, including the Constitution itself. (21 SCRA 787) We did not categorically and entirely overturn the doctrine in Mabanag vs. Lopez Vito (78 Phil. 1) that both the proposal to amend and the ratification of such a constitutional amendment are political in nature forming as they do the essential parts of one political scheme the amending process. WE merely stated therein that the force of the ruling in the said case of Mabanag vs. Lopez Vito has been weakened by subsequent cases. Thus, We pronounced therein: It is true that in Mabanag vs. Lopez Vito, this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution which was being submitted to the people for ratification satisfied the three fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate, Avelino vs. Cuenco, Taada vs. Cuenco and Macias vs. Commission on Elections. In the first, we held the officers and employees of the Senate Electoral Tribunal are supervision and control, not of that of the Senate President, claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives, upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus we rejected the theory advanced in these four (4) cases, that the issues therein raised were political questions the determination of which is beyond judicial review. (21 SCRA pp. 785-786); for which reason We concluded

In short, the issue whether or not a resolution of Congress before acting as a constituent assembly violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial review, and to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito, the latter should be deemed modified accordingly. (p. 787, emphasis supplied.) In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA 703-714). The inevitable consequence therefore is that the validity of the ratification or adoption of or acquiescence by the people in the 1973 Constitution, remains a political issue removed from the jurisdiction of this Court to review. One more word about the Gonzales and Tolentino cases. Both primarily stressed on the impropriety of the submission of a proposed constitutional amendment. Courts do not deal with propriety or wisdom or absence of either of an official act or of a law. Judicial power concerns only with the legality or illegality, constitutionality or unconstitutionality of an act: it inquires into the existence of power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political department of the government. The classic example of an illegal submission that did not impair the validity of the ratification or adoption of a new Constitution is the case of the Federal Constitution of the United States. It should be recalled that the thirteen (13) original states of the American Union which succeeded in liberating themselves from England after the revolution which began on April 19, 1775 with the skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) adopted their Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six thereafter, the Congress of the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitutional Convention "for the sole and express purpose of revising the articles of confederation ... ." (Appendix I, Federalist, Modern Library ed., p. 577, emphasis supplied). The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of Confederation and Perpetual Union stated specifically: The articles of this confederation shall be inviolably observed in every state, and the union shall be perpetual; nor shall any alterations at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state. (See the Federalist, Appendix II, Modern Library Ed., 1937, p. 584; emphasis supplied.) But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for the alteration for the ratification of the Federal Constitution as drafted by the Philadelphia Convention were not followed. Fearful the said Federal Constitution would not be ratified by the legislatures as prescribed, the Philadelphia Convention adopted a resolution requesting the Congress of the Confederation to pass a resolution providing that the Constitution should be submitted to elected state conventions and if ratified by the conventions in nine (9) states, not necessarily in all thirteen (13) states, the said Constitution shall take effect. Thus, history Professor Edward Earle Mead of Princeton University recorded that: It would have been a counsel of perfection to consign the new constitution to the tender mercies of the legislatures of each and all of the 13 states. Experience clearly indicated that ratification then would have had the same chance as the scriptural camel passing through the eye of a needle. It was therefore determined to recommend to Congress that the new Constitution be submitted to conventions in the several states especially elected to pass upon it and that, furthermore, the new government should go into effect if and when it should be ratified by nine of the thirteen states ... . (The Federalist, Modern Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix; emphasis supplied) Historian Samuel Eliot Morison similarly recounted: The Convention, anticipating that the influence of many state politicians would be Antifederalist, provided for ratification of the Constitution by popularly elected conventions in each state. Suspecting that Rhode Island, at least, would prove recalcitrant, it declared that the Constitution would go into effect as soon as nine states ratified. The convention method had the further advantage that judges, ministers, and others ineligible to state legislatures, could be elected to a convention. The nine-state provision was, of course, mildly revolutionary. But the Congress of the Confederation, still sitting in New York to carry on federal government until relieved, formally submitted the new constitution to the states and politely faded out before the first presidential inauguration. (The Oxford History of the Am. People, by Samuel Eliot Morison, 1965 ed., p. 312). And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last four states on May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27. by the state conventions and not by all thirteen (13) state legislatures as required by Article XIII of the Articles of Confederation and Perpetual Union aforequoted and in spite of the fact that the Federal Constitution as originally adopted suffers from two basic infirmities, namely, the absence of a bill of Rights and of a provision affirming the power of judicial review. The liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution. The doctrine of judicial review has become part of American constitutional law only by virtue of a judicial pronouncement by Chief Justice Marshall in the case of Marbury vs. Madison (1803, 1 Cranch 137). Until this date, no challenge has been launched against the validity of the ratification of the American Constitution, nor against the legitimacy of the government organized and functioning thereunder. In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), which enunciated the principle that the validity of a new or revised Constitution does not depend on the method of its submission or ratification by the people, but on the fact or fiat or approval or adoption or acquiescence by the people which fact of ratification or adoption or acquiescence is all that is essential , the Court cited precisely the case of the irregular revision and ratification by state conventions of the Federal Constitution, thus:

No case identical in its facts with the case now under consideration has been called to our attention, and we have found none. We think that the principle which we apply in the instant case was very clearly applied in the creation of the constitution of the United States. The convention created by a resolution of Congress had authority to do one thing, and one only, to wit, amend the articles of confederation. This they did not do, but submitted to the sovereign power, the people, a new constitution. In this manner was the constitution of the United States submitted to the people and it became operative as the organic law of this nation when it had been properly adopted by the people. Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the constitution of the United States, has this to say: "The convention proceeded to do, and did accomplish, what they were not authorized to do by a resolution of Congress that called them together. That resolution plainly contemplated amendments to the articles of confederation, to be submitted to and passed by the Congress, and afterwards ratified by all the State legislatures, in the manner pointed out by the existing organic law. But the convention soon became convinced that any amendments were powerless to effect a cure; that the disease was too deeply seated to be reached such tentative means. They saw that the system they were called to improve must be totally abandoned, and that the national idea must be re-established at the center of their political society. It was objected by some members, that they had no power, no authority, to construct a new government. They had no authority, if their decisions were to be final; and no authority whatsoever, under the articles of confederation, to adopt the course they did. But they knew that their labors were only to be suggestions; and that they as well as any private individuals, and any private individuals as well as they, had a right to propose a plan of government to the people for their adoption. They were, in fact, a mere assemblage of private citizens, and their work had no more binding sanction than a constitution drafted by Mr. Hamilton in his office would have had. The people, by their expressed will, transformed this suggestion, this proposal, into an organic law, and the people might have done the same with a constitution submitted to them by a single citizen." xxx xxx xxx ... When the people adopt a completely revised or new constitution, the framing or submission of the instrument is not what gives it binding force and effect. The fiat of the people and only the fiat of the people, can breathe life into a constitution . xxx xxx xxx ... We do not hesitate to say that a court is never justified in placing by implication a limitation upon the sovereign. This would be an authorized exercise of sovereign power by the court. In State v. Swift, 69 Ind. 505, 519, the Indiana Supreme Court said: "The people of a State may form an original constitution, or abrogate an old one and form a new one, at any time, without any political restriction except the constitution of the United States; ... ." (37 SE 327-328, 329, emphasis supplied.) In the 1903 case of Weston vs. Ryan, the Court held: It remains to be said that if we felt at liberty to pass upon this question, and were compelled to hold that the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any means follow that the amendment is not a part of our state Constitution. In the recent case of Taylor vs. Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia hold that their state Constitution of 1902, having been acknowledged and accepted by the officers administering the state government, and by the people, and being in force without opposition, must be regarded as an existing Constitution irrespective of the question as to whether or not the convention which promulgated it had authority so to do without submitting it to a vote of the people . In Brittle v. People, 2 Neb. 198, is a similar holding as to certain provisions of the Nebraska Constitution of 1886, which were added by the Legislature at the requirement of Congress, though never submitted to the people for their approval." (97 NW 349-350; emphasis supplied). Against the decision in the Wheeler case, supra, confirming the validity of the ratification and adoption of the American Constitution, in spite of the fact that such ratification was in clear violation of the prescription on alteration and ratification of the Articles of Confederation and Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most significant historical fact by calling the Federal Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the requirement that the Articles of Confederation and Perpetual Union can be amended only with the consent of all thirteen (13) state legislatures. This opinion does not cite any decided case, but merely refers to the footnotes on the brief historic account of the United States Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the Oxford History of the American People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of Confederation and Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in Politics, 1785-1788," Professor Morison delineates the genesis of the Federal Constitution, but does not refer to it even implicitly as revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered revolutionary from the view point of McIver if the term revolution is understood in "its wider sense to embrace decisive changes in the character of government, even though they do not involve the violent overthrow of an established order, ... ." (R.M. MacIver, The Web of Government, 1965 ed., p. 203). It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The Articles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged as it was during the war of independence was a revolutionary constitution of the thirteen (13) states. In the existing Federal Constitution of the United States which was adopted seven (7) or nine (9) years after the thirteen (13) states won their independence and long after popular support for the government of the Confederation had stabilized was not a product of a revolution. The Federal Constitution was a "creation of the brain and purpose of man" in an era of peace. It can only be considered revolutionary in the sense that it is a radical departure from its predecessor, the Articles of Confederation and Perpetual Union. It is equally absurd to affirm that the present Federal Constitution of the United States is not the successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is so obvious that no further refutation is needed. As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the validity and enforceability of the 1973 Constitution and of the government established and operating thereunder. Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). If Proclamation

No. 1102 is nullified, then there is no valid ratification of the 1973 Constitution and the inevitable conclusion is that the government organized and functioning thereunder is not a legitimate government. That the issue of the legitimacy of a government is likewise political and not justiciable, had long been decided as early as the 1849 case of Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the case of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is sufficient for us to quote the decision in Pacific States Telephone and Telegraph Co., supra, penned by Mr. Chief Justice White, who re-stated: In view of the importance of the subject, the apparent misapprehension on one side and seeming misconception on the other, suggested by the argument as to the full significance of the previous doctrine, we do not content ourselves with a mere citation of the cases, but state more at length than we otherwise would the issues and the doctrine expounded in the leading and absolutely controlling case Luther v. Borden, 7 How. 1, 12 L.ed. 581. xxx xxx xxx ... On this subject it was said (p. 38): "For if this court is authorized to enter upon this inquiry, proposed by the plaintiff, and it should be decided that the character government had no legal existence during the period of time above mentioned, if it had been annulled by the adoption of the opposing government, then the laws passed by its legislature during that time were nullities; its taxes wrongfully collected, its salaries and compensations to its officers illegally paid ; its public accounts improperly settled and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals." xxx xxx xxx "The fourth section of the fourth article of the Constitution of the United States shall guarantee to every state in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the Legislature or of the Executive (when the legislature cannot be convened) against domestic violence. "Under this article of the Constitution it rests with Congress to decide what government is established one in a state. For, as the United State guarantee to each state a republican government, Congress must necessarily decide what government is established in the state before it can determine whether it is republican or not. And when the senators and representatives of a state are admitted into the Councils of the Union, the authority of the government under which they were appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there and not in the courts." xxx xxx xxx ... We do not stop to cite other cases which indirectly or incidentally refer to the subject, but conclude by directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing of a contention made concerning the 14th Amendment, and coming to consider a proposition which was necessary to be decided concerning the nature and effect of the guaranty of S 4 of article 4, it was said (p. 578): "But it is said that the 14th Amendment must be read with S 4 of article 4, of the Constitution, providing that the United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or the Executive (when the legislature cannot be convened), against domestic violence." xxx xxx xxx "It was long ago settled that the enforcement of this guaranty belonged to the political department. Luther v. Borden , 7 How. 1, 12 L.ed. 581. In that case it was held that the question, which of the two opposing governments of Rhode Island, namely, the charter government or the government established by a voluntary convention, was the legitimate one, was a question for the determination of the political department; and when that department had decided, the courts were bound to take notice of the decision and follow it." xxx xxx xxx As the issues presented, in their very essence, are, and have long since by this Court been, definitely determined to be political and governmental, and embraced within the scope of the scope of the powers conferred upon Congress, and not, therefore within the reach of judicial power, it follows that the case presented is not within our jurisdiction , and the writ of error must therefore be, and it is, dismissed for want of jurisdiction. (223 U.S. pp. 142-151; emphasis supplied). Even a constitutional amendment that is only promulgated by the Constitutional Convention without authority therefor and without submitting the same to the people for ratification, becomes valid, when recognized, accepted and acted upon the by Chief of State and other government functionaries, as well as by the people. In the 1903 case of Taylor vs. Commonwealth (44 SE 754-755), the Court ruled:

The sole ground urged in support of the contention that Constitution proclaimed in 1902 is invalid is that it was ordained and promulgated by the convention without being submitted for ratification or rejection by the people of the commonwealth. The Constitution of 1902 was ordained and proclaimed by convention duly called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work that the convention has been recognized, accepted, and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by its having been engaged for nearly a year in legislating under it and putting its provisions into operation but the judiciary in taking the oath prescribed thereby to support and by enforcing its provisions; and by the people in their primary capacity by peacefully accepting it and acquiescing in it, registering as voters under it to the extent of thousands through the state, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States. (p. 755). The Court in the Taylor case above-mentioned further said: While constitutional procedure for adoption or proposal to amend the constitution must be duly followed, without omitting any requisite steps, courts should uphold amendment, unless satisfied that the Constitution was violated in submitting the proposal. ... Substance more than form must be regarded in considering whether the complete constitutional system for submitting the proposal to amend the constitution was observed. In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated: There may be technical error in the manner in which a proposed amendment is adopted, or in its advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes part of the Constitution. Legal complaints to the submission may be made prior to taking the vote, but, if once sanctioned, the amendment is embodied therein, and cannot be attacked, either directly or collaterally, because of any mistake antecedent thereto. Even though it be submitted at an improper time, it is effective for all purposes when accepted by the majority. Armstrong v. King, 281 Pa. 207, 126 A. 263. (130 A 409). Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon ratification or adoption or acquiescence by the people. Thus, in the 1905 case of Ex parte Birmingham and A.R. Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld this principle and stated that: "The authorities are almost uniform that this ratification of an unauthorized act by the people (and the people are the principal in this instance) renders the act valid and binding." It has likewise been held that it is not necessary that voters ratifying the new Constitution are registered in the book of voters; it is enough that they are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasis supplied). In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of Wisconsin ruled that "irregularity in the procedure for the submission of the proposed constitutional amendment will not defeat the ratification by the people." Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme Court pronounced that "the irregularity in failing to publish the proposed constitutional amendment once in each of the 4 calendar weeks next preceding the calendar week in which the election was held or once in each of the 7-day periods immediately preceding the day of the election as required by the Constitution, did not invalidate the amendment which was ratified by the people." The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they admitted irregularities or illegalities committed in the procedure for submission of the proposed constitutional amendment to the people for ratification consisted of: "(a) the alleged failure of the county election commissioners of the several counties to provide a sufficient number of ballot boxes 'secured by good and substantial locks,' as provided by Section 3249, Code of 1942, Rec., to be used in the holding of the special election on the constitutional amendment, and (b) the alleged failure of the State Election Commissioners to comply with the requirements of Code Sections 3204 and 3205 in the appointment of election commissioners in each of the 82 counties. The irregularities complained of, even if proved, were not such irregularities would have invalidated the election." (Emphasis supplied; see also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663). Even prior to the election in November, 1970 of delegates of the Constitutional Convention and during the deliberations of the Constitutional Convention from June 1, 1971 until martial law was proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973 Constitution which have long been desired by the people, had been thoroughly discussed in the various committees of the Constitutional Convention, on the floor of the Convention itself, in civic forums and in all the media of information. Many of the decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the reforms and had been ratified in Sec. 3(2) of Article XVII of the 1973 Constitution. Petitioners cannot safely state that during martial law the majority of the people cannot freely vote for these reforms and are not complying with the implementing decrees promulgated by the President. Free election is not inevitably incompatible with martial law. We had free elections in 1951 and 1971 when the opposition won six out of eight senatorial seats despite the suspension of the privileges of the writ of habeas corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which suspension implies constraint on individual freedom as the proclamation of martial law. In both situations, there is no total blackout of human rights and civil liberties. All the local governments, dominated either by Nacionalistas or Liberals, as well as officials of the Legislative and Executive branches of the government elected and/or appointed under the 1935 Constitution have either recognized or are now functioning under the 1973 Constitution, aside from the fact of its ratification by the sovereign people through the Citizens Assemblies. Ninety-five (95) of a total of one hundred ten (110) members of the House of

Representatives including the Speaker and the Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the Liberal Party and fifteen (15) of a total of twenty-four (24) senators including Liberal senators Edgar U. Ilarde and John Osmea opted to serve in the Interim Assembly, according to the certification of the Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of petitioners in L36165). Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. All the other functionaries recognize the new government and are performing their duties and exercising their powers under the 1973 Constitution, including the lower courts. The civil courts, military tribunals and quasijudicial bodies created by presidential decrees have decided some criminal, civil and administrative cases pursuant to such decrees. The foreign ambassadors who were accredited to the Republic of the Philippines before martial law continue to serve as such in our country; while two new ambassadors have been accepted by the Philippines after the ratification of the 1973 Constitution on January 17, 1973. Copies of the 1973 Constitution had been furnished the United Nations Organization and practically all the other countries with which the Philippines has diplomatic relations. No adverse reaction from the United Nations or from the foreign states has been manifested. On the contrary, our permanent delegate to the United Nations Organization and our diplomatic representatives abroad appointed before martial law continue to remain in their posts and are performing their functions as such under the 1973 Constitution. Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by requiring all election registrars to register 18-year olds and above whether literates or not, who are qualified electors under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of respondents Puyat and Roy in L-36165). In brief, it cannot be said that the people are ignoring the 1973 Constitution and the government which is enforcing the same for over 10 weeks now With the petitioners herein, secessionists, rebels and subversives as the only possible exceptions, the rest of the citizenry are complying with decrees, orders and circulars issued by the incumbent President implementing the 1973 Constitution. Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW 522: If a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the duty of the courts declare its work a nullity. This would be revolution, and this the courts of the existing government must resist until they are overturned by power, and a new government established. The convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution, and are now daily doing so. Is the question, therefore, one of a judicial character? It is our undoubted duty, if a statute be unconstitutional to so declare it; also, if a provision of the state constitution be in conflict with the federal constitution, to hold the former invalid. But this is a very different case. It may be said, however, that, for every violation of or non-compliance with the law, there should be a remedy in the courts. This is not, however, always the case. For instance, the power of a court as to the acts of the other departments of the government is not an absolute one, but merely to determine whether they have kept within constitutional limits, it is a duty rather than a power, The judiciary cannot compel a coequal department to perform a duty. It is responsible to the people; but if it does act, then, when the question is properly presented, it is the duty of the court to say whether it has conformed to the organic law. While the judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and also because, in times of great popular excitement, it is usually their last resort, yet it should at the same time be careful to overstep the proper bounds of its power, as being perhaps equally dangerous; and especially where such momentous results might follow as would be likely in this instance, if the power of the judiciary permitted, and its duty required, the overthrow of the work of the convention . After the American Revolution the state of Rhode Island retained its colonial character as its constitution, and no law existed providing for the making of a new one. In 1841 public meetings were held, resulting in the election of a convention to form a new one, to be submitted to a popular vote. The convention framed one, submitted it to a vote, and declared it adopted. Elections were held for state officers, who proceeded to organize a new government. The charter government did not acquiesce in these proceedings, and finally declared the state under martial law. It called another convention, which in 1843 formed a new constitution. Whether the charter government, or the one established by the voluntary convention, was the legitimate one, was uniformly held by the courts of the state not to be a judicial, but a political question; and the political department having recognized the one, it was held to be the duty of the judiciary to follow its decision. The supreme court of the United States, in Luther v. Borden, 7 How. 1, while not expressly deciding the principle, as it held the federal court, yet in the argument approves it, and in substance says that where the political department has decided such a matter the judiciary should abide by it. Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold that the convention, when it reassembled, had no power to make any material amendment, and that such as were made are void by reason of the people having theretofore approved the instrument. Then, next, this court must determine what amendments were material; and we find the court, in effect, making a constitution. This would be arrogating sovereignty to itself. Perhaps the members of the court might differ as to what amendments are material, and the result would be confusion and anarchy. One judge might say that all the amendments, material and immaterial, were void; another, that the convention had then the implied power to correct palpable errors, and then the court might differ as to what amendments are material. If the instrument as ratified by the people could not be corrected or altered at all, or if the court must determine what changes were material, then the instrument, as passed upon by the people or as fixed by the court would be lacking a promulgation by the convention; and, if this be essential, then the question would arise, what constitution are we now living under, and what is the organic law of the state? A suggestion of these matters shows what endless confusion and harm to the state might and likely would arise. If, through error of opinion, the convention exceeded its power, and the people are dissatisfied, they have ample remedy, without the judiciary being asked to overstep the proper limits of its power. The instrument provides for amendment and change. If a wrong has been done, it can, in the proper way in which it should be remedied, is by the people acting as a body politic. It is not a question of whether merely an amendment to a constitution, made without calling a convention, has been adopted, as required by that constitution. If it provides how it is to be done, then, unless the manner be followed, the judiciary, as the interpreter of that constitution, will declare the amendment invalid. Koehler v. Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep. 835. But it is a case where a new constitution has been formed and promulgated according to the forms of law. Great interests have already arisen under it; important rights exist by virtue of it; persons have been convicted of the highest crime known to the law, according to its provisions; the political power of the government has in many ways recognized it; and, under such circumstances, it is our duty to treat and regard it as a valid constitution, and now the organic law of our commonwealth.

We need not consider the validity of the amendments made after the convention reassembled. If the making of them was in excess of its powers, yet, as the entire instrument has been recognized as valid in the manner suggested, it would be equally an abuse of power by the judiciary and violative of the rights of the people, who can and properly should remedy the matter, if not to their liking, if it were to declare the instrument of a portion invalid, and bring confusion and anarchy upon the state. (emphasis supplied). If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of the 1973 Constitution it would be exercising a veto power on the act of the sovereign people, of whom this Court is merely an agent, which to say the least, would be anomalous. This Court cannot dictate to our principal, the sovereign people, as to how the approval of the new Constitution should be manifested or expressed. The sovereign people have spoken and we must abide by their decision, regardless of our notion as to what is the proper method of giving assent to the new Charter. In this respect, WE cannot presume to know better than the incumbent Chief Executive, who, unlike the members of this Court, only last January 8, 1973, We affirmed in Osmea vs. Marcos(Pres. Election Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million electors in 1969 for another term of four years until noon of December 30, 1973 under the 1935 Constitution. This Court, not having a similar mandate by direct fiat from the sovereign people, to execute the law and administer the affairs of government, must restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively reserved by the sovereign people themselves. The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific procedure for popular ratification of their organic law. That would be incompatible with their sovereign character of which We are reminded by Section 1, of Article II of both the 1935 and the 1973 Constitutions. The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the procedure for ratification which they themselves define in their Constitution, cannot apply to a unitary state like the Republic of the Philippines. His opinion expressed in 1868 may apply to a Federal State like the United States, in order to secure and preserve the existence of the Federal Republic of the United States against any radical innovation initiated by the citizens of the fifty (50) different states of the American Union, which states may be jealous of the powers of the Federal government presently granted by the American Constitution. This dangerous possibility does not obtain in the case of our Republic. Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus "Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu vastly different from 1868 to 1898, he might have altered his views on the matter. Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. 1102 that the people through their Citizens' Assemblies had overwhelmingly approved the new Constitution due regard to a separate, coordinate and co-equal branch of the government demands adherence to the presumption of correctness of the President's declaration. Such presumption is accorded under the law and jurisprudence to officials in the lower levels of the Executive branch, there is no over-riding reason to deny the same to the Chief of State as head of the Executive Branch. WE cannot reverse the rule on presumptions, without being presumptuous, in the face of the certifications by the Office the Secretary of the Department of Local Government and Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with manifestation filed by the Solicitor General on behalf of the respondents public officers dated March 7, 1973). There is nothing in the records that contradicts, much less overthrow the results of the referendum as certified. Much less are We justified in reversing the burden of proof by shifting it from the petitioners to the respondents. Under the rules on pleadings, the petitioners have the duty to demonstrate by clear and convincing evidence their claim that the people did not ratify through the Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And have failed to do so. No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the basis of reports relayed to him from private sources which could be biased and hearsay, aside from the fact that such reports are not contained in the record. Proclamation No. 1102 is not just an ordinary act of the Chief Executive. It is a well-nigh solemn declaration which announces the highest act of the sovereign people their imprimatur to the basic Charter that shall govern their lives hereafter may be for decades, if not for generations. Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the Citizens' Assemblies, despite their admission that the term "Filipino people" in the preamble as well as "people" in Sections 1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether literate or illiterate, whether peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex-convicts voted in the referendum, about which no proof was even offered, these sectors of our citizenry, whom petitioners seem to regard with contempt or decision and whom petitioners would deny their sovereign right to pass upon the basic Charter that shall govern their lives and the lives of their progenies, are entitled as much as the educated, the law abiding, and those who are 21 years of age or above to express their conformity or non conformity to the proposed Constitution, because their stake under the new Charter is not any less than the stake of the more fortunate among us. As a matter of fact, these citizens, whose juridical personality or capacity to act is limited by age, civil interdiction or ignorance deserve more solicitude from the State than the rest of the citizenry. In the ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts and the ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to the express affirmation in Section 1 of Article II of the Declaration of Principles that "sovereignty resides in the people and all government authority emanates from them." Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned from voting. Only those who had been sentenced to at least one year imprisonment are disenfranchised but they recover their right of suffrage upon expiration of ten years after service of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a very negligible number in any locality or barrio, including the localities of petitioners. Included likewise in the delegated authority of the President, is the prerogative to proclaim the results of the plebiscite or the voting the Citizens' Assemblies. Petitioners deny the accuracy or correctness of Proclamation No. 1102 that the 1973 Constitution was ratified by the overwhelming vote of close to 15 million citizens because there was no official certification to the results of the same from the Department of Local Governments. But there was such certification as per Annex 1 to 1-A to the Notes submitted by the Solicitor General counsel for respondents public officers. This should suffice to dispose of this point. Even in the absence of such certification, in much the same way that in passing law, Congress or the legislative body is presumed to be in possession of the facts upon which such laws are predicated (Justice Fernando, The Power of Judicial Review, 1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it should likewise be presumed that the President was in possession of the fact upon which Proclamation No. 1102 was based. This presumption is further strengthened by the fact that the Department of Local Governments, the Department National Defense and the Philippine Constabulary as well the Bureau of Posts are all under the President, which offices as his alter ego, are presumptively acting for and in behalf of the President and their acts are valid until disapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451). To deny the truth or the proclamation of the

President as to the overwhelming majority vote in the Citizens' Assemblies in favor of the new Constitution, is to charge the President with falsification, which is a most grievous accusation. Under the, rules of pleadings and evidence, the petitioners have the burden of proof by preponderance of evidence in civil cases and by proof beyond reasonable doubt in criminal prosecutions, where the accused is always presumed to be innocent. Must this constitutional right be reversed simply because the petitioner all assert the contrary? Is the rule of law they pretend invoke only valid as long as it favors them? The presumption of regularity in the performance of official functions is accorded by the law and jurisprudence to acts of public officers whose category in the official hierarchy is very much lower than that of the Chief of State. What reason is there to withhold such a presumption in favor of the President? Does the fact that the President belong to the party in power and that four (4) of the five (5) senators who are petitioners in L-36165 belong to the opposition party, justify a discrimination against the President in matters of this nature? Unsupported as their word is by any credible and competent evidence under the rules of evidence, must the word of the petitioners prevail over that of the Chief Executive, because they happen to be former senators and delegates to the Constitutional Convention? More than any of the petitioners herein in all these cases, the incumbent President realizes that he risks the wrath of his people being visited upon him and the adverse or hostile verdict of history; because of the restrictions on the civil liberties of his people, inevitable concomitants of martial law, which necessarily entail some degree of sacrifice on the part of the citizenry. Until the contrary is established or demonstrated, herein petitioners should grant that the Chief Executive is motivated by what is good for the security and stability of the country, for the progress and happiness of the people. All the petitioners herein cannot stand on the proposition that the rights under the 1935 Constitution are absolute and invulnerable to limitations that may be needed for the purpose of bringing about the reforms for which the petitioners pretend to be clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of the seven (7) petitioners in L-36164 were all participants in the political drama of this country since 1946. They are witness to the frustrations of well-meaning Presidents who wanted to effect the reforms, especially for the benefit of the landless and the laboring class how politics and political bargaining had stymied the effectuation of such reforms thru legislation. The eight (8) petitioners in L-36164 and L-36165 may not have participated in the systematic blocking of the desired reforms in Congress or outside of it; but the question may be asked as to what exactly they did to support such reforms. For the last seven (7) decades since the turn of the century, for the last thirty-five (35) years since the establishment of the Commonwealth government in 1935 and for the last twenty seven (27) years since the inauguration of the Republic on July 4, 1946, no tangible substantial reform had been effected, funded and seriously implemented, despite the violent uprisings in the thirties, and from 1946 to 1952, and the violent demonstrations of recent memory. Congress and the oligarchs acted like ostriches, "burying their heads in timeless sand. "Now the hopes for the long-awaited reforms to be within a year or to are brighter. It would seem therefore to the duty of everyone including herein petitioners to give the present leadership the opportunity to institute and carry out the needed reforms as provided for in the new or 1973 Constitution and thru the means prescribed in that same Constitution. As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing by implication a limitation upon the sovereign." This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached upon the province exclusively reserved to and by the sovereign people. This Court did not heed to the principle that the courts are not the fountain of all remedies for all wrongs. WE cannot presume that we alone can speak with wisdom as against the judgment of the people on the basic instrument which affects their very lives. WE cannot determine what is good for the people or ought to be their fundamental law. WE can only exercise the power delegated to Us by the sovereign people, to apply and interpret the Constitution and the laws for the benefit of the people, not against them nor to prejudice them. WE cannot perform an act inimical to the interest of Our principal, who at any time may directly exercise their sovereign power ratifying a new Constitution in the manner convenient to them. It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution without being a part of the government established pursuant thereto. Unlike in the Borden case, supra, where there was at least another government claiming to be the legitimate organ of the state of Rhode Island (although only on paper as it had no established organ except Dorr who represented himself to be its head; in the cases at bar there is no other government distinct from and maintaining a position against the existing government headed by the incumbent Chief Executive. (See Taylor vs. Commonwealth, supra). There is not even a rebel government duly organized as such even only for domestic purposes, let alone a rebel government engaged in international negotiations. As heretofore stated, both the executive branch and the legislative branch established under the 1935 Constitution had been supplanted by the government functioning under the 1973 Constitution as of January 17, 1973. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of the Republic of the Philippines. Can this Supreme Court legally exist without being part of any government? Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of the American Bar," because during the American civil war he apparently had the courage to nullify the proclamation of President Lincoln suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Federal Case No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in Calvert County, Maryland, of parents who were landed aristocrats as well as slave owners. Inheriting the traditional conservatism of his parents who belonged to the landed aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney General of Maryland. He also was a member of the Maryland state legislature for several terms. He was a leader of the Federalist Party, which disintegrated after the war of 1812, compelling him to join the Democratic Party of Andrew Jackson, also a slave owner and landed aristocrat, who later appointed him first as Attorney General of the United States, then Secretary of the Treasury and in 1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall, in which position he continued for 28 years until he died on October 21, 1864. His death "went largely unnoticed and unregretted." Because he himself was a slave owner and a landed aristocrat, Chief Justice Taney sympathized with the Southern States and, even while Chief Justice, hoped that the Southern States would be allowed to secede peacefully from the Union. That he had no sympathy for the Negroes was revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that the American Negro is not entitled to the rights of an American citizen and that his status as a slave is determined by his returning to a slave state. One can therefore discern his hostility towards President Lincoln when he decided Ex parte Merryman, which animosity to say the least does no befit a judicial mind. Such a man could hardly be spoken of as a hero of the American Bar, least of all of the American nation. The choice of heroes should not be expressed indiscriminately just to embellish one's rhetoric. Distinguished counsel in L-36165 appears to have committed another historical error, which may be due to his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary, Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savior of Verdun"; because he held Verdun against the 1916 offensive of the German army at the cost of 350,000 of his French soldiers, who were then demoralized and plotting mutiny. Certainly, the surviving members of the family of Marshal Petain would not relish the error. And neither would the members of the clan of Marshal Foch acknowledge the undeserved accolade, although Marshal Foch has a distinct place in history on his own merits. The foregoing clarification is offered in the interest of true scholarship and historical accuracy, so that the historians, researchers and students may not be led astray or be confused by esteemed counsel's eloquence and mastery of the spoken and written word as well as by his eminence as law professor, author of law books, political leader, and member of the newly integrated Philippine Bar.

It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address likewise his challenge to the five (5) senators who are petitioners in L-36165 to also act as "heroes and idealists," to defy the President by holding sessions by themselves alone in a hotel or in their houses if they can muster a quorum or by causing the arrest of other senators to secure a quorum and thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if they believe most vehemently in the justice and correctness of their position that the 1973 Constitution has not been validly ratified, adopted or acquiesced in by the people since January 18, 1973 until the present. The proclaimed conviction of petitioners in L36165 on this issue would have a ring of credibility, if they proceeded first to hold a rump session outside the legislative building; because it is not unreasonable to demand or to exact that he who exhorts others to be brave must first demonstrate his own courage. Surely, they will not affirm that the mere filing of their petition in L-36165 already made them "heroes and idealists." The challenge likewise seems to insinuate that the members of this Court who disagree with petitioners' views are materialistic cowards or mercenary fence-sitters. The Court need not be reminded of its solemn duty and how to perform it. WE refuse to believe that petitioners and their learned as well as illustrious counsels, scholars and liberal thinkers that they are, do not recognize the sincerity of those who entertain opinions that clash with their own. Such an attitude does not sit well with the dictum that "We can differ without being difficult; we can disagree without being disagreeable," which distinguished counsel in L-36165 is wont to quote. WE reserve the right to prepare an extensive discussion of the other points raised by petitioners, which We do not find now necessary to deal with in view of Our opinion on the main issue. IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES SHOULD BE DISMISSED. MAKASIAR, J., concurring: Pursuant to Our reservation, We now discuss the other issues raised by the petitioners. II EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION. As intimated in the aforecited cases, even the courts, which affirm the proposition that the question as to whether a constitutional amendment or the revised or new Constitution has been validly submitted to the people for ratification in accordance with the procedure prescribed by the existing Constitution, is a justiciable question,accord all presumption of validity to the constitutional amendment or the revised or new Constitution after the government officials or the people have adopted or ratified or acquiesced in the new Constitution or amendment, although there was an illegal or irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the constitutional amendment or the new Constitution should not be condemned "unless our judgment its nullity is manifest beyond reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra). Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of constitutionality must persist in the absence of factual foundation of record to overthrow such presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849). III CONSTITUTIONAL CONVENTION CO-EQUAL WITH AND INDEPENDENT OF CONGRESS, EXECUTIVE AND JUDICIARY. The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the three grand departments of the Government, namely, the legislative, the executive and the judicial. As a fourth separate and distinct branch, to emphasize its independence, the Convention cannot be dictated to by either of the other three departments as to the content as well as the form of the Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the aforesaid branches of the Government in its proceedings, including the printing of its own journals (Taada and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in that independence, for the purpose of maintaining the same unimpaired and in order that its work will not be frustrated, the Convention has the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention such prerogative, would leave it at the tender mercy of both legislative and executive branches of the Government. An unsympathetic Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional Convention to the people for ratification, much less appropriate the necessary funds therefor. That could have been the fate of the 1973 Constitution, because the same abolished the Senate by creating a unicameral National Assembly to be presided by a Prime Minister who wields both legislative and executive powers and is the actual Chief Executive, for the President contemplated in the new Constitution exercises primarily ceremonial prerogatives. The new Constitution likewise shortened abruptly the terms of the members of the present Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that the new Constitution shall take effect immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2 of the same Article XVIII secures to the members of Congress membership in the interim National Assembly as long as they opt to serve therein within thirty (30) days after the ratification of the proposed Constitution, affords them little comfort; because the convening of the interim National Assembly depends upon the incumbent President (under Sec. 3[1], Art. XVII, 1973 Constitution). Under the foregoing circumstances, the members of Congress, who were elected under the 1935 Constitution, would not be disposed to call a plebiscite and appropriate funds therefor to enable the people to pass upon the 1973 Constitution, ratification of which means their elimination from the political scene. They will not provide the means for their own liquidation. Because the Constitutional Convention, by necessary implication as it is indispensable to its independence and effectiveness, possesses the power to call a plebiscite and to appropriate funds for the purpose, it inescapably must have the power to delegate the same to the President, who, in estimation of the Convention can better determine appropriate time for such a referendum as well as the amount necessary to effect the same; for which reason the Convention thru Resolution No. 29 approved on November 22, 1972, which superseded Resolution No. 5843 adopted on November 16, 1972, proposed to the President "that a decree be issued calling a plebiscite for the ratification of the proposed new Constitution such appropriate date as he shall determine and providing for the necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constitutional Convention expected to

complete its work by the end of November, 1972 that the urgency of instituting reforms rendered imperative the early approval of the new Constitution, and that the national and local leaders desire that there be continuity in the immediate transition from the old to the new Constitution. If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate subordinate rules and regulations to implement the law, this authority to delegate implementing rules should not be denied to the Constitutional Convention, a co-equal body. Apart from the delegation to the Chief Executive of the power to call a plebiscite and to appropriate funds therefor by the Constitutional Convention thru its Resolution No. 29, the organization of the Citizens' Assemblies for consultation on national issues, is comprehended within the ordinance-making power of the President under Section 63 of the Revised Administrative Code, which expressly confers on the Chief Executive the power to promulgate administrative acts and commands touching on the organization or mode of operation of the government or re-arranging or re-adjusting any district, division or part of the Philippines "or disposing of issues of general concern ... ." (Emphasis supplied). Hence, as consultative bodies representing the localities including the barrios, their creation by the President thru Presidential Decree No. 86 of December 31, 1972, cannot be successfully challenged. The employment by the President of these Citizens' Assemblies for consultation on the 1973 Constitution or on whether there was further need of a plebiscite thereon, both issues of national concern is still within the delegated authority reposed in him by the Constitutional Convention as aforesaid. It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does not prescribe that the plebiscite must be conducted by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code. If that were the intention of the Constitutional Convention in making the delegation, it could have easily included the necessary phrase for the purpose, some such phrase like "to call a plebiscite to be supervised by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code (or with existing laws)." That the Constitutional Convention omitted such phrase, can only mean that it left to the President the determination of the manner by which the plebiscite should be conducted, who shall supervise the plebiscite, and who can participate in the plebiscite. The fact that said Resolution No. 29 expressly states "that copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the Commission on Elections for implementation," did not in effect designate the Commission on Elections as supervisor of the plebiscite. The copies of said resolution that were transmitted to the Commission on Elections at best serve merely to notify the Commission on Elections about said resolution, but not to direct said body to supervise the plebiscite. The calling as well as conduct of the plebiscite was left to the discretion of the President, who, because he is in possession of all the facts funnelled to him by his intelligence services, was in the superior position to decide when the plebiscite shall be held, how it shall be conducted and who shall oversee it. It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself recognized the validity of, or validated Presidential Proclamation No. 1081 placing the entire country under martial law by resolving to "propose to President Ferdinand E. Marcos that a decree be issued calling a plebiscite ... ." The use of the term "decree" is significant for the basic orders regulating the conduct of all inhabitants are issued in that form and nomenclature by the President as the Commander in Chief and enforcer of martial law. Consequently, the issuance by the President of Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on January 15, 1973 and appropriating funds therefor pursuant to said Resolution No. 29, is a valid exercise of such delegated authority. Such delegation, unlike the delegation by Congress of the rule-making power to the Chief Executive or to any of his subalterns, does not need sufficient standards to circumscribe the exercise of the power delegated, and is beyond the competence of this Court to nullify. But even if adequate criteria should be required, the same are contained in the "Whereas" clauses of the Constitutional Convention Resolution No. 29, thus: WHEREAS, the 1971 Constitutional Convention is expected to complete its work of drafting a proposed new Constitution for the Republic by the end of November, 1972; WHEREAS, in view of the urgency of instituting reforms, the early approval of the New Constitution has become imperative; WHEREAS, it is the desire of the national and local leaders that there be continuity in the immediate political transition from the old to the New Constitution;" (Annex "1" of Answer, Res. No. 29, Constitutional Convention). As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in the Plebiscite Cases, stated: ... Once this work of drafting has been completed, it could itself direct the submission to the people for ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congress not being in session, could the President, by the decree under question, call for such a plebiscite? Under such circumstances, a negative answer certainly could result in the work of the Convention being rendered nugatory. The view has been repeatedly expressed in many American state court decisions that to avoid such undesirable consequence the task of submission becomes ministerial, with the political branches devoid of any discretion as to the holding of an election for that purpose. Nor is the appropriation by him of the amount necessary to be considered as offensive to the Constitution. If it were done by him in his capacity as President, such an objection would indeed have been formidable, not to say insurmountable. If the appropriation were made in his capacity as agent of the Convention to assure that there be submission to the people, then such an argument loses force. The Convention itself could have done so. It is understandable why it should be thus. If it were otherwise, then a legislative body, the appropriating arm of the government, could conceivably make use of such authority to compel the Convention to submit to its wishes, on pain of being rendered financially distraught. The President then, if performing his role as its agent, could be held as not devoid of such competence. (pp. 2-3, concurring opinion of J. Fernando in L35925, etc., emphasis supplied). IV VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE 1973 CONSTITUTION

(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments during the hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable or ambiguous provisions does not affect the validity of the ratification or adoption of the 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966). Alexander Hamilton, one of the leading founders and defenders of the American Constitution, answering the critics of the Federal Constitution, stated that: "I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?" (The Federalist, Modern Library Ed., pp. xx-xxi). (2) The 1973 Constitution is likewise impugned on the ground that it contains provisions which are ultra vires or beyond the power of the Constitutional Convention to propose. This objection relates to the wisdom of changing the form of government from Presidential to Parliamentary and including such provisions as Section 3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973 Constitution. Article IV Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law , after examination under oath or affirmation of the complainant and the witnesses may produce, and particularly describing the place to be searched, and the persons or things to be seized. Article XIV Sec. 15. Any provision of paragraph one, Section fourteen, Article Eight and of this Article notwithstanding, the Prime Minister may enter into international treaties or agreements as the national welfare and interest may require." (Without the consent of the National Assembly.) Article XVII Sec. 3(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly. xxx xxx xxx Sec. 12. All treaties, executive agreements, and contracts entered into by the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations, are hereby recognized as legal, valid and binding. When the national interest so requires, the incumbent President of the Philippines or the interim Prime Minister may review all contracts, concessions, permits, or other forms of privileges for the exploration, development, exploitation, or utilization of natural resources entered into, granted, issued or acquired before the ratification of this Constitution. In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-35953, L-35961, L-35965, & L-35979), Chief Justice Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio and the writer, overruled this objection, thus: ... Regardless of the wisdom and moral aspects of the contested provisions of the proposed Constitution, it is my considered view that the Convention was legally deemed fit to propose save perhaps what is or may be insistent with what is now known, particularly in international law, as Jus Cogens not only because the Convention exercised sovereign powers delegated thereto by the people although insofar only as the determination of the proposals to be made and formulated by said body is concerned but also, because said proposals cannot be valid as part of our Fundamental Law unless and until "approved by the majority of the votes cast at an election which" said proposals "are submitted to the people for their ratification," as provided in Section 1 of Article XV of the 1935 Constitution. (Pp. 17-18, Decision in L-35925, etc.). This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20, 1970, 35 SCRA 367) that the Constitutional Convention has the authority to "entirely overhaul the present Constitution and propose an entirely new Constitution based on an ideology foreign to the democratic system ...; because the same will be submitted to the people for ratification. Once ratified by the sovereign people, there can be no debate about the validity of the new Constitution." Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement in the Del Rosario case, supra, and added: "... it seems to me a sufficient answer that once convened, the area open for deliberation to a constitutional convention ..., is practically limitless" (citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, 247 NW 474, 262 Mich. 338 [1933]).

Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "that when the people elected the delegates to the Convention and when the delegates themselves were campaigning, such limitation of the scope of their function and objective was not in their minds." V 1973 CONSTITUTION DULY ADOPTED AND PROMULGATED. Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972 without officially promulgating the said Constitution in Filipino as required by Sections 3(1) of Article XV on General Provisions of the 1973 Constitution. This claim is without merit because their Annex "M" is the Filipino version of the 1973 Constitution, like the English version, contains the certification by President Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary, that the proposed Constitution, approved on second reading on the 27th day of November, 1972 and on third reading in the Convention's 291st plenary session on November 29, 1972 and accordingly signed on November 1972 by the delegates whose signatures are thereunder affixed. It should be recalled that Constitutional Convention President Diosdado Macapagal was, as President of the Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the petitioners in L-36165 including their counsel, former Senator Jovito Salonga, belong. Are they repudiating and disowning their former party leader and benefactor? VI ARTICLE XV OF 1935 CONSTITUTION DOES NOT PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF 1973 CONSTITUTION. (1) Article XV of the 1935 Constitution simply provides that "such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratification." But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election called by Congress at which the amendments are submitted for ratification by the qualified electors defined in Article V hereof, supervised by the Commission on Elections in accordance with the existing election law and after such amendments shall have been published in all the newspapers of general circulation for at least four months prior to such election ." This position certainly imposes limitation on the sovereign people, who have the sole power of ratification, which imposition by the Court is never justified (Wheeler vs. Board of Trustees, supra). In effect, petitioners and their counsels are amending by a strained and tortured construction Article XV of the 1935 Constitution. This is a clear case of usurpation of sovereign power they do not possess through some kind of escamotage. This Court should not commit such a grave error in the guise of judicial interpretation. In all the cases where the court held that illegal or irregular submission, due to absence of substantial compliance with the procedure prescribed by the Constitution and/or the law, nullifies the proposed amendment or the new Constitution, the procedure prescribed by the state Constitution is so detailed that it specifies that the submission should be at a general or special election, or at the election for members of the State legislature only or of all state officials only or of local officials only, or of both state and local officials; fixes the date of the election or plebiscite limits the submission to only electors or qualified electors; prescribes the publication of the proposed amendment or a new Constitution for a specific period prior to the election or plebiscite; and designates the officer to conduct the plebiscite, to canvass and to certify the results, including the form of the ballot which should so state the substance of the proposed amendments to enable the voter to vote on each amendment separately or authorizes expressly the Constitutional Convention or the legislature to determine the procedure or certain details thereof. See the State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi [1890]; and Missouri [1945]). As typical examples: Constitution of Alabama (1901): Article XVIII. Mode of Amending the Constitution Sec. 284. Legislative Proposals. Amendments may be proposed to this Constitution by the legislature in the manner following: The proposed amendments shall be read in the house in which they originate on three several days, and, if upon the third reading, threefifths of all the members elected to that house shall vote in favor thereof, the proposed amendments shall be sent to the other house, in which they shall likewise be read on three several days, and if upon the third reading, three-fifths of all the members elected that house shall vote in favor of the proposed amendments, the legislature shall order an election by the qualified electors of the state upon such proposed amendments, to be held either at the general election next succeeding the session of the legislature at which the amendments are proposed or upon another day appointed by the legislature, not less than three months after the final adjournment of the session of the legislature at which the amendments were proposed. Notice of such election, together with the proposed amendments, shall be given by proclamation of the governor, which shall be published in every county in such manner as the legislature shall direct, for at least eight successive weeks next preceding the day appointed for such election. On the day so appointed an election shall be held for the vote of the qualified electors of the state upon the proposed amendments. If such election be held on the day of the general election, the officers of such general election shall open a poll for the vote of the qualified electors upon the proposed amendments; if it be held on a day other than that of a general election, officers for such election shall be appointed; and the election shall be held in all things in accordance with the law governing general elections. In all elections upon such proposed amendments, the votes cast thereat shall be canvassed, tabulated, and returns thereof be made to the secretary of state, and counted, in the same manner as in elections for representatives to the legislature; and if it shall thereupon appear that a majority of the qualified electors who voted at such election upon the proposed amendments voted in favor of the same, such

amendments shall be valid to all intents and purposes as parts of this Constitution. The result of such election shall be made known by proclamation of the governor. Representation in the legislature shall be based upon population, and such basis of representation shall not be changed by constitutional amendments. Sec. 285. Form of ballot for amendment. Upon the ballots used at all elections provided for in section 284 of this Constitution, the substance or subject matter of each proposed amendment shall be so printed that the nature thereof shall be clearly indicated. Following each proposed amendment on the ballot shall be printed the word "Yes" and immediately under that shall be printed the word "No". The choice of the elector shall be indicated by a cross mark made by him or under his direction, opposite the word expressing his desire, and no amendment shall be adopted unless it receives the affirmative vote of a majority of all the qualified electors who vote at such election. Constitution of Arkansas (1874): Article XIX. Miscellaneous Provisions. Sec. 22. Constitutional amendments. Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all the members, elected to each house, such proposed amendments shall be entered on the journal with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State for approval or rejection , and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately. Constitution of Kansas (1861): Article XIV. Amendments. Sec. 1. Proposal of amendments; publications; elections. Propositions for the amendment of this constitution may be made by either branch of the legislature; and if two thirds of all the members elected to each house shall concur therein, such proposed amendments, together with the yeas and nays, shall be entered on the journal; and the secretary of state shall cause the same to be published in at least one newspaper in each county of the state where a newspaper is published, for three months preceding the next election for representatives, at which time, the same shall be submitted to the electors, for their approval or rejection; and if a majority of the electors voting on said amendments, at said election, shall adopt the amendments, the same shall become a part of the constitution. When more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendments separately; and not more than three propositions to amend shall be submitted at the same election. Constitution of Maryland (1867): Article XIV. Amendments to the Constitution. Sec. 1. Proposal in general assembly; publication; submission to voters; governor's proclamation. The General Assembly may propose Amendments to this Constitution; provided that each Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will stand when amended and passed by three fifths of all the members elected to each of the two Houses, by yeas and nays, to be entered on the Journals with the proposed Amendment. The bill or bills proposing amendment or amendments shall be published by order of the Governor, in at least two newspapers, in each County, where so many may be published, and where not more than one may be published, then in the newspaper, and in three newspapers published in the City of Baltimore, once a week for four weeks immediately preceding the next ensuing general election, at which the proposed amendment or amendments shall be submitted, in a form to be prescribed by the General Assembly, to the qualified voters of the State for adoption or rejection. The votes cast for and against said proposed amendment or amendments, severally, shall be returned to the Governor, in the manner prescribed in other cases, and if it shall appear to the Governor that a majority of the votes cast at said election on said amendment or amendments, severally, were cast in favor thereof, the Governor shall, by his proclamation, declare the said amendment or amendments having received said majority of votes, to have been adopted by the people of Maryland as part of the Constitution thereof, and henceforth said amendment or amendments shall be part of the said Constitution. When two or more amendments shall be submitted in the manner aforesaid, to the voters of this State at the same election, they shall be so submitted as that each amendment shall be voted on separately. Constitution of Missouri (1945): Article XII. Amending the Constitution. Sec. 2(b). Submission of amendments proposed by general assembly or by the initiative. All amendments proposed by the general assembly or by the initiative shall be submitted to the electors for their approval or rejection by official ballot title as may be provided by law, on a separate ballot without party designation, at the next general election, or at a special election called by the governor prior thereto, at which he may submit any of the amendments. No such proposed amendment shall contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith. If possible, each proposed amendment shall be published once a week for two consecutive weeks in two newspapers of different political faith in each county, the last publication to be not more than thirty nor less than fifteen days next preceding the election. If there be but one newspaper in any county, publication of four consecutive weeks shall be made. If a majority of the votes cast thereon is in favor of any amendment, the same shall take effect at the end of thirty days after the election.

More than one amendment at the same election shall be so submitted as to enable the electors to vote on each amendment separately. Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed procedure for submission or ratification. As heretofore stated, it does not specify what kind of election at which the new Constitution shall be submitted; nor does it designate the Commission on Elections to supervise the plebiscite. Neither does it limit the ratification to the qualified electors as defined in Article V of the 1935 Constitution. Much less does it require the publication of the proposed Constitution for any specific period before the plebiscite nor does it even insinuate that the plebiscite should be supervised in accordance with the existing election law. (2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed Constitution to the people for ratification. It does not make any reference to the Commission on Elections as the body that shall supervise the plebiscite. And Article XV could not make any reference to the Commission on Elections because the original 1935 Constitution as ratified on May 14, 1935 by the people did not contain Article X on the Commission on Elections, which article was included therein pursuant to an amendment by that National Assembly proposed only about five (5) years later on April 11, 1940, ratified by the people on June 18, 1940 as approved by the President of the United States on December 1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers of the 1935 Constitution as ratified May 14, 1935 intended that a body known as the Commission on Elections should be the one to supervise the plebiscite, because the Commission on Elections was not in existence then as was created only by Commonwealth Act No. 607 approved on August 22, 1940 and amended by Commonwealth Act No. 657 approved on June 21, 1941 (see Taada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170 Phil. 703, 708-715; 73 Phil. 288, 290-300; Taada & Fernando, Constitution of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II, pp. 11-19). Because before August, 1940 the Commission on Election was not yet in existence, the former Department of Interior (now Department of Local Governments and Community Development) supervised the plebiscites on the 1937 amendment on woman's suffrage, the 1939 amendment to the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of the U.S. Congress) and the three 1940 amendments on the establishment of a bicameral Congress, the re-election of the President and the Vice-President, and the creation of the Commission on Elections (ratified on June 18, 1940). The supervision of said plebiscites by the then Department of Interior was not automatic, but by virtue of an express authorization in Commonwealth Act Nos. 34, 49 and 517. If the National Assembly then intended that the Commission on Elections should also supervise the plebiscite for ratification of constitutional amendments or revision, it should have likewise proposed the corresponding amendment to Article XV by providing therein that the plebiscite on amendments shall be supervised by the Commission on Elections. 3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14, 1935 wanted that only the qualified voters under Article V of the 1935 Constitution should participate in the referendum on any amendment or revision thereof, they could have provided the same in 1935 or in the 1940 amendment by just adding a few words to Article XV by changing the last phrase to "submitted for ratification to the qualified electors as defined in Article V hereof," or some such similar phrases. Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified electors under Article V of the 1935 Constitution because the said term "people" as used in several provisions of the 1935 Constitution, does not have a uniform meaning. Thus in the preamble, the term "Filipino people" refer, to all Filipino citizens of all ages of both sexes. In Section 1 of Article II on the Declaration of Principles, the term "people" in whom sovereignty resides and from whom all government authority emanates, can only refer also to Filipino citizens of all ages and of both sexes. But in Section 5 of the same Article II on social justice, the term "people" comprehends not only Filipino citizens but also all aliens residing in the country of all ages and of both sexes. Likewise, that is the same connotation of the term "people" employed in Section 1(3) of Article III on the Bill of Rights concerning searches and seizures. When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it does so expressly as the case of the election of senators and congressmen. Section 2 Article VI expressly provides that the senators "shall be chosen at large by the qualified electors of the Philippines as may provided by law." Section 5 of the same Article VI specifically provides that congressmen shall "be elected by the qualified electors." The only provision that seems to sustain the theory of petitioners that the term "people" in Article XV should refer to the qualified electors as defined in Article V of the 1935 Constitution is the provision that the President and Vice-President shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone cannot be conclusive as to such construction, because of explicit provisions of Sections 2 and 5 of Article VI, which specifically prescribes that the senators and congressmen shall be elected by the qualified electors. As aforesaid, most of the constitutions of the various states of the United States, specifically delineate in detail procedure of ratification of amendments to or revision of said Constitutions and expressly require ratification by qualified electors, not by the generic term "people". The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35 Constitutional Convention satisfied that the amendment shall be submitted to qualified election for ratification. This proposal was not accepted indicating that the 1934-35 Constitutional Convention did intend to limit the term "people" in Article XV of the 1935 Constitution to qualified electors only . As above demonstrated, the 1934-35 Constitutional Convention limits the use of the term "qualified electors" to elections of public officials. It did not want to tie the hands of succeeding future constitutional conventions as to who should ratify the proposed amendment or revision. (4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment contemplates the automatic applicability of election laws to plebiscites on proposed constitutional amendments or revision. The very phraseology of the specific laws enacted by the National Assembly and later by Congress, indicates that there is need of a statute expressly authorizing the application of the election laws to plebiscites of this nature. Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on September 30, 1936, consists of 12 sections and, aside from providing that "there shall be held a plebiscite on Friday, April 30, 1937, on the question of woman's suffrage ... and that said amendment shall be published in the Official Gazette in English and Spanish for three consecutive issues at least fifteen (15) days prior to said election, ... and shall be posted in a conspicuous place in its municipal and provincial office building and in its polling place not later than April 22, 1937" (Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding, the holding of a special election,

insofar as said provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and, that the votes cast according to the returns of the board of inspectors shall be counted by the National Assembly (Sec. 10, Com. Act No. 34). The election laws then in force before 1938 were found in Sections 392-483 of the Revised Administrative Code. Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes it expressly applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for the plebiscite on the constitutional amendments in 1939, 1940 and 1946, including the amendment creating the Commission on Elections, specifically provided that the provisions of the existing election law shall apply to such plebiscites insofar as they are not inconsistent with the aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus Commonwealth Act No. 492, enacted on September 19, 1939, calling for a plebiscite on the proposed amendments to the Constitution adopted by the National Assembly on September 15, 1939, consists of 8 sections and provides that the proposed amendments to the Constitution adopted in Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino people for approval or disapproval at a general election to be held throughout the Philippines on Tuesday, October 24, 1939"; that the amendments to said Constitution proposed in "Res. No. 38, adopted on the same date, shall be submitted at following election of local officials," (Sec. 1, Com. Act No. 492) that the said amendments shall be published in English and Spanish in three consecutive issues of the Official Gazette at least ten (10) days prior to the elections; that copies thereof shall be posted not later than October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be conducted according to provisions of the Election Code insofar as the same may be applicable; that within thirty (30) days after the election, Speaker of the National Assembly shall request the President to call a special session of the Assembly for the purpose of canvassing the returns and certify the results thereof (Sec. 6, Com. Act No. 492). Commonwealth Act No. 517, consisting of 11 sections, was approved on April 25, 1940 and provided, among others: that the plebiscite on the constitutional amendments providing bicameral Congress, re-election of the President and Vice-President, and the creation of a Commission on Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said amendments shall be published in three consecutive issues of the Official Gazette in English and Spanish at least 20 days prior to the election and posted in every local government office building and polling place not later than May 18, 1940 (Sec. 2); that the election shall be conducted in conformity with the Election Code insofar as the same may be applicable (Sec. 3) that copies of the returns shall be forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly shall canvass the returns to certify the results at a special session to be called by President (Sec. 8). Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity amendment consists of 8 sections provides that the Amendment "shall be submitted to the people, for approval or disapproval, at a general election which shall be held on March 11, 1947, in accordance with the provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendment shall be published in English and Spanish in three consecutive issues of the Official Gazette at least 20 days prior to the election; that copies of the same shall be posted in a conspicuous place and in every polling place not later than February 11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act No. 657 creating the Commission on Elections, shall apply to the election insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days after the election, the Senate and House of Representatives shall hold a joint session to canvass the returns and certify the results thereof (Section 6, R.A. No. 73). From the foregoing provisions, it is patent that Article XV of the 1935 Constitution does not contemplate nor envision the automatic application of the election law; and even at that, not all the provisions of the election law were made applicable because the various laws aforecited contain several provisions which are inconsistent with the provisions of the Revised Election Code (Com. Act No. 357). Moreover, it should be noted that the period for the publication of the copies of the proposed amendments was about 10 days, 15 days or 20 days, and for posting at least 4 days, 8 days or 30 days. Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply to plebiscites (See. 2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388). If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution, there would be no need for Congress to expressly provide therefor in the election laws enacted after the inauguration of the Commonwealth government under the 1935 Constitution. (5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. Unlike the various State Constitutions of the American Union (with few exceptions), Article XV does not state that only qualified electors can vote in the plebiscite. As above-intimated, most of the Constitutions of the various states of the United States provide for very detailed amending process and specify that only qualified electors can vote at such plebiscite or election. Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter, which was approved on June 17, 1967 and superseded Republic Act No. 2370, expanded the membership of the barrio assembly to include citizens who are at least 18 years of age, whether literate or not, provided they are also residents of the barrio for at least 6 months (Sec. 4, R.A. No. 3590). Sec. 4. The barrio assembly. The barrio assembly shall consist of all persons who are residents of the barrio for at least six months, eighteen years of age or over, citizens of the Republic of the Philippines and who are duly registered in the list of barrio assembly members kept by the Barrio Secretary. The barrio assembly shall meet at least once a year to hear the annual report of the barrio council concerning the activities and finances of the barrio. It shall meet also at the case of the barrio council or upon written petition of at least One-Tenth of the members of the barrio assembly. No meeting of the barrio assembly shall take place unless notice is given one week prior to the meeting except in matters involving public safety or security in which case notice within a reasonable time shall be sufficient. The barrio captain, or in his absence, the councilman acting as barrio captain, or any assembly member selected during the meeting, shall act as presiding officer at all

meetings of the barrio assembly. The barrio secretary or in his absence, any member designated by the presiding officer to act as secretary shall discharge the duties of secretary of the barrio assembly. For the purpose of conducting business and taking any official action in the barrio assembly, it is necessary that at least one-fifth of the members of the barrio assembly be present to constitute a quorum. All actions shall require a majority vote of these present at the meeting there being a quorum. Sec. 5. Powers of the barrio assembly. The powers of the barrio assembly shall be as follows: a. To recommend to the barrio council the adoption of measures for the welfare of the barrio; b. To decide on the holding of a plebiscite as provided for in Section 6 of this Act; c. To act on budgetary and supplemental appropriations and special tax ordinances submitted for its approval by the barrio council; and d. To hear the annual report council concerning the activities and finances of the assembly. Sec. 6. Plebiscite. A plebiscite may be held in the barrio when authorized by a majority vote of the members present in the barrio assembly, there being a quorum, or when called by at least four members of the barrio council; Provided, however, That no plebiscite shall be held until after thirty days from its approval by either body, and such plebiscite has been given the widest publicity in the barrio, stating the date, time, and place thereof, the questions or issues to be decided, action to be taken by the voters, and such other information relevant to the holding of the plebiscite. All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Voting procedures may be made either in writing as in regular election, and/or declaration by the voters to the board of election tellers. The board of election tellers shall be the same board envisioned by section 8, paragraph 2 of this Act, in case of vacancies in this body, the barrio council may fill the same. A plebiscite may be called to decide on the recall of any member of the barrio council . A plebiscite shall be called to approve any budgetary, supplemental appropriations or special tax ordinances. For taking action on any of the above enumerated measures, majority vote of all the barrio assembly members registered in the list of barrio secretary is necessary. xxx xxx xxx Sec 10. Qualifications of voters and candidates. Every citizen of the Philippines, twenty-one years of age or over, able to read and write, who has been a resident of the barrio during the six months immediately preceding the election, duly registered in the list of voters kept by the barrio secretary, who is not otherwise disqualified, may vote or be a candidate in the barrio elections. The following persons shall not be qualified to vote: a. Any person who has been sentenced by final judgment to suffer one year or more of imprisonment, within two years after service of his sentence; b. Any person who has violated his allegiance to the Republic of the Philippines; and c. Insane or feeble-minded persons. All these barrio assembly members, who are at least 18 years of age, although illiterate, may vote at the plebiscite on the recall of any member of the barrio council or on a budgetary, supplemental appropriation, or special ordinances, a valid action on which requires "a majority vote of all of the barrio assembly members registered in the list of the barrio secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized by a majority vote of the members present in the barrio assembly, there being a quorum (par. 1, Sec. 6). However, in the case of election of barrio officials, only Filipino citizens, who are at least 21 years of age, able to read and write, residents of the barrio during the 6 months immediately preceding the election and duly registered in the list of voters kept by the barrio secretary, not otherwise disqualified, may vote (Sec. 10, R.A. No. 3590). Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may be made ... either in writing as in regular elections, and/or declaration by the voters to the board of election tellers." That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members qualified to vote may vote in the plebiscite," cannot sustain the position of petitioners in G.R. No. L-36165 that only those who are 21 years of age and above and who possess all other qualifications of a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred to in Section 6; because paragraph 3 of Section 6 does not expressly limit the voting to those with the qualifications under Section 10 as said Section 6 does not distinguish between those who are 21 or above on the one hand and those 18 or above but below 21 on the other, and whether literate or not, to constitute a quorum of the barrio assembly.

Consequently, on questions submitted for plebiscite, all the registered members of the barrio assembly can vote as long as they are 18 years of age or above; and that only those who are 21 years of age or over and can read and write, can vote in the elections of barrio officials. Otherwise there was no sense in extending membership in the barrio assembly to those who are at least 18 years of age, whether literate or not. Republic Act No. 3590 could simply have restated Section 4 of Republic Act No. 2370, the old Barrio Charter, which provided that only those who are 21 and above can be members of the barrio assembly. Counsels Salonga and 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 No. 3590 and should have known the intendment of Congress in expanding the membership of the barrio assembly to include all those 18 years of age and above, whether literate or not. If Congress in the exercise of its ordinary legislative power, not as a constituent assembly, can include 18-year olds as qualified electors for barrio plebiscites, this prerogative can also be exercised by the Chief Executive as delegate of the Constitutional Convention in regard to the plebiscite on the 1973 Constitution. As heretofore stated, the statement by the President in Presidential Proclamation No. 1102 that the 1973 Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in a referendum conducted from January 10 to 15, 1973, should be accorded the presumption of correctness; because the same was based on the certification by the Secretary of the Department of Local Government and Community Development who tabulated the results of the referendum all over the country. The accuracy of such tabulation and certification by the said Department Secretary should likewise be presumed; because it was done in the regular performance of his official functions aside from the fact that the act of the Department Secretary, as an alter ego of the President, is presumptively the act of the President himself unless the latter disapproves or reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by the Department Secretary and the Chief Executive on the results of the referendum, is further strengthened by the affidavits and certifications of Governor Isidro Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City and Councilor Eduardo T. Parades of Quezon City. The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939 amendment to the ordinance appended to the 1935 Constitution, the 1940 amendments establishing the bicameral Congress, creating the Commission on Elections and providing for two consecutive terms for the President, and the 1947 parity amendment, cannot be invoked; because those amendments were proposed by the National Assembly as expressly authorized by Article V of the 1935 Constitution respecting woman suffrage and as a constituent assembly in all the other amendments aforementioned and therefore as such, Congress had also the authority to prescribe the procedure for the submission of the proposed amendments to the 1935 Constitution. In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional Convention, which as heretofore discussed, has the equal power to prescribe the modality for the submission of the 1973 Constitution to the people for ratification or delegate the same to the President of the Republic. The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could be utilized as the basis for the extrapolation of the Citizens' Assemblies in all the other provinces, cities and municipalities in all the other provinces, cities and municipalities, and the affirmative votes in the Citizens' Assemblies resulting from such extrapolation would still constitute a majority of the total votes cast in favor of the 1973 Constitution. As claimed by petitioners in L-36165, against the certification of the Department of Local Government and Community Development that in Rizal there were 1,126,000 Yes votes and 100,310 No votes, the certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes votes against 292,530 No votes. In Cavite province, there were 249,882 Yes votes against 12,269 No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department of Local Government and Community Development), while the alleged certification of Governor Lino Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such a ratio is extended by way of extrapolation to the other provinces, cities and towns of the country, the result would still be an overwhelming vote in favor of the 1973 Constitution. The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his duly acknowledged certification dated March 16, 1973, he states that since the declaration of martial law and up to the present time, he has been under house arrest in his residence in Urdaneta Village, Makati, Rizal; that he never participated in the conduct of the Citizens' Assemblies on January 10 15, 1973 in the province of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies at that time was Vice-Governor Dominador Camerino; and that he was shown a letter for his signature during the conduct of the Citizens' Assemblies, which he did not sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973). Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15, 1973, he caused the preparation of a letter addressed to Secretary Jose Roo of the Department of Local Government and Community Development showing the results of the referendum in Pasay City; that on the same day, there were still in any Citizens' Assemblies holding referendum in Pasay City, for which reason he did not send the aforesaid letter pending submittal of the other results from the said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he indorsed the complete certificate of results on the referendum in Pasay City to the Office of the President (Annex 5-Rejoinder of Sol. Gen. dated March 20, 1973). Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also issued an affidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga Law Office asked him for the results of the referendum; that he informed her that he had in his possession unsigned copies of such results which may not be considered official as they had then no knowledge whether the original thereof had been signed by the mayor; and that in spite of his advice that said unsigned copies were not official, she requested him if she could give her the unofficial copies thereof, which he gave in good faith (Annex C-Rejoinder to the Sol. Gen.). There were 118,010 Yes votes as against 5,588 No votes in the Citizens' Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far as we know, there has been no Citizens' Assembly meeting in our Area, particularly in January of this year," does not necessarily mean that there was no such meeting in said barrio; for she may not have been notified thereof and as a result she was not able to attend said meeting. Much less can it be a basis for the claim that there was no meeting at all in the other barrios of Quezon City. The barrio captain or the secretary of the barrio assembly could have been a credible witness.

Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and Coordinating Council, certified on March 12, 1973 that as such chairman he was in charge of the compilation and tabulation of the results of the referendum among the Citizens' Assemblies in Quezon City based on the results submitted to the Secretariat by the different Citizens' Assemblies; but many results of the referendum were submitted direct to the national agencies having to do with such activity and all of which he has no knowledge, participation and control (Annex 4 Rejoinder of the Sol. Gen.). Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973 that he prepared a letter to the President dated January 15, 1973 informing him of the results of the referendum in Rizal, in compliance with the instruction of the National Secretariat to submit such letter 2 or 3 days from January 10 to show the trend of voting in the Citizens' Assemblies; that the figures 614,157 and 292,530 mentioned in said letter were based on the certificates of results in his possession as of January 14, 1973, which results were made the basis of the computation of the percentage of voting trend in the province; that his letter was never intended to show the final or complete result in the referendum in the province as said referendum was then still going on from January 14-17, 1973, for which reason the said letter merely stated that it was only a "summary result"; and that after January 15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalities of Rizal for final tabulation (Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied). Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and Community Development, issued a certificate dated March 16, 1973 that she was shown xerox copies of unsigned letters allegedly coming from Governor Lino Bocalan dated January 15, 1973 and marked "Rejoinder Annex Cavite" addressed to the President of the Philippines through the Secretary of the Department of Local Government and Community Development and another unsigned letter reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex Pasay City" addressed to the Secretary of the Department of Local Government and Community Development; that both xerox copies of the unsigned letters contain figures showing the results of the referendum of the Citizens' Assemblies in those areas; and that the said letters were not received by her office and that her records do not show any such documents received by her office (Annex 2-Rejoinder of the Sol. Gen.). Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing said unsigned letters and/or certificates as duly signed and/or containing the complete returns of the voting in the Citizens' Assemblies. The observation We made with respect to the discrepancy between the number of Yes votes and No votes contained in the summary report of Governor Rodriguez of Rizal as well as those contained in the alleged report of Governor Lino Bocalan of Cavite who repudiated the same as not having been signed by him for he was then under house arrest, on the one hand, and the number of votes certified by the Department of Local Government and Community Development, on the other, to the effect that even assuming the correctness of the figures insisted on by counsel for petitioners in L-36165, if they were extrapolated and applied to the other provinces and cities of the country, the Yes votes would still be overwhelmingly greater than the No votes, applies equally to the alleged discrepancy between the figures contained in the certification of the Secretary of the Department of Local Government and Community Development and the figures furnished to counsel for petitioners in L-36165 concerning the referendum in Camarines Sur, Bataan and Negros Occidental. The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows that there were more votes in favor of the plebiscite to be held later than those against, only serve to emphasize that there was freedom of voting among the members of the Citizens' Assemblies all over the country during the referendum from January 10 to 15, 1973 (Annex-6 Camarines Sur to Rejoinder of Petitioners in L-36165). If there was no such freedom of choice, those who wanted a plebiscite would not outnumber those against holding such plebiscite. The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of approval of the new Constitution by almost 97% by the members of the Citizens' Assemblies in Camarines Sur" (Annex-Camarines Sur to Rejoinder of Petitioners in L-36165). The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens' Assemblies voted overwhelmingly in favor of the new Constitution despite the fact that the second set of questions including the question "Do you approve of the new Constitution?" was received only on January 10. Provincial Governor Pascual stated that "orderly conduct and favorable results of the referendum" were due not only to the coordinated efforts and cooperation of all teachers and government employees in the area but also to the enthusiastic participation by the people, showing "their preference and readiness to accept this new method of government to people consultation in shaping up government policies." (Annex-Bataan to Rejoinder of Petitioners in L-36165). As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in the book of voters; it is enough that they are electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in the referendum in certain localities may exceed the number of voters actually registered for the 1971 elections, can only mean that the excess represents the qualified voters who are not yet registered including those who are at least 15 years of age and the illiterates. Although ex-convicts may have voted also in the referendum, some of them might have been granted absolute pardon or were sentenced to less than one year imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election Code). At any rate, the ex-convicts constitute a negligible number, discounting which would not tilt the scale in favor of the negative votes. Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to the Liberal Party, stated in his letter dated March 13, 1973 that he does not "feel authorized by the proper authorities to confirm or deny the data" concerning the number of participants, the Yes votes and No votes in the referendum on the new Constitution among the members of the Citizens' Assemblies in Caloocan City, does not necessarily give rise to the inference that Mayor Samson of Caloocan City is being intimidated, having been recently released from detention; because in the same letter of Mayor Samson, he suggested to counsel for petitioners in L-36165 that he can secure "the true and legitimate results of the referendum" from the Office of the President (Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed such suggestion? Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the estimated turnover in the Citizens' Assemblies referendum on January 10 to 15, 1973 by a certain Professor Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a close relative of former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165 (Annex M-as amended, to Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments and Memorandum of respondents). Professor Salonga is not a qualified statistician, which all the more impairs his credibility. Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter dated March 16, 1973 address to the Secretary of the Department of Local Government and Community Development, refutes the said computation of Professor Benjamin R. Salonga, thus:

1) I do not quite understand why (Problem 1) all qualified registered voters and the 15-20-year-old youths (1972) will have to be estimated in order to give a 101.9% estimate of the percentage participation of the "15-20 year old plus total number of qualified voters" which does not deem to answer the problem. This computation apparently fails to account for some 5.6 million persons "21 years old and over" who were not registered voters (COMELEC), but who might be qualified to participate at the Citizen's Assembly. 2) The official population projection of this office (medium assumption) for "15 year olds and over" as of January 1, 1973 is 22.506 million. If total number of participants at the Citizens' Assembly Referendum held on January 10-15, 1973 was 16.702 million, participation rate will therefore be the ratio of the latter figure to the former which gives 74.2%. 3) 1 cannot also understand c-2 "Solution to Problem 11." The "difference or implied number of 15-20 year olds" of 5,039,906 would represent really not only all 15-year olds and over who participated at the Citizens' Assembly but might not have been registered voters at the time, assuming that all the 11,661,909 registered voted at Citizens' Assembly. Hence, the "estimate percentage participation of 15-20 years olds" of 105.6% does not seem to provide any meaningful information. To obtain the participation rate of "15-20 years old" one must divide the number in this age group, which was estimated to be 4.721 million as of January 1, 1973 by the population of "15 years old and over" for the same period which was estimated to be 22.506 million, giving 21.0%. In Problem III, it should be observed that registered voters also include names of voters who are already dead. It cannot therefore be assumed that all of them participated at the Citizens' Assembly. It can therefore be inferred that "a total number of persons 15 and over unqualified/disqualified to vote" will be more than 10,548,197 and hence the "difference or implied number of registered voters that participated" will be less than 6,153,618. I have reservations on whether an "appropriate number of qualified voters that supposedly voted" could be meaningfully estimated. 5) The last remark will therefore make the ratio (a) [Solution to Problem] more than 1.71 and that for (b), accordingly, will also be less than 36.8%." (Annex F Rejoinder). From the foregoing analysis of the Director of Census and Statistics as of January 21, 1973, the official population projection for 15-year olds and over is 22,506,000. If 16,702,000 voted in the referendum, the participation ratio would be 74.2% of 22,506,000. If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the difference between 16,702,000 who participated in the referendum and the registered electors of 11,661,909 for the November 8, 1971 elections, is 5,040,091, which may include not only the 15-year olds and above but below 21 but also the qualified electors who were not registered before the November 8, 1971 elections as well as illiterates who are 15 years old and above but below 21. Moreover, in the last Presidential election in November, 1969, We found that the incumbent President obtained over 5,000,000 votes as against about 3,000,000 votes for his rival LP Senator Sergio Osmea, Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmea, Jr. vs. Marcos, Presidential Election Contest No. 3, Jan. 8, 1973). The petitioners in all the cases at bar cannot state with justification that those who voted for the incumbent President in 1969 did not vote in favor of the 1973 Constitution during the referendum from January 10 to 15, 1973. It should also be stressed that many of the partisans of the President in the 1969 Presidential elections, have several members in their families and relatives who are qualified to participate in the referendum because they are 15 years or above including illiterates, which fact should necessarily augment the number of votes who voted for the 1973 Constitution. (6) It is also urged that martial law being the rule of force, is necessarily inconsistent with freedom of choice, because the people fear to disagree with the President and Commander-in-Chief of the Armed Forces of the Philippines and therefore cannot voice views opposite to or critical of the position of the President on the 1973 Constitution and on the mode of its ratification. It is also claimed or urged that there can be no free choice during martial law which inevitably generates fear in the individual. Even without martial law, the penal, civil or administrative sanction provided for the violation of ordinarily engenders fear in the individual which persuades the individual to comply with or obey the law. But before martial law was proclaimed, many individuals fear such sanctions of the law because of lack of effective equal enforcement or implementation thereof in brief, compartmentalized justice and extraneous pressures and influences frustrated the firm and just enforcement of the laws. The fear that is generated by martial law is merely the fear of immediate execution and swift enforcement of the law and therefore immediate infliction of the punishment or sanction prescribed by the law whenever it is transgressed during the period of martial law. This is not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973 Constitution. Those who cringe in fear are the criminals or the law violators. Surely, petitioners do not come under such category. (7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the secrecy of the ballot as by the election laws. But the 1935 Constitution does not require secret voting. We search in vain for such guarantee or prescription in said organic law. The Commission on Elections under the 1940 Amendment, embodied as Article X is merely mandated to insure "free, orderly and honest election." Congress, under its plenary lawmaking authority, could have validly prescribed in the election law open voting in the election of public officers, without trenching upon the Constitution. Any objection to such a statute concerns its wisdom or propriety, not its legality or constitutionality. Secret balloting was demanded by partisan strife in elections for elective officials. Partisanship based on party or personal loyalties does not generally obtain in a plebiscite on proposed constitutional amendments or on a new Constitution. We have seen even before and during martial law that voting in meetings of government agencies or private organizations is usually done openly. This is specially true in sessions of Congress, provincial boards, city councils, municipal boards and barrio councils when voting on national or local issues, not on personalities. Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might have been true in certain areas, but that does not necessarily mean that it was done throughout the country.

The recent example of an open voting is the last election on March 3, 1973 of the National Press Club officers who were elected by acclamation presided over by its former president, petitioner Eduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no more hardboiled group of persons than newspapermen, who cannot say that voting among them by acclamation was characterized by fear among the members of the National Press Club. Moreover, petitioners would not be willing to affirm that all the members of the citizenry of this country are against the new Constitution. They will not deny that there are those who favor the same, even among the 400,000 teachers among whom officers of the Department of Education campaigned for the ratification of the new Constitution. Not one of the petitioners can say that the common man farmer, laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus driver, pedestrian, salesman, or salesgirl does not want the new Constitution, or the reforms provided for therein. (8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This is quite inaccurate; because even before the election in November, 1970 of delegates to the Constitutional Convention, the proposed reforms were already discussed in various forums and through the press as well as other media of information. Then after the Constitutional Convention convened in June, 1971, specific reforms advanced by the delegates were discussed both in committee hearings as well as in the tri-media the press, radio and television. Printed materials on the proposed reforms were circulated by their proponents. From June, 1971 to November 29, 1972, reforms were openly discussed and debated except for a few days after the proclamation of martial law on September 21, 1972. From the time the Constitutional Convention reconvened in October, 1972 until January 7, 1973, the provisions of the new Constitution were debated and discussed in forums sponsored by private organizations universities and debated over the radio and on television. The Philippines is a literate country, second only to Japan in the Far East, and more literate perhaps than many of midwestern and southern states of the American Union and Spain. Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the illiterates listened to radio broadcasts on and discussed the provisions of the 1973 Constitution. As reported by the eminent and widely read columnist, Teodoro Valencia in his column in Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) went around the country doing a 30-minute documentary on the Philippines for American television stated that what impressed him most in his travel throughout the country was the general acceptance of the New Society by the people which he saw in his 6-week travel from Aparri to Jolo." The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express, March 3, and Sunday Express, March 4), Secretary of the United States Senate, who conducted a personal survey of the country as delegate of Senator Mike Mansfield, Chairman, Committee on US-Philippine relations, states: Martial law has paved the way for a re-ordering of the basic social structure of the Philippines. President Marcos has been prompt and sure-footed in using the power of presidential decree under martial law for this purpose. He has zeroed in on areas which have been widely recognized as prime sources of the nation's difficulties land tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly, he knows the targets. What is not yet certain is how accurate have been his shots. Nevertheless, there is marked public support for his leadership and tangible alternatives have not been forthcoming. That would suggest that he may not be striking too far from the mark. The United States business community in Manila seems to have been re-assured by recent developments ... . (Emphasis supplied.) Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute the majority of the population, do not like the reforms stipulated in the new Constitution, as well as the decrees, orders and circulars issued to implement the same. It should be recalled, as hereinbefore stated, that all these reforms were the subject of discussion both in the committee hearings and on the floor of the Constitutional Convention, as well as in public forums sponsored by concerned citizens or civic organizations at which Con-Con delegates as well as other knowledgeable personages expounded their views thereon and in all the media of information before the proclamation of martial law on September 21, 1972. This is the reason why the Constitutional Convention, after spending close to P30 million during the period from June 1, 1971 to November 29, 1972, found it expedient to accelerate their proceedings in November, 1972 because all views that could possibly be said on the proposed provisions of the 1973 Constitution were already expressed and circulated. The 1973 Constitution may contain some unwise provisions. But this objection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of the aforesaid provisions, which issue is not for this Court to decide; otherwise We will be substituting Our judgment for the judgment of the Constitutional Convention and in effect acting as a constituent assembly. VI PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE POWERS DURING MARTIAL LAW. The position of the respondent public officers that undermartial law, the President as Commander-in-Chief is vested with legislative powers, is sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83 Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs. Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no more martial law in the Philippines. ... Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part of our Constitution. The promulgation of said executive order is an exercise by the President of his powers as Commander in Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs. Styver (L-129, 42 Off. Gaz., 664) when we said "War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of war may remain pending which should be disposed of as in time of war. " An important incident to a conduct of war

is the adoption measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war." (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a military commission "has jurisdiction so long as the technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of treaty of peace, and may extend beyond, by treaty agreement." (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944). Consequently, the President as Commander-in-Chief is fully empowered to consummate this unfinished aspect of war , namely the trial and punishment of war criminals, through the issuance and enforcement of Executive Order No. 68. (83 Phil. 177-178; emphasis supplied). Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view, when, in his concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise of the power which resides in the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety." (Emphasis supplied). There is an implied recognition in the aforesaid definition of martial law that even in places where the courts can function, such operation of the courts may be affected by martial law should their "functioning ... threaten the public safety." It is possible that the courts, in asserting their authority to pass upon questions which may adversely affect the conduct of the punitive campaign against rebels, secessionists, dissidents as well as subversives, martial law may restrict such judicial function until the danger to the security of the state and of the people shall have been decimated. The foregoing view appears to be shared by Rossiter when he stated: Finally, this strong government, which in some instances might become an outright dictatorship, can have no other purposes than the preservation of the independence of the state, the maintenance of the existing constitutional order, and the defense of the political and social liberties of the people. It is important to recognize the true and limited ends of any practical application of the principle of constitutional dictatorship. Perhaps the matter may be most clearly stated in this way: the government of a free state is proceeding on its way and meeting the usual problems of peace and normal times within the limiting framework of its established constitutional order. The functions of government are parceled out among a number of mutually independent offices and institutions; the power to exercise those functions is circumscribed by well-established laws, customs, and constitutional prescriptions; and the people for whom this government was instituted are in possession of a lengthy catalogue of economic, political, and social rights which their leaders recognize as inherent and inalienable. A severe crisis arises the country is invaded by a hostile power, or a dissident segment of the citizenry revolts, or the impact of a world-wide depression threatens to bring the nation's economy in ruins. The government meets the crisis by assuming more powers and respecting fewer rights. The result is a regime which can act arbitrarily and even dictatorially in the swift adaption of measures designed to save the state and its people from the destructive effects of the particular crisis. And the narrow duty to be pursued by this strong government, this constitutional dictatorship? Simply this and nothing more: to end the crisis and restore normal times. The government assumes no power and abridges no right unless plainly indispensable to that end; it extends no further in time than the attainment of that end; and it makes no alteration in the political, social and economic structure of the nation which cannot be eradicated with the restoration of normal times. In short, the aim of constitutional dictatorship is the complete restoration of the status quo ante bellum. This historical fact does not comport with philosophical theory, that there never has been a perfect constitutional dictatorship, is an assertion that can be made without fear of contradiction. But this is true of all institutions of government, and the principle of constitutional dictatorship remains eternally valid no matter how often and seriously it may have been violated in practice. (Constitutional Dictatorship, 1948 ed., by Clinton L. Rossiter, p. 7; emphasis supplied.) Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises legislative power, whether of temporary or permanent character, thus: The measures adopted in the prosecution of a constitutional dictatorship should never be permanent in character or effect . Emergency powers are strictly conditioned by their purpose and this purpose is the restoration of normal conditions. The actions directed to this end should therefore be provisional. For example, measures of a legislative nature which work a lasting change in the structure of the state or constitute permanent derogations from existing law should not be adopted under an emergency enabling act, at least not without the positively registered approval of the legislature . Permanent laws, whether adopted in regular or irregular times, are for parliaments to enact. By this same token, the decisions and sentences of extraordinary courts should be reviewed by the regular courts after the termination of the crisis. But what if a radical act of permanent character, one working lasting changes in the political and social fabric, is indispensable to the successful prosecution of the particular constitutional dictatorship? The only answer can be: it must be resolutely taken and openly acknowledged. President Lincoln found it necessary to proceed to the revolutionary step of emancipation in aid of his conservative purpose of preserving the Union; as a constitutional dictator he had a moral right to take this radical action. Nevertheless, it is imperative that any action with such lasting effects should eventually receive the positive approval of the people or of their representatives in the legislature. (P. 303, emphasis supplied). From the foregoing citations, under martial law occasioned by severe crisis generated by revolution, insurrection or economic depression or dislocation, the government exercises more powers and respects fewer rights in order "to end the crisis and restore normal times." The government can assume additional powers indispensable to the attainment of that end the complete restoration of peace. In our particular case, eradication of the causes that incited rebellion and subversion as secession, is the sine qua non to the complete restoration of normalcy. Exercise of legislative power by the President as Commander in Chief, upon his proclamation of martial law, is justified because, as he professes, it is directed towards the institution of radical reforms essential to the elimination of the causes of rebellious, insurgent or subversive conspiracies and the consequent dismantling of the rebellious, insurgent or subversive apparatus.

Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102 is indispensable to the effectuation of the reforms within the shortest possible time to hasten the restoration of normalcy. "Must the government be too strong for the liberties of the people; or must it be too weak to maintain its existence?" That was the dilemma that vexed President Lincoln during the American Civil War, when without express authority in the Constitution and the laws of the United States, he suspended one basic human freedom the privilege of the writ of habeas corpus in order to preserve with permanence the American Union, the Federal Constitution of the United States and all the civil liberties of the American people. This is the same dilemma that presently confronts the Chief Executive of the Republic of the Philippines, who, more than the Courts and Congress, must, by express constitutional mandate, secure the safety of our Republic and the rights as well as lives of the people against open rebellion, insidious subversion secession. The Chief Executive announced repeatedly that in choosing to proclaim martial law, the power expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our national and individual survival in peace and freedom, he is in effect waging a peaceful, democratic revolution from the center against the violent revolution and subversion being mounted by the economic oligarchs of the extreme right, who resist reforms to maintain their economic hegemony, and the communist rebels a Maoist oriented secessionists of the extreme left who demand swift institution of reforms. In the exercise of his constitutional and statutory powers, to save the state and to protect the citizenry against actual and threatened assaults from insurgents, secessionists and subversives, doctrinaire concepts and principles, no matter how revered they may be by jurisprudence and time, should not be regarded as peremptory commands; otherwise the dead hand of the past will regulate and control the security and happiness of the living present. A contrary view would be to deny the selfevident proposition that constitutions and laws are mere instruments for the well-being, peace, security and prosperity of the country and its citizenry. The law as a means of social control is not static but dynamic. Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the imprisonment of the past, but the enfolding of the future. In the vein of Mr. Justice Holmes, the meaning of the words of the Constitution is not to be determined by merely opening a dictionary. Its terms must be construed in the context of the realities in the life of a nation it is intended to serve. Because experience may teach one generation to doubt the validity and efficacy of the concepts embodied in the existing Constitution and persuade another generation to abandon them entirely, heed should be paid to the wise counsel of some learned jurists that in the resolution of constitutional questions like those posed before Us the blending of idealism and practical wisdom or progressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency for human betterment" and constitutional law "is applied politics using the word in its noble sense ." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supplied). Justice Brandeis gave utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it is capable of growth or expansion and adaptation to new conditions. Growth implies changes, political, economic and social." (Brandeis Papers, Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed Powell emphasizes "practical wisdom," for "the logic of constitutional law is the common sense of the Supreme Court." (Powell, the Validity of State Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's Opus, supra; emphasis supplied). The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except change. Living organisms as well as man-made institutions are not immutable. Civilized men organize themselves into a State only for the purpose of serving their supreme interest their welfare. To achieve such end, they created an agency known as the government. From the savage era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of sophisticated electronics and nuclear weaponry, states and governments have mutated in their search for the magic instrument for their well-being. It was trial and error then as it is still now. Political philosophies and constitutional concepts, forms and kinds of government, had been adopted, overturned, discarded, re-adopted or modified to suit the needs of a given society at a particular given epoch. This is true of constitutions and laws because they are not "the infallible instruments of a manifest destiny." No matter how we want the law to be stable, it cannot stand still. As Mr. Justice Holmes aptly observed, every "constitution is an experiment as all life is an experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but experience." In the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as society is inconstant, there can be no constancy in law," and "there will be change whether we will it or not." As Justice Jose P. Laurel was wont to say, "We cannot, Canute-like, command the waves of progress to halt." Thus, political scientists and jurists no longer exalt with vehemence a "government that governs least." Adherents there are to the poetic dictum of Alexander Pope: "For forms of government let fools contest; whatever is best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In between, the shades vary from direct democracy, representative democracy, welfare states, socialist democracy, mitigated socialism, to outright communism which degenerated in some countries into totalitarianism or authoritarianism. Hence, even the scholar, who advances academic opinions unrelated to factual situations in the seclusion of his ivory tower, must perforce submit to the inexorable law of change in his views, concepts, methods and techniques when brought into the actual arena of conflict as a public functionary face to face with the practical problems of state, government and public administration. And so it is that some learned jurists, in the resolution of constitutional issues that immediately affect the lives, liberties and fortunes of the citizens and the nation, recommend the blending of idealism with practical wisdom which legal thinkers prefer to identify as progressive legal realism. The national leader, who wields the powers of government, must and has to innovate if he must govern effectively to serve the supreme interests of the people. This is especially true in times of great crises where the need for a leader with vision, imagination, capacity for decision and courageous action is greater, to preserve the unity of people, to promote their well-being, and to insure the safety and stability of the Republic. When the methods of rebellion and subversion have become covert, subtle and insidious, there should be a recognition of the corresponding authority on the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques to suppress the peril to the security of the government and the State. Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the American Constitution and former President of the United States, who personifies the progressive liberal, spoke the truth when he said that some men "ascribe men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. ... But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change, with the change of circumstances, institutions must also advance, and keep pace with the times." (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989). The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. It cannot be adequately and fairly appraised within the present ambience, charged as it is with so much tension and emotion, if not partisan passion. The analytical, objective historians will write the final verdict in the same way that they pronounced judgment on President Abraham Lincoln who suspended the privilege of the writ of habeas corpuswithout any constitutional or statutory authority therefor and of President Franklin Delano Roosevelt who approved the proclamation of martial law in 1941 by the governor of Hawaii throughout the Hawaiian territory. President Lincoln not only emancipated the Negro slaves in America, but also saved the Federal Republic of the United States from disintegration by his suspension of the privilege of the writ of habeas corpus, which power the American Constitution and Congress did not then expressly vest in him. No one can deny that the successful defense and preservation of the territorial integrity of the United States was due in part, if not to a great extent, to the proclamation of martial law over the territory of Hawaii main bastion of the outer periphery or the outpost of the American defense perimeter in the Pacific which protected the United States mainland not only from actual invasion but also from aerial or naval bombardment by the enemy. Parenthetically, the impartial observer cannot accurately conclude that the American Supreme Court acted with

courage in its decision in the cases of Ex parte Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided on April 3, 1866, and opinion delivered on December 17, 1866) after the lifting of the proclamation suspending the privilege of the writ of habeas corpus, long after the Civil War and the Second World ended respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p. 799). Was the delay on the part of the American Supreme Court in deciding these cases against the position of the United States President in suspending the privilege of the writ of habeas corpus in one case and approving the proclamation of martial law in the other deliberate as an act of judicial statesmanship and recognition on their part that an adverse court ruling during the period of such a grave crisis might jeopardize the survival of the Federal Republic of the United States in its life-and-death struggle against an organized and well armed rebellion within its own borders and against a formidable enemy from without its territorial confines during the last global armageddon? VIII DOCTRINE OF SEPARATION OF POWERS PRECLUDES MANDAMUS AGAINST SENATORS. In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat and Jose Roy to convene the Senate of the Philippines even on the assumption that the 1935 Constitution still subsists; because pursuant to the doctrine of separation of powers under the 1935 Constitution, the processes of this Court cannot legally reach a coordinate branch of the government or its head. This is a problem that is addressed to the Senate itself for resolution; for it is purely an internal problem of the Senate. If a majority of the senators can convene, they can elect a new Senate President and a new Senate President Pro Tempore. But if they have no quorum, those present can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and certainly does not justify the invocation of the power of this Court to compel action on the part of a co-equal body or its leadership. This was emphasized with sufficient clarity by this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished counsels for the petitioners in L-36164 and L-36165 are familiar. We stress that the doctrine of separation of powers and the political nature of the controversy such as this, preclude the interposition of the Judiciary to nullify an act of a coordinate body or to command performance by the head of such a co-ordinate body of his functions.. Mystifying is the posture taken by counsels for petitioners in referring to the political question doctrine almost in mockery as a magic formula which should be disregarded by this Court, forgetting that this magic formula constitutes an essential skein in the constitutional fabric of our government, which, together with other basic constitutional precepts, conserves the unity of our people, strengthens the structure of the government and assures the continued stability of the country against the forces of division, if not of anarchy. Moreover, if they have a quorum, the senators can meet anywhere. Validity of the acts of the Senate does not depend on the place of session; for the Constitution does not designate the place of such a meeting. Section 9 of Article VI imposes upon Congress to convene in regular session every year on the 4th Monday of January, unless a different date is fixed by law, or on special session called by the President. As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy in L-36165, stated, the duty to convene is addressed to all members of Congress, not merely to its presiding officers. The fact that the doors of Congress are padlocked, will not prevent the senators especially the petitioners in L-36165 if they are minded to do so, from meeting elsewhere at the Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels or theaters, in their own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitioner Gerardo Roxas in L-36165. However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly meet without the lower House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five former senators for mandamus in L-36165 is useless. And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and Roy, mandamus will lie only if there is a law imposing on the respondents the duty to convene the body. The rule imposing such a duty invoked by petitioners in L-36165 is purely an internal rule of the Senate; it is not a law because it is not enacted by both Houses and approved by the President. The Constitutional provision on the convening of Congress, is addressed to the individual members of the legislative body (Sec. 9, Art. VI of 1935 Constitution). IX TO NULLIFY PROCLAMATION NO. 1102 AND 1973 CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF SUPREME COURT. The petitioners in L-36164 and L-36236 specifically pray for a declaration that the alleged ratification of the 1973 Constitution is null and void and that the said 1973 Constitution be declared unenforceable and inoperative. As heretofore stated, Proclamation No. 1102 is an enactment of the President as Commander-in-Chief during martial law as directly delegated to him by Section 10(2) of Article VII of the 1935 Constitution. A declaration that the 1973 Constitution is unenforceable and inoperative is practically deciding that the same is unconstitutional. The proposed Constitution is an act of the Constitutional Convention, which is co-equal and coordinate with as well as independent of either Congress or the Chief Executive. Hence, its final act, the 1973 Constitution, must have the same category at the very least as the act of Congress itself. Consequently, the required vote to nullify Proclamation No. 1102 and the 1973 Constitution should be eight (8) under Section 10 of Article VIII of the 1935 Constitution in relation to Section 9 of the Judiciary Act or Republic Act No. 296, as amended, or should be ten (10) under Section 2(2) of Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), as the case may be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must be deemed to be valid, in force and operative.

X ARTICLE OF FAITH WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We swear "eternal hostility towards any form of tyranny over the mind of man" as well as towards bigotry and intolerance, which are anathema to a free spirit. But human rights and civil liberties under a democratic or republican state are never absolute and never immune to restrictions essential to the common weal. A civilized society cannot long endure without peace and order, the maintenance of which is the primary function of the government. Neither can civilized society survive without the natural right to defend itself against all dangers that may destroy its life, whether in the form of invasion from without or rebellion and subversion from within. This is the first law of nature and ranks second to none in the hierarchy of all values, whether human or governmental. Every citizen, who prides himself in being a member or a civilized society under an established government, impliedly submits to certain constraints on his freedom for the general welfare and the preservation of the State itself, even as he reserves to himself certain rights which constitute limitations on the powers of government. But when there is an inevitable clash between an exertion of governmental authority and the assertion of individual freedom, the exercise of which freedom imperils the State and the civilized society to which the individual belongs, there can be no alternative but to submit to the superior right of the government to defend and preserve the State. In the language of Mr. Justice Holmes often invoked by herein petitioners "when it comes to a decision involving its (state life, the ordinary rights of individuals must yield to what he (the President) deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. (See Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with regard to killing men in the actual clash of arms. And we think it is obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417). The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order and security for all, that should be the shibboleth; for freedom cannot be enjoyed in an environment of disorder and anarchy. The incumbent Chief Executive who was trying to gain the support for his reform program long before September 21, 1972, realized almost too late that he was being deceived by his partymates as well as by the opposition, who promised him cooperation, which promises were either offered as a bargaining leverage to secure concessions from him or to delay the institution of the needed reforms. The people have been victimized by such bargaining and dilly-dallying. To vert a terrifying blood bath and the breakdown of the Republic, the incumbent President proclaimed martial law to save the Republic from being overrun by communists, secessionists and rebels by effecting the desired reforms in order to eradicate the evils that plague our society, which evils have been employed by the communists, the rebels and secessionists to exhort the citizenry to rise against the government. By eliminating the evils, the enemies of the Republic will be decimated. How many of the petitioners and their counsels have been utilizing the rebels, secessionists and communists for their own personal or political purposes and how many of them are being used in turn by the aforesaid enemies of the State for their own purposes? If the petitioners are sincere in their expression of concern for the greater mass of the populace, more than for their own selves, they should be willing to give the incumbent Chief Executive a chance to implement the desired reforms. The incumbent President assured the nation that he will govern within the framework of the Constitution and if at any time, before normalcy is restored, the people thru their Citizens' Assemblies, cease to believe in his leadership, he will step down voluntarily from the Presidency. But if, as apprehended by the petitioners, he abuses and brutalizes the people, then to the battlements we must go to man the ramparts against tyranny. This, it is believed, he knows only too well; because he is aware that he who rides the tiger will eventually end inside the tiger's stomach. He who toys with revolution will be swallowed by that same revolution. History is replete with examples of libertarians who turned tyrants and were burned at stake or beheaded or hanged or guillotined by the very people whom they at first championed and later deceived. The most bloody of such mass executions by the wrath of a wronged people, was the decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French revolution, like Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the lessons of history. HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED. ESGUERRA, J., concurring: These petitions seek to stop and prohibit the respondents Executive Officers from implementing the Constitution signed on November 30, 1972; in L36165, to compel respondents Gil Puyat and Jose J. Roy, President and President Pro-Tempore, respectively, of the Senate under the 1935 Constitution, to convene the Senate in regular session which should have started on January 22, 1973; to nullify Proclamation No. 1102 of the President, issued on January 17, 1973, which declared the ratification of the Constitution on November 30, 1972, by the Filipino people, through the barangays or Citizens Assemblies established under Presidential Decree No. 86 issued on December 31, 1972, which were empowered under Presidential Decree No. 86-A, issued on January 5, 1973, to act in connection with the ratification of said Constitution. Grounds for the petitions are as follows: 1. That the Constitutional Convention was not a free forum for the making of a Constitution after the declaration of Martial Law on September 21, 1972. 2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution because they are highly unwise and objectionable and the people were not sufficiently informed about them. 3. The President had no authority to create and empower the Citizens' Assemblies to ratify the new Constitution at the referendum conducted in connection therewith, as said assemblies were merely for consultative purposes, and 4. The provisions of Article XV of the 1935 Constitution prescribing the manner of amending the same were not duly observed. The petitions were not given due course immediately but were referred to the Solicitor General as counsel for the respondents for comment, with three members of the Court, including the undersigned, voting to dismiss them outright. The comments were considered motions to dismiss which were set for hearing and extensively argued. Thereafter both parties submitted their notes and memoranda on their oral arguments.

I. The issues raised for determination, on which the resolution of the Motion to Dismiss hinges, are as follows: 1. Is the question presented political and, hence, beyond the competence of this Court to decide, or is it justiciable and fit for judicial determination? 2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending process prescribed by Article XV of the 1935 Constitution? 3. Has the new Constitution been accepted and acquiesced in by the Filipino people? 4. Is the new Constitution actually in force and effect? 5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners entitled to the reliefs prayed for? II. The pivotal question in these cases is whether the issue raised is highly political and, therefore, not justiciable. I maintain that this Court should abstain from assuming jurisdiction, but, instead, as an act of judicial statesmanship, should dismiss the petitions. In resolving whether or not the question presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a logical conclusion. For after the acceptance of a new Constitution and acquiescence therein by the people by putting it into practical operation, any question regarding its validity should be foreclosed and all debates on whether it was duly or lawfully ushered into existence as the organic law of the state become political and not judicial in character. The undisputed facts that led to the issuance of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and dissenting opinions in the Plebiscite cases decided on January 22, 1973, and need not be repeated here. Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A, claiming that the ratification of the new Constitution pursuant to the said decrees is invalid and of no effect. Presidential Decree No. 86 organized the barangays or Citizens Assemblies composed of all citizens at least fifteen years of age, and through these assemblies the proposed 1972 Constitution was submitted to the people for ratification. Proclamation No. 1102 of the President announced or declared the result of the referendum or plebiscite conducted through the Citizens Assemblies, and that 14,976,561 members thereof voted for the ratification of the new Constitution and 743,869 voted against it. Petitioners assail these two acts of the President as unauthorized and devoid of legal effect. But looking through the veneer of judicial conformity with which the petitions have been adroitly contrived, what is sought to be invalidated is the new Constitution itself the very framework of the present Government since January 17, 1973. The reason is obvious. The Presidential decrees set up the means for the ratification and acceptance of the new Constitution and Proclamation No. 1102 simply announced the result of the referendum or plebiscite by the people through the Citizens Assemblies. The Government under the new Constitution has been running on its tracks normally and apparently without obstruction in the form of organized resistance capable of jeopardizing its existence and disrupting its operation. Ultimately the issue is whether the new Constitution may be set aside by this Court. But has it the power and authority to assume such a stupendous task when the result of such invalidation would be to subject this nation to divisive controversies that may totally destroy the social order which the Government under the new Constitution has been admirably protecting and promoting under Martial Law? That the new Constitution has taken deep root and the people are happy and contended with it is a living reality which the most articulate critics of the new order cannot deny. 95 out of 108 members of the House of Representatives have opted to serve in the interim National Assembly provided for under the new Constitution. 15 out of 24 Senators have done likewise. The members of the Congress did not meet anymore last January 22, 1973, not because they were really prevented from so doing but because of no serious effort on their parts to assert their offices under the 1935 Constitution. In brief, the Legislative Department under the 1935 Constitution is a thing of the past. The Executive Department has been fully reorganized; the appointments of key executive officers including those of the Armed Forces were extended and they took an oath to support and defend the new Constitution. The courts, except the Supreme Court by reason of these cases, have administered justice under the new constitution. All government offices have dealt with the public and performed their functions according to the new Constitution and laws promulgated thereunder. If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its assumption of jurisdiction when no power has ... conferred upon it the jurisdiction to declare the Constitution or any part thereof null and void? It is the height of absurdity and impudence for a court to wage open war against the organic act to which it owes its existence. The situation in which this Court finds itself does not permit it to pass upon the question whether or not the new Constitution has entered into force and has superseded the 1935 Constitution. If it declares that the present Constitution has not been validly ratified, it has to uphold the 1935 Constitution as still the prevailing organic law. The result would be too anomalous to describe, for then this Court would have to declare that it is governed by one Constitution or the 1935 Constitution, and the legislative and executive branches by another or the 1972 Constitution. If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion in these cases when it would have no other choice but to uphold the new Constitution as against any other one? In the circumstances it would be bereft of judicial attributes as the matter would then be not meet for judicial determination, but one addressed to the sovereign power of the people who have already spoken and delivered their mandate by accepting the fundamental law on which the government of this Republic is now functioning. To deny that the new Constitution has been accepted and actually is in operation would be flying in the face of reason and pounding one's bare head against a veritable stone wall or a heavily reinforced concrete, or simply "kicking the deadly pricks" with one's bare foot in an effort to eliminate the lethal points. When a Constitution has been in operation for sometime, even without popular ratification at that, submission of the people thereto by the organization of the government provided therein and observance of its prescriptions by public officers chosen thereunder, is indicative of approval. Courts should be slow in nullifying a Constitution claimed to have been adopted not in accordance with constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347]. In Miller vs. Johnson, supra, the Court said:

... But it is a case where a new constitution has been formed and promulgated according to the forms of law. Great interests have already arisen under it; important rights exist by virtue of it; persons have been convicted of the highest crimes known to the law, according to its provisions; the political power of the government has in many ways recognized it; and, under such circumstances, it is our duty to treat and regard it as a valid constitution, and now the organic law of our state . We need not consider the validity of the amendments made after the convention reassembled. If the making of them was in excess of its power, yet as the entire instrument has been recognized as valid in the manner suggested, it would be equally an abuse of power by the judiciary, and violative of the rights of the people, who can and properly should remedy the matter, if not to their liking, if it were to declare the instrument or a portion invalid, and bring confusion and anarchy upon the state. (Emphasis supplied) In Smith vs. Good, supra, the Court said: It is said that a state court is forbidden from entering upon such an inquiry when applied to a new constitution, and not an amendment, because the judicial power presupposes an established government, and if the authority of that government is annulled and overthrown, the power of its courts is annulled with it; therefore, if a state court should enter upon such an inquiry, come to the conclusion that the government under which it acted had been displaced by an opposing government, it would cease to be a court, and it would be incapable of pronouncing a judicial decision upon the question before it; but, if it decides at all, it must necessarily affirm the existence of the government under which it exercises its judicial powers. (Emphasis supplied) These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed. 581, 598 (1849) where it was held: Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of government from which it is derived. And if the authority of the government is annulled and overthrown, the power of its courts and other officers is annulled with it. And if a State court should enter upon the inquiry proposed in this case, and should come to conclusion that the government under which it acted had been put aside and displaced by an opposing government it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power. The foreign relations of the Republic of the Philippines have been normally conducted on the basis of the new Constitution and no state with which we maintain diplomatic relations has withdrawn its recognition of our government. (For particulars about executive acts done under the new Constitution, see pages 22-25 of the Comments of the Solicitor General, dated February 3, 1973.) Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by this Court would smack of plain political meddling which is described by the United States Supreme Court as "entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it would be the part of wisdom for this Court to adopt the proper attitude towards political upheavals and realize that the question before Us is political and not fit for judicial determination. For a political question is one entrusted to the people for judgment in their sovereign capacity (Taada vs. Cuenco, G.R. No. L10520, Feb. 28,1967; 100 Phil. 1101), or to a co-equal and coordinate branch of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a political question when there would be "the impossibility of undertaking independent resolutions without expressing a lack of respect due to coordinate branches of government", or when there is "the potentiality of embarrassment from multifarious pronouncements by various departments on one question." To preserve the prestige and eminence that this Court has long enjoyed as the "ultimate organ of the "Supreme Law of the Land" in that vast range of legal problems often strongly entangled in popular feeling on which this Court must pronounce", let us harken to the following admonition of Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663: The Court's authority possessed neither of the purse nor the sword ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and appearance, from political entanglements and abstention from injecting itself into the clash of political forces in political settlement . ..." (Emphasis supplied) The people have accepted and submitted to a Constitution to replace the 1935 Constitution. The new organic law is now in the plenitude of its efficacy and vigor. We are now living under its aegis and protection and only the cynics will deny this. This Court should not in the least attempt to act as a superlegislature or a super-board of canvassers and sow confusion and discord among our people by pontificating there was no valid ratification of the new Constitution. The sober realization of its proper role and delicate function and its consciousness of the limitations on its competence, especially situations like this, are more in keeping with the preservation of our democratic tradition than the blatant declamations of those who wish the Court to engage in their brand of activism and would not mind plunging it into the whirlpool of passion and emotion in an effort to capture the intoxicating applause of the multitude. For all the foregoing, I vote to dismiss all petitions. ZALDIVAR, J., concurring and dissenting: In these five cases, the main issue to be resolved by Court is whether or not the Constitution proposed by the Constitutional Convention of 1971 had been ratified in accordance with the provisions of Article XV of the 1935 Constitution. In the plebiscite cases, which were decided by this Court on January 22, 1973 1, I held the view that this issue could be properly resolved by this Court, and that it was in the public interest that this Court should declare then whether or not the proposed Constitution had been validly ratified. The majority of this Court, however, was of the view that the issue was not squarely raised in those cases, and so the Court, as a body, did make any categorical pronouncement on the question of whether or not the Constitution proposed by the 1971 Convention was validly ratified. I was the only one who expressed the opinion that the proposed Constitution was not validly ratified and therefore "it should not be given force and effect." The Court is now called upon to declare, and to inform the people of this country, whether or not that proposed Constitution had been validly ratified and had come into effect.

The Solicitor General, however, contends that this Court has no jurisdiction to resolve the issue that we have mentioned because that issue is a political question that cannot be decided by this Court. This contention by the Solicitor General is untenable. A political question relates to "those questions which under the Constitution are to be decided by the people in their sovereign capacity or in regard to which full discretionary authority has been delegated to the legislative, or to the executive, branch of the government. 2 The courts have the power to determine whether the acts of the executive are authorized by the Constitution and the laws whenever they are brought before the court in a judicial proceeding. The judicial department of the government exercises a sort of controlling, or rather restraining, power over the two other departments of the government. Each of the three departments, within its proper constitutional sphere, acts independently of the other, and restraint is only placed on one department when that sphere is actually transcended. While a court may not restrain the executive from committing an unlawful act, it may, when the legality of such an act is brought before it in a judicial proceeding, declare it to be void, the same as it may declare a law enacted by the legislature to be unconstitutional. 3 It is a settled doctrine that every officer under a constitutional government must act according to law and subject to its restrictions, and every departure therefrom, or disregard thereof, must subject him to the restraining and controlling power of the people, acting through the agency of the judiciary. It must be remembered that the people act through the courts, as well as through the executive or the legislature. One department is just as representative as the other, and judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official actions 4. In the case of Gonzales v. Commission on Elections5, this Court ruled that the issue as to whether or not a resolution of Congress acting as a constituent assembly violates the Constitution is not a political question and is therefore subject to judicial review. In the case of Avelino v. Cuenco 6, this Court held that the exception to the rule that courts will not interfere with a political question affecting another department is when such political question involves an issue as to the construction and interpretation of the provision of the constitution. And so, it has been held that the question of whether a constitution shall be amended or not is a political question which is not in the power of the court to decide, but whether or not the constitution has been legally amended is a justiciable question. 7 My study on the subject of whether a question before the court is political or judicial, based on decisions of the courts in the United States where, after all, our constitutional system has been patterned to a large extent made me arrive at the considered view that it is in the power of this Court, as the ultimate interpreter of the Constitution, to determine the validity of the proposal, the submission, and the ratification of any change in the Constitution. Ratification or non-ratification of a constitutional amendment is a vital element in the procedure to amend the constitution, and I believe that the Court can inquire into, and decide on, the question of whether or not an amendment to the constitution, as in the present cases, has been ratified in accordance with the requirements prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe that the question of whether or not the Constitution proposed by the 1971 Constitutional Convention had been validly ratified or not is a justiciable question. The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases, before Us involve a political, or a judicial, question. I fully concur with his conclusion that the question involved in these cases is justiciable. On the question now of whether or not the Constitution proposed by the 1971 Constitutional Convention has been validly ratified, I am reproducing herein pertinent portions of my dissenting opinion in the plebiscite cases: The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines, which reads: "Section 1. The Congress in joint session assembled by a vote of three fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to the Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification." It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16, 1967, the Congress of the Philippines Resolution No. 2 calling a convention to propose amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows: "Section 7. The amendments proposed by the Convention shall be valid and considered part of the Constitution when approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification pursuant to Article XV of the Constitution. It follows that from the very resolution of the Congress of the Philippines which called for the 1971 Constitutional Convention, there was a clear mandate that the amendments proposed by the 1971 Convention, in order to be valid and considered part of the Constitution, must be approved by majority of the votes cast in an election at which they are submitted to the people for the ratification as provided in the Constitution. This Court, in the case of Tolentino vs. Commission Elections, L-35140, October 16, 1971 (41 SCRA 715), speaking through Mr. Justice Barredo, said: "The Constitutional Convention of 1971, as any other convention of the same nature,owes its existence and all its authority and power from the existing Constitution of the Philippines. This Convention has not been called by the people directly as in the case of a revolutionary convention which drafts the first Constitution of an entirely new government born of either a war of liberation from a mother country or of revolution against an existing government or of a bloodless seizure of power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is completely without restraint and omnipotent all wise, and it as to such conventions that the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization can belie the fact that the current convention came into being only because it was called by a resolution of a joint session of Congress acting as a constituent assembly by authority of Section 1, Article XV of the present Constitution ... ." xxx xxx xxx

"As to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now we hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV ." In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the barangays throughout the Philippines, the President proclaimed that the Constitution proposed by the 1971 Convention has been ratified and has thereby come into effect. It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of Article XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be produced before this Court to show that no elections were held in accordance with the provisions of the Election Code. Proclamation No. 1102 unequivocally states that the proposed Constitution of 1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935 Constitution. The election contemplated in said constitutional provision is an election held in accordance with the provisions of the election law, where only the qualified and registered voters of the country would cast their votes, where official ballots prepared for the purpose are used, where the voters would prepare their ballots in secret inside the voting booths in the polling places established in the different election precincts throughout the country, where the election is conducted by election inspectors duly appointed in accordance with the election law, where the votes are canvassed and reported in a manner provided for in the election law. It was this kind of election that was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to the Constitution to increase the number of Members of the House of Representatives and to allow the Members of Congress to run in the elections for Delegates to the Constitutional Convention of 1971 were rejected. I cannot see any valid reason why the practice or procedure in the past, in implementing the constitutional provision requiring the holding, of an election to ratify or reject an amendment to the Constitution, has not been followed in the case of the Constitution proposed by the 1971 Constitutional Convention. It is my view that the President of the Philippines cannot by decree order the ratification of the proposed 1972 Constitution thru a voting in the barangays and make said result the basis for proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No. 1102 was issued in complete disregard or in violation, of the provisions of Section 1 of Article X of the 1935 Constitution. Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the barangays answered that there was no need for a plebiscite but that the vote of the barangays should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the provision of Section 1, Article XV of the Constitution was completely disregarded. The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained through the election processes as provided by law. "An election is the embodiment of the popular will, the expression of the sovereign power of the people. In common parlance, an election is the act of casting and receiving the ballots, counting them, and making the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637). "Election" implies a choice by an electoral body at the time and substantially in the manner and with the safeguards provided by law with respect to some question or issue. (Leffel v. Brown, Com. P1., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5). "... the statutory method whereby qualified voters or electors pass on various public matters submitted to them the election of officers, national, state, county, township the passing on various other questions submitted for their determination." (29 C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358). "Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234). "The right to vote may be exercised only on compliance with such statutory requirements as have been set by the legislature." (People ex rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied). In this connection I herein quote the pertinent provisions of the Election Code of 1971: "Sec. 2. Applicability of this Act. All elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code."

"Sec 99. Necessity of registration to be entitled to vote. In order that a qualified voter may vote in any regular or special election or in any plebiscite, he must be registered in the permanent list of voters for the city, municipality or municipal district in which he resides: Provided, that no person shall register more than once without first applying for cancellation of his previous registration." (Emphasis supplied). (Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388) It is stated in Proclamation No. 1102 that the voting was done by the members of citizens assemblies who are 15 years of age or over. Under the provision of Section I of Article V of the 1935 Constitution, the age requirement to be a qualified voter is 21 years or over. But what is more noteworthy is the fact that the voting in the barangays, except in very few instances, was done by the raising of hands by the persons indiscriminately gathered to participate in the voting, where even children below 15 years of age were included. This is a matter of common observation, or of common knowledge, which the Court may take judicial notice of. To consider the votes in the barangays as expressive of the popular will and use them as the basis in declaring whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which is would mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so important a question as to whether the Constitution, which is the supreme law of the land, should be ratified or not, must not be decided by simply gathering people and asking them to raise their hands in answer to the question of whether the vote for or against a proposed Constitution. The election as provided by law should be strictly observed in determining the will of the sovereign people in a democracy. In our Republic, the will of the people must be expressed through the ballot in a manner that is provided by law. It is said that in a democracy, the will of the people is the supreme law. Indeed, the people are sovereign, but the will of the people must be expressed in a manner as the law and the demands a well-ordered society require. The rule of law must prevail even over the apparent will of the majority of the people, if that will had not been expressed, or obtained, in accordance with the law. Under the rule of law, public questions must be decided in accordance with the Constitution and the law. This is specially true in the case of adoption of a constitution or in the ratification of an amendment to the Constitution. The following citations are, to me, very relevant in the effort to determine whether the proposed Constitution of 1972 had been validly ratified, or not: "When it is said that "the people" have the right to alter or amend the constitution, it must not be understood that term necessarily includes all the inhabitants of the state. Since the question of the adoption or rejection of a proposed new constitution or constitutional amendment must be answered a vote, the determination of it rests with those who, by existing constitution, are accorded the right of suffrage. But the qualified electors must be understood in this, as in many other cases, as representing those who have not the right to participate in the ballot. If a constitution should be abrogated and a new one adopted, by the whole mass of people in a state acting through representatives not chosen by the "people" in political sense of the term, but by the general body of the populace, the movement would be extra-legal." (BIack's Constitutional Law, Second Edition, pp. 47-48). "The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority. The people of the Union created a national constitution, and conferred upon it powers of sovereignty on certain subjects, and the people of each State created a State government, to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law." (Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v. Jones, 3 So. 2d. 761, 782). "The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend a constitution, may cure, render innocuous, all or any antecedent failures to observe commands of that Constitution in respect of the formulation or submission of proposed amendments thereto, does not prevail in Alabama, where the doctrine of the stated theory was denied, in obvious effect, by the pronouncement 60 years ago of broad, wholesome constitutional principles in Collier v. Frierson, supra, as quoted in the original opinion, ante. The people themselves are bound by the Constitution; and, being so bound, are powerless, whatever their numbers, to change or thwart its mandates, except through the peaceful means of a constitutional convention, or of an amendment according to the mode therein prescribed, or through the exertion of the original right of revolution. "The Constitution may be set aside by revolution, but it can only be amended in the way it provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et al., 87 So. 375, 385, 387, On Rehearing). "The fact that a majority voted for the amendment, unless the vote was taken as provided by the Constitution, is not sufficient to make a change in that instrument. Whether a proposed amendment has been legally adopted is a judicial question, for the court must uphold and enforce the Constitution as written until it is amended in the way which it provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A. 560;McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104). "Provisions of a constitution regulating its own amendment, ... are not merely directory, but are mandatory; and a strict observance of every substantial mandatory; and a strict observance of every substantial requirement is essential to the validity of the proposed amendment. These provisions are as binding on the people as on the legislature, and the former are powerless by vote of acceptance to give legal sanction to an amendment the submission of which was made in disregard of the limitations contained in the constitution." (16 C.J.S. 35-36. cited in Graham v. Jones, 3 So. 2d 761, 782).

"It is said that chaos and confusion in the government affairs of the State will result from the Court's action in declaring the proposed constitutional amendment void. This statement is grossly and manifestly inaccurate. If confusion and chaos should ensue, it will not be due to the action of the Court but will be the result of the failure of the drafters joint resolution to observe, follow and obey the plain essential provisions of the Constitution. Furthermore, to say that, the Court disregards its sworn duty to enforce the Constitution, chaos and confusion will result, is an inherently weak argument in favor of the alleged constitutionality of the proposed amendment. It is obvious that, if the Court were to countenance the violations of the sacramental provisions Constitution, those who would thereafter desire to violate it disregard its clear mandatory provisions would resort to the scheme of involving and confusing the affairs of the State then simply tell the Court that it was powerless to exercise one of its primary functions by rendering the proper decree to make the Constitution effective." (Graham v. Jones, 3 So. 2d. 761, 793-794). In our jurisprudence I find an instance where this Court did not allow the will of the majority to prevail, because the requirements of the law were not complied with. In the case of Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of candidacy before the expiration of the period for the filing of the same. However, on October 10, 1947, after the period for the filing of the certificate of candidacy, Monsale withdrew his certificate of candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by withdrawing the withdrawal of certificate of candidacy. The Commission on Elections, November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes cast for Monsale upon the ground that the votes cast for him were stray votes, because he was considered as having no certificate of candidacy. On the other hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the proceedings in the trial court, it appeared that Monsale had obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the decision of the lower court. This Court declared that because Monsale withdrew his certificate of candidacy, his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not restore the effectiveness of his certificate of candidacy, and this Court declared Nico the winner in spite of the fact that Monsale had obtained more votes than he. We have cited this Monsale case to show that the will of the majority of the voters would not be given effect, as declared by this Court, if certain legal requirements have not been complied with in order to render the votes valid and effective to decide the result of an election. And so, in the cases now before this Court, the fact that the voting in the citizens assemblies (barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was reported that 14,976,561 members of the citizens assemblies voted for the adoption as against 743,869 for the rejection, because the votes thus obtained were not in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law mast be upheld. My last observation: One of the valid grounds against the holding of the plebiscite on January 15, 1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people to exercise their right of choice because of the existence of martial law in our country. The same ground holds true as regards to the voting of the barangays on January 10 to 15, 1973. More so, because by General Order No. 20, issued on January 7, 1973, the President of the Philippines ordered "that the provisions of Section 3 of Presidential Decree No. 73 in so far as they allow free public discussion of the proposed constitution, as well as my order of December 17, 1972 temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open debate on the proposed constitution, be suspended in the meantime." It is, therefore, my view that voting in the barangays on January 10, 1973 was not free, and so this is one added reason why the results of the voting in the barangays should not be made the basis for proclamation of the ratification of the proposed Constitution. It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935 Constitution, and so it is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Constitutional Convention should be considered as not yet ratified by the people of this Republic, and so it should not be given force and effect. It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a substantial compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor General maintains that the primary thrust of the provision of Article XV of the 1935 Constitution is that "to be valid, amendments must gain the approval of the majority recognition of the democratic postulate that sovereign resides in the people." It is not disputed that in a democratic sovereignty resides in the people. But the term "people" must be understood in its constitutional meaning, and they are "those persons who are permitted by the Constitution to exercise the elective franchise." 8 Thus, in Section 2 of Article VII of the 1935 Constitution, it is provided that "the President shall hold his office during a term of four years and, together with the Vice-President chosen for the same term, shall be elected by direct vote of the people..." Certainly under that constitutional provision, the "people" who elect directly the President and the Vice-President are no other than the persons who, under the provisions of the same Constitution, are granted the right to vote. In like manner the provision in Section 1 of Article II of the 1935 Constitution which says "Sovereignty resides in the people and all government authority emanates from them", the "people" who exercise the sovereign power are no other than the persons who have the right to vote under the Constitution. In the case of Garchitorena vs. Crescini 9, this Court, speaking through Mr. Justice Johnson, said, "In democracies, the people, combined, represent the sovereign power of the State. Their sovereign authority is expressed through the ballot, of the qualified voters, in duly appointed elections held from time to time, by means of which they choose their officials for definite fixed periods, and to whom they entrust, for the time being, as their representatives, the exercise of the powers of government." In the case of Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice Laurel, said, "As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the modality and form devised, must continue to be the means by which the great reservoir of power must be emptied into the receptacular agencies wrought by the people through their Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority." And in the case of Abanil v. Justice of the Peace of Bacolod, 11 this Court said: "In the scheme of our present republican government, the people are allowed to have a voice therein through the instrumentality of suffrage to be availed of by those possessing certain prescribed qualifications. The people, in clothing a citizen with the elective franchise for the purpose of securing a consistent and perpetual administration of the government they ordain, charge him with the performance of a duty in the nature of a public trust, and in

that respect constitute him a representative of the whole people. This duty requires that the privilege thus bestowed exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intelligent zeal for the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that when we talk of sovereign people, what is meant are the people who act through the duly qualified and registered voters who vote during an election that is held as provided in the Constitution or in the law. The term "election" as used in Section 1 of Article XV of the 1935 Constitution should be construed along with the term "election" as used in the Provisions of Section 4 of the Philippine Independence Act of the Congress of the United States, popularly known as the Tydings-McDuffie Law (Public Act No. 127). Said Section 4 of the Tydings-McDuffie Law provides as follows: Section 4. After the President of the United States certified that the constitution conforms with the provisions of this act, it shall be submitted to the people of the Philippine Islands for their ratification or rejection at an election to he held within months after the date of such certification, on a date to be fixed by the Philippine Legislature at which election, the qualified voters of the Philippine Islands shall have an opportunity to vote directly or against the proposed constitution and ordinances append thereto. Such election shall be held in such manner as may prescribed by the Philippine Legislature to which the return of the election shall be made. The Philippine Legislature shall certify the result to the Governor-General of the Philippine Islands, together with a statement of the votes cast, and a copy of said constitution ordinances. If a majority of the votes cast shall be for the constitution, such vote shall be deemed an expression of the will of the people of the Philippine Independence, and the Governor-General shall, within thirty days after receipt of the certification from the Philippine Legislature, issue a proclamation for the election of officers of the government of the Commonwealth of the Philippine Islands provided for in the Constitution... It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word "election" in Section I Article XV of the 1935 Constitution they had no other idea in mind except the elections that were periodically held in the Philippines for the choice of public officials prior to the drafting of the 1935 Constitution, and also the "election" mentioned in the Independence Act at which "the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or against the proposed constitution..." It is but logical to expect that the framers of the 1935 Constitution would provide a mode of ratifying an amendment to that Constitution similar to the mode of ratifying the original Constitution itself. It is clear therefore, that the ratification or any amendment to the 1935 Constitution could only be done by holding an election, as the term "election" was understood, and practiced, when the 1935 Constitution as drafted. The alleged referendum in the citizens assemblies participated in by persons aged 15 years or more, regardless of whether they were qualified voters or not, voting by raising their hands, and the results of the voting reported by the barrio or ward captain, to the municipal mayor, who in turn submitted the report to the provincial Governor, and the latter forwarding the reports to the Department of Local Governments, all without the intervention of the Commission on Elections which is the constitutional body which has exclusive charge of the enforcement and administration of all laws, relative to the conduct of elections was not only a non-substantial compliance with the provisions of Section 1 of Article XV of the 1935 Constitution but a downright violation of said constitutional provision. It would be indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a substantial compliance with the requirements prescribed in Section 1 of Article XV of the 1935 Constitution. It is further contended by the Solicitor General, that even if the Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution, the fact is that after the President of the Philippines had issued Proclamation No. 1102 declaring that the said proposed Constitution "has been ratified by overwhelming majority of all the votes cast by the members of all the barangays (citizens assemblies) throughout the Philippines and had thereby come into effect" the people have accepted the new Constitution. What appears to me, however, is that practically it is only the officials and employees under the executive department of the Government who have been performing their duties apparently in observance of the provisions of the new Constitution. It could not be otherwise, because the President of the Philippines, who is the head of the executive department, had proclaimed that the new Constitution had come into effect, and his office had taken the steps to implement the provisions of the new Constitution. True it is, that some 92 members of the House of Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed their option to serve in the interim National Assembly that is provided for in Section 2 of Article XVII of the proposed Constitution. It must be noted, however, that of the 15 senators who expressed their option to serve in the interim National Assembly only one them took his oath of office; and of the 92 members of the House of Representatives who opted to serve in the interim National Assembly, only 22 took their oath of office. The fact that only one Senator out of 24, and only 22 Representative out of 110, took their oath of office, is an indication that only a small portion of the members of Congress had manifested the acceptance of the new Constitution. It is in the taking of the oath of office where the affiant says that he swears to "support and defend the Constitution" that the acceptance of the Constitution is made manifest. I agree with counsel petitioners in L-36165 (Gerardo Roxas, et al. v. Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the interim National Assembly did only ex abundante cautela, or by way of a precaution, making sure, that in the event the new Constitution becomes definitely effective and the interim National Assembly convened, they can participate in legislative work in the capacity as duly elected representatives of the people, which otherwise they could not do if they did not manifest their option to serve, and that option had to be made within 30 day from January 17, 1973, the date when Proclamation No. 110 was issued. Of course, if the proposed Constitution does not become effective, they continue to be members of Congress under the 1935 Constitution. Let it be considered that the members of the House of Representatives were elected in 1969 to serve a term which will yet expire on December 31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of some of them will yet expire on December 31, 1973, some on December 31, 1975, and the rest on December 31, 1977. Let if be noted that 9 Senators did not opt to serve in the interim National Assembly, and 18 members of the House of Representatives also did not opt to serve in the interim National Assembly. Neither can it be said that the people have accepted the new Constitution. I cannot, in conscience, accept the reported affirmative votes in the citizens assemblies as a true and correct expression by the people of their approval, or acceptance, of the proposed Constitution. I have my serious doubts regarding the freedom of the people to express their views regarding the proposed Constitution during the voting in the citizens assemblies, and I have also my serious doubts regarding the truthfulness and accuracy of the reports of the voting in the citizens assemblies. This doubt has been engendered in my mind after a careful examination and study of the records of these cases, particularly with respect to the reports of the voting in the citizens assemblies. Perhaps, it may be said that the people, or the inhabitants of this country, have acquiesced to the new Constitution, in the sense that they have continued to live peacefully and orderly under the government that has been existing since January 17, 1973 when it was proclaimed that the new Constitution came into effect. But what could the people do? In the same way that the people have lived under martial law since September 23, 1972, they also have to live under the government as it now exists, and as it has existed since the declaration of martial law on September 21, 1972, regardless of what Constitution is operative whether it is the 1935 Constitution or the new Constitution. Indeed, there is nothing that the people can do under the circumstances actually prevailing in our country today circumstances, known to all, and which I do not consider necessary to state in this opinion. I cannot agree, therefore, with my worthy colleagues in the Court who hold the view that the people have accepted the new Constitution, and that because the people have accepted it, the new Constitution should be considered as in force, regardless of the fact that it was not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution.

It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not come into effect. I do not say, however, that the proposed Constitution is invalid. To me, the validity of the proposed Constitution is not in issue in the cases before Us. What the petitioners assail is not the validity of the proposed Constitution but the validity of Presidential Proclamation No. 1102 which declares the proposed Constitution as having been ratified and has come into effect. It being my considered view that the ratification of the proposed Constitution, as proclaimed in Proclamation No. 1102, is not in accordance with the provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and should not be given force and effect. Their proposed Constitution, therefore, should be considered as not yet validly ratified, and so it is not in force. The proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV of the 1935 Constitution. Incidentally, I must state that the Constitution is still in force, and this Court is still functioning under the 1935 Constitution. I sincerely believe that the proposed Constitution may still be submitted to the people in an election or plebiscite held in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we have adverted to in this opinion, this was the mandate of Congress when, on March 16, 1967, it passed Resolution No. 2 calling a convention to propose amendments to the 1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippines has reassured the nation that the government of our Republic since the declaration of martial law is not a revolutionary government, and that he has been acting all the way in consonance with his powers under the Constitution. The people of this Republic has reason to be happy because, according to the President, we still have a constitutional government. It being my view that the 1935 Constitution is still in force, I believe Congress may still convene and pass a law calling for an election at which the Constitution proposed by the 1971 Constitutional Convention will be submitted to the people their ratification or rejection. A plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our people that we still have in our country the Rule of Law and that the democratic system of government that has been implanted in our country by the Americans, and which has become part of our social and political fabric, is still a reality. The views that I have expressed in this opinion are inspired by a desire on my part to bring about stability in democratic and constitutional system in our country. I feel that if this Court would give its imprimatur to the ratification of the proposed Constitution, as announced in Proclamation No. 1102, it being very clear that the provisions of Section 1 of Article XV of the 1935 Constitution had not been complied with, We will be opening the gates for a similar disregard of the Constitution in the future. What I mean is that if this Court now declares that a new Constitution is now in force because the members of the citizens assemblies had approved the said new Constitution, although that approval was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to the Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said proposed amendment is submitted to the people in any manner and what will matter is that a basis is claimed that there was approval by the people. There will not be stability in our constitutional system, and necessarily no stability in our government. As a member of this Court I only wish to contribute my humble efforts to prevent the happening of such a situation in the future. It appearing to me that the announced ratification of the proposed Constitution through the voting in the citizens assemblies is a clear violation of the 1935 Constitution, what I say in this opinion is simply an endeavor on my part to be true to my oath of office to defend and support the 1935 Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, said: Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, and the protection and vindication of popular rights will be safe and secure in their reverential guardianship. I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our land, because, as Justice George Sutherland of the U. S. Supreme Court said: (t)he saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time. I concur fully with the personal views expressed by the Chief Justice in the opinion that he has written in these cases. Along with him, I vote to deny the motion to dismiss and give due course to the petitions in these cases. FERNANDO, J., dissenting: No question more momentous, none impressed with such transcendental significance is likely to confront this Court in the near or distant future as that posed by these petitions. For while the specific substantive issue is the validity of Presidential Proclamation No. 1102, an adverse judgment may be fraught with consequences that, to say the least, are far-reaching in its implications. As stressed by respondents, "what petitioners really seek to invalidate is the new Constitution." 1 Strict accuracy would of course qualify such statement that what is in dispute, as noted in the opinion of the Chief Justice, goes only as far as the validity of its ratification. It could very well be though that the ultimate outcome is not confined within such limit, and this is not to deny that under its aegis, there have been marked gains in the social and economic sphere, but given the premise of continuity in a regime under a fundamental law, which itself explicitly recognizes the need for change and the process for bringing it about, 2 it seems to me that the more appropriate course is this Court to give heed to the plea of petitioners that the most serious attention be paid to their submission that the challenged executive act fails to meet the test of constitutionality. Under the circumstances, with regret and with due respect for the opinion of my brethren, I must perforce dissent. It would follow therefore that the legal position taken by the Chief Justice as set forth with his usual lucidity and thoroughness has, on the whole, my concurrence, subject, of course, to reservations insofar as it contains views and nuances to which I have in the past expressed doubts. Nonetheless, I feel that a brief expression of the reasons for the stand I take would not be amiss. In coping with its responsibility arising from the function of judicial review, this Court is not expected to be an oracle given to utterances of eternal verities, but certainly it is more than just a keen but passive observer of the contemporary scene. It is, by virtue of its role under the separation of powers concept, involved not necessarily as a participant in the formation of government policy, but as an arbiter of its legality. Even then, there is realism in what Lerner did say about the American Supreme Court as "the focal point of a set of dynamic forces which [could play] havoc with the landmarks of the American state and determine the power configuration of the day." 3 That is why there is this caveat. In the United States as here, the exercise of the power of judicial review is conditioned on the necessity that the decision of a case or controversy before it so requires. To repeat, the Justices of the highest tribunal are not, as Justice Frankfurter made clear, "architects of policy. They can nullify the policy of others, they are incapable of fashioning their own solutions for social problems." 4 Nonetheless, as was stressed by Professors Black 5 and Murphy, 6 a Supreme Court by the conclusion it reaches and the decision it renders does not merely check the coordinate branches, but also by its approval stamps with legitimacy the action taken. Thus in affirming constitutional supremacy, the political departments could seek the aid of the judiciary. For the assent it gives to what has been done conduces to its support in a regime where the rule of law holds sway. In discharging such a role, this Court must necessarily take in account not only what the exigent needs of the present demand but what may lie ahead in the unexplored and unknown vistas of the future. It must guard against the

pitfall of lack of understanding of the dominant forces at work to seek a better life for all, especially those suffering from the pangs of poverty and disease, by a blind determination to adhere to the status quo. It would be tragic, and a clear case of its being recreant to its trust, if the suspicion can with reason be entertained that its approach amounts merely to a militant vigilantism that is violently opposed to any form of social change. It follows then that it does not suffice that recourse be had only to what passes for scholarship in the law that could be marred by inapplicable erudition and narrow legalism. Even with due recognition, such factors, however, I cannot, for reasons to be set more lengthily and in the light of the opinion of the Chief Justice, reach the same result as the majority of my brethren. For, in the last analysis, it is my firm conviction that the institution of judicial review speaks too clearly for the point to be missed that official action, even with due allowance made for the good faith that invariably inspires the step taken, has to face the gauntlet of a court suit whenever there is a proper case with the appropriate parties. 1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would seek a dismissal of these petitions. For them, the question raised is political and thus beyond the jurisdiction of this Court. Such an approach cannot be indicted for unorthodoxy. It is implicit in the concept of the rule of law that rights belong to the people and the government possesses powers only. Essentially then, unless such an authority may either be predicated on express or implied grant in the Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its validity. Respondents through Solicitor-General Mendoza would deny our competence to proceed further. It is their view, vigorously pressed and plausibly asserted, that since what is involved is not merely the effectivity of an amendment but the actual coming into effect of a new constitution, the matter is not justiciable. The immediate reaction is that such a contention is to be tested in the light of the fundamental doctrine of separation of powers that it is not only the function but the solemn duty of the judiciary to determine what the law is and to apply it in cases and controversies that call for decision. 7 Since the Constitution pre-eminently occupies the highest rung in the hierarchy of legal norms, it is in the judiciary, ultimately this Tribunal, that such a responsibility is vested. With the 1935 Constitution containing, as above noted, an explicit article on the subject of amendments, it would follow that the presumption to be indulged in is that the question of whether there has been deference to its terms is for this Court to pass upon. What is more, the Gonzales, 8 Tolentino 9 and Planas 10 cases speak unequivocally to that effect. Nor is it a valid objection to this conclusion that what was involved in those cases was the legality of the submission and not ratification, for from the very language of the controlling article, the two vital steps are proposal and ratification, which as pointed out in Dillon v. Gloss, 11 "cannot be treated as unrelated acts, but as succeeding steps in a single endeavor." 12 Once an aspect thereof is viewed as judicial, there would be no justification for considering the rest as devoid of that character. It would be for me then an indefensible retreat, deriving no justification from circumstances of weight and gravity, if this Court were to accede to what is sought by respondents and rule that the question before us is political. On this point, it may not be inappropriate to refer to a separate opinion of mine in Lansang v. Garcia. 13 Thus: "The term has been made applicable to controversies clearly non-judicial and therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its cognizance, as to which there has been a prior legislative or executive determination to which deference must be paid. It has likewise been employed loosely to characterize a suit where the party proceeded against is the President or Congress, or any branch thereof. If to be delimited with accuracy, "political questions" should refer to such as would under the Constitution be decided by the people in their sovereign capacity or in regard to full discretionary authority is vested either in the President or Congress. It is thus beyond the competence of the judiciary to pass upon. Unless clearly falling within the formulation, the decision reached by the political branches whether in the form of a congressional act or an executive order could be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity. It is not to be lost sight of that such a power comes into play if there be an appropriate proceeding that may be filed only after each coordinate branch has acted. Even when the Presidency or Congress possesses plenary powers, its improvident exercise or the abuse thereof, if shown, may give rise to a justiciable controversy. For the constitutional grant of authority is usually unrestricted. There are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise of judicial review could inquire into the question of whether or not either of the two coordinate branches has adhered to what is laid down by the Constitution. The question thus posed is judicial rather than political." 14 The view entertained by Professor Dodd is not too dissimilar. For him such a term "is employed to designate certain types of functions committed to the political organs of government (the legislative and executive departments, or either of them) and not subject to judicial investigation." 15 After a thorough study of American judicial decisions, both federal and state, he could conclude: "The field of judicial nonenforceability is important, but is not large when contrasted with the whole body of written constitutional texts. The exceptions from judicial enforceability fall primarily within the field of public or governmental interests." 16 Nor was Professor Weston's formulation any different. As was expressed by him: "Judicial questions, in what may be thought the more useful sense, are those which the sovereign has set to be decided in the courts. Political questions, similarly, are those which the sovereign has entrusted to the so-called political departments of government or has reserved to be settled by its own extra-governmental action." 17 What appears undeniable then both from the standpoint of Philippine as well as American decisions is the care and circumspection required before the conclusion is warranted that the matter at issue is beyond judicial cognizance, a political question being raised. 2. The submission of respondents on this subject of political question, admittedly one of complexity and importance, deserves to be pursued further. They would derive much aid and comfort from the writings of both Professor Bickel 18 of Yale and Professor Freund 19 of Harvard, both of whom in turn are unabashed admirers of Justice Brandeis. Whatever be the merit inherent in their lack of enthusiasm for a more active and positive role that must be played by the United States Supreme Court in constitutional litigation, it must be judged in the light of our own history. It cannot be denied that from the well nigh four decades of constitutionalism in the Philippines, even discounting an almost similar period of time dating from the inception of American sovereignty, there has sprung a tradition of what has been aptly termed as judicial activism. Such an approach could be traced to the valedictory address before the 1935 Constitutional Convention of Claro M. Recto. He spoke of the trust reposed in the judiciary in these words: "It is one of the paradoxes of democracy that the people at times place more confidence in instrumentalities of the State other than those directly chosen by them for the exercise of their sovereignty." 20 It would thus appear that even then this Court was expected not to assume an attitude of timidity and hesitancy when a constitutional question is posed. There was the assumption of course that it would face up to such a task, without regard to political considerations and with no thought except that of discharging its trust. Witness these words Justice Laurel in an early landmark case, People v. Vera, 21 decided in 1937: "If it is ever necessary for us to make vehement affirmance during this formative period of political history, it is that we are independent of the Executive no less than of the Legislative department of our government independent in the performance of our functions, undeterred by any consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it." 22 The hope of course was that such assertion of independence impartiality was not mere rhetoric. That is a matter more appropriately left to others to determine. It suffices to stake that what elicits approval on the part of our people of a judiciary ever alert to inquire into alleged breaches of the fundamental law is the realization that to do so is merely to do what is expected of it and that thereby there is no invasion of spheres appropriately belonging to the political branches. For it needs to be kept in kind always that it can act only when there is a suit with proper parties before it, wherein rights appropriate for judicial enforcement are sought to be vindicated. Then, too, it does not approach constitutional questions with dogmatism or apodictic certainty nor view them from the shining cliffs of perfection. This is not to say though that it is satisfied with an empiricism untroubled by the search for jural consistency and rational coherence. A balance has to be struck. So juridical realism requires. Once allowance made that for all its care and circumspection this Court manned by human beings fettered by fallibility, nonetheless earnestly and sincerely striving to do right, the public acceptance of its vigorous pursuit of the task of assuring that the Constitution be obeyed is easy to understand. It has not in the past shirked its responsibility to ascertain whether there has been compliance with and fidelity to constitutional requirements. Such is the teaching of a host of cases from Angara v. Electoral

Commission 23 to Planas v. Commission on Elections. 24 It should continue to exercise its jurisdiction, even in the face of a plausible but not sufficiently persuasive insistence that the matter before it is political. Nor am I persuaded that the reading of the current drift in American legal scholarship by the Solicitor-General and his equally able associates presents the whole picture. On the question of judicial review, it is not a case of black and white; there are shaded areas. It goes too far, in my view, if the perspective is one of dissatisfaction, with its overtones of distrust. This expression of disapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legal essays. The Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the literature about judicial review. Many of those who have talked, lectured, and written about the Constitution have been troubled by a sense that judicial review is undemocratic." 25 He went on to state: "Judicial review, they have urged, is an undemocratic shoot on an otherwise respectable tree. It should be cut off, or at least kept pruned and inconspicuous." 26 His view was precisely the opposite. Thus: "The power of constitutional review, to be exercised by some part of the government, is implicit in the conception of a written constitution delegating limited powers. A written constitution would promote discord rather than order in society if there were no accepted authority to construe it, at the least in case of conflicting action by different branches of government or of constitutionally unauthorized governmental action against individuals. The limitation and separation of powers, if they are to survive, require a procedure for independent mediation and construction to reconcile the inevitable disputes over the boundaries of constitutional power which arise in the process of government." 27 More than that, he took pains to emphasize: "Whether another method of enforcing the Constitution could have been devised, the short answer is that no such method developed. The argument over the constitutionality of judicial review has long since been settled by history. The power and duty of the Supreme Court to declare statutes or executive action unconstitutional in appropriate cases is part of the living Constitution. 'The course of constitutional history,' Mr. Justice Frankfurter recently remarked, 'has cast responsibilities upon the Supreme Court which it would be "stultification" for it to evade.' " 28 Nor is it only Dean Rostow who could point Frankfurter, reputed to belong to the same school of thought opposed to judicial activism, if not its leading advocate during his long stay in the United States Supreme Court, as one fully cognizant of the stigma that attaches to a tribunal which neglects to meet the demands of judicial review. There is a statement of similar importance from Professor Mason: "In Stein v. New YorkFrankfurter remarked, somewhat self-consciously perhaps, that the 'duty of deference cannot be allowed imperceptibly to slide into abdication.' " 29 Professor Konefsky, like Dean Rostow, could not accept characterization of judicial review as undemocratic. Thus his study of Holmes and Brandeis, the following appears: "When it is said that judicial review is an undemocratic feature of our political system, it ought also to be remembered that architects of that system did not equate constitutional government with unbridled majority rule. Out of their concern for political stability and security for private rights, ..., they designed a structure whose keystone was to consist of barriers to the untrammeled exercise of power by any group. They perceived no contradiction between effective government and constitutional checks. To James Madison, who may legitimately be regarded as the philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he viewed as the chief problem in erecting a system of free representative government: 'In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.' " 30 There is thus an inevitability to the flowering of judicial review. Could it be that the tone of discontent apparent in the writings of eminent authorities on the subject evince at the most fears that the American Supreme Court might overstep the bounds allotted to the judiciary? It cannot be a denial of the fitness of such competence being vested in judges and of their being called upon to fulfill such a trust whenever appropriate to the decision of a case before them. That is why it has been correctly maintained that notwithstanding the absence of any explicit provision in the fundamental law of the United States Constitution, that distinguished American constitutional historian, Professor Corwin, could rightfully state that judicial review "is simply incidental to the power of courts to interpret the law, of which the Constitution is part, in connection with the decision of cases." 31 This is not to deny that there are those who would place the blame or the credit, depending upon one's predilection, on Marshall's epochal opinion in Marbury v. Madison. 32 Curtis belonged to that persuasion. As he put it: "The problem was given no answer by the Constitution. A hole was left where the Court might drive in the peg of judicial supremacy, if it could. And that is what John Marshall did." 33 At any rate there was something in the soil of American juristic thought resulting in this tree of judicial power so precariously planted by Marshall striking deep roots and showing wonderful vitality and hardiness. It now dominates the American legal scene. Through it, Chief Justice Hughes, before occupying that exalted position, could state in a lecture: "We are under a Constitution, but the Constitution is what the judges say it is ... ." 34 The above statement is more than just an aphorism that lends itself to inclusion in judicial anthologies or bar association speeches. It could and did provoke from Justice Jackson, an exponent of the judicial restraint school of thought, this meaningful query: "The Constitution nowhere provides that it shall be what the judges say it is. How, did it come about that the statement not only could be but could become current as the most understandable comprehensive summary of American Constitutional law?" 35 It is no wonder that Professor Haines could pithily and succinctly sum up the place of the highest American tribunal in the scheme of things in this wise: "The Supreme Court of the United States has come to be regarded as the unique feature of the American governmental system." 36 Let me not be misunderstood. There is here no attempt to close one's eyes to a discernible tendency on the part of some distinguished faculty minds to look askance at what for them may be inadvisable extension of judicial authority. For such indeed is the case as reflected in two leading cases of recent vintage, Baker v. Carr, 37 decided in 1962 and Powell v. MacCormack, 38 in 1969, both noted in the opinion of the Chief Justice. The former disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 about the American Supreme Court declining jurisdiction on the question of apportionment as to do so would cut very deep into the very being of Congress." 40 For him, the judiciary "ought not to enter this political thicket." Baker has since then been followed; it has spawned a host of cases. 41 Powell, on the question of the power of a legislative body to exclude from its ranks a person whose qualifications are uncontested, for many the very staple of what is essentially political, certainly goes even further than the authoritative Philippine decision of Vera v. Avelino, 42 It does look then that even in the United States, the plea for judicial self-restraint, even if given voice by those competent in the field of constitutional law, has fallen on deaf ears. There is in the comments of respondents an excerpt from Professor Freund quoting from one of his essays appearing in a volume published in 1968. It is not without interest to note that in another paper, also included therein, he was less than assertive about the necessity for self-restraint and apparently mindful of the claims of judicial activism. Thus: "First of all, the Court has a responsibility to maintain the constitutional order, the distribution of public power, and the limitations on that power." 43 As for Professor Bickel, it has been said that as counsel for the New York Times in the famous Vietnam papers case, 44 he was less than insistent on the American Supreme Court exercising judicial self-restraint. There are signs that the contending forces on such question, for some an unequal contest, are now quiescent. The fervor that characterized the expression of their respective points of view appears to have been minimized. Not that it is to be expected that it will entirely disappear, considering how dearly cherished are, for each group, the convictions, prejudices one might even say, entertained. At least what once was fitly characterized as the booming guns of rhetoric, coming from both directions, have been muted. Of late, scholarly disputations have been centered on the standards that should govern the exercise of the power of judicial review. In his celebrated Holmes lecture in 1959 at the Harvard Law School, Professor Wechsler advocated as basis for decision what he termed neutral principles of constitutional law. 45 It has brought forth a plethora of law review articles, the reaction ranging from guarded conformity to caustic criticism. 46 There was, to be sure, no clear call to a court in effect abandoning the responsibility incumbent on it to keep governmental agencies within constitutional channels. The matter has been put in temperate terms by Professor Frank thus: "When allowance has been made for all factors, it nevertheless seems to me that the doctrine of political questions ought to be very sharply confined to where the functional reasons justify it and that in a give involving its expansion there should be careful consideration also of the social considerations which may militate against it. The doctrine has a certain specious charm because of its nice intellectualism and because of the fine deference it permits to expertise, to secret knowledge, and to the prerogatives of others. It should not be allowed to grow as a merely intellectual plant." 47

It is difficult for me at least, not to be swayed by appraisal, coming from such impeccable sources of the worth and significance of judicial review in the United States. I cannot resist the conclusion then that the views advanced on this subject by distinguished counsel for petitioners, with Senators Lorenzo M. Taada and Jovito Salonga at the van, rather than the advocacy of the Solicitor-General, possess the greater weight and carry persuasion. So much then for the invocation of the political question principle as a bar to the exercise of our jurisdiction. 3. That brings me to the issue of the validity of the ratification. The crucial point that had to be met is whether Proclamation No. 1102 manifests fidelity to the explicit terms of Article XV. There is, of course, the view not offensive to reason that a sense of the realities should temper the rigidity of devotion to the strict letter of the text to allow deference to its spirit to control. With due recognition of its force in constitutional litigation, 48 if my reading of the events and the process that led to such proclamation, so clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it cannot be confidently asserted that there was such compliance. It would be to rely on conjectural assumptions that did founder on the rock of the undisputed facts. Any other conclusion would, for me, require an interpretation that borders on the strained. So it has to be if one does not lose sight of how the article on amendments is phrased. A word, to paraphrase Justice Holmes may not be a crystal, transparent and unchanged, but it is not, to borrow from Learned Hand, that eminent jurist, a rubber band either. It would be unwarranted in my view then to assert that the requirements of the 1935 Constitution have been met. There are American decisions, 49 and they are not few in number, which require that there be obedience to the literal terms of the applicable provision. It is understandable why it should be thus. If the Constitution is the supreme law, then its mandate must be fulfilled. No evasion is tolerated. Submission to its commands can be shown only if each and every word is given meaning rather than ignored or disregarded. This is not to deny that a recognition conclusive effect attached to the electorate manifesting its will to vote affirmatively on the amendments proposed poses an obstacle to the judiciary being insistent on the utmost regularity. Briefly stated, substantial compliance is enough. A great many American State decisions may be cited in support of such a doctrine. 50 Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be misread, so that this Court is called upon to give meaning and perspective to what could be considered words of vague generality, pregnant with uncertainty, still whatever obscurity it possesses is illumined when the light of the previous legislation is thrown on it. In the first Commonwealth Act, 51 submitting to the Filipino people for approval or disapproval certain amendments to the original ordinance appended to the 1935 Constitution, it was made that the election for such purpose was to "be conducted in conformity with the provisions of the Election Code insofar as the same may be applicable." 52 Then came the statute, 53 calling for the plebiscite on the three 1940 amendments providing for the plebiscite on the three 1930 amendments providing for a bicameral Congress or a Senate and a House of Representatives to take the place of a unicameral National Assembly, 54 reducing the term of the President to four years but allowing his re-election with the limitation that he cannot serve more than eight consecutive years, 55and creating an independent Commission on Elections. 56 Again, it was expressly provided that the election "shall be conducted in conformity with the provisions of the Election Code in so far as the same may be applicable." 57The approval of the present parity amendment was by virtue of a Republic Act 58 which specifically made applicable the then Election Code. 59 There is a similar provision in the legislation, 60 which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an increase in the membership of the House of Representatives a maximum of one hundred eighty and assured the eligibility of senators and representatives to become members of such constituent body without forfeiting their seats, as proposed amendments to be voted on in the 1967 elections. 61 That is the consistent course of interpretation followed by the legislative branch. It is most persuasive, if not controlling. The restraints thus imposed would set limits to the Presidential action taken, even on the assumption that either as an agent of the Constitutional Convention or under his martial law prerogatives, he was not devoid of power to specify the mode of ratification. On two vital points, who can vote and how they register their will, Article XV had been given a definitive construction. That is why I fail to see sufficient justification for this Court affixing the imprimatur of its approval on the mode employed for the ratification of the revised Constitution as reflected in Proclamation No. 1102. 4. Nor is the matter before us solely to be determined by the failure to comply with the requirements of Article XV. Independently of the lack of validity of the ratification of the new Constitution, if it be accepted by the people, in whom sovereignty resides according to the Constitution, 62 then this Court cannot refuse to yield assent to such a political decision of the utmost gravity, conclusive in its effect. Such a fundamental principle is meaningless if it does not imply, to follow Laski, that the nation as a whole constitutes the "single center of ultimate reference," necessarily the possessor of that "power that is able to resolve disputes by saying the last word." 63 If the origins of the democratic polity enshrined in the 1935 Constitution with the declaration that the Philippines is a republican state could be traced back to Athens and to Rome, it is no doubt true, as McIver pointed out, that only with the recognition of the nation as the separate political unit in public law is there the juridical recognition of the people composing it "as the source of political authority." 64 From them, as Corwin did stress, emanate "the highest possible embodiment of human will," 65 which is supreme and must be obeyed. To avoid any confusion and in the interest of clarity, it should be expressed in the manner ordained by law. Even if such is not the case, however, once it is manifested, it is to be accepted as final and authoritative. The government which is merely an agency to register its commands has no choice but to submit. Its officials must act accordingly. No agency is exempt such a duty, not even this Court. In that sense, the lack of regularity in the method employed to register its wishes is fatal in its consequences. Once the fact of acceptance by people of a new fundamental law is made evident, the judiciary is left with no choice but to accord it recognition. The obligation to render it obeisance falls on the courts as well. There are American State decisions that enunciate such a doctrine. While certainly not controlling, they are not entirely bereft of persuasive significance. In Miller v. Johnson, 66 decided in 1892, it was set forth in the opinion of Chief Justice Holt that on May 3, 1890, an act was passed in Kentucky, providing for the calling of a convention for the purpose of framing a new constitution and the election of delegates. It provided that before any form of constitution made by them should become operative, it should be submitted to the vote of the state and ratified by a majority of those voting. The constitution then in force authorized the legislature, the preliminary steps having been taken, to call a convention "for the purpose of readopting, amending, or changing" it contained no provision giving the legislature the power to require a submission of its work to a vote of the people. The convention met in September, 1890. By April, 1891, it completed a draft of a constitution, submitted it to a popular vote, and then adjourned until September following. When the convention reassembled, the delegates made numerous changes in instrument. As thus amended, it was promulgated by the convention of September 28, 1891, as the new constitution. An action was brought to challenge its validity. It failed in the lower court. In affirming such judgment dismissing the action, Chief Justice Holt stated: "If a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This would be revolution, and this the courts of the existing government must resist until they are overturned by power, and a new government established. The convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution, and are now daily doing so. ... While the judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and also because; in times of great popular excitement, it is usually their last resort, yet it should at the same time be careful not to overstep the proper bounds of its power, as being perhaps equally dangerous; and especially where such momentous results might follow as would be likely in this instance, if the power of the judiciary permitted, and its duty requires, the overthrow of the work of the convention." 67 In Taylor v. Commonwealth, 68 a 1903 decision, it was contended that the Virginia Constitution reclaimed in 1902 is invalid as it was ordained and promulgated by the convention without being submitted for ratification or rejection by the people. The Court rejected such a view. As stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordained and proclaimed by a convention duly called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of the convention has been recognized, accepted, and acted upon as the only valid Constitution

of the state by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its provisions; and the people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to the extent of thousands throughout the state, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States. The Constitution having been thus acknowledged and accepted by the office administering the government and by the people of the state, and there being no government in existence under the Constitution of 1869 opposing or denying its validity, we have no difficulty in holding that the Constitution in question, which went into effect at noon on the 10th day of July, 1902, is the only rightful, valid, and existing Constitution of this state, and that to it all the citizens of Virginia owe their obedience and loyal allegiance." 69 It cannot be plausibly asserted then that premises valid in law are lacking for the claim that the revised Constitution has been accepted by the Filipino people. What is more, so it has been argued, it is not merely a case of its being implied. Through the Citizens Assemblies, there was a plebiscite with the result as indicated in Proclamation No. 1102. From the standpoint of respondents then, they could allege that there was more than just mere acquiescence by the sovereign people. Its will was thus expressed formally and unmistakably. It may be added that there was nothing inherently objectionable in the informal method followed in ascertaining its preference. Nor is the fact that Filipinos of both sexes above the age of fifteen were given the opportunity to vote to be deplored. The greater the base of mass participation, the more there is fealty to the democratic concept. It does logically follow likewise that such circumstances being conceded, then no justifiable question may be raised. This Court is to respect what had thus received the people's sanction. That is not for me though whole of it. Further scrutiny even then is not entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had as to whether such indeed was the result. This is no more than what the courts do in election cases. There are other factors to bear in mind. The fact that the President so certified is well-nigh conclusive. There is in addition the evidence flowing from the conditions of peace and stability. There thus appears to be conformity to the existing order of things. The daily course of events yields such a conclusion. What is more, the officials under the 1935 Constitution, including practically all Representatives and a majority of the Senators, have signified their assent to it. The thought persists, however, that as yet sufficient time has not elapsed to be really certain. Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment of popular will did take place during a period of martial law. It would have been different had there been that freedom of debate with the least interference, thus allowing a free market of ideas. If it were thus, it could be truly said that there was no barrier to liberty of choice. It would be a clear-cut decision either way. One could be certain as to the fact of the acceptance of the new or of adherence to the old. This is not to deny that votes are cast by individuals with their personal concerns uppermost in mind, worried about their immediate needs and captive to their existing moods. That is inherent in any human institution, much more so in a democratic polity. Nor is it open to any valid objection because in the final analysis the state exists for the individuals who in their collectivity compose it. Whatever be their views, they are entitled to respect. It is difficult for me, however, at this stage to feel secure in the conviction that they did utilize the occasion afforded to give expression to what was really in their hearts. This is not to imply that such doubt could not be dispelled by evidence to the contrary. If the petitions be dismissed however, then such opportunity is forever lost. 5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed brethren who vote for the dismissal of these petitions. I cannot yield an affirmative response to the plea of respondents to consider the matter closed, the proceedings terminated once and for all. It is not an easy decision to reach. It has occasioned deep thought and considerable soul-searching. For there are countervailing considerations that exert a compulsion not easy to resist. It can be asserted with truth, especially in the field of social and economic rights, that with the revised Constitution, there is an auspicious beginning for further progress. Then too it could resolve what appeared to be the deepening contradictions of political life, reducing at times governmental authority to near impotence and imparting a sense of disillusionment in democratic processes. It is not too much to say therefore that there had indeed been the revision of a fundamental law to vitalize the very values out of which democracy grows. It is one which has all the earmarks of being responsive to the dominant needs of the times. It represents an outlook cognizant of the tensions of a turbulent era that is the present. That is why for some what was done represented an act of courage and faith, coupled with the hope that the solution arrived at is a harbinger of a bright and rosy future. It is such a comfort then that even if my appraisal of the situation had commanded a majority, there is not, while these lawsuits are being further considered, the least interference, with the executive department. The President in the discharge of all his functions is entitled to obedience. He remains commander-in-chief with all the constitutional powers it implies. Public officials can go about their accustomed tasks in accordance with the revised Constitution. They can pursue even the tenor of their ways. They are free to act according to its tenets. That was so these past few weeks, even petitions were filed. There was not at any time any thought of any restraining order. So it was before. That is how things are expected to remain even if the motions to dismiss were not granted. It might be asked though, suppose the petitions should prevail? What then? Even so, the decision of this Court need not be executory right away. Such a disposition of a case before this Court is not novel. That was how it was done in the Emergency Powers Act controversy. 70 Once compliance is had with the requirements of Article XV of the 1935 Constitution, to assure that the coming force of the revised charter is free from any taint of infirmity, then all doubts are set at rest. For some, to so view the question before us is to be caught in a web of unreality, to cherish illusions that cannot stand the test of actuality. What is more, it may give the impression of reliance on what may, for the practical man of affairs, be no more than gossamer distinctions and sterile refinements unrelated to events. That may be so, but I find it impossible to transcend what for me are the implications of traditional constitutionalism. This is not to assert that an occupant of the bench is bound to apply with undeviating rigidity doctrines which may have served their day. He could at times even look upon them as mere scribblings in the sands to be washed away by the advancing tides of the present. The introduction of novel concepts may be carried only so far though. As Cardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains." 71 Moreover what made it difficult for this Court to apply settled principles, which for me have not lost their validity, is traceable to the fact that the revised Constitution was made to take effect immediately upon ratification. If a period of time were allowed to elapse precisely to enable the judicial power to be exercised, no complication would have arisen. Likewise, had there been only one or two amendments, no such problem would be before us. That is why I do not see sufficient justification for the orthodoxies of constitutional law not to operate. Even with full realization then that the approach pursued is not all that it ought to have been and the process of reasoning not without its shortcomings, the basic premises of a constitutional democracy, as I understand them and as set forth in the preceding pages, compel me to vote the way I did. TEEHANKEE, J., dissenting:

The masterly opinion of the Chief Justice wherein he painstakingly deals with the momentous issues of the cases at bar in all their complexity commands my concurrence. I would herein make an exposition of the fundamental reasons and considerations for my stand. The unprecedented and precedent-setting issue submitted by petitioners for the Court's resolution is the validity and constitutionality of Presidential Proclamation No. 1102 issued on January 17, 1973, certifying and proclaiming that the Constitution proposed by the 1971 Constitutional Convention "has been ratified by an overwhelming majority of all the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect." More specifically, the issue submitted is whether the purported ratification of the proposed Constitution by means of the Citizens Assemblies has substantially complied with the mandate of Article XV of the existing Constitution of 1935 that duly proposed amendments thereto, in toto or parts thereof, "shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the peoplefor their ratification." 1 A necessary corollary issue is whether the purported ratification of the proposed Constitution as signed on November 30, 1972 by the 1971 Constitutional Convention may be said also to have substantially complied with its own mandate that "(T)his Constitution shall take immediately upon its ratification by a majority of the votes cast in aplebiscite called for the purpose and except as herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five and all amendments thereto." 2 Respondents contend that "(A)lthough apparently what is sought to be annulled is Proclamation No. 1102, what petitioners really seek to invalidate is the new Constitution", and their actions must be dismissed, because: "the Court may not inquire into the validity of the procedure for ratification" which is "political in character" and that "what is sought to be invalidated is not an act of the President but of the people; "(T)he fact of approval of the new Constitution by an overwhelming majority of the votes cast asdeclared and certified in Proclamation No. 1102 is conclusive on the courts; "Proclamation No. 1102 was issued by the President in the exercise of legislative power under martial law. ... Alternatively, or contemporaneously, he did so as "agent" of the Constitutional Convention;" "alleged defects, such as absence of secret voting, enfranchisement of persons less than 21 years, non supervision (by) the Comelec are matters not required by Article XV of the 1935 Constitution"; (sic) "after ratification, whatever defects there might have been in the procedure are overcome andmooted (and muted) by the fact of ratification"; and "(A)ssuming finally that Article XV of the 1935 Constitution was not strictly followed, the ratification of the new Constitution must nonetheless be respected. For the procedure outlined in Article XV was not intended to be exclusive of other procedures, especially one which contemplates popular and direct participation of the citizenry ... ." 3 To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102 would really be "invalidating the new Constitution", the terms and premises of the issues have to be defined. Respondents themselves assert that "Proclamation No. 1102 ... is plainly merely declaratory of the fact that the 1973 Constitution has been ratified and has come into force. 4 The measure of the fact of ratification is Article XV of the 1935 Constitution. This has been consistently held by the Court in the Gonzales: 5 and Tolentino 6 cases. In the Tolentino case, this Court emphasized "that the provisions of Section 1 of Article XV of the Constitution, dealing with the procedure or manner of amending the fundamental law are binding upon the Convention and the other departments of the government. It must be added that ... they are no less bindingupon the people." 7 In the same Tolentino case, this Court further proclaimed that "as long as any amendment is formulated and submitted under the aegis of the present Charter, any proposal for such amendment which is not in conformity with the letter, spirit and intent of the Charter for effecting amendments, cannot receive the sanction of this Court." 8 As continues to be held by a majority of this Court, proposed amendments to the Constitution "should be ratified in only one way, that is, in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters" 9 and under the supervision of the Commission on Elections. 10 Hence, if the Court declares Proclamation 1102 null and void because on its face, the purported ratification of the proposed Constitution has not faithfully nor substantially observed nor complied with the mandatory requirements of Article XV of the (1935) Constitution, it would not be "invalidating" the proposed new Constitution but would be simply declaring that the announced fact of ratification thereof by means of the Citizens Assemblies referendums does not pass the constitutional test and that the proposed new Constitution has not constitutionally come into existence.

 Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory" of the disputed fact of ratification, they cannot assume the very fact to be established and beg the issue by citing the self-same declaration as proof of the purported ratification therein declared. What complicates the cases at bar is the fact that the proposed 1972 Constitution was enforced as having immediately taken effect upon the issuance on January 17, 1973 of Proclamation 1102 and the question of whether "confusion and disorder in government affairs would (not) result" from a judicial declaration of nullity of the purported ratification is raised by the Solicitor-General on behalf of respondents. A comparable precedent of great crisis proportions is found in the Emergency Powers cases, 11 wherein the Court in its Resolution of September 16, 1949 after judgment was initially not obtained on August 26, 1949 for lack of the required six (6) votes, finally declared in effect that the pre-war emergency powers delegated by Congress to the President, under Commonwealth Act 671 in pursuance of Article VI, section 26 of the Constitution, had ceased and became inoperative at the latest in May, 1946 when Congress met in its first regular session on May 25, 1946. Then Chief Justice Manuel V. Moran recited the great interests and important rights that had arisen under executive orders "issued in good faith and with the best of intentions by three successive Presidents, and some of them may have already produced extensive effects on the life of the nation" in the same manner as may have arisen under the bona fide acts of the President now in the honest belief that the 1972 Constitution had been validly ratified by means of the Citizens Assemblies referendums and indicated the proper course and solution therefor, which were duly abided by and confusion and disorder as well as harm to public interest and innocent parties thereby avoided as follows: Upon the other hand, while I believe that the emergency powers had ceased in June 1945, I am not prepared to hold that all executive orders issued thereafter under Commonwealth Act No. 671, are per se null and void. It must be borne in mind that these executive orders had been issued in good faith and with the best of intentions by three successive Presidents, and some of them may have already produced extensive effects in the life of the nation. We have, for instance, Executive Order No. 73, issued on November 12, 1945, appropriating the sum of P6,750,000 for public works; Executive Order No. 86, issued on January 7, 1946, amending a previous order regarding the organization of the Supreme Court ; Executive Order No. 89, issued on January 1, 1946, reorganizing Courts of First Instance; Executive Order No. 184, issued on November 19, 1948, controlling rice and palay to combat hunger; and other executive orders appropriating funds for other purposes. The consequences of a blanket nullification of all these executive orders will be unquestionably serious and harmful. And I hold that before nullifying them, other important circumstances should be inquired into, as for instance, whether or not they have been ratified by Congress expressly or impliedly, whether their purposes have already been accomplished entirely or partially, and in the last instance, to what extent; acquiescence of litigants; de facto officers; acts and contracts of parties acting in good faith; etc. It is my opinion that each executive order must be viewed in the light of its peculiar circumstances, and, if necessary and possible, nullifying it, precautionary measures should be taken to avoid harm to public interest and innocent parties. 12 Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and Guerrero petitions holding null and void the executive orders on rentals and export control but to defer judgment on the Rodriguez and Barredo petitions for judicial declarations of nullity of the executive orders appropriating the 1949-1950 fiscal year budget for the government and P6 million for the holding of the 1949 national elections. After rehearsing, he further voted to also declare null and void the last two executive orders appropriating funds for the 1949 budget and elections, completing the "sufficient majority" of six against four dissenting justices "to pronounce a valid judgment on that matter." 13 Then Chief Justice Moran, who penned the Court's majority resolution, explained his vote for annulment despite the great difficulties and possible "harmful consequences" in the following passage, which bears re-reading: However, now that the holding of a special session of Congress for the purpose of remedying the nullity of the executive orders in question appears remote and uncertain, I am compelled to, and do hereby, give my unqualified concurrence in the decision penned by Mr. Justice Tuason declaring that these two executive orders were issued without authority of law. While in voting for a temporary deferment of the judgment I was moved by the belief that positive compliance with the Constitution by the other branches of the Government, which is our prime concern in all these cases, would be effected, and indefinite deferment will produce the opposite result because it would legitimize a prolonged or permanent evasion of our organic law. Executive orders which are, in our opinion, repugnant to the Constitution, would be given permanent life, opening the way or practices which may undermine our constitutional structure. The harmful consequences which, as I envisioned in my concurring opinion, would come to pass should the said executive orders be immediately declared null and void are still real. They have not disappeared by reason of the fact that a special session of Congress is not now forthcoming. However, the remedy now lies in the hands of the Chief Executive and of Congress, for the Constitution vests in the former the power to call a special session should the need for one arise, and in the latter, the power to pass a valid appropriations act. That Congress may again fail to pass a valid appropriations act is a remote possibility, for under the circumstances it fully realizes its great responsibility of saving the nation from breaking down; and furthermore, the President in the exercise of his constitutional powers may, if he so desires, compel Congress to remain in special session till it approves the legislative measures most needed by the country. Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent way of life in this country, if each of the great branches of the Government, within its own allocated sphere, complies with its own constitutional duty, uncompromisingly and regardless of difficulties. Our Republic is still young, and the vital principles underlying its organic structure should be maintained firm and strong, hard as the best of steel, so as to insure its growth and development along solid lines of a stable and vigorous democracy. 14

The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the rental and export control executive orders) likewise observed that "(T)he truth is that under our concept of constitutional government, in times of extreme perils more than in normal circumstances 'the various branches, executive, legislative, and judicial,' given the ability to act, are called upon 'to perform the duties discharge the responsibilities committed to respectively.' " 15 It should be duly acknowledged that the Court's task of discharging its duty and responsibility has been considerably lightened by the President's public manifestation of adherence to constitutional processes and of working within the proper constitutional framework as per his press conference of January 20,1973, wherein he stated that "(T)he Supreme Court is the final arbiter of the Constitution. It can and will probably determine the validity of this Constitution. I did not want to talk about this because actually there is a case pending before the Supreme Court. But suffice it to say that I recognize the power of the Supreme Court. With respect to appointments, the matter falls under a general provision which authorizes the Prime Minister to appoint additional members to the Supreme Court. Until the matter of the new Constitution is decided, I have no intention of utilizing that power." 16 Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that the questions of whether the submission of the proposed constitutional amendment of the State Constitution providing for an elective, instead of an appointive, judiciary and whether the proposition was in fact adopted, were justifiable and not political questions, we may echo the words therein of Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution. We could not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the particular instance in which we are now acting, our duty to know what the Constitution of the state is, and in accordance with our oaths to support and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but one which, like all others, must be discharged." 17 In confronting the issues at bar, then, with due regard for my colleagues' contrary views, we are faced with the hard choice of maintaining a firm and strict perhaps, even rigid stand that the Constitution is a "superior paramount law, unchangeable by ordinary means" save in the particular mode and manner prescribed therein by the people, who, in Cooley's words, so "tied up (not only) the hands of their official agencies, but their own hands as well" 18 in the exercise of their sovereign will or a liberal and flexible stand that would consider compliance with the constitutional article on the amending process as merely directory rather than mandatory. The first choice of a strict stand, as applied to the cases at bar, signifies that the Constitution may be amended in toto or otherwise exclusively "by approval by a majority of the votes cast an election at which the amendments are submitted to the people for their ratification", 19 participated in only by qualified and duly registered voters twenty-one years of age or over 20 and duly supervised by the Commission on Elections, 21 in accordance with the cited mandatory constitutional requirements. The alternative choice of a liberal stand would permit a disregard of said requirements on the theory urged by respondents that "the procedure outlined in Article XV was not intended to be exclusive of other procedures especially one which contemplates popular and direct participation of the citizenry", 22 that the constitutional age and literacy requirements and other statutory safeguards for ascertaining the will of the majority of the people may likewise be changed as "suggested, if not prescribed, by the people (through the Citizens Assemblies) themselves", 23 and that the Comelec is constitutionally "mandated to oversee ... elections (of public officers) andnot plebiscites." 24 To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case of Marbury vs. Madison 25 the U.S. Supreme Court's power of judicial review and to declare void laws repugnant to the Constitution, there is no middle ground between these two alternatives. As Marshall expounded it: "(T)he Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act, contrary to the Constitution, is not law; if the latter part be true, then written constitutions are absurd attempts on the part of a people, to limit a power, in its own nature, illimitable." As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936 landmark case of Angara vs. Electoral Commission, 26 "(T)he Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations of good government and restrictions embodied in our Constitution are real as they should be in any living Constitution." Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments ... but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and guarantees to them." II Marshall was to utter much later in the equally historic 1819 case of McCulloch vs. Maryland 27 the "climactic phrase," 28 "we must never forget that it is a constitution we are expounding," termed by Justice Frankfurter as "the single most important utterance in the literature of constitutional law most important because most comprehensive and comprehending." 29 This enduring concept to my mind permeated to this Court's exposition and rationale in the hallmark case of Tolentino, wherein we rejected the contentions on the Convention's behalf "that the issue ... is a political question and that the Convention being a legislative body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the control of Congress and the Courts." 30 This Court therein made its unequivocal choice of strictly requiring faithful (which really includes substantial) compliance with the mandatory requirements of the amending process. 1. In denying reconsideration of our judgment of October 16, 1971 prohibiting the submittal in an advance election of 1971 Constitutional Convention's Organic Resolution No. 1 proposing to amend Article V, section 1 of the Constitution by lowering the voting age to 18 years (vice 21 years) 30a "without prejudice to other amendments that will be proposed in the future ... on other portions of the amended section", this Court stated that "the constitutional

provision in question (as proposed) presents no doubt which may be resolved in favor of respondents and intervenors. We do not believe such doubt can exist only because it is urged that the end sought to be achieved is to be desired. Paraphrasing no less than the President of Constitutional Convention of 1934, Claro M. Recto, let those who would put aside, invoking grounds at best controversial, any mandate of the fundamental law purportedly in order to attain some laudable objective bear in mind that someday somehow others with purportedly more laudable objectives may take advantage of the precedent and continue the destruction of the Constitution, making those who laid down the precedent of justifying deviations from the requirements of the Constitution the victims of their own folly." 31 2. This Court held in Tolentino that: ... as to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now We hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV. This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy of the people for deliberation and study. It is obvious that correspondingly,any amendment of the Constitution is of no less importance than the whole Constitution itself, and perforce must be conceived and prepared with as much care and deliberation. From the very nature of things, the drafters of an original constitution, as already observed earlier, operate without any limitations, restraints or inhibitions save those that they may impose upon themselves. This is not necessarily true of subsequent conventions called to amend the original constitution. Generally, the framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but more importantly, because written constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less stringent, made so by the people themselves, in regard to the process of their amendment. And when such limitations or conditions are so incorporated in the original constitution, it does not lie in the delegates of any subsequent convention to claim that they may ignore and disregard such conditions because they are powerful and omnipotent as their original counterparts. 32 3. This Court in Tolentino likewise formally adopted the doctrine of proper submission first advanced in Gonzales vs. Comelec 33, thus: We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for anintelligent appraisal of the nature of amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. In the context of the present state of things, where the Convention hardly started considering the merits of hundreds, if not thousands, proposals to amend the existing Constitution, to present to people any single proposal or a few of them cannot comply with this requirement. We are of the opinion that the present Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election" wherein the people are in the dark as to frame of reference they can base their judgment on. We reject the rationalization that the present Constitution is a possible frame of reference, for the simple reason that intervenors themselves are stating the sole purpose of the proposed amendment is to enable the eighteen year olds to take part in the election for the ratification of the Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the language of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, 'no proper submission.' " 34 4. Four other members of the Court 35 in a separate concurrence in Tolentino, expressed their "essential agreement" with Justice Sanchez' separate opinion in Gonzales on the need for "fair submission (and) intelligent rejection" as "minimum requirements that must be met in order that there can be a proper submission to the people of a proposed constitutional amendment" thus: ... amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word "submitted" can only mean that the government, within its maximum capabilities, should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For as we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection. 36 They stressed further the need for undivided attention, sufficient information and full debate, conformably to the intendment of Article XV, section 1 of the Constitution, in this wise: A number of doubts or misgivings could conceivably and logically assail the average voter. Why should the voting age be lowered at all, in the first place? Why should the new voting age be precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-year old, so that there is no need of an educational qualification to entitle him to vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed amendment is voted down by the people, will the Constitutional Convention insist on the said amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having this particular proposed amendment ratified at this particular time? Do some of the members of the Convention have future political plans which they want to begin to subserve by the approval this year of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should not also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to

compulsory military service under the colors? Will the contractual consent be reduced to 18 years? If I vote against the amendment, will I not be unfair to my own child who will be 18 years old, come 1973? The above are just samplings from here, there and everywhere from a domain (of searching questions) the bounds of which are not immediately ascertainable. Surely, many more questions can be added to the already long litany. And the answers cannot except as the questions are debated fully, pondered upon purposefully, and accorded undivided attention. Scanning the contemporary scene, we say that the people are not, and by election time will not be, sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment. They have not been afforded ample time to deliberate thereon conscientiously. They have been and are effectively distracted from afull and dispassionate consideration of the merits and demerits of the proposed amendment by their traditional pervasive involvement in local elections and politics. They cannot thus weigh in tranquility the need for and the wisdom proposed amendment. 37 5. This Court therein dismissed the plea of disregarding mandatory requirements of the amending process "in favor of allowing the sovereign people to express their decision on the proposed amendments" as "anachronistic in the real constitutionalism and repugnant to the essence of the rule of law," in the following terms: ... The preamble of the Constitution says that the Constitution has been ordained by the 'Filipino people, imploring the aid of Divine Providence.' Section 1 of Article XV is nothing than a part of the Constitution thusordained by the people. Hence, in construing said section, We must read it as if the people had said, 'This Constitution may be amended, but it is our will that the amendment must be proposed and submitted to Us for ratification only in the manner herein provided.' ... Accordingly, the real issue here cannot be whether or not the amending process delineated by the present Constitution may be disregarded in favor of allowing the sovereign people to express their decision on the proposed amendments, if only because it is evident that the very idea of departing from the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of law; rather, it is whether or not the provisional nature of the proposed amendment and the manner of its submission to the people for ratification or rejection conform with the mandate of the peoplethemselves in such regard, as expressed in, the Constitution itself. 38 6. This Court, in not heeding the popular clamor, thus stated its position: "(I)t would be tragic and contrary to the plain compulsion of these perspectives, if the Court were to allow itself in deciding this case to be carried astray by considerations other than the imperatives of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger measure than when it binds other departments of the government or any other official or entity, the Constitution imposes upon the Court the sacred duty to give meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate cases with the proper parties and by striking down any act violative thereof. Here, as in all other cases, We are resolved to discharge that duty. 39 7. The Chief Justice, in his separate opinion in Tolentino concurring with this Court's denial of the motion for reconsideration, succinctly restated this Court's position on the fundamentals, as follows: On the premature submission of a partial amendment proposal, with a "temporary provisional or tentative character": "... a partial amendment would deprive the voters of the context which is usually necessary for them to make a reasonably intelligent appraisal of the issue submitted for their ratification or rejection. ... Then, too, the submission to a plebiscite of a partial amendment, without adefinite frame of reference, is fraught with possibilities which may jeopardize the social fabric. For one thing, it opens the door to wild speculations. It offers ample opportunities for overzealous leaders and members of opposing political camps to unduly exaggerate the pros and cons of the partial amendment proposed. In short, it is apt to breed false hopes and create wrong impressions. As a consequence, it is bound to unduly strain the people's faith in the soundness and validity of democratic processes and institutions. On the plea to allow submission to the sovereign people of the "fragmentary and incomplete" proposal, although inconsistent with the letter and spirit of the Constitution: "The view, has, also, advanced that the foregoing considerations are not decisive on the issue before Us, inasmuch as thepeople are sovereign, and the partial amendment involved in this case is being submitted to them. The issue before Us is whether or not said partial amendment may be validly submitted to the people for ratification "in a plebiscite coincide with the local elections in November 1971," and this particular issue will not be submitted to the people. What is more, the Constitution does not permit its submission to the people. The question sought to be settled in the scheduled plebiscite is whether or not the people are in favor of the reduction of the voting age. On a "political" rather than "legalistic" approach: "Is this approach to the problem too "legalistic?" This term has possible connotations. It may mean strict adherence to the law, which in the case at bar is the Supreme Law of the land. On point, suffice it to say that, in compliance with the specific man of such Supreme Law, the members of the Supreme Court taken the requisite "oath to support and defend the Constitution." ... Then, again, the term "legalistic" may be used to suggest inversely that the somewhat strained interpretation of the Constitution being urged upon this Court be tolerated or, at least, overlooked, upon the theory that the partial amendment on voting age is badly needed and reflects the will of the people, specially the youth. This course of action favors, in effect, adoption of apolitical approach, inasmuch as the advisability of the amendment and an appraisal of the people's feeling thereon political matters. In fact, apart from the obvious message of the mass media, and, at times, of the pulpit, the Court has been literally bombarded with scores of handwritten letters, almost all of which bear the penmanship and the signature of girls, as well as letterhead of some sectarian educational institutions, generally stating that the writer is 18 years of age and urging that she or he be allowed to vote. Thus, the pressure of public opinion has brought to bear heavily upon the Court for a reconsideration of its decision in the case at bar. As above stated, however, the wisdom of the amendment and the popularity thereof are political questions beyond our province. In fact, respondents and the intervenors originally maintained that We have no jurisdiction to entertain the petition herein, upon the ground that the issue therein raised is a political one. Aside from the absence of authority to pass upon political question, it is obviously improper and unwise for the bench to develop into such questions owing to the danger of getting involved in politics, more

likely of a partisan nature, and, hence, of impairing the image and the usefulness of courts of justice as objective and impartial arbiters of justiciable controversies. Then, too, the suggested course of action, if adopted, would constitute a grievous disservice to the people and the very Convention itself. Indeed, the latter and the Constitution it is in the process of drafting stand essentially for the Rule of Law. However, as the Supreme Law of the land, a Constitution would not be worthy of its name, and the Convention called upon to draft it would be engaged in a futile undertaking, if we did not exact faithful adherence to the fundamental tenets set forth in the Constitution and compliance with its provisions were not obligatory. If we, in effect, approved, consented to or even overlooked a circumvention of said tenets and provisions, because of the good intention with which Resolution No. 1 is animated, the Court would thereby become theJudge of the good or bad intentions of the Convention and thus be involved in a question essentially political in nature. This is confirmed by the plea made in the motions for reconsideration in favor of the exercise of judicial statesmanship in deciding the present case. Indeed, "politics" is the word commonly used to epitomize compromise, even with principles, for the sake of political expediency or the advancement of the bid for power of a given political party. Upon the other hand, statesmanship is the expression usually availed of to refer to high politics or politics on the highest level. In any event, politics, political approach, political expediency and statesmanship are generally associated, and often identified, with the dictum that " the end justifies the means." I earnestly hope that the administration of justice in this country and the Supreme Court, in particular, will adhere to or approve or indorse such dictum." 40 Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he primary purpose for the submission of the proposed amendment lowering the voting age to the plebiscite on November 8, 1971 is to enable the youth 18 to 20 years who comprise more than three (3) million of our population to participate in the ratification of the new Constitution in so far as "to allow young people who would be governed by the Constitution to be given a say on what kind of Constitution they will have" is a laudable end, ... those urging the vitality and importance of the proposed constitutional amendment and its approval ahead of the complete and final draft of the Constitution must seek a valid solution to achieve it in a manner sanctioned by the amendatory process ordained by our people in the present Constitution" 41 so that there may be "submitted, not piece-meal, but by way of complete and final amendments as an integrated whole (integrated either with the subsisting Constitution or with the new proposed Constitution)..." 9. The universal validity of the vital constitutional precepts and principles above-enunciated can hardly be gainsaid. I fail to see the attempted distinction of restricting their application to proposals for amendments of particular provisions of the Constitution and not to so-called entirely new Constitutions. Amendments to an existing Constitution presumably may be only of certain parts or in toto, and in the latter case would rise to an entirely new Constitution. Where this Court held in Tolentino that "any amendment of the Constitution is of no less importance than the whole Constitution itself and perforce must be conceived and prepared with as much care and deliberation", it would appeal that the reverse would equally be true; which is to say, that the adoption of a whole new Constitution would be of no less importance than any particular amendment and therefore the necessary care and deliberation as well as the mandatory restrictions and safeguards in the amending process ordained by the people themselves so that "they (may) be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies" must necessarily equally apply thereto. III 1. To restate the basic premises, the people provided in Article XV of the Constitution for the amending process only "by approval by a majority of the votes cast at an election at which the (duly proposed) amendments are submitted to the people for their ratification." The people ordained in Article V, section 1 that only those thereby enfranchised and granted the right of suffrage may speak the " will of the body politic", viz, qualified literate voters twenty one years of age or over with one year's residence in the municipality where they have registered. The people, not as yet satisfied, further provided by amendment duly approved in 1940 in accordance with Article XV, for the creation of an independent Commission on Elections with "exclusive charge" for the purpose of "insuring free, orderly and honest elections" and ascertaining the true will of the electorate and more, as ruled by this Court in Tolentino, in the case of proposed constitutional amendments, insuring proper submission to the electorate of such proposals. 42 2. A Massachussets case 43 with a constitutional system and provisions analogous to ours, best defined the uses of the term "people" as a body politic and "people" in the political sense who are synonymous with the qualified voters granted the right to vote by the existing Constitution and who therefore are "the sole organs through which the will of the body politic can be expressed." It was pointed out therein that "(T)he word 'people' may have somewhat varying significations dependent upon the connection in which it is used. In some connections in the Constitution it is confined to citizens and means the same as citizens. It excludes aliens. It includes men, women and children. It comprehends not only the sane, competent, law-abiding and educated, but also those who are wholly or in part dependents and charges upon society by reason of immaturity, mental or moral deficiency or lack of the common essentials of education. All these persons are secured fundamental guarantees of the Constitution in life, liberty and property and the pursuit of happiness, except as these may be limited for the protection of society." In the sense of "body politic (as) formed by voluntary association of individuals" governed by a constitution and common laws in a "social compact ... for the common good" and in another sense of "people" in a "practical sense" for "political purposes" it was therein fittingly stated that in this sense, "people" comprises many who, by reason of want of years, of capacity or of the educational requirements of Article 20 of the amendments of the Constitution, can have no voice in any government and who yet are entitled to all the immunities and protection established by the Constitution. ' People' in this aspect is coextensive with the body politic. But it is obvious that 'people' cannot be used with this broad meaning of political signification. The 'people' in this connection means that part of the entire body of inhabitants who under the Constitution are intrusted with the exercise of the sovereign power and the conduct of government. The 'people' in the Constitution in a practical sense means those who under the existing Constitution possess the right to exercise the elective franchise and who, while that instrument remains in force unchanged, will be the sole organs through which the will of the body politic can be expressed. 'People' for political purposes must be considered synonymous with qualified voters.' " As was also ruled by the U.S. Supreme Court, "... While the people are thus the source of political power, their governments, national and state, have been limited by constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulse of mere majorities." 44

From the text of Article XV of our Constitution, requiring approval of amendment proposals "by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification", it seems obvious as above-stated that "people" as therein used must be considered synonymous with "qualified voters" as enfranchised under Article V, section 1 of the Constitution since only "people" who are qualified voters can exercise the right of suffrage and cast their votes. 3. Sound constitutional policy and the sheer necessity of adequate safeguards as ordained by the Constitution and implementing statutes to ascertain and record the will of the people in free, orderly and honest elections supervised by the Comelec make it imperative that there be strict adherence to the constitutional requirements laid down for the process of amending in toto or in part the supreme law of the land. Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for the holding of barrio plebiscites thus: "SEC. 6. Plebiscite. A plebiscite may be held in the barrio when authorized by a majority vote of the members present in the barrio assembly, there being a quorum, or when called by at least four members of the barrio council: Provided, however, That no plebiscite shall be held until after thirty days from its approval by either body, and such plebiscite has been given the widest publicity in the barrio, stating the date, time and place thereof, the questions or issues to be decided, action to be taken by the voters, and such other information relevant to the holding of the plebiscite." 46 As to voting at such barrio plebiscites, the Charter further requires that "(A)ll duly registered barrio assembly members qualified to vote may vote in the plebiscite. Voting procedures may be made either in writing as in regular elections, and/or declaration by the voters to the board of election tellers." 47 The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may be called to decide on the recall of any member of the barrio council. A plebiscite shall be called to approve any budgetary, supplemental appropriations or special tax ordinances" and the required majority vote is specified: "(F)or taking action on any of the above enumerated measures, majority vote of all the barrio assembly members registered in the list of the barrio secretary is necessary." 48 The qualifications for voters in such barrio plebiscites and elections of barrio officials 49 comply with the suffrage qualifications of Article V, section 1 of the Constitution and provide that "(S)EC. 10. Qualifications of Voters and Candidates. Every citizen of the Philippines, twenty one years of age or over, able to read and write, who has been a resident of the barrio during the six months immediately preceding the election, duly registered in the list of voters by the barrio secretary, who is not otherwise disqualified, may vote or be a candidate in the barrio elections." 50 IV 1. Since it appears on the face of Proclamation 1102 that the mandatory requirements under the above-cited constitutional articles have not been complied with and that no election or plebiscite for ratification as therein provided as well as in section 16 of Article XVII of the proposed Constitution itself 51 has been called or held, there cannot be said to have been a valid ratification. 2. Petitioners raised serious questions as to the veracity and genuineness of the reports or certificates of results purportedly showing unaccountable discrepancies in seven figures in just five provinces 52 between the reports as certified by the Department of Local Governments and the reports as directly submitted by the provincial and city executives, which latter reports respondents disclaimed inter alia as not final and complete or as not signed; 53whether the reported votes of approval of the proposed Constitution conditioned upon the non-convening of the interim National Assembly provided in Article XVII, section 1 thereof, 54 may be considered as valid; the allegedly huge and uniform votes reported; and many others. 3. These questions only serve to justify and show the basic validity of the universal principle governing written constitutions that proposed amendments thereto or in replacement thereof may be ratified only in the particular mode or manner prescribed therein by the people. Under Article XV, section 1 of our Constitution, amendments thereto may be ratified only in the one way therein provided, i.e. in an election or plebiscite held in accordance with law and duly supervised by the Commission on Elections, and which is participated in only by qualified and duly registered voters. In this manner, the safeguards provided by the election code generally assure the true ascertainment of the results of the vote and interested parties would have an opportunity to thresh out properly before the Comelec all such questions in pre-proclamation proceedings. 4. At any rate, unless respondents seriously intend to question the very statements and pronouncements in Proclamation 1102 itself which shows on its face, as already stated, that the mandatory amending process required by the (1935) Constitution was not observed, the cases at bar need not reach the stage of answering the host of questions, raised by petitioners against the procedure observed by the Citizens Assemblies and the reported referendum results since the purported ratification is rendered nugatory by virtue of such non-observance. 5. Finally, as to respondents' argument that the President issued Proclamation 1102 "as "agent" of the Constitutional Convention" 55 under Resolution No. 5844 approved on November 22, 1973, and "as agent of the Convention the President could devise other forms of plebiscite to determine the will of the majority vis-a-vis the ratification of the proposed Constitution." 56 The minutes of November 22, 1972, of the Convention, however, do not at all support this contention. On the contrary, the said minutes fully show that the Convention's proposal and "agency" was that the President issue a decree precisely calling a plebiscite for the ratification of the proposed new Constitution on an appropriate date, under the charge of the Comelec, and with a reasonable period for an information campaign, as follows: 12. Upon recognition by the Chair, Delegate Duavit moved for the approval of the resolution, the resolution portion of which read as follows: "RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional Convention propose to President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary funds therefor, and that copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the Commission on Elections for implementation."

He suggested that in view of the expected approval of the final draft of the new Constitution by the end of November 1972 according to the Convention's timetable, it would be necessary to lay the groundwork for the appropriate agencies of the government to undertake the necessary preparation for the plebiscite. xxx xxx xxx 12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was unnecessary because section 15, Article XVII on the Transitory Provision, which had already been approved on second and third readings, provided that the new constitution should be ratified in a plebiscite called for the purpose by the incumbent President. Delegate Duavit replied that the provision referred to did notinclude the appropriation of funds for the plebiscite and that, moreover, the resolution was intended to serve formal notice to the President and the Commission on Elections to initiate the necessary preparations. xxx xxx xxx 12.4 Interpellating, Delegate Madarang suggested that a reasonable period for an information campaign was necessary in order to properly apprise the people of the implications and significance of the new charter. Delegate Duavit agreed, adding that this was precisely why the resolution was modified to give the President the discretion to choose the most appropriate date for the plebiscite. 12.5 Delegate Laggui asked whether a formal communication to the President informing him of the adoption of the new Constitution would not suffice considering that under Section 15 of the Transitory Provisions, the President would be duty-bound to call a plebiscite for its ratification. Delegate Duavit replied in the negative, adding that the resolution was necessary to serve notice to the proper authorities to prepare everything necessary for the plebiscite. 12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the holding of theplebiscite would be laid down by the Commission on Elections in coordination with the President. 12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a partial lifting of martial law in order to allow the people to assemble peaceably to discuss the new Constitution. Delegate Duavit suggested that the Committee on Plebiscite and Ratification could coordinate with the COMELEC on the matter. 12.8 Delegate Guzman moved for the previous question. The Chair declared that there was one more interpellant and that a prior reservation had been made for the presentation of such a motion. 1.8a Delegate Guzman withdrew his motion. 12.9 Delegate Astilla suggested in his interpellation that there was actually no need for such a resolution in view of the provision of section 15, Article XVII on the Transitory Provisions. Delegate Duavit disagreed, pointing out that the said provision did not provide for the funds necessary for the purpose. 13. Delegate Ozamiz then moved to close the debate and proceed to the period of amendment. 13.1 Floor Leader Montejo stated that there were no reservations to amend the resolution. 13.2 Delegate Ozamiz then moved for the previous question. Submitted to a vote, the motion was approved. Upon request of the Chair, Delegate Duavit restated the resolution for voting. 14.1. Delegate Ordoez moved for nominal voting. Submitted to a vote, the motion was lost. 14.2. Thereupon, the Chair submitted the resolution to a vote. It was approved by a show of hands. I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions. Promulgated: June 4, 1973 * ANTONIO, J., concurring: In conformity with my reservation, I shall discuss the grounds for my concurrence. I It is my view that to preserve the independence of the State, the maintenance of the existing constitutional order and the defense of the political and social liberties of the people, in times of a grave emergency, when the legislative branch of the government is unable to function or its functioning would itself threaten the public safety, the Chief Executive may promulgate measures legislative in character, for the successful prosecution of such objectives. For the "President's power as Commander- in-chief has been transformed from a simple power of military command to a vast reservoir of indeterminate powers in time of emergency. ... In other words, the principal canons of constitutional interpretation are ... set aside so far as concerns both the scope of
57

the national power and the capacity of the President to gather unto himself all constitutionally available powers in order the more effectively to focus them upon the task of the hour." (Corwin, The President: Office & Powers, pp. 317, 318, [1948]). 1. The proclamation of martial rule, ushered the commencement of a crisis government in this country. In terms of power, crisis government in a constitutional democracy entails the concentration of governmental power. "The more complete the separation of powers in a constitutional system, the more difficult, and yet the more necessary" according to Rossiter, "will be their fusion in time of crisis... The power of the state in crisis must not only be concentrated and expanded, it must be freed from the normal system of constitutional and legal limitations. One of the basic features of emergency powers is the release of the government from the paralysis of constitutional restraints" (Rossiter, Constitutional Dictatorship, p. 290). It is clearly recognized that in moments of peril the effective action of the government is channeled through the person of the Chief Executive. "Energy in the executive," according to Hamilton, "is essential to the protection of the community against foreign attacks ... to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy." (The Federalist, Number 70). "The entire strength of the nation", said Justice Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the constitution to its care." The marshalling and employment of the "strength of the nation" are matters for the discretion of the Chief Executive. The President's powers in time of emergency defy precise definition since their extent and limitations are largely dependent upon conditions and circumstances. 2. The power of the President to act decisively in a crisis has been grounded on the broad conferment upon the Presidency of the Executive power, with the added specific grant of power under the "Commander-in-Chief" clause of the constitution. The contours of such powers have been shaped more by a long line of historical precedents of Presidential action in times of crisis, rather than judicial interpretation. Lincoln wedded his powers under the "commander-in-chief" clause with his duty "to take care that the laws be faithfully executed," to justify the series of extraordinary measures which he took the calling of volunteers for military service, the augmentation of the regular army and navy, the payment of two million dollars from unappropriated funds in the Treasury to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence", the blockade of southern ports, the suspension of the writ of habeas corpus, the arrest and detention of persons "who were represented to him" as being engaged in or contemplating "treasonable practices" all this for the most partwithout the least statutory authorization. Those actions were justified by the imperatives of his logic, that the President may, in an emergency thought by him to require it, partially suspend the constitution. Thus his famous question: "Are all laws but one to be unexecuted, and the Government itself go to pieces lest that one be violated?" The actions of Lincoln "assert for the President", according to Corwin, "an initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war emergency." (Corwin, The President: Office & Powers, p. 280 [1948]). The facts of the civil war have shown conclusively that in meeting the domestic problems as a consequence of a great war, an indefinite power must be attributed to the President to take emergency measures. The concept of "emergency" under which the Chief Executive exercised extraordinary powers underwent correlative enlargement during the first and second World Wars. From its narrow concept as an "emergency" in time of war during the Civil War and World War I, the concept has been expanded in World War II to include the "emergency" preceding the war and even after it. "The Second World War" observed Corwin and Koenig, was the First World War writ large, and the quasi-legislative powers of Franklin Roosevelt as "Commander-in-Chief in wartime"... burgeoned correspondingly. The precedents were there to be sure, most of them from the First World War, but they proliferated amazingly. What is more, Roosevelt took his first step toward war some fifteen months before our entrance into shooting war. This step occurred in September, 1940, when he handed over fifty so-called overage destroyers to Great Britain. The truth is, they were not overage, but had been recently reconditioned and recommissioned. ... Actually, what President Roosevelt did was to take over for the nonce Congress's power to dispose of property of the United States (Article IV, Section 3) and to repeal at least two statutes." (Corwin & Koenig, The Presidency Today, New York University Press, 1956; sf Corwin, The President: Office and Powers, 1948.) The creation of public offices is a power confided by the constitution to Congress. And yet President Wilson, during World War I on the basis of his powers under the "Commander-in-Chief" clause created "offices" which were copied in lavish scale by President Roosevelt in World War II. In April 1942, thirty-five "executive agencies" were purely of Presidential creation. On June 7, 1941 on the basis of his powers as "Commander-in-Chief", he issued an executive order seizing the North American Aviation plant of Inglewood, California, where production stopped as a consequence of a strike. This was justified by the government as the exercise of presidential power growing out of the "duty constitutionally and inherently resting upon the President to exert his civil and military as well as his moral authority to keep the defense efforts of the United States a going concern" as well as "to obtain supplies for which Congress has appropriated money, and which it has directed the President to obtain." On a similar justification, other plants and industries were taken over by the government. It is true that in Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United States did not sustain the claims that the President could, as the Nation's Chief Executive and Commander-inChief of the armed forces, validly order the seizure of most of the country's steel mills. The Court however did not face the naked question of the President's power to seize steel plants in the absence of any congressional enactment or expressions of policy. The majority of the Court found that this legislative occupation of the field made untenable the President's claim of authority to seize the plants as an exercise of inherent executive power or as Commander-in-Chief. Justice Clark, in his concurrence to the main opinion of the Court, explicitly asserted that the President does possess, in the absence of restrictive legislation, a residual or resultant power above or in consequence of his granted powers, to deal with emergencies that he regards as threatening the national security. The same view was shared with vague qualification by Justices Frankfurter and Jackson, two of the concurring Justices. The three dissenting Justices, speaking through Chief Justice Vinson, apparently went further by quoting with approval a passage extracted from the brief of the government in the case of United States vs. Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the power of the President to order withdrawals from the public domain not only without Congressional sanction but even contrary to Congressional statutes. It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to support the view that the President in times of a grave crisis does not possess a residual power above or in consequence of his granted powers, to deal with emergencies that he regards as threatening the national security. The lesson of the Steel Seizure case, according to Corwin and Koenig, "Unquestionably ... tends to supplement presidential emergency power to adopt temporary remedial legislation when Congress has been, in the judgment of the President, unduly remiss in taking cognizance of and acting on a given situation." (Corwin and Koenig, The Presidency Today, New York University Press, 1956). The accumulation of precedents has thus built up the presidential power under emergency conditions to "dimensions of executive prerogative as described by John Locke, of a power to wit, to fill needed gaps in the law, or even to supersede it so far as may be requisite to realize the fundamental law of nature and government, namely, that as much as may be all the members of society are to be preserved ." (Corwin and Koenig, The Presidency Today). In the light of the accumulated precedents, how could it be reasonably argued therefore, that the President had no power to issue Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these measures were considered indispensable to effect the desired reforms at the shortest

time possible and hasten the restoration of normalcy? It is unavailing for petitioners to contend that we are not faced by an actual "shooting war" for today's concept of the emergency which justified the exercise of those powers has of necessity been expanded to meet the exigencies of new dangers and crisis that directly threaten the nation's continued and constitutional existence. For as Corwin observed: "... today the concept of 'war' as a special type of emergency warranting the realization of constitutional limitations tends to spread, as it were, in both directions, so that there is not only "the war before the war," but the 'war after the war.' Indeed, in the economic crisis from which the New Deal may be said to have issued, the nation was confronted in the opinion of the late President with an 'emergency greater than war'; and in sustaining certain of the New Deal measures the Court invoked the justification of 'emergency.' In the final result constitutional practices of wartime have moulded the Constitution to greater or less extent for peacetime as well, seem likely to do so still more pronouncedly under fresh conditions of crisis." (Corwin, Ibid. p. 318.) The same view was expressed by Rossiter thus: The second crisis is rebellion, when the authority of a constitutional government is resisted openly by large numbers of citizens who are engaged in violent insurrection against enforcement of its laws or are bent on capturing it illegally or destroying it altogether. The third crisis, one recognized particularly in modern times as sanctioning emergency action by constitutional governments, is economic depression. The economic troubles which plagued all the countries of the world in the early thirties involved governmental methods of an unquestionably dictatorial character in many democracies. It was thereby acknowledged that an economic existence as a war or a rebellion. And these are not the only cases which have justified extraordinary governmental action in nations like the United States. Fire, flood, drought, earthquake, riots, great strikes have all been dealt with by unusual and of dictatorial methods. Wars are not won by debating societies, rebellions are not suppressed by judicial injunctions, reemployment of twelve million jobless citizens will not be effected through a scrupulous regard for the tenets of free enterprise, hardships caused by the eruptions of nature cannot be mitigated letting nature take its course. The Civil War, the depression of 1933 and the recent global conflict were not and could not have been successfully resolved by governments similar to those of James Buchanan, William Howard Taft, or Calvin Coolidge. (Rossiter, Constitutional Dictatorship Crisis of Government in the Modern Democracies, p. 6 [1948). II We are next confronted with the insistence of Petitioners that the referendum in question not having been done inaccordance with the provisions of existing election laws, which only qualified voters who are allowed to participate, under the supervision of the Commission on Elections, the new Constitution, should therefore be a nullity. Such an argument is predicated upon an assumption, that Article XV of the 1935 Constitution provides the method for the revision of the constitution, and automatically apply in the final approval of such proposed new Constitution the provisions of the election law and those of Article V and X of the old Constitution. We search in vain for any provision in the old charter specifically providing for such procedure in the case of a total revision or a rewriting of the whole constitution. 1. There is clearly a distinction between revision and amendment of an existing constitution. Revision may involve a rewriting of the whole constitution. The act of amending a constitution, on the other hand, envisages a change of only specific provisions. The intention of an act to amend is not the change of the entire constitution but only theimprovement of specific parts of the existing constitution of the addition of provisions deemed essential as a consequence of new constitutions or the elimination of parts already considered obsolete or unresponsive to the needs of the times. 1 The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental charter embodying new political, social and economic concepts. According to an eminent authority on Political Law, "The Constitution of the Philippines and that of the United States expressly provide merely for methods of amendment. They are silent on the subject of revision. But this is not a fatal omission. There is nothing that can legally prevent a convention from actually revising the Constitution of the Philippines or of the United States even were such conventions called merely for the purpose of proposing and submitting amendments to the people. For in the final analysis, it is the approval of the people that gives validity to any proposal of amendment or revision." (Sinco, Philippine Political Law, p. 49). Since the 1935 Constitution does not specifically provide for the method or procedure for the revision or for the approval of a new constitution, should it now be held, that the people have placed such restrictions on themselves that they are not disabled from exercising their right as the ultimate source of political power from changing the old constitution which, in their view, was not responsive to their needs and in adopting a new charter of government to enable them to rid themselves from the shackles of traditional norms and to pursue with new dynamism the realization of their true longings and aspirations, except in the manner and form provided by Congress for previous plebiscites? Was not the expansion of the base of political participation, by the inclusion of the youth in the process of ratification who after all constitute the preponderant majority more in accord with the spirit and philosophy of the constitution that political power is inherent in the people collectively? As clearly expounded by Justice Makasiar, in his opinion, in all the cases cited where the Courts held that the submission of the proposed amendment was illegal due to the absence of substantial compliance with the procedure prescribed by the constitution, the procedure prescribed by the state Constitution, is so detailed, that specified the manner in which such submission shall be made, the persons qualified to vote for the same, the date of election and other definite standards, from which the court could safely ascertain whether or not the submission was in accordance with the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the dissenting opinions involved in the application of the provisions of the state Constitution of Minnesota which clearly prescribed in detail the procedure under which the Constitution may be amended or revised. 2 This is not true with our Constitution. In the case of revision there are no "standards meet for judicial judgment." 3 The framers of our Constitution were free to provide in the Constitution the method or procedure for the revision or rewriting of the entire constitution, and if such was their intention, they could and should have so provided. Precedents were not wanting. The constitutions of the various states of the American Union did provide for procedures for their amendment and methods for their revision. 4 Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the 1935 Charter. To declare what the law is, or has been, is a judicial power, but to declare what the law shall be is not within Our judicial competence and authority. Upon the other hand, since our fundamental charter has not provided the method or procedure for the revision or complete change of the Constitution, it is evident that the people have reserved such power in themselves. They decided to exercise it not through their legislature, but through a Convention expressly chosen for that purpose. The Convention as an independent and sovereign body has drafted not an amendment but a completely new Constitution, which decided to submit to the people for approval, not through an act of Congress, but by means of decrees to be promulgated by the President. In view of the inability of Congress to act, it was within the constitutional powers of the President, either as agent of the Constitutional

Convention, or under his authority under martial law, to promulgate the necessary measures for the ratification of the proposed new Constitution. The adoption the new Charter was considered as a necessary basis for all the reforms set in motion under the new society, to root out the causes of unrest. The imperatives of the emergency underscored the urgency of its adoption. The people in accepting such procedure and in voting overwhelmingly for the approval of the new Constitution have, in effect, ratified the method and procedure taken. "When the people adopt completely revised or new constitution," said the Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the instrument is not what gives it binding force and effect. The fiat of the people, and only the fiat of the people, can breathe life into a constitution." This has to be so because, in our political system, all political power is inherent in the people and free governments are founded on their authority and instituted for their benefit. Thus Section 1 of Article II of the 1935 Constitution declares that: "Sovereignty resides in the people and all government authority emanate from them." Evidently the term people refers to the entire citizenry and not merely to the electorate, for the latter is only a fraction of the people and is only an organ of government for the election of government officials. III The more compelling question, however is: Has this Court the authority to nullify an entire Constitution that is already effective as it has been accepted and acquiesced in by the people as shown by their compliance with the decree promulgated thereunder, their cooperation in its implementation, and is now maintained by the Government that is in undisputed authority and dominance? Of course it is argued that acquiescence by the people can be deduced from their acts of conformity, because under a regime of martial law the people are bound to obey and act in conformity with the orders of the President, and has absolutely no other choice. The flaw of this argument lies in its application of a mere theoretical assumption based on the experiences of other nations on an entirely different factual setting. Such an assumption flounders on the rock of reality. It is true that as a general rule martial law is the use of military forces to perform the functions of civil government. Some courts have viewed it as a military regime which can be imposed in emergency situations. In other words, martial rule exists when the military rises superior to the civil power in the exercise of some or all the functions of government. Such is not the case in this country. The government functions thru its civilian officials. The supremacy of the civil over the military authority is manifest. Except for the imposition of curfew hours and other restrictions required for the security of the State, the people are free to pursue their ordinary concerns. In short, the existing regime in this Country, does not contain the oppressive features, generally associated with a regime of Martial law in other countries. "Upon the other hand the masses of our people have accepted it, because of its manifold blessings. The once downtrodden rice tenant has at long last been emancipated a consummation devoutly wished by every Philippine President since the 1930's. The laborer now holds his head high because his rights are amply protected and respected." * A new sense of discipline has swiftly spread beyond the corridors of government into the social order. Responding to the challenges of the New Society, the people have turned in half a million loose firearms, paid their taxes on undeclared goods and income in unprecedented numbers and amount, lent their labors in massive cooperation in land reform, in the repair of dikes, irrigation ditches, roads and bridges, in reforestation, in the physical transformation of the environment to make ours a cleaner and greener land. "The entire country is turning into one vast garden growing food for the body, for thought and for the soul." * More important the common man has at long last been freed from the incubus of fear. "Martial law has paved the way for a re-ordering of the basic social structure of the Philippines" reported Frank Valeo to the United States Senate. "President Marcos has been prompt and sure-footed in using the power of presidential decree under martial law for this purpose. He has zeroed in on areas which have been widely recognized as prime sources of the nation's difficulties land tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows his targets ... there is marked public support for his leadership..." (Bulletin Today, March 3 and 4, 1973).. In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April 11 issue of The New York Times: During his first Presidential term (1965-1969), Mr. Marcos was discouraged by the failure of legislators to approve urgently needed reforms. He found his second term further frustrated by spread riots, a Maoist uprising in Luzon and a much more serious Moslem insurrection in the southern islands from Mindanao across the Sulu archipelago to the frontier regions of Malaysia and Indonesia. Manila claims this war is Maoist-coordinated. Mr. Marcos has now in effect taken all the reins of power and makes no promise as to when he will relinquish them. But, while fettering a free press, terminating Congress and locking up some opponents (many of whom were later amnestied), he has hauled the Philippines out of stagnation. Sharecropping is being ended as more than three million acres of arable land are redistributed with state funds. New roads have been started. The educational system is undergoing revision, a corruption is diminished. In non-communist Asia it is virtually impossible to wholly end it and this disagreeable phenomenon still reaches very high. Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarian middle-class to replace the archaic sharecropper-absentee landlord relationship. He is even pushing for a birth control program with the tacit acceptance of the Catholic Church. He has started labor reforms and increased wages. (Daily Express, April 15, 1973) As explained in this writer's opinion of April 24, 1973 on the "Constancia" and "Manifestation" of counsel for petitioners: The new Constitution is considered effective "if the norms created in conformity with it are by and large applied and obeyed. As soon as the old Constitution loses its effectiveness and the new Constitution has become effective, the acts that appear with the subjective meaning of creating or applying legal norms are no longer interpreted by presupposing the old basic norm, but by presupposing the new one. The statutes issued under the old Constitution and not taken over are no longer regarded as valid, and the organs authorized by the old Constitution no longer competent." (Kelsen, Pure Theory of Law, [1967].)

The essentially political nature of the question is at once made manifest by understanding that in the final analysis, what is assailed is not merely the validity of Proclamation No. 1102 of the President, which is merely declaratory of the fact of approval or ratification, but the legitimacy of the government. It is addressed more to the framework and political character of this Government which now functions under the new Charter. It seeks to nullify a Constitution that is already effective. In such a situation, We do not see how the question posed by petitioners could be judicially decided. "Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power." (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.) In other words, where a complete change in the fundamental law has been effected through political action, the Court whose existence is affected by such change is, in the words of Mr. Melville Fuller Weston, "precluded from passing upon the fact of change by a logical difficulty which is not to be surmounted." 5 Such change in the organic law relates to the existence of a prior point in the Court's "chain of title" to its authority and "does not relate merely to a question of the horizontal distribution of powers." 6 It involves in essence a matter which "the sovereign has entrusted to the so-called political departments of government or has reserved to be settled by its own extra governmental action." 7 The non-judicial character of such a question has been recognized in American law. "From its earliest opinions this Court has consistently recognized," said Justice Frankfurter, in his illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies which do not lend themselves to judicial standards and judicial remedies. To classify the various instances as "political questions" is rather a form of stating this conclusion than revealing of analysis ... The crux of the matter is that courts are not fit instruments of decision where what is essentially at stake is the composition of those large contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of governments are made and unmade." The diversity of views contained in the opinions of the members of this Court, in the cases at bar, cannot be a case on "right" or "wrong" views of the Constitution. It is one of attitudes and values. For there is scarcely any principle, authority or interpretation which has not been countered by the opposite. At bottom, it is the degree of one's faith in the nation's leadership and in the maturity of judgment of our people. IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this Court in its judgment of March question becomes wholly moot except for this consideration, that, when the judges as individuals or as a body of individuals come to decide which king or which constitution they will support and assert to represent, it may often be good judgment for them to follow the lead of the men who as a practical matter are likely to be looked to by the people as more representative of themselves and conversely are likely to be more directly in touch with popular sentiment. If, however, the judges hold too strong views of their own to be able to take this course, they may follow their own leads at their own hazard. No question of law is involved. (Political Questions, 38 Harvard Law Review [1924-25], pp. 305-309.) 31, 1973 are fully justified. Barredo, Makasiar and Esguerra, JJ., concur. APPENDIX TO OPINION (G.R. Nos. L-36142, 36164, 36165, 36236 & 36283) PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY PROVIDING FOR AMENDMENT AND REVISION @ 1. Alaska (1959) Art. XIII. Amendment and Revision. Sec. 1. Amendments. Amendments to this constitution may be proposed by a two-thirds vote of each house of the legislature. The secretary of state shall prepare a ballot title and proposition summarizing each proposed amendment, and shall place them on the ballot for the next statewide election. If a majority of the votes cast on the proposition favor the amendment, it becomes effective thirty days after the certification of the election returns by the secretary of state. Sec. 2. Convention. The legislature may call constitutional conventions at any time. Sec. 3. Call by referendum. If during any ten-year period a constitutional convention has not been held, the secretary of state shall place on the ballot for the next general election the question: "Shall there be a Constitutional Convention?" If a majority of the votes cast on the question are in the negative, the question need not be placed on the ballot until the end of the next ten-year period. If a majority of the votes cast on the question are in the affirmative, delegates to the convention shall be chosen at the next regular statewide election, unless the legislature provides for the election of the election delegates at a special election. The secretary of state shall issue the call for the convention. Unless other provisions have been made by law, the call shall conform as nearly as possible to the act calling the Alaska Constitutional Convention of 1955, including, but not limited to, number of members, districts, election and certification of delegates, and submission and ratification of revisions and ordinances. ... . Sec. 4. Powers. Constitutional conventions shall have plenary power to amend or revise the constitution, subject only to ratification by the people. No call for a constitutional convention shall limit these powers of the convention. 2. California (1879) Art. XVIII. Amending and Revising the Constitution.

Sec. 1. Constitutional amendments. Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in their Journals, with the yeas and nays taken thereon; and it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people in such manner, and at such time, and after such publication as may be deemed expedient. Should more amendments than one be submitted at the same election they shall be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately. If the people shall approve and ratify such amendment or amendments, or any of them, by a majority of the qualified electors voting thereon such amendment or amendments shall become a part of this constitution. Sec. 2. Constitutional convention. Whenever two-thirds of the members elected to each branch of the Legislature shall deem it necessary to revise this Constitution, they shall recommend to the electors to vote at the next general for or against a Convention for that purpose, and if a majority of the electors voting at such election on the proposition for a Convention shall vote in favor thereof, the Legislature shall, at its next session, provide by law for calling the same. The Convention shall consist of a number of delegates not to exceed that of both branches of the Legislature, who shall be chosen in the same manner, and have the same qualifications, as Members of the Legislature. The delegates so elected shall meet within three months after their election at such place as the Legislature may direct. At a special election to be provided for by law, the Constitution that may be agreed upon by such Convention shall be submitted to the people for their ratification or rejection, in such manner as the Convention may determine . The returns of such election shall, in such manner as the Convention shall direct, be certified to the Executive of the State, who shall call to his assistance the Controller, Treasurer, and Secretary of State, and compare the returns so certified to him; and it shall be the duty of the Executive to declare, by his proclamation, such Constitution, as may have been ratified by a majority of all the votes cast at such special election, to be the Constitution of the State of California. 3. Colorado (1876) Art. XIX. Amendments. Sec. 1. Constitutional convention; how called. The general assembly may at any time be a vote of two-thirds of the members elected to each house, recommend to the electors of the state, to vote at the next general election for or against a convention to revise, alter and amend this constitution; and if a majority of those voting on the question shall declare in favor of such convention, the general assembly shall, at the next session, provide for the calling thereof. The number of members of the convention shall be twice that of the senate and they shall be elected in the same manner, at the same places, and in the same districts. The general assembly shall, in the act calling the convention, designate the day, hour and place of its meeting; fix the pay of its members and officers, and provide for the payment of the same, together with the necessary expenses of the convention. Before proceeding, the members shall take an oath to support the constitution of the United States, and of the state of Colorado, and to faithfully discharge their duties as members of the convention. The qualifications of members shall be the same as of members of the senate; and vacancies occurring shall be filled in the manner provided for filling vacancies in the general assembly. Said convention shall meet within three months after such election and prepare suchrevisions, alterations or amendments to the constitution as may be deemed necessary; which shall be submitted to the electors for their ratification or rejection at an election appointed by the convention for that purpose, not less than two nor more than six months after adjournment thereof; and unless so submitted and approved by a majority of the electors voting at the election, no such revision, alteration or amendment shall take effect. Sec. 2. Amendments to constitution; how adopted. Any amendment or amendments to this constitution may be proposed in either house of the general assembly, and if the same shall be voted for by two-thirds of all the members elected to each house, such proposed amendment or amendments, together with the ayes and noes of each house hereon, shall be entered in full on their respective journals; the proposed amendment or amendments shall be published with the laws of that session of the general assembly, and the secretary of state shall also cause the said amendment or amendments to be published in full in not more than one newspaper of general circulation in each county, for four successive weeks previous to the next general election for members of the general assembly; and at said election the said amendment or amendments shall be submitted to the qualifiedelectors of the state for their approval or rejection, and such as are approved by a majority of those voting thereon shall become part of this constitution. Provided, that if more than one amendment be submitted at any general election, each of said amendments shall be voted upon separately and votes thereon cast shall be separately counted the same as though but one amendment was submitted. But the general assembly shall have no power to propose amendments to more than six articles of this constitution at the same session. 4. Delaware (1897) Art. XVI. Amendments and Conventions. Sec. 1. Proposal of constitutional amendments in general assembly; procedure. Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives; and if the same shall be agreed to by two-thirds of all the members elected to each House, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and the Secretary of State shall cause such proposed amendment or amendments to be published three months before the next general election in at least three newspapers in each County in which such newspaper shall be published; and if in the General Assembly next after the said election such proposed amendment or amendments shall upon yea and nay vote be agreed to by two-thirds of all the members elected to each House, the same shall thereupon become part of the Constitution . Sec. 2. Constitutional conventions; procedure; compensation of delegates; quorum; powers and duties; vacancies . The General Assembly by a twothirds vote of all the members elected to each House may from time to time provide for the submission to the qualified electors of the State at the general election next thereafter the question, "Shall there be a Convention to revise the Constitution and amend the same?;" and upon such submission, if a majority of those voting on said question shall decide in favor of a Convention for such purpose, the General Assembly at its next session shall provide for the election of delegates to such convention at the next general election. Such Convention shall be composed of forty-one delegates, one of whom shall be chosen from each Representative District by the qualified electors thereof, and two of whom shall be chosen from New Castle County, two from Kent County and two from Sussex County by the qualified electors thereof respectively. The delegates so chosen shall convene at the Capital of the State on the first Tuesday in September next after their election. Every delegate shall receive for his services such compensation as shall be provided by law. A majority of the Convention shall constitute a quorum for the transaction of business. The Convention shall have the power to appoint such officers, employees and assistants as it may be deem necessary, and fix their compensation, and provide for the printing of its documents, journals, debates and proceedings. The Convention shall determine the rules of its proceedings, and be the judge of the elections, returns and qualifications of its members. Whenever there shall be a vacancy in the office of delegate from any district or county by reason of failure to elect, ineligibility, death, resignation or otherwise, a writ of election to fill such vacancy shall be issued by the Governor, and such vacancy shall be filled by the qualified electors of such district or county. 5. Florida (1887) Art. XVII. Amendments.

Sec. 1. Method of amending constitution. Either branch of the Legislature, at any regular session, or at any special or extra-ordinary session thereof called for such purpose either in the governor's original call or any amendment thereof, may propose the revision or amendment of any portion or portions of this Constitution. Any such revision or amendment may relate to one subject or any number of subjects, but no amendment shall consist of more than one revised article of the Constitution. If the proposed revision or amendment is agreed to by three-fifths of the members elected to each house, it shall be entered upon their respective journals with the yeas and nays and published in one newspaper in each county where a newspaper is published for two times, one publication to be made not earlier than ten weeks and the other not later than six weeks, immediately preceding the election at which the same is to be voted upon, and thereupon submitted to the electors of the State for approval or rejection at the next general election, provided, however, that such revision or amendment may be submitted for approval or rejection in a special election under the conditions described in and in the manner provided by Section 3 of Article XVII of the Constitution. If a majority of the electors voting upon the amendment adopt such amendment the same shall become a part of this Constitution. Sec. 2. Method of revising constitution. If at any time the Legislature, by a vote of two-thirds of all the members of both Houses, shall determine that a revision of this Constitution is necessary, such determination shall be entered upon their respective Journals, with yea's and nay's thereon. Notice of said action shall be published weekly in one newspaper in every county in which a newspaper is published, for three months preceding the next general election of Representatives, and in those countries where no newspaper is published, notice shall be given by posting at the several polling precincts in such counties for six weeks next preceding said election. The electors at said election may vote for or against the revision in question. If a majority of the electors so voting be in favor of revision, the Legislature chosen at such election shall provide by law for a Convention to revise the Constitution, said Convention to be held within six months after the passage of such law. The Convention shall consist of a number equal to the membership of the House of Representatives, and shall be apportioned among the several counties in the same manner as members of said House. 6. Idaho (1890) Art. XIX. Amendments. Sec. 1. How amendments may be proposed. Any amendment or amendments to this Constitution may be proposed in either branch of the legislature, and if the same shall be agreed to by two-thirds of all the members of each of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election, and cause the same to be published without delay for at least six consecutive weeks, prior to said election, in not less than one newspaper of the general circulation published in each county; and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this Constitution. Sec. 3. Revision or amendments by convention. Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the electors to vote at the next general election, for or against a convention, and if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall at the next session provide by law for calling the same; and such convention shall consist of a number of members, not less than double the number of the most numerous branch of the legislature. 7. Iowa (1857) Art. X. Amendments to the Constitution. Sec. 3. Convention. At the general election to be held in the year one thousand eight hundred and seventy, and in each tenth year thereafter, and also at such times as the General Assembly may, by law, provide, the question, "Shall there be a Convention to revise the Constitution, and amend the same?" shall be decided by the electors qualified to vote for members of the General Assembly; and in case a majority of the electors so qualified, voting at such election, for and against such proposition, shall decide in favor of a Convention for such purpose, the General Assembly, at its next session, shall provide by law for the election of delegates to such Convention. 8. Michigan (1909) Art. XVII. Amendments and Revision. Sec. 1. Amendments to constitution; proposal by legislature; submission to electors. Any amendment or amendments to this constitution may be proposed in the senate or house of representatives. If the same shall be agreed to by 2/3 of the members elected to each house, such amendment or amendments shall be entered on the journals, respectively, with the yeas and nays taken thereon; and the same shall be submitted to the electors at the next spring or autumn election thereafter, as the legislature shall direct; and, if a majority of the electors qualified to vote for members of the legislature voting thereon shall ratify and approve such amendment or amendments, the same shall become part of the constitution. Sec. 4. General revision; convention; procedure. At the Biennial Spring Election to be held in the year 1961, in each sixteenth year thereafter and at such times as may be provided by law, the question of a General Revision of the Constitution shall be submitted to the Electors qualified to vote for members of the Legislature. In case a majority of the Electors voting on the question shall decide in favor of a Convention for such purpose, at an Election to be held not later than four months after the Proposal shall have been certified as approved, the Electors of each House of Representatives District as then organized shall Elect One Delegate for each Electors of each Senatorial District as then organized shall Elect One Delegate for each State Senator to which the District is entitled. The Delegates so elected shall convene at the Capital City on the First Tuesday in October next succeeding such election, and shall continue their sessions until the business of the convention shall be completed. A majority of the delegates elected shall constitute a quorum for the transaction of business. ... Noproposed constitution or amendment adopted by such convention shall be submitted to the electors for approval as hereinafter provided unless by the assent of a majority of all the delegates elected to the convention, the yeas and nays being entered on the journal. Any proposed constitution or amendments adopted by such convention shall be submitted to the qualified electors in the manner provided by such convention on the first Monday in April following the final adjournment of the convention; but, in case an interval of at least 90 days shall not intervene between such final adjournment and the date of such election. Upon the approval of such constitution or amendments by a majority of the qualified electors voting thereon such constitution or amendments shall take effect on the first day of January following the approval thereof. 9. Minnesota (1857) Art. XIV. Amendments to the Constitution. Sec. 1. Amendments to constitution; majority vote of electors voting makes amendment valid . Whenever a majority of both houses of the legislature shall deem it necessary to alter or amend this Constitution, they may proposed such alterations or amendments, which proposed amendments shall be

published with the laws which have been passed at the same session, and said amendments shall be submitted to the people for their approval or rejection at any general election, and if it shall appear, in a manner to be provided by law, that a majority of all the electors voting at said election shall have voted for and ratified such alterations or amendments, the same shall be valid to all intents and purposes as a part of this Constitution. If two or more alterations or amendments shall be submitted at the same time, it shall be so regulated that the voters shall vote for or against each separately. Sec. 2. Revision of constitution. Whenever two-thirds of the members elected to each branch of the legislature shall think it necessary to call a convention to revise this Constitution, they shall recommend to the electors to vote at the next general election for members of the legislature, for or against a convention; and if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall, at their next session, provide by law for calling the same. The convention shall consist of as many members as the House of Representatives, who shall be chosen in the same manner, and shall meet within three months after their election for the purpose aforesaid. Sec. 3. Submission to people of revised constitution drafted at convention. Any convention called to revise this constitution shall submit any revision thereof by said convention to the people of the State of Minnesota for their approval or rejection at the next general election held not less than 90 days after the adoption of such revision, and, if it shall appear in the manner provided by law that three-fifths of all the electors voting on the question shall have voted for and ratified such revision, the same shall constitute a new constitution of the State of Minnesota. Without such submission and ratification, said revision shall be of no force or effect. Section 9 of Article IV of the Constitution shall not apply to election to the convention. 10. Nevada (1864) Art. 16. Amendments. Sec. 1. Constitutional amendments; procedure. Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly; and if the same shall be agreed to by a Majority of all the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their respective journals, with the Yeas and Nays taken thereon, and referred to the Legislature then next to be chosen, and shall be published for three months next preceding the time of making such choice. And if in the Legislature next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people, in such manner and at such time as the Legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the Legislature voting thereon, such amendment or amendments shall become a part of the Constitution. Sec. 2. Convention for revision of constitution; procedure. If at any time the Legislature by a vote of two-thirds of the Members elected to each house, shall determine that it is necessary to cause a revision of this entire Constitution they shall recommend to the electors at the next election for Members of the Legislature, to vote for or against a convention, and if it shall appear that a majority of the electors voting at such election, shall have voted in favor of calling a Convention, the Legislature shall, at its next session provide by law for calling a Convention to be holden within six months after the passage of such law, and such Convention shall consist of a number of Members not less that of both branches of the legislature. In determining what is a majority of the electors voting such election, reference shall be had to the highest number of vote cast at such election for the candidates of any office or on any question. 11. New Hamspire (1784) Art. 99. Revision of constitution provided for. It shall be the duty of the selectmen, and assessors, of the several towns and places in this state, in warning the first annual meetings for the choice of senators, after the expiration of seven years from the adoption of this constitution, as amended, to insert expressly in the warrant this purpose, among the others for the meeting, to wit, to take the sense of the qualified voters on the subject of a revision of the constitution; and, the meeting being warned accordingly, and not otherwise, the moderator shall take the sense of the qualified voters present as to the necessity of a revision; and a return of the number of votes for and against such necessity, shall be made by the clerk sealed up, and directed to the general court at their then next session; and if, it shall appear to the general court by such return, that the sense of the people of the state has taken, and that, in the opinion of the majority of the qualified voters in the state, present and voting at said meetings, there is a necessity for a revision of the constitution, it shall be the duty of the general court to call a convention for that purpose, otherwise the general court shall direct the sense of the people to be taken, and then proceed in the manner before mentioned. The delegates to be chosen in the same manner, and proportioned, as the representatives to the general court; provided that no alterations shall be made in this constitution, before the same shall be laid before the towns and unincorporated places, and approved by two thirds of the qualified voters present and voting on the subject. 12. Oklahoma (1907) Art. XXIV. Constitutional Amendments. Sec. 1. Amendments proposed by legislature; a submission to vote. Any amendment or amendments to this Constitution may be proposed in either branch of the Legislature, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall, with yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their approval or rejection, at the next regular general election, except when the Legislature, by a two-thirds vote of each house, shall order a special election for that purpose. If a majority of all the electors voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of this Constitution. If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or against them separately. No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more than one general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that in the submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each proposed article shall be deemed a single proposals or proposition Sec. 2. Constitutional convention to propose amendments or new constitution. No convention shall be called by the Legislature to propose alterations, revisions, or amendments to this Constitution, or to propose a new Constitution, unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular or special election, and any amendments, alterations, revisions, or new Constitution, proposed by such convention, shall be submitted to the electors of the State at a general or special election and be approved by a majority of the electors voting thereon, before the same shall become effective Provided, That the question of such proposed convention shall be submitted to the people at least once in every twenty years.

13. Oregon (1859) Art. XVII. Amendments and Revisions. Sec. 1. Method of amending constitution. Any amendment or amendments to this Constitution may be proposed in either branch of the legislative assembly, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the secretary of state to the people for their approval or rejection, at the next regular election, except when the legislative assembly shall order a special election for that purpose. If a majority of the electors voting on any such amendment shall vote in favor thereof, it shall thereby become a part of this Constitution. The votes for and against such amendment, or amendments, severally, whether proposed by the legislative assembly or by initiative petition, shall be canvassed by the secretary of state in the presence of the governor, and if it shall appear to the governor that the majority of the votes cast at said election on said amendment, or amendments, severally, are cast in favor thereof, it shall be his duty forthwith after such canvass, by his proclamation, to declare the said amendment, or amendments, severally, having received said majority of votes to have been adopted by the people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of the Constitution from the date of such proclamation. When two or more amendments shall be submitted in the manner aforesaid to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately. No convention shall be called to amend or propose amendments to this Constitution, or to propose a new Constitution, unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular general election. This article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative petition therefor. Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution granted by section 1, Article IV, and section 1 of this Article, a revision of all or part of this Constitution may be proposed in either house of the Legislative Assembly and, if the proposed revision is agreed to by at least two-thirds of all the members of each house, the proposed revision shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their approval or rejection, notwithstanding section 1, Article IV of this Constitution, at the next regular state-wide primary election, except when the Legislative Assembly orders a special election for that purpose. A proposed revision may deal with more than one subject and shall be voted upon as one question. The votes for and against the proposed revision shall be canvassed by the Secretary of State in the presence of the Governor and, if it appears to the Governor that the majority of the votes cast in the election on the proposed revision are in favor of the proposed revision, he shall, promptly following the canvass, declare, by his proclamation, that the proposed revision has received a majority of votes and has been adopted by the people as the Constitution of the State of Oregon, as the case may be. The revision shall be in effect as the Constitution or as a part of this Constitution from the date of such proclamation. 14. Utah (1896) Art. 23. Amendments. Sec. 1. Amendments; method of proposal and approval. Any amendments to his Constitution may be proposed in either house of the Legislature, and if two-thirds of all the members elected of the two houses, shall vote in favor thereof, such proposed amendment or amendments shall be entered on their respective journals with the yeas and nays taken thereon; and the Legislature shall cause the same to be published in at least one newspaper in every county of the State, where a newspaper is published, for two months immediately preceding the next general election, at which time the said amendment or amendments shall be submitted to the electors of the State, for their approval or rejection, and if a majority of the electors voting thereon shall approve the same, such amendment or amendments shall become part of this Constitution. If two or more amendments are proposed, they shall be so submitted as to enable the electors to vote on each of them separately. Sec. 2. Revision of the Constitution by convention. Whenever two-thirds of the members, elected to each branch of the Legislature, shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the electors to vote at the next general election, for or against a convention, and, if a majority of all the electors, voting at such election, shall vote for a convention. The Legislature, at its next session, shall provide by law for calling the same. The convention shall consist of not less than the number of members in both branches of the Legislature. 15. Wyoming (1890) Art. XX. Amendments. Sec. 1. Procedure for amendments. Any amendment or amendments to this Constitution may be proposed in either branch of the legislature, and, if the same shall be agreed to by two-thirds of all the members of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election, in at least one newspaper of general circulation, published in each county, and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this constitution. Sec. 2. How voted for. If two or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against each of them separately. Sec. 3. Constitutional convention; provision for. Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this constitution, they shall recommend to the electors to vote at the next general election for or against a convention, and if a majority of all the electors voting at such election shall have voted for a convention, the legislature shall at the next session provide by a law for calling the same; and such convention shall consist of a number of members, not less than double that of the most numerous branch of the legislature. Sec. 4. New constitution. Any constitution adopted by such convention shall have no validity until it has been submitted to and adopted by the people.

Gonzales vs. COMELEC, 21 SCRA 774 (1967)

Republic of the Philippines SUPREME COURT Manila

EN BANC G.R. No. L-28196 November 9, 1967

RAMON A. GONZALES, petitioner, vs. COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR GENERAL, respondents. G.R. No. L-28224 November 9, 1967

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner, vs. COMMISSION ON ELECTIONS, respondent. No. 28196: Ramon A. Gonzales for and in his own behalf as petitioner. Juan T. David as amicus curiae Office of the Solicitor General for respondents. No. 28224: Salvador Araneta for petitioner. Office of the Solicitor General for respondent. CONCEPCION, C.J.: G. R. No. L-28196 is an original action for prohibition, with preliminary injunction. Petitioner therein prays for judgment: 1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or from performing any act that will result in the holding of the plebiscite for the ratification of the constitutional amendments proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of Congress of the Philippines, approved on March 16, 1967; (b) the Director of Printing from printing ballots, pursuant to said Act and Resolutions; and (c) the Auditor General from passing in audit any disbursement from the appropriation of funds made in said Republic Act No. 4913; and 2) declaring said Act unconstitutional and void. The main facts are not disputed. On March 16, 1967, the Senate and the House of Representatives passed the following resolutions: 1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the Constitution of the Philippines, be amended so as to increase the membership of the House of Representatives from a maximum of 120, as provided in the present Constitution, to a maximum of 180, to be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, although each province shall have, at least, one (1) member; 2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the convention to be composed of two (2) elective delegates from each representative district, to be "elected in the general elections to be held on the second Tuesday of November, 1971;" and 3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended so as to authorize Senators and members of the House of Representatives to become delegates to the aforementioned constitutional convention, without forfeiting their respective seats in Congress. Subsequently, Congress passed a bill, which, upon approval by the President, on June 17, 1967, became Republic Act No. 4913, providing that the amendments to the Constitution proposed in the aforementioned Resolutions No. 1 and 3 be submitted, for approval by the people, at the general elections which shall be held on November 14, 1967. The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28, 1967, the Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T. David and counsel for the Philippine Constitution Association hereinafter referred to as the PHILCONSA were allowed to argue as amici curiae. Said counsel for the PHILCONSA, Dr. Salvador Araneta, likewise prayed that the decision in this case be deferred until after a substantially identical case brought by said organization before the Commission on Elections, 1 which was expected to decide it any time, and whose decision would, in all probability, be appealed to this Court had been submitted thereto for final determination, for a joint decision on the identical issues raised in both cases. In fact, on October 31, 1967, the PHILCONSA filed with this Court the petition in G. R. No. L-28224, for review bycertiorari of the resolution of the Commission on Elections2 dismissing the petition therein. The two (2) cases were deemed submitted for decision on November 8, 1967, upon the filing of the answer of respondent, the memorandum of the petitioner and the reply memorandum of respondent in L-28224. Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and a voter. He claims to have instituted case L-28196 as a class unit, for and in behalf of all citizens, taxpayers, and voters similarly situated. Although respondents and the Solicitor General have filed an answer denying the truth of this allegation, upon the ground that they have no knowledge or information to form a belief as to the truth thereof, such denial would appear to be a perfunctory one. In fact, at the hearing of case L-28196, the Solicitor General expressed himself in favor of a judicial determination of the merits of the issued raised in said case.

The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and existing under the laws of the Philippines, and a civic, non-profit and non-partisan organization the objective of which is to uphold the rule of law in the Philippines and to defend its Constitution against erosions or onslaughts from whatever source. Despite his aforementioned statement in L-28196, in his answer in L-28224 the Solicitor General maintains that this Court has no jurisdiction over the subject-matter of L-28224, upon the ground that the same is "merely political" as held in Mabanag vs. Lopez Vito.3 Senator Arturo M. Tolentino, who appeared before the Commission on Elections and filed an opposition to the PHILCONSA petition therein, was allowed to appear before this Court and objected to said petition upon the ground: a) that the Court has no jurisdiction either to grant the relief sought in the petition, or to pass upon the legality of the composition of the House of Representatives; b) that the petition, if granted, would, in effect, render in operational the legislative department; and c) that "the failure of Congress to enact a valid reapportionment law . . . does not have the legal effect of rendering illegal the House of Representatives elected thereafter, nor of rendering its acts null and void." JURISDICTION As early as Angara vs. Electoral Commission,4 this Court speaking through one of the leading members of the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel declared that "the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof." It is true that in Mabanag vs. Lopez Vito,5 this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution which was being submitted to the people for ratification satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate,6 Avelino vs. Cuenco,7 Taada vs. Cuenco,8 and Macias vs. Commission on Elections.9 In the first, we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the, Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives, upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus we rejected the theory, advanced in these four (4) cases, that the issues therein raised were political questions the determination of which is beyond judicial review. Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress.10 It is part of the inherent powers of the people as the repository of sovereignty in a republican state, such as ours11 to make, and, hence, to amend their own Fundamental Law. Congress may propose amendments to the Constitution merely because the same explicitly grants such power.12Hence, when exercising the same, it is said that Senators and Members of the House of Representatives act, notas members of Congress, but as component elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike the people, when performing the same function,13 for their authority does not emanate from the Constitution they are the very source of all powers of government, including the Constitution itself . Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme Court, 14 the power to declare a treaty unconstitutional,15 despite the eminently political character of treaty-making power. In short, the issue whether or not a Resolution of Congress acting as a constituent assembly violates the Constitution essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito,16 the latter should be deemed modified accordingly. The Members of the Court are unanimous on this point. THE MERITS Section 1 of Article XV of the Constitution, as amended, reads: The Congress in joint session assembled by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification. Pursuant to this provision, amendments to the Constitution may be proposed, either by Congress, or by a convention called by Congress for that purpose. In either case, the vote of "three-fourths of all the members of the Senate and of the House of Representatives voting separately" is necessary. And, "such amendments shall be valid as part of" the "Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification." In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been approved by a vote of three-fourths of all the members of the Senate and of the House of Representatives voting separately. This, notwithstanding, it is urged that said resolutions are null and void because: 1. The Members of Congress, which approved the proposed amendments, as well as the resolution calling a convention to propose amendments, are, at best, de facto Congressmen; 2. Congress may adopt either one of two alternatives propose amendments or call a convention therefore but may not avail of both that is to say, propose amendment and call a convention at the same time;

3. The election, in which proposals for amendment to the Constitution shall be submitted for ratification, must be aspecial election, not a general election, in which officers of the national and local governments such as the elections scheduled to be held on November 14, 1967 will be chosen; and 4. The spirit of the Constitution demands that the election, in which proposals for amendment shall be submitted to the people for ratification, must be held under such conditions which, allegedly, do not exist as to give the people a reasonable opportunity to have a fair grasp of the nature and implications of said amendments. Legality of Congress and Legal Status of the Congressmen The first objection is based upon Section 5, Article VI, of the Constitution, which provides: The House of Representatives shall be composed of not more than one hundred and twenty Members who shall be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, but each province shall have at least one Member. The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise. Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts. Each representative district shall comprise, as far as practicable, contiguous and compact territory. It is urged that the last enumeration or census took place in 1960; that, no apportionment having been made within three (3) years thereafter, the Congress of the Philippines and/or the election of its Members became illegal; that Congress and its Members, likewise, became a de facto Congress and/or de facto congressmen, respectively; and that, consequently, the disputed Resolutions, proposing amendments to the Constitution, as well as Republic Act No. 4913, are null and void. It is not true, however, that Congress has not made an apportionment within three years after the enumeration or census made in 1960. It did actually pass a bill, which became Republic Act No. 3040,17 purporting to make said apportionment. This Act was, however, declared unconstitutional, upon the ground that the apportionment therein undertaken had not been made according to the number of inhabitants of the different provinces of the Philippines.18 Moreover, we are unable to agree with the theory that, in view of the failure of Congress to make a valid apportionment within the period stated in the Constitution, Congress became an "unconstitutional Congress" and that, in consequence thereof, the Members of its House of Representatives are de facto officers. The major premise of this process of reasoning is that the constitutional provision on "apportionment within three years after the return of every enumeration, and not otherwise," is mandatory. The fact that Congress is under legal obligation to make said apportionment does not justify, however, the conclusion that failure to comply with such obligation rendered Congress illegal or unconstitutional, or that its Members have become de facto officers. It is conceded that, since the adoption of the Constitution in 1935, Congress has not made a valid apportionment as required in said fundamental law. The effect of this omission has been envisioned in the Constitution, pursuant to which: . . . Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts. . . . . The provision does not support the view that, upon the expiration of the period to make the apportionment, a Congress which fails to make it is dissolved or becomes illegal. On the contrary, it implies necessarily that Congress shall continue to function with the representative districts existing at the time of the expiration of said period. It is argued that the above-quoted provision refers only to the elections held in 1935. This theory assumes that an apportionment had to be made necessarily before the first elections to be held after the inauguration of the Commonwealth of the Philippines, or in 1938.19 The assumption, is, however, unwarranted, for there had been no enumeration in 1935, and nobody could foretell when it would be made. Those who drafted and adopted the Constitution in 1935 could be certain, therefore, that the three-year period, after the earliest possible enumeration, would expire after the elections in 1938. What is more, considering that several provisions of the Constitution, particularly those on the legislative department, were amended in 1940, by establishing a bicameral Congress, those who drafted and adopted said amendment, incorporating therein the provision of the original Constitution regarding the apportionment of the districts for representatives, must have known that the three-year period therefor would expire after the elections scheduled to be held and actually held in 1941. Thus, the events contemporaneous with the framing and ratification of the original Constitution in 1935 and of the amendment thereof in 1940 strongly indicate that the provision concerning said apportionment and the effect of the failure to make it were expected to be applied to conditions obtaining after the elections in 1935 and 1938, and even after subsequent elections. Then again, since the report of the Director of the Census on the last enumeration was submitted to the President on November 30, 1960, it follows that the three-year period to make the apportionment did not expire until 1963, or after the Presidential elections in 1961. There can be no question, therefore, that the Senate and the House of Representatives organized or constituted on December 30, 1961, were de jure bodies, and that the Members thereof were de jure officers. Pursuant to the theory of petitioners herein, upon expiration of said period of three years, or late in 1963, Congress became illegal and its Members, or at least, those of the House of Representatives, became illegal holder of their respective offices, and were de facto officers. Petitioners do not allege that the expiration of said three-year period without a reapportionment, had the effect of abrogating or repealing the legal provision creating Congress, or, at least, the House of Representatives, and are not aware of any rule or principle of law that would warrant such

conclusion. Neither do they allege that the term of office of the members of said House automatically expired or that they ipso facto forfeited their seats in Congress, upon the lapse of said period for reapportionment. In fact, neither our political law, nor our law on public officers, in particular, supports the view that failure to discharge a mandatory duty, whatever it may be, would automatically result in the forfeiture of an office, in the absence of a statute to this effect. Similarly, it would seem obvious that the provision of our Election Law relative to the election of Members of Congress in 1965 were not repealed in consequence of the failure of said body to make an apportionment within three (3) years after the census of 1960. Inasmuch as the general elections in 1965 were presumably held in conformity with said Election Law, and the legal provisions creating Congress with a House of Representatives composed of members elected by qualified voters of representative districts as they existed at the time of said elections remained in force, we can not see how said Members of the House of Representatives can be regarded as de facto officers owing to the failure of their predecessors in office to make a reapportionment within the period aforementioned. Upon the other hand, the Constitution authorizes the impeachment of the President, the Vice-President, the Justices of the Supreme Court and the Auditor General for, inter alia, culpable violation of the Constitution,20 the enforcement of which is, not only their mandatory duty, but also, their main function. This provision indicates that, despite the violation of such mandatory duty, the title to their respective offices remains unimpaired, until dismissal or ouster pursuant to a judgment of conviction rendered in accordance with Article IX of the Constitution. In short, the loss of office or the extinction of title thereto is not automatic. Even if we assumed, however, that the present Members of Congress are merely de facto officers, it would not follow that the contested resolutions and Republic Act No. 4913 are null and void. In fact, the main reasons for the existence of the de facto doctrine is that public interest demands that acts of persons holding, under color of title, an office created by a valid statute be, likewise, deemed valid insofar as the public as distinguished from the officer in question is concerned.21 Indeed, otherwise, those dealing with officers and employees of the Government would be entitled to demand from them satisfactory proof of their title to the positions they hold,before dealing with them, or before recognizing their authority or obeying their commands, even if they should act within the limits of the authority vested in their respective offices, positions or employments. 22 One can imagine this great inconvenience, hardships and evils that would result in the absence of the de facto doctrine. As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It may not be contested except directly, by quo warranto proceedings. Neither may the validity of his acts be questioned upon the ground that he is merely a de facto officer.24 And the reasons are obvious: (1) it would be an indirect inquiry into the title to the office; and (2) the acts of a de facto officer, if within the competence of his office, are valid, insofar as the public is concerned. It is argued that the foregoing rules do not apply to the cases at bar because the acts therein involved have not been completed and petitioners herein are not third parties. This pretense is untenable. It is inconsistent with Tayko vs. Capistrano.25 In that case, one of the parties to a suit being heard before Judge Capistrano objected to his continuing to hear the case, for the reason that, meanwhile, he had reached the age of retirement. This Court held that the objection could not be entertained, because the Judge was at least, a de facto Judge, whose title can not be assailed collaterally. It should be noted that Tayko was not a third party insofar as the Judge was concerned. Tayko was one of the parties in the aforementioned suit. Moreover, Judge Capistrano had not, as yet, finished hearing the case, much less rendered decision therein. No rights had vested in favor of the parties, in consequence of the acts of said Judge. Yet, Tayko's objection was overruled. Needless to say, insofar as Congress is concerned, its acts, as regards the Resolutions herein contested and Republic Act No. 4913, are complete. Congress has nothing else to do in connection therewith. The Court is, also, unanimous in holding that the objection under consideration is untenable. Available Alternatives to Congress Atty. Juan T. David, as amicus curiae, maintains that Congress may either propose amendments to the Constitution or call a convention for that purpose, but it can not do both, at the same time. This theory is based upon the fact that the two (2) alternatives are connected in the Constitution by the disjunctive "or." Such basis is, however, a weak one, in the absence of other circumstances and none has brought to our attention supporting the conclusion drawn by the amicus curiae. In fact, the term "or" has, oftentimes, been held to mean "and," or vice-versa, when the spirit or context of the law warrants it.26 It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the constitutional provision on Congress, to be submitted to the people for ratification on November 14, 1967, whereas R. B. H. No. 2 calls for a convention in 1971, to consider proposals for amendment to the Constitution, in general. In other words, the subject-matter of R. B. H. No. 2 is different from that of R B. H. Nos. 1 and 3. Moreover, the amendments proposed under R. B. H. Nos. 1 and 3, will be submitted for ratification several years before those that may be proposed by the constitutional convention called in R. B. H. No. 2. Again, although the three (3) resolutions were passed on the same date, they were taken up and put to a vote separately, or one after the other. In other words, they were notpassed at the same time. In any event, we do not find, either in the Constitution, or in the history thereof anything that would negate the authority of different Congresses to approve the contested Resolutions, or of the same Congress to pass the same in, different sessions or different days of the same congressional session. And, neither has any plausible reason been advanced to justify the denial of authority to adopt said resolutions on the same day. Counsel ask: Since Congress has decided to call a constitutional convention to propose amendments, why not let the whole thing be submitted to said convention, instead of, likewise, proposing some specific amendments, to be submitted for ratification before said convention is held? The force of this argument must be conceded. but the same impugns the wisdom of the action taken by Congress, not its authority to take it. One seeming purpose thereof to permit Members of Congress to run for election as delegates to the constitutional convention and participate in the proceedings therein, without forfeiting their seats in Congress. Whether or not this should be done is a political question, not subject to review by the courts of justice. On this question there is no disagreement among the members of the Court. May Constitutional Amendments Be Submitted for Ratification in a General Election?

Article XV of the Constitution provides: . . . The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a contention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification. There is in this provision nothing to indicate that the "election" therein referred to is a "special," not a general, election. The circumstance that three previous amendments to the Constitution had been submitted to the people for ratification in special elections merely shows that Congress deemed it best to do so under the circumstances then obtaining. It does not negate its authority to submit proposed amendments for ratification in general elections. It would be better, from the viewpoint of a thorough discussion of the proposed amendments, that the same be submitted to the people's approval independently of the election of public officials. And there is no denying the fact that an adequate appraisal of the merits and demerits proposed amendments is likely to be overshadowed by the great attention usually commanded by the choice of personalities involved in general elections, particularly when provincial and municipal officials are to be chosen. But, then, these considerations are addressed to the wisdom of holding a plebiscite simultaneously with the election of public officer. They do not deny the authority of Congress to choose either alternative, as implied in the term "election" used, without qualification, in the abovequoted provision of the Constitution. Such authority becomes even more patent when we consider: (1) that the term "election," normally refers to the choice or selection of candidates to public office by popular vote; and (2) that the word used in Article V of the Constitution, concerning the grant of suffrage to women is, not "election," but "plebiscite." Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the Constitution, should be construed as meaning a special election. Some members of the Court even feel that said term ("election") refers to a "plebiscite," without any "election," general or special, of public officers. They opine that constitutional amendments are, in general, if not always, of such important, if not transcendental and vital nature as to demand that the attention of the people be focused exclusively on the subject-matter thereof, so that their votes thereon may reflect no more than their intelligent, impartial and considered view on the merits of the proposed amendments, unimpaired, or, at least, undiluted by extraneous, if not insidious factors, let alone the partisan political considerations that are likely to affect the selection of elective officials. This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be promoted. The ideal conditions are, however, one thing. The question whether the Constitution forbids the submission of proposals for amendment to the people except under such conditions, is another thing. Much as the writer and those who concur in this opinion admire the contrary view, they find themselves unable to subscribe thereto without, in effect, reading into the Constitution what they believe is not written thereon and can not fairly be deduced from the letter thereof, since the spirit of the law should not be a matter of sheer speculation. The majority view although the votes in favor thereof are insufficient to declare Republic Act No. 4913 unconstitutional as ably set forth in the opinion penned by Mr. Justice Sanchez, is, however, otherwise. Would the Submission now of the Contested Amendments to the People Violate the Spirit of the Constitution? It should be noted that the contested Resolutions were approved on March 16, 1967, so that, by November 14, 1967, our citizenry shall have had practically eight (8) months to be informed on the amendments in question. Then again, Section 2 of Republic Act No. 4913 provides: (1) that "the amendments shall be published in three consecutive issues of the Official Gazette, at least twenty days prior to the election;" (2) that "a printed copy of the proposed amendments shall be posted in a conspicuous place in every municipality, city and provincial office building and in every polling place not later than October 14, 1967," and that said copy "shall remain posted therein until after the election;" (3) that "at least five copies of said amendment shall be kept in each polling place, to be made available for examination by the qualified electors during election day;" (4) that "when practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall be kept in each polling place;" (5) that "the Commission on Elections shall make available copies of said amendments in English, Spanish and, whenever practicable, in the principal native languages, for free distributing:" and (6) that the contested Resolutions "shall be printed in full" on the back of the ballots which shall be used on November 14, 1967. We are not prepared to say that the foregoing measures are palpably inadequate to comply with the constitutional requirement that proposals for amendment be "submitted to the people for their ratification," and that said measures are manifestly insufficient, from a constitutional viewpoint, to inform the people of the amendment sought to be made. These were substantially the same means availed of to inform the people of the subject submitted to them for ratification, from the original Constitution down to the Parity Amendment. Thus, referring to the original Constitution, Section 1 of Act No. 4200, provides: Said Constitution, with the Ordinance appended thereto, shall be published in the Official Gazette, in English and in Spanish, for three consecutive issues at least fifteen days prior to said election, and a printed copy of said Constitution, with the Ordinance appended thereto, shall be posted in a conspicuous place in each municipal and provincial government office building and in each polling place not later than the twenty-second day of April, nineteen hundred and thirty-five, and shall remain posted therein continually until after the termination of the

election. At least ten copies of the Constitution with the Ordinance appended thereto, in English and in Spanish, shall be kept at each polling place available for examination by the qualified electors during election day. Whenever practicable, copies in the principal local dialects as may be determined by the Secretary of the Interior shall also be kept in each polling place. The provision concerning woman's suffrage is Section 1 of Commonwealth Act No. 34, reading: Said Article V of the Constitution shall be published in the Official Gazette, in English and in Spanish, for three consecutive issues at least fifteen days prior to said election, and the said Article V shall be posted in a conspicuous place in each municipal and provincial office building and in each polling place not later than the twenty-second day of April, nineteen and thirty-seven, and shall remain posted therein continually until after the termination of the plebiscite. At least ten copies of said Article V of the Constitution, in English and in Spanish, shall be kept at each polling place available for examination by the qualified electors during the plebiscite. Whenever practicable, copies in the principal native languages, as may be determined by the Secretary of the Interior, shall also be kept in each polling place. Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of the following tenor: The said amendments shall be published in English and Spanish in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipal, city, and provincial government office building and in every polling place not later than May eighteen, nineteen hundred and forty, and shall remain posted therein until after the election. At least ten copies of said amendments shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Secretary of the Interior, shall also be kept therein. As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect that: The said amendment shall be published in English and Spanish in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipal, city, and provincial government office building and in every polling place not later than February eleven, nineteen hundred and forty-seven, and shall remain posted therein until after the election. At least, ten copies of the said amendment shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall also be kept in each polling place. The main difference between the present situation and that obtaining in connection with the former proposals does not arise from the law enacted therefor. The difference springs from the circumstance that the major political parties had taken sides on previous amendments to the Constitution except, perhaps, the woman's suffrage and, consequently, debated thereon at some length before the plebiscite took place. Upon the other hand, said political parties have not seemingly made an issue on the amendments now being contested and have, accordingly, refrained from discussing the same in the current political campaign. Such debates or polemics as may have taken place on a rather limited scale on the latest proposals for amendment, have been due principally to the initiative of a few civic organizations and some militant members of our citizenry who have voiced their opinion thereon. A legislation cannot, however, be nullified by reason of the failure of certain sectors of the community to discuss it sufficiently. Its constitutionality or unconstitutionality depends upon no other factors than those existing at the time of the enactment thereof, unaffected by the acts or omissions of law enforcing agencies, particularly those that take place subsequently to the passage or approval of the law. Referring particularly to the contested proposals for amendment, the sufficiency or insufficiency, from a constitutional angle, of the submission thereof for ratification to the people on November 14, 1967, depends in the view of those who concur in this opinion, and who, insofar as this phase of the case, constitute the minority upon whether the provisions of Republic Act No. 4913 are such as to fairly apprise the people of the gist, the main idea or the substance of said proposals, which is under R. B. H. No. 1 the increase of the maximum number of seats in the House of Representatives, from 120 to 180, and under R. B. H. No. 3 the authority given to the members of Congress to run for delegates to the Constitutional Convention and, if elected thereto, to discharge the duties of such delegates, without forfeiting their seats in Congress. We who constitute the minority believe that Republic Act No. 4913 satisfies such requirement and that said Act is, accordingly, constitutional. A considerable portion of the people may not know how over 160 of the proposed maximum of representative districts are actually apportioned by R. B. H. No. 1 among the provinces in the Philippines. It is not improbable, however, that they are not interested in the details of the apportionment, or that a careful reading thereof may tend in their simple minds, to impair a clear vision thereof. Upon the other hand, those who are more sophisticated, may enlighten themselves sufficiently by reading the copies of the proposed amendments posted in public places, the copies kept in the polling places and the text of contested resolutions, as printed in full on the back of the ballots they will use. It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect of R. B. H. No. 3 upon the work of the Constitutional Convention or upon the future of our Republic. But, then, nobody can foretell such effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are satisfied so long as the electorate knows that R. B. H. No. 3 permits Congressmen to retain their seats as legislators, even if they should run for and assume the functions of delegates to the Convention. We are impressed by the factors considered by our distinguished and esteemed brethren, who opine otherwise, but, we feel that such factors affect the wisdom of Republic Act No. 4913 and that of R. B. H. Nos. 1 and 3, not theauthority of Congress to approve the same. The system of checks and balances underlying the judicial power to strike down acts of the Executive or of Congress transcending the confines set forth in the fundamental laws is not in derogation of the principle of separation of powers, pursuant to which each department is supreme within its own sphere. The determination of the conditions under which the proposed amendments shall be submitted to the people is concededly a matter which falls within the legislative sphere. We do not believe it has been satisfactorily shown that Congress has exceeded the limits thereof in enacting Republic Act No. 4913. Presumably, it could have done something better to enlighten the people on the subject-matter thereof. But, then, no law is perfect. No product of human endeavor is beyond improvement. Otherwise, no legislation would be constitutional and valid. Six (6) Members of this Court believe, however, said Act and R. B. H. Nos. 1 and 3 violate the spirit of the Constitution.

Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and R. B. H. Nos. 1 and 3 unconstitutional and invalid, the petitions in these two (2) cases must be, as they are hereby, dismiss and the writs therein prayed for denied, without special pronouncement as to costs. It is so ordered. Makalintal and Bengzon, J.P., JJ., concur. Fernando, J., concurs fully with the above opinion, adding a few words on the question of jurisdiction.

Separate Opinions MAKALINTAL, J., concurring: I concur in the foregoing opinion of the Chief Justice. I would make some additional observations in connection with my concurrence. Sections 2 and 4 of Republic Act No. 4913 provide: Sec. 2. The amendments shall be published in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipality, city and provincial office building and in every polling place not later than October fourteen, nineteen hundred and sixty-seven, and shall remain posted therein until after the election. At least five copies of the said amendments shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall be kept in each polling place. The Commission on Elections shall make available copies of each amendments in English, Spanish and, whenever practicable, in the principal native languages, for free distribution. xxx xxx xxx

Sec. 4. The ballots which shall be used in the election for the approval of said amendments shall be printed in English and Pilipino and shall be in the size and form prescribed by the Commission on Elections: Provided, however, That at the back of said ballot there shall be printed in full Resolutions of both Houses of Congress Numbered One and Three, both adopted on March sixteen, nineteen hundred and sixty-seven, proposing the amendments: Provided, further, That the questionnaire appearing on the face of the ballot shall be as follows: Are you in favor of the proposed amendment to Section five of Article VI of our Constitution printed at the back of this ballot? Are you in favor of the proposed amendment to section sixteen of Article VI of our Constitution printed at the back of this ballot? To vote for the approval of the proposed amendments, the voter shall write the word "yes" or its equivalent in Pilipino or in the local dialect in the blank space after each question; to vote for the rejection thereof, he shall write the word "No" or its equivalent in Pilipino or in the local dialect. I believe that intrinsically, that is, considered in itself and without reference to extraneous factors and circumstances, the manner prescribed in the aforesaid provisions is sufficient for the purpose of having the proposed amendments submitted to the people for their ratification, as enjoined in Section 1, Article XV of the Constitution. I am at a loss to say what else should have been required by the Act to make it adhere more closely to the constitutional requirement. Certainly it would have been out of place to provide, for instance, that government officials and employees should go out and explain the amendments to the people, or that they should be the subject of any particular means or form of public discussion. The objection of some members of the Court to Republic Act No. 4913 seems to me predicated on the fact that there are so many other issues at stake in the coming general election that the attention of the electorate, cannot be entirely focused on the proposed amendments, such that there is a failure to properly submit them for ratification within the intendment of the Constitution. If that is so, then the defect is not intrinsic in the law but in its implementation. The same manner of submitting the proposed amendments to the people for ratification may, in a different setting, be sufficient for the purpose. Yet I cannot conceive that the constitutionality or unconstitutionality of a law may be made to depend willy-nilly on factors not inherent in its provisions. For a law to be struck down as unconstitutional it must be so by reason of some irreconcilable conflict between it and the Constitution. Otherwise a law may be either valid or invalid, according to circumstances not found in its provisions, such as the zeal with which they are carried out. To such a thesis I cannot agree. The criterion would be too broad and relative, and dependent upon individual opinions that at best are subjective. What one may regard as sufficient compliance with the requirement of submission to the people, within the context of the same law, may not be so to another. The question is susceptible of as many views as there are viewers; and I do not think this Court would be justified in saying that its own view on the matter is the correct one, to the exclusion of the opinions of others. On the other hand, I reject the argument that the ratification must necessarily be in a special election or plebiscite called for that purpose alone. While such procedure is highly to be preferred, the Constitution speaks simply of "an election at which the amendments are submitted to the people for their ratification," and I do not subscribe to the restrictive interpretation that the petitioners would place on this provision, namely, that it means only a special election.

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

It is the glory of our institutions that they are founded upon law, that no one can exercise any authority over the rights and interests of others except pursuant to and in the manner authorized by law.1 Based upon this principle, petitioners Ramon A. Gonzales and Philippine Constitution Association (PHILCONSA) come to this Court in separate petitions. Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in representation thru class suit of all citizens of this country, filed this suit for prohibition with preliminary injunction to restrain the Commission on Elections, Director of Printing and Auditor General from implementing and/or complying with Republic Act 4913, assailing said law as unconstitutional. Petitioner PHILCONSA, as a civic, non-profit and non-partisan corporation, assails the constitutionality not only of Republic Act 4913 but also of Resolutions of Both Houses Nos. 1 and 3 of March 16, 1967. Republic Act 4913, effective June 17, 1967, is an Act submitting to the Filipino people for approval the amendments to the Constitution of the Philippines proposed by the Congress of the Philippines in Resolutions of Both Houses Numbered 1 and 3, adopted on March 16, 1967. Said Republic Act fixes the date and manner of the election at which the aforesaid proposed amendments shall be voted upon by the people, and appropriates funds for said election. Resolutions of Both Houses Nos. 1 and 3 propose two amendments to the Constitution: the first, to amend Sec. 5, Art. VI, by increasing the maximum membership of the House of Representatives from 120 to 180, apportioning 160 of said 180 seats and eliminating the provision that Congress shall by law make an apportionment within three years after the return of every enumeration; the second, to amend Sec. 16, Art. VI, by allowing Senators and Representatives to be delegates to a constitutional convention without forfeiting their seats. Since both petitions relate to the proposed amendments, they are considered together herein. Specifically and briefly, petitioner Gonzales' objections are as follows: (1) Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, in submitting the proposed amendments to the Constitution, to the people for approval, at the general election of 1967 instead of at a special election solely for that purpose; (2) Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, since it was not passed with the 3/4 vote in joint session required when Congress proposes amendments to the Constitution, said Republic Act being a step in or part of the process of proposing amendments to the Constitution; and (3) Republic Act 4913 violates the due process clause of the Constitution (Sec. 1, Subsec. 1, Art. III), in not requiring that the substance of the proposed amendments be stated on the face of the ballot or otherwise rendering clear the import of the proposed amendments, such as by stating the provisions before and after said amendments, instead of printing at the back of the ballot only the proposed amendments. Since observance of Constitutional provisions on the procedure for amending the Constitution is concerned, the issue is cognizable by this Court under its powers to review an Act of Congress to determine its conformity to the fundamental law. For though the Constitution leaves Congress free to propose whatever Constitutional amendment it deems fit, so that the substance or content of said proposed amendment is a matter of policy and wisdom and thus a political question, the Constitution nevertheless imposes requisites as to the manner orprocedure of proposing such amendments, e.g., the threefourths vote requirement. Said procedure or manner, therefore, from being left to the discretion of Congress, as a matter of policy and wisdom, is fixed by the Constitution. And to that extent, all questions bearing on whether Congress in proposing amendments followed the procedure required by the Constitution, is perforce justiciable, it not being a matter of policy or wisdom. Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly does not bear him on the point. It nowhere requires that the ratification be thru an election solely for that purpose. It only requires that it be at "an election at which the amendments are submitted to the people for their ratification." To join it with an election for candidates to public office, that is, to make it concurrent with such election, does not render it any less an election at which the proposed amendments are submitted to the people for their ratification. To prohibition being found in the plain terms of the Constitution, none should be inferred. Had the framers of requiring Constitution thought of requiring a special election for the purpose only of the proposed amendments, they could have said so, by qualifying the phrase with some word such as "special" or "solely" or "exclusively". They did not. It is not herein decided that such concurrence of election is wise, or that it would not have been better to provide for a separate election exclusively for the ratification of the proposed amendments. The point however is that such separate and exclusive election, even if it may be better or wiser, which again, is not for this Court to decide, is not included in the procedure required by the Constitution to amend the same. The function of the Judiciary is "not to pass upon questions of wisdom, justice or expediency of legislation". 2 It is limited to determining whether the action taken by the Legislative Department has violated the Constitution or not. On this score, I am of the opinion that it has not. Petitioner Gonzales' second point is that Republic Act 4913 is deficient for not having been passed by Congress in joint session by 3/4 vote. Sec. 1, Art. XV of the Constitution provides: Sec. 1. The Congress in joint session assembled, by a vote of three-fourths of all the members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election to which the amendments are submitted to the people for their ratification. Does Republic Act 4913 propose amendments to the Constitution? If by the term "propose amendment" is meant to determine WHAT said amendment shall be, then Republic Act 4913 does not; Resolutions of Both Houses 1 and 3 already did that. If, on the other hand, it means, or also means, to provide for how, when, and by what means the amendments shall be submitted to the people for approval, then it does. A careful reading of Sec. 1, Art. XV shows that the first sense. is the one intended. Said Section has two sentences: in the first, it requires the 3/4 voting in joint session, for Congress to "propose amendments". And then in the second sentence, it provides that "such amendments . . . shall be submitted to the people for their ratification". This clearly indicates that by the term "propose amendments" in the first sentence is meant to frame the substance or the content or the WHAT-element of the amendments; for it is this and this alone that is submitted to the people for their ratification. The details of when the election shall be held for approval or rejection of the proposed amendments, or the manner of holding it, are not submitted for ratification to form part of the Constitution. Stated differently, the plain language of Section 1, Art. XV, shows that the act of proposing amendments is distinct from albeit related to that of submitting the amendments to the people for their ratification; and that the 3/4 voting requirement applies only to the first step, not to the second one.

It follows that the submission of proposed amendments can be done thru an ordinary statute passed by Congress. The Constitution does not expressly state by whom the submission shall be undertaken; the rule is that a power not lodged elsewhere under the Constitution is deemed to reside with the legislative body, under the doctrine of residuary powers. Congress therefore validly enacted Republic Act 4913 to fix the details of the date and manner of submitting the proposed amendments to the people for their ratification. Since it does not "propose amendments" in the sense referred to by Sec. 1, Art. XV of the Constitution, but merely provides for how and when the amendments, already proposed, are going to be voted upon, the same does not need the 3/4 vote in joint session required in Sec. 1, Art. XV of the Constitution. Furthermore, Republic Act 4913 is an appropriation measure. Sec. 6 thereof appropriates P1,000,000 for carrying out its provisions. Sec. 18, Art. VI of the Constitution states that "All appropriation . . . bills shall originate exclusively in the House of Representatives". Republic Act 4913, therefore, could not have been validly adopted in a joint session, reinforcing the view that Sec. 1, Art. XV does not apply to such a measure providing for the holding of the election to ratify the proposed amendments, which must perforce appropriate funds for its purpose. Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends against substantive due process. An examination of the provisions of the law shows no violation of the due process clause of the Constitution. The publication in the Official Gazette at least 20 days before the election, the posting of notices in public buildings not later than October 14, 1967, to remain posted until after the elections, the placing of copies of the proposed amendments in the polling places, aside from printing the same at the back of the ballot, provide sufficient opportunity to the voters to cast an intelligent vote on the proposal. Due process refers only to providing fair opportunity; it does not guarantee that the opportunity given will in fact be availed of; that is the look-out of the voter and the responsibility of the citizen. As long as fair and reasonable opportunity to be informed is given, and it is, the due process clause is not infringed. Non-printing of the provisions to be amended as they now stand, and the printing of the full proposed amendments at the back of the ballot instead of the substance thereof at the face of the ballot, do not deprive the voter of fair opportunity to be informed. The present wording of the Constitution is not being veiled or suppressed from him; he is conclusively presumed to know them and they are available should he want to check on what he is conclusively presumed to know. Should the voters choose to remain ignorant of the present Constitution, the fault does not lie with Congress. For opportunity to familiarize oneself with the Constitution as it stands has been available thru all these years. Perhaps it would have been more convenient for the voters if the present wording of the provisions were also to be printed on the ballot. The same however is a matter of policy. As long as the method adopted provides sufficiently reasonable chance to intelligently vote on the amendments, and I think it does in this case, it is not constitutionally defective. Petitioner Gonzales' other arguments touch on the merits or wisdom of the proposed amendments. These are for the people in their sovereign capacity to decide, not for this Court. Two arguments were further advanced: first, that Congress cannot both call a convention and propose amendments; second, that the present Congress is a de facto one, since no apportionment law was adopted within three years from the last census of 1960, so that the Representatives elected in 1961 are de facto officers only. Not being de jure, they cannot propose amendments, it is argued. As to the first point, Sec. 1 of Art. XV states that Congress "may propose amendments or call a convention for that purpose". The term "or", however, is frequently used as having the same meaning as "and" particularly in permissive, affirmative sentences so that the interpretation of the word "or" as "and" in the Constitution in such use will not change its meaning (Vicksburg S. & P. R. Co. v. Goodenough, 32 So. 404, 411, 108 La, 442). And it should be pointed out that the resolutions proposing amendments (R.B.H. Nos. 1 and 3) are different from that calling for a convention (R.B.H. No. 2). Surely, if Congress deems it better or wise to amend the Constitution before a convention called for is elected, it should not be fettered from doing so. For our purposes in this case, suffice it to note that the Constitution does not prohibit it from doing so. As to the second argument, it is also true that Sec. 5 of Art. VI of the Constitution provides in part that "The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise". It however further states in the next sentence: "Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present assembly districts." The failure of Congress, therefore, to pass a valid redistricting law since the time the above provision was adopted, does not render the present districting illegal or unconstitutional. For the Constitution itself provides for its continuance in such case, rendering legal and de jure the status quo. For the above reasons, I vote to uphold the constitutionality of Republic Act 4913, and fully concur with the opinion of the Chief Justice.

FERNANDO, J., concurring: At the outset, we are faced with a question of jurisdiction. The opinion prepared by the Chief Justice discusses the matter with a fullness that erases doubts and misgivings and clarifies the applicable principles. A few words may however be added. We start from the premise that only where it can be shown that the question is to be solved by public opinion or where the matter has been left by the Constitution to the sole discretion of any of the political branches, as was so clearly stated by the then Justice Concepcion in Taada v. Cuenco,1 may this Court avoid passing on the issue before it. Whatever may be said about the present question, it is hard to speak with certitude considering Article XV, that Congress may be entrusted with the full and uncontrolled discretion on the procedure leading to proposals for an amendment of the Constitution. It may be said however that in Mabanag v. Lopez Vito,2 this Court through Justice Tuason followed Coleman v. Miller,3 in its holding that certain aspects of the amending process may be considered political. His opinion quoted with approval the view of Justice Black, to which three other members of the United States Supreme Court agreed, that the process itself is political in its entirety, "from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point." In a sense that would solve the matter neatly. The judiciary would be spared the at times arduous and in every case soul-searching process of determining whether the procedure for amendments required by the Constitution has been followed.

At the same time, without impugning the motives of Congress, which cannot be judicially inquired into at any rate, it is not beyond the realm of possibility that a failure to observe the requirements of Article XV would occur. In the event that judicial intervention is sought, to rely automatically on the theory of political question to avoid passing on such a matter of delicacy might under certain circumstances be considered, and rightly so, as nothing less than judicial abdication or surrender. What appears regrettable is that a major opinion of an esteemed jurist, the late Justice Tuason, would no longer be controlling. There is comfort in the thought that the view that then prevailed was itself a product of the times. It could very well be that considering the circumstances existing in 1947 as well as the particular amendment sought to be incorporated in the Constitution, the parity rights ordinance, the better part of wisdom in view of the grave economic situation then confronting the country would be to avoid the existence of any obstacle to its being submitted for ratification. Moreover, the Republic being less than a year old, American Supreme Court opinions on constitutional questions were-invariably accorded uncritical acceptance. Thus the approach followed by Justice Tuason is not difficult to understand. It may be said that there is less propensity now, which is all to the good, for this Court to accord that much deference to constitutional views coming from the quarter. Nor is this mode of viewing the opinion of Justice Tuason to do injustice to his memory. For as he stated in another major opinion in Araneta v. Dinglasan,4 in ascertaining the meaning to be given the Emergency Powers Act,5 one should not ignore what would ensue if a particular mode of construction were followed. As he so emphatically stated, "We test a rule by its results." The consequences of a judicial veto on the then proposed amendment on the economic survival of the country, an erroneous appraisal it turned out later, constituted an effective argument for its submission. Why not then consider the question political and let the people decide? That assumption could have been indulged in. It could very well be the inarticulate major premise. For many it did bear the stamp of judicial statesmanship. The opinion of Chief Justice Concepcion renders crystal-clear why as of this date and in the foreseeable future judicial inquiry to assure the utmost compliance with the constitutional requirement would be a more appropriate response.

SANCHEZ, J., in separate opinion: Right at the outset, the writer expresses his deep appreciation to Mr. Justice Calixto O. Zaldivar and Mr. Justice Fred Ruiz Castro for their invaluable contribution to the substance and form of the opinion which follows. Directly under attack in this, a petition for prohibition, is the constitutionality of Republic Act 4913, approved on June 17, 1967. This Act seeks to implement Resolutions 1 and 3 adopted by the Senate and the House of Representatives on March 16, 1967 with the end in view of amending vital portions of the Constitution. Since the problem here presented has its roots in the resolutions aforesaid of both houses of Congress, it may just as well be that we recite in brief the salient features thereof. Resolution No. 1 increases the membership of the House of Representatives from 120 to 180 members, and immediately apportions 160 seats. A companion resolution is Resolution No. 3 which permits Senators and Congressmen without forfeiting their seats in Congress to be members of the Constitutional Convention1 to be convened, as provided in another resolution Resolution No. 2. Parenthetically, two of these proposed amendments to the Constitution (Resolutions I and 3) are to be submitted to the people for their ratification next November 14, 1967. Resolution No. 2 just adverted to calls for a constitutional convention also to propose amendments to the Constitution. The delegates thereto are to be elected on the second Tuesday of November 1970; the convention to sit on June 1, 1971; and the amendments proposed by the convention to be submitted to the people thereafter for their ratification. Of importance now are the proposed amendments increasing the number of members of the House of representatives under Resolution No. 1, and that in Resolution No. 3 which gives Senators and Congressmen the right to sit as members of the constitutional convention to be convened on June 1, 1971. Because, these are the two amendments to be submitted to the people in the general elections soon to be held on November 14, 1967, upon the provisions of Section 1, Republic Act 4913, which reads: The amendments to the Constitution of the Philippines proposed by the Congress of the Philippines in Resolutions of both Houses Numbered One and Three, both adopted on March sixteen, nineteen hundred and sixty- seven, shall be submitted to the people for approval at the general election which shall be held on November fourteen, nineteen hundred and sixty- seven, in accordance with the provisions of this Act. Republic Act 4913 projects the basic angle of the problem thrust upon us the manner in which the amendments proposed by Congress just adverted to be brought to the people's attention. First, to the controlling constitutional precept. In order that proposed amendments to the Constitution may become effective, Section 1, Article XV thereof commands that such amendments must be "approved by a majority of the votes cast at an election at which amendments are submitted to the people for their ratification."2 The accent is on two words complementing each other, namely, "submitted" and "ratification." 1. We are forced to take a long hard look at the core of the problem facing us. And this, because the amendments submitted are transcendental and encompassing. The ceiling of the number of Congressmen is sought to be elevated from 120 to 180 members; and Senators and Congressmen may run in constitutional conventions without forfeiting their seats. These certainly affect the people as a whole. The increase in the number of Congressmen has its proportional increase in the people's tax burdens. They may not look at this with favor, what with the constitutional provision (Section 5, Article VI) that Congress "shall by law make an apportionment", without the necessity of disturbing the present constitutionally provided number of Congressmen. People in Quezon City, for instance, may balk at the specific apportionment of the 160 seats set forth in Resolution No. 1, and ask for a Congressman of their own, on the theory of equal representation. And then, people may question the propriety of permitting the increased 180 Congressmen from taking part in the forthcoming constitutional convention and future conventions for fear that they may dominate its proceedings. They may entertain the belief

that, if at all, increase in the number of Congressmen should be a proper topic for deliberation in a constitutional convention which, anyway, will soon take place. They probably would ask: Why the hurry? These ponderables require the people's close scrutiny. 2. With these as backdrop, we perforce go into the philosophy behind the constitutional directive that constitutional amendments be submitted to the people for their ratification. A constitutional amendment is not a temporary expedient. Unlike a statute which may suffer amendments three or more times in the same year, it is intended to stand the test of time. It is an expression of the people's sovereign will. And so, our approach to the problem of the mechanics of submission for ratification of amendments is that reasoning on the basis of the spirit of the Constitution is just as important as reasoning by a strict adherence to the phraseology thereof. We underscore this, because it is within the realm of possibility that a Constitution maybe overhauled. Supposing three-fourths of the Constitution is to be amended. Or, the proposal is to eliminate the all important; Bill of Rights in its entirety. We believe it to be beyond debate that in some such situations the amendments ought to call for a constitutional convention rather than a legislative proposal. And yet, nothing there is in the books or in the Constitution itself. which would require such amendments to be adopted by a constitutional convention. And then, too, the spirit of the supreme enactment, we are sure, forbids that proposals therefor be initiated by Congress and thereafter presented to the people for their ratification. In the context just adverted to, we take the view that the words "submitted to the people for their ratification", if construed in the light of the nature of the Constitution a fundamental charter that is legislation direct from the people, an expression of their sovereign will is that it can only be amended by the people expressing themselves according to the procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly in insidious influences. We believe, the word "submitted" can only mean that the government, within its maximum capabilities, should strain every effort to inform very citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent, consent or rejection. If with all these safeguards the people still approve the amendment no matter how prejudicial it is to them, then so be it. For, the people decree their own fate. Aptly had it been said: . . . The great men who builded the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge Cooley, who has said "A good Constitution should beyond the reach of temporary excitement and popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved the excitement or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency. . . . Changes in government are to be feared unless the benefit is certain. As Montaign says: "All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed and a worse." Am. Law Rev. 1889, p. 3113 3. Tersely put, the issue before us funnels down to this proposition: If the people are not sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner can it be said that in accordance with the constitutional mandate, "the amendments are submitted to the people for their ratification?" Our answer is "No". We examine Republic Act 4913, approved on June 17, 1967 the statute that submits to the people the constitutional amendments proposed by Congress in Resolutions 1 and 3. Section 2 of the Act provides the manner of propagation of the nature of the amendments throughout the country. There are five parts in said Section 2, viz: (1) The amendment shall be published in three consecutive issues of the Official Gazette at least twenty days prior to the election. (2) A printed copy thereof shall be posted in a conspicuous place in every municipality, city and provincial office building and in every polling place not later than October fourteen, nineteen hundred and sixty-seven, and shall remain posted therein until after the election. (3) At least five copies of the said amendments shall be kept in each polling place to be made available for examination by the qualified electors during election day. (4) When practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall be kept in each polling place. (5) The Commission on Elections shall make available copies of said amendments in English, Spanish and, whenever practicable, in the principal native languages, for free distribution. A question that comes to mind is whether the procedure for dissemination of information regarding the amendments effectively brings the matter to the people. A dissection of the mechanics yields disturbing thoughts. First, the Official Gazette is not widely read. It does not reach the barrios. And even if it reaches the barrios, is it available to all? And if it is, would all under stand English? Second, it should be conceded that many citizens, especially those in the outlying barrios, do not go to municipal, city and/or provincial office buildings, except on special occasions like paying taxes or responding to court summonses. And if they do, will they notice the printed amendments posted on the bulletin board? And if they do notice, such copy again is in English (sample submitted to this Court by the Solicitor General) for, anyway, the statute does not require that it be in any other language or dialect. Third, it would not help any if at least five copies are kept in the polling place for examination by qualified electors during election day. As petitioner puts it, voting time is not study time. And then, who can enter the polling place, except those who are about to vote? Fourth, copies in the principal native languages

shall be kept in each polling place. But this is not, as Section 2 itself implies, in the nature of a command because such copies shall be kept therein only "when practicable" and "as may be determined by the Commission on Elections." Even if it be said that these are available before election, a citizen may not intrude into the school building where the polling places are usually located without disturbing the school classes being held there. Fifth, it is true that the Comelec is directed to make available copies of such amendments in English, Spanish or whenever practicable, in the principal native languages, for free distribution. However, Comelec is not required to actively distribute them to the people. This is significant as to people in the provinces, especially those in the far-flung barrios who are completely unmindful of the discussions that go on now and then in the cities and centers of population on the merits and demerits of the amendments. Rather, Comelec, in this case, is but a passive agency which may hold copies available, but which copies may not be distributed at all. Finally, it is of common knowledge that Comelec has more than its hands full in these pre-election days. They cannot possibly make extensive distribution. Voters will soon go to the polls to say "yes" or "no". But even the official sample ballot submitted to this Court would show that only the amendments are printed at the back. And this, in pursuance to Republic Act 4913 itself. Surely enough, the voters do not have the benefit of proper notice of the proposed amendments thru dissemination by publication in extenso. People do not have at hand the necessary data on which to base their stand on the merits and demerits of said amendments. We, therefore, hold that there is no proper submission of the proposed constitutional amendments within the meaning and intendment of Section 1, Article XV of the Constitution. 4. Contemporary history is witness to the fact that during the present election campaign the focus is on the election of candidates. The constitutional amendments are crowded out. Candidates on the homestretch, and their leaders as well as the voters, gear their undivided efforts to the election of officials; the constitutional amendments cut no ice with them. The truth is that even in the ballot itself, the space accorded to the casting of "yes" or "no" vote would give one the impression that the constitutional amendments are but a bootstrap to the electoral ballot. Worse still, the fortunes of many elective officials, on the national and local levels, are inextricably intertwined with the results of the votes on the plebiscite. In a clash between votes for a candidate and conscience on the merits and demerits of the constitutional amendments, we are quite certain that it is the latter that will be dented. 5. That proper submission of amendments to the people to enable them to equally ratify them properly is the meat of the constitutional requirement, is reflected in the sequence of uniform past practices. The Constitution had been amended thrice in 1939, 1940 and 1947. In each case, the amendments were embodied in resolutions adopted by the Legislature, which thereafter fixed the dates at which the proposed amendments were to be ratified or rejected. These plebiscites have been referred to either as an "election" or "general election". At no time, however, was the vote for the amendments of the Constitution held simultaneously with the election officials, national or local. Even with regard to the 1947 parity amendment; the record shows that the sole issue was the 1947 parity amendment; and the special elections simultaneously held in only three provinces, Iloilo, Pangasinan and Bukidnon, were merely incidental thereto. In the end we say that the people are the last ramparts that guard against indiscriminate changes in the Constitution that is theirs. Is it too much to ask that reasonable guarantee be made that in the matter of the alterations of the law of the land, their true voice be heard? The answer perhaps is best expressed in the following thoughts: "It must be remembered that the Constitution is the people's enactment. No proposed change can become effective unless they will it so through the compelling force of need of it and desire for it."4 For the reasons given, our vote is that Republic Act 4913 must be stricken down as in violation of the Constitution. Zaldivar and Castro, JJ., concur. Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.

REYES, J.B.L., J., concurring: I concur in the result with the opinion penned by Mr. Justice Sanchez. To approve a mere proposal to amend the Constitution requires (Art. XV) a threefourths (3/4) vote of all the members of each legislative chamber, the highest majority ever demanded by the fundamental charter, one higher even than that required in order to declare war (Sec. 24, Article VI), with all its dire consequences. If such an overwhelming majority, that was evidently exacted in order to impress upon all and sundry the seriousness of every constitutional amendment, is asked for a proposal to amend the Constitution, I find it impossible to believe that it was ever intended by its framers that such amendment should be submitted and ratified by just "a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification", if the concentration of the people's attention thereon to be diverted by other extraneous issues, such as the choice of local and national officials. The framers of the Constitution, aware of the fundamental character thereof, and of the need of giving it as much stability as is practicable, could have only meant that any amendments thereto should be debated, considered and voted upon at an election wherein the people could devote undivided attention to the subject. That this was the intention and the spirit of the provision is corroborated in the case of all other constitutional amendments in the past, that were submitted to and approved in special elections exclusively devoted to the issue whether the legislature's amendatory proposals should be ratified or not. Dizon, Angeles, Zaldivar and Castro, JJ., concur.

Sanidad vs. COMELEC, 73 SCRA 333

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-44640 October 12, 1976 PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner, vs. HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, respondents. G.R. No. L-44684. October 12,1976 VICENTE M. GUZMAN, petitioner, vs. COMMISSION ELECTIONS, respondent. G.R. No. L-44714. October 12,1976 RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners, vs. HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL TREASURER, respondents. MARTIN, J,: The capital question raised in these prohibition suits with preliminary injunction relates to the power of the incumbent President of the Philippines to propose amendments to the present Constitution in the absence of the interim National Assembly which has not been convened. On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a national referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the issues of martial law, the I . assembly, its replacement, the powers of such replacement, the period of its existence, the length of the period for tile exercise by the President of his present powers .1 Twenty days after or on September 22, 1976, the President issued another related decree, Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring the provisions of presidential Decree No. 229 providing for the manner of voting and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of Presidential Decree No. 991, the full text of which (Section 4) is quoted in the footnote below. 2 On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating the questions to be submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the convening of the National Assembly evinces their desire to have such body abolished and replaced thru a constitutional amendment, providing for a legislative body, which will be submitted directly to the people in the referendum-plebiscite of October 16. The questions ask, to wit: (1) Do you want martial law to be continued? (2) Whether or not you want martial law to be continued, do you approve the following amendments to the Constitution? For the purpose of the second question, the referendum shall have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the Constitution. PROPOSED AMENDMENTS: 1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of the interim Batasang Pambansa which shall not be more than 120, unless otherwise provided by law, shall include the incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the members of the Cabinet. Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio while the sectors shall be determined by law. The number of representatives from each region or sector and the, manner of their election shall be prescribed and regulated by law. 2. The interim Batasang Pambansa shall have the same powers and its members shall have the same functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the members thereof. However, it shall not exercise the power provided in Article VIII, Section 14(l) of the Constitution. 3. The incumbent President of the Philippines shall, within 30 days from the election and selection of the members, convene the interim Batasang Pambansa and preside over its sessions until the Speaker shall have been elected. The incumbent President of the Philippines shall be the Prime Minister and he shall continue to exercise all his powers even after the interim Batasang Pambansa is organized and ready to discharge its functions and likewise he shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty five. Constitution and the powers vested in the President and the Prime Minister under this Constitution.

4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be subject only to such disqualifications as the President (Prime Minister) may prescribe. The President (Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deem necessary. 5. The incumbent President shall continue to exercise legislative powers until martial law shall have been lifted. 6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters of instructions, which shall form part of the law of the land. 7. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and composition may be altered by law. Referenda conducted thru the barangays and under the Supervision of the Commission on Elections may be called at any time the government deems it necessary to ascertain the will of the people regarding any important matter whether of national or local interest. 8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force and effect. 9. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by I majority of the votes cast in the referendum-plebiscite." The Commission on Elections was vested with the exclusive supervision and control of the October 1976 National Referendum-Plebiscite. On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from holding and conducting the Referendum Plebiscite on October 16; to declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well as Presidential Decree No. 1031, insofar as it directs the Commission on Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on October 16, 1976. Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to exercise the constituent power to propose amendments to the new Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis. On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections, The Solicitor General principally maintains that petitioners have no standing to sue; the issue raised is political in nature, beyond judicial cognizance of this Court; at this state of the transition period, only the incumbent President has the authority to exercise constituent power; the referendum-plebiscite is a step towards normalization. On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that the power to propose amendments to, or revision of the Constitution during the transition period is expressly conferred on the interim National Assembly under Section 16, Article XVII of the Constitution.3 Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the implementation of Presidential Decrees relative to the forthcoming Referendum-Plebiscite of October 16. These last petitioners argue that even granting him legislative powers under Martial Law, the incumbent President cannot act as a constituent assembly to propose amendments to the Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973; the submission of the proposed amendments in such a short period of time for deliberation renders the plebiscite a nullity; to lift Martial Law, the President need not consult the people via referendum; and allowing 15-.year olds to vote would amount to an amendment of the Constitution, which confines the right of suffrage to those citizens of the Philippines 18 years of age and above. We find the petitions in the three entitled cases to be devoid of merit. I Justiciability of question raised. 1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source of a stature Presidential Decrees are of such nature-may be contested by one who will sustain a direct injuries as a in result of its enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries all appropriation of Five Million Pesos for the effective implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. Moreover, as regards taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. 7 For the present case, We deem it sound to exercise that discretion affirmatively so that the authority upon which the disputed Decrees are predicated may be inquired into.

2. The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial question . 8 This is especially true in cases where the power of the Presidency to initiate the of normally exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments o the constitution resides in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After that period, and the regular National Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the National Assembly to constitute itself into a constituent assembly the incumbent President undertook the proposal of amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2 (2), Article X of the new Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall be heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. ..." The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authorities to determine whether that power has been discharged within its limits. Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the power of a constituent assembly. Whether the amending process confers on the President that power to propose amendments is therefore a downright justiciable question. Should the contrary be found, the actuation of the President would merely be a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not. 10 We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the President's authority to propose amendments and the regularity of the procedure adopted for submission of the proposal to the people ultimately lie in the judgment of the A clear Descartes fallacy of vicious circle. Is it not that the people themselves, by their sovereign act, provided for the authority and procedure for the amending process when they ratified the present Constitution in 1973? Whether, therefore, the constitutional provision has been followed or not is the proper subject of inquiry, not by the people themselves of course who exercise no power of judicial but by the Supreme Court in whom the people themselves vested that power, a power which includes the competence to determine whether the constitutional norms for amendments have been observed or not. And, this inquiry must be done a prior not a posterior i.e., before the submission to and ratification by the people. Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of the Court's majority to treat such issue of Presidential role in the amending process as one of non-political impression. In the Plebiscite Cases, 11 the contention of the Solicitor General that the issue on the legality of Presidential Decree No. 73 "submitting to the Pilipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention and appropriating fund s therefore "is a political one, was rejected and the Court unanimously considered the issue as justiciable in nature. Subsequently in the Ratification Cases 12 involving the issue of whether or not the validity of Presidential Proclamation No. 1102. announcing the Ratification by the Filipino people of the constitution proposed by the 1971 Constitutional Convention," partakes of the nature of a political question, the affirmative stand of' the Solicitor General was dismissed, the Court ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the majority view, said, Thus, in the aforementioned plebiscite cases, We rejected the theory of the respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one. With Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus cases, questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to the former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales vs. Commission on Elections, the political-question theory adopted in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively refused by the Court. Chief Justice Concepcion continued: "The reasons adduced in support thereof are, however, substantially the same as those given in support on the political question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence. Our decisions in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis which gained added weight by its virtual reiteration." II The amending process as laid out in the new Constitution. 1. Article XVI of the 1973 Constitution on Amendments ordains: SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention. (2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an election. SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision. In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads:

SECTION 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof. There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and period of transition. In times of normally, the amending process may be initiated by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the Members of the National Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in an election voted upon by a majority vote of all the members of the National Assembly. In times of transition, amendments may be proposed by a majority vote of all the Members of the National Assembly upon special call by the interim Prime Minister,. 2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested with that prerogative of discretion as to when he shall initially convene the interim National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The Constitutional Convention intended to leave to the President the determination of the time when he shall initially convene the interim National Assembly, consistent with the prevailing conditions of peace and order in the country." Concurring, Justice Fernandez, himself a member of that Constitutional Convention, revealed: "(W)hen the Delegates to the Constitutional Convention voted on the Transitory Provisions, they were aware of the fact that under the same, the incumbent President was given the discretion as to when he could convene the interim National Assembly; it was so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately', made by Delegate Pimentel (V) was rejected. The President's decision to defer the convening of the interim National Assembly soon found support from the people themselves. In the plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the people voted against the convening of the interim National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the convening of the interim National Assembly. Again, in the referendum of February 27, 1975, the proposed question of whether the interim National Assembly shall be initially convened was eliminated, because some of the members of Congress and delegates of the Constitutional Convention, who were deemed automatically members of the I interim National Assembly, were against its inclusion since in that referendum of January, 1973, the people had already resolved against it. 3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a Constitution, that body is not in the usual function of lawmaking. lt is not legislating when engaged in the amending process.16 Rather, it is exercising a peculiar power bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the National Assembly). While ordinarily it is the business of the legislating body to legislate for the nation by virtue of constitutional conferment amending of the Constitution is not legislative in character. In political science a distinction is made between constitutional content of an organic character and that of a legislative character'. The distinction, however, is one of policy, not of law. 17 Such being the case, approval of the President of any proposed amendment is a misnomer 18 The prerogative of the President to approve or disapprove applies only to the ordinary cases of legislation. The President has nothing to do with proposition or adoption of amendments to the Constitution. 19 III Concentration of Powers in the President during crisis government. 1. In general, the governmental powers in crisis government the Philippines is a crisis government today are more or less concentrated in the President. 20 According to Rossiter, "(t)he concentration of government power in a democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. In most free states it has generally been regarded as imperative that the total power of the government be parceled out among three mutually independent branches executive, legislature, and judiciary. It is believed to be destructive of constitutionalism if any one branch should exercise any two or more types of power, and certainly a total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf of the state and its independent existence. There are moments in the life of any government when all powers must work together in unanimity of purpose and action, even if this means the temporary union of executive, legislative, and judicial power in the hands of one man. The more complete the separation of powers in a constitutional system, the more difficult and yet the more necessary will be their fusion in time of crisis. This is evident in a comparison of the crisis potentialities of the cabinet and presidential systems of government. In the former the all-important harmony of legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is more easily established and more trustworthy than presidential dictatorship. The power of the state in crisis must not only be concentrated and expanded; it must also be freed from the normal system of constitutional and legal limitations. 21 John Locke, on the other hand, claims for the executive in its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of special exigencies for which the legislative power had not provided. 22 The rationale behind such broad emergency powers of the Executive is the release of the government from "the paralysis of constitutional restrains" so that the crisis may be ended and normal times restored. 2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23 The incumbent President of the Philippines shall initially convene the interim National Assembly and shall preside over its sessions until the interim Speaker shall have been elected. He shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty-five Constitution and the powers vested in the President and the Prime Minister under this Constitution until the calls upon the interim National Assembly to elect the interim President and the interim Prime Minister, who shall then exercise their respective powers vested by this Constitution. All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, binding, and effective even after lifting of martial law or the ratification of this Constitution,

unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly. "It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional Convention, while giving to the President the discretion when to call the interim National Assembly to session, and knowing that it may not be convened soon, would create a vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking powers, there would be paralyzation of the entire governmental machinery."24 Paraphrasing Rossiter, this is an extremely important factor in any constitutional dictatorship which extends over a period of time. The separation of executive and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis government. The steady increase in executive power is not too much a cause for as the steady increase in the magnitude and complexity of the problems the President has been called upon by the Filipino people to solve in their behalf, which involve rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis greater than war. In short, while conventional constitutional law just confines the President's power as Commander-in-Chief to the direction of the operation of the national forces, yet the facts of our political, social, and economic disturbances had convincingly shown that in meeting the same, indefinite power should be attributed to tile President to take emergency measures 25 IV Authority of the incumbent President t to propose amendments to the Constitution. 1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly during the transition period. However, the initial convening of that Assembly is a matter fully addressed to the judgment of the incumbent President. And, in the exercise of that judgment, the President opted to defer convening of that body in utter recognition of the people's preference. Likewise, in the period of transition, the power to propose amendments to the Constitution lies in the interim National Assembly upon special call by the President (See. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the President decided not to call the interim National Assembly. Would it then be within the bounds of the Constitution and of law for the President to assume that constituent power of the interim Assembly vis-a-vis his assumption of that body's legislative functions? The answer is yes. If the President has been legitimately discharging the legislative functions of the interim Assembly, there is no reason why he cannot validly discharge the function of that Assembly to propose amendments to the Constitution, which is but adjunct, although peculiar, to its gross legislative power. This, of course, is not to say that the President has converted his office into a constituent assembly of that nature normally constituted by the legislature. Rather, with the interim National Assembly not convened and only the Presidency and the Supreme Court in operation, the urges of absolute necessity render it imperative upon the President to act as agent for and in behalf of the people to propose amendments to the Constitution. Parenthetically, by its very constitution, the Supreme Court possesses no capacity to propose amendments without constitutional infractions. For the President to shy away from that actuality and decline to undertake the amending process would leave the governmental machineries at a stalemate or create in the powers of the State a destructive vacuum, thereby impeding the objective of a crisis government "to end the crisis and restore normal times." In these parlous times, that Presidential initiative to reduce into concrete forms the constant voices of the people reigns supreme. After all, constituent assemblies or constitutional conventions, like the President now, are mere agents of the people .26 2. The President's action is not a unilateral move. As early as the referendums of January 1973 and February 1975, the people had already rejected the calling of the interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the same number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing sentiment of the people is for the abolition of the interim National Assembly. Other issues concerned the lifting of martial law and amendments to the Constitution .27 The national organizations of Sangguniang Bayan presently proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for the exercise by the President of its present powers in a referendum to be held on October 16 . 28 The Batasang Bayan (legislative council) created under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue of martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments to the people on October 16. All the foregoing led the President to initiate the proposal of amendments to the Constitution and the subsequent issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions (proposed amendments) to the people in the National Referendum-Plebiscite on October 16. V The People is Sovereign 1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines, a republican and unitary state, sovereignty "resides in the people and all government authority emanates from them.30 In its fourth meaning, Savigny would treat people as "that particular organized assembly of individuals in which, according to the Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It means that the constitutional legislator, namely the people, is sovereign 32 In consequence, the people may thus write into the Constitution their convictions on any subject they choose in the absence of express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an experiment, as all life is all experiment." 34"The necessities of orderly government," wrote Rottschaefer, "do not require that one generation should be permitted to permanently fetter all future generations." A constitution is based, therefore, upon a self-limiting decision of the people when they adopt it. 2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as constitutional legislator. The proposed amendments, as earlier discussed, proceed not from the thinking of a single man. Rather, they are the collated thoughts of the sovereign will reduced only into enabling forms by the authority who can presently exercise the powers of the government. In equal vein, the submission of those proposed amendments and the question of martial law in a referendum-plebiscite expresses but the option of the people themselves implemented only by the authority of the President. Indeed, it may well be said that the amending process is a sovereign act, although the authority to initiate the same and the procedure to be followed reside somehow in a particular body.

35

VI Referendum-Plebiscite not rendered nugatory by the participation of the 15-year olds. 1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be continued? - is a referendum question, wherein the 15-year olds may participate. This was prompted by the desire of the Government to reach the larger mas of the people so that their true pulse may be felt to guide the President in pursuing his program for a New Order. For the succeeding question on the proposed amendments, only those of voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new Constitution. 36 On this second question, it would only be the votes of those 18 years old and above which will have valid bearing on the results. The fact that the voting populace are simultaneously asked to answer the referendum question and the plebiscite question does not infirm the referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue, which is of current one and submitting to them for ratification of proposed constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots of voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen years of age and above. 37 The ballots in the ballot box for voters fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the age groupings, i.e., ballots contained in each of the two boxes. 38 2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely consultative in character. It is simply a means of assessing public reaction to the given issues submitted to the people foe their consideration, the calling of which is derived from or within the totality of the executive power of the President. 39 It is participated in by all citizens from the age of fifteen, regardless of whether or not they are illiterates, feebleminded, or ex- convicts . 40 A "plebiscite," on the other hand, involves the constituent act of those "citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election Literacy, property or any other substantive requirement is not imposed. It is generally associated with the amending process of the Constitution, more particularly, the ratification aspect. VII 1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the observation of Justice Fernando, 41 is impressed with a mild character recorded no State imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on certain grounds no total suppression of that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes all the embracing freedoms of expression and assembly The President himself had announced that he would not countenance any suppression of dissenting views on the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out loud and clear their adverse views on the proposed amendments and even (in the valid ratification of the 1973 Constitution, which is already a settled matter. 43 Even government employees have been held by the Civil Service Commission free to participate in public discussion and even campaign for their stand on the referendum-plebiscite issues. 44 VIII Time for deliberation is not short. 1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the day. The people have been living with them since the proclamation of martial law four years ago. The referendums of 1973 and 1975 carried the same issue of martial law. That notwithstanding, the contested brief period for discussion is not without counterparts in previous plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days were allotted for the publication in three consecutive issues of the Official Gazette of the women's suffrage amendment to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as ordinance the complicated Tydings-Kocialskowski was published in only three consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments providing for the bicameral Congress, the reelection of the President and Vice President, and the creation of the Commission on Elections, 20 days of publication in three consecutive issues of the Official Gazette was fixed (Com Act No. 517). And the Parity Amendment, an involved constitutional amendment affecting the economy as well as the independence of the Republic was publicized in three consecutive issues of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45 2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the plebiscite shall be held, but simply states that it "shall be held not later than three months after the approval of such amendment or revision." In Coleman v. Miller, 46 the United States Supreme court held that this matter of submission involves "an appraisal of a great variety of relevant conditions, political, social and economic," which "are essentially political and not justiciable." The constituent body or in the instant cases, the President, may fix the time within which the people may act. This is because proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time; second, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed, they are to be considered and disposed of presently, and third, ratification is but the expression of the approbation of the people, hence, it must be done contemporaneously. 47 In the words of Jameson, "(a)n alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by proper body IN RESUME

The three issues are 1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable? 2. During the present stage of the transition period, and under, the environmental circumstances now obtaining, does the President possess power to propose amendments to the Constitution as well as set up the required machinery and prescribe the procedure for the ratification of his proposals by the people? 3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper submission? Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political. Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and Munoz Palma voted in the negative. Associate Justice Fernando, conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that there is concentration of powers in the Executive during periods of crisis, thus raising serious doubts as to the power of the President to propose amendments. Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of the proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar expressed the hope, however that the period of time may be extended. Associate Justices Fernando, Makasiar and Antonio are of the view that the question is political and therefore beyond the competence and cognizance of this Court, Associate Justice Fernando adheres to his concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the President's lack of authority to exercise the constituent power to propose the amendments, etc., as above stated, there is no fair and proper submission with sufficient information and time to assure intelligent consent or rejection under the standards set by this Court in the controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702). Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as expressed in his separate opinion, Associate Justice Fernando concurs in the result. Associate Justices Teehankee and Munoz Palma voted to grant the petitions. ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This decision is immediately executory. SO ORDERED. Aquino, J, in the result. Separate Opinions CASTRO, C.J.:, concurring: From the challenge as formulated in the three petitions at bar and the grounds advanced be the Solicitor General in opposition thereto, as well as the arguments adduced by the counsels of the parties at the hearing had on October 7 and 8, 1976, three vital issues readily project themselves as the centers of controversy, namely: (1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable? (2) During the present stage of the transition period, and under the environmental circumstances now obtaining, does the President possess power to propose amendments to the Constitution as well as set up the required machineries and prescribe the procedure for the ratification of his proposals by the people? (3) Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper, submission" I First Issue The threshold question is not at all one of first impression Specifically on the matter of proposals to amend the Constitution, this Court, in Mabanag vs. Lopez Vito (78 Phil. 1), inceptively announced the dictum thatProposal to amend the Constitution is a highly political function performed by the Congress in its sovereign legislative capacity and committed to its charges by the Constitution itself. The exercise of this power is even independent of any intervention by the Chief Executive. If on grounds of expediency scrupulous attention of the judiciary be needed to safeguard public interest, there is less reason for judicial inquiry into the validity of a proposal than into that of a ratification. In time, however, the validity of the said pronouncement was eroded. In the assessment of the Court itself-

The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581, March 4 and 14, 1949), Tanada vs. Cuenco (L-10520, February 28, 1957), and Macias vs. Commission on Elections (L-18684, September 14, 1961). xxx xxx xxx In short, the issue whether or not a Resolution of Congress-acting as a constituent assembly-violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito the latter should be deemed modified accordingly. The Members of the Court are unanimous on this point." (Gonzales vs. Commission on Elections, et al, L28196, November 9, 1967, 21 SCRA 774, 786-787). The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been completed when, in Javellana vs. Secretary, et al. (L-36142, March 3l, 1973, 50 SCRA 30), six members of the Court concurred in the view that the question of whether the 1973 Constitution was ratified in accordance with the provisions of Article XV (Amendments) of the 1935 Constitution is inherently and essentially justiciable. As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103 Phil. 1051)... the term 'political question' connotes, in legal parlance, what it means in ordinarily parlance, namely, a question of policy in matters concerning the government of a State, as a body politic. In other words, in the language of Corpus Juris Secundum (supra), it refers to 'those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the government.' It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.' Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations - particularly those prescribed or imposed by the Constitution would be set at naught." (Javellana vs. Executive Secretary, supra). So it is in the situation here presented. The basic issue is the constitutional validity of the presidential acts of proposing amendments to the Constitution and of calling a referendum-plebiscite for the ratification of the proposals made. Evidently, the question does not concern itself with the wisdom of the exercise of the authority claimed or of the specific amendments proposed. Instead the inquiry vel non is focused solely on the existence of the said power in the President - a question purely of legality determinable thru interpretation and construction of the letter and spirit of the Constitution by the Court as the final arbiter in the delineation of constitutional boundaries and the allocation of constitutional powers. For the Court to shun cognizance of the challenge herein presented, especially in these parlous years, would be to abdicate its constitutional powers, shirk its constitutional responsibility, and deny the people their ultimate recourse for judicial determination. I have thus no hesitancy in concluding that the question here presented is well within the periphery of judicial inquiry. II Second Issue The main question stands on a different footing; it appears unprecedented both here and elsewhere. Its solution, I believe, can be found and unraveled only by a critical assessment of the existing legal order in the light of the prevailing political and factual milieu. To be sure, there is an impressive array of consistent jurisprudence on the proposition that, normally or under normal conditions, a Constitution may be amended only in accord with the procedure set forth therein. Hence, if there be any such prescription for the amendatory process as invariable there is because one of the essential parts of a Constitution is the so-called "constitution of sovereignty" which comprises the provision or provisions on the modes in accordance with which formal changes in the fundamental law may be effected the same would ordinarily be the controlling criterion for the validity of the amendments sought. Unfortunately, however, during the present transition period of our political development, no express provision is extant in the Constitution regarding the agency or agent by whom and the procedure by which amendments thereto may be proposed and ratified fact overlooked by those who challenge the validity of the presidential acts in the premises. This is so because there are at least two distinctly in the transition from the old system of government under the 1935 Constitution to the new one established by the 1973 Constitution. The first stage comprises the period from the effectivity of the Constitution on January 17, 1973 to the time the National Assembly is convened by the incumbent President and the interim President and the interim Prime Minister are chosen Article XVII, Sections 1 and 3[1]. The existence of this stage as an obvious fact of the nation's political life was recognized by the Court in Aquino vs. Commission on Elections, et al. (L-40004, January 31, 1975, 62 SCRA 275), when it rejected the claim that, under the 1973 Constitution, the President was in duty bound to convene the interim National Assembly soon after the Constitution took effect. The second stage embraces the period from the date the interim National Assembly is convened to the date the Government described in Articles VII to IX of the Constitution is inaugurated, following the election of the members of the regular National Assembly (Article XVII, Section 1) and the election of the regular President and Prime Minister,. This is as it should be because it is recognized that the President has been accorded the discretion to determine when he shall initially convene the interim National Assembly, and his decision to defer the convocation thereof has found overwhelming support by the sovereign people in two previous referenda, therein giving reality to an interregnum between the effectivity of the Constitution and the initial convocation of the interim National Assembly, which interregnum, as aforesaid, constitutes the first stage in the transition period.

Against this factual backdrop, it is readily discernible that neither of the two sets of provisions embodied in the Constitution on the amendatory process applied during the said first stage. Thus, Section 15, Article XVII (Transitory Provisions) provides"Sec. 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof." Patently, the reference to the "interim National Assembly" and the "interim Prime Minister" limits the application thereof to the second stage of the transition period, i.e.,., after the interim? National Assembly shall have been convened and the interim Prime Minister shall have been chosen. Upon the other hand, the provisions of Article XVI (Amendments), to witSECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention. (2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit the question of ceiling such a convention to the electorate in an election. SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision. unequivocally contemplate amendments after the regular Government shall have become fully operative, referring as they do to the National Assembly which will come into being only at that time. In the face of this constitutional hiatus, we are confronted with the dilemma whether amendments to the Constitution may be effected during the aforesaid first stage and, if in the affirmative, by whom and in what manner such amendments may be proposed and ratified. Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not being a mere declaration of the traditions of a nation but more the embodiment of a people's hopes and aspirations, its strictures are not unalterable. They are, instead, dynamic precepts intended to keep in stride with and attuned to the living social organism they seek to fashion and govern. If it is conceded that "the political or philosophical aphorism of one generation is doubted by the next and entirely discarded by the third," then a Constitution must be able to adjust to the changing needs and demands of society so that the latter may survive, progress and endure. On these verities, there can be no debate. During the first stage of the transition period in which the Government is at present - which is understandably the most critical - the need for change may be most pressing and imperative, and to disavow the existence of the right to amend the Constitution would be sheer political heresy. Such view would deny the people a mechanism for effecting peaceful change, and belie the organic conception of the Constitution by depriving it of its means of growth. Such a result obviously could not have been intended by the framers of the fundamental law. It seems, however, that the happenstance that the first period would come to pass before the convocation of the interim National Assembly was not anticipated, hence, the omission of an express mandate to govern the said situation in so far as amendments are concerned. But such omission through inadvertence should not, because it cannot, negate the sovereign power of the people to amend the fundamental charter that governs their lives and their future and perhaps even the very survival of the nation. Upon the other hand, it is clear from the afore-quoted provisions on the amendatory process that the intent was, instead, to provide a simpler and more expeditious mode of amending the Constitution during the transition period. For, while under Article XVI thereof, proposals for amendment may be made directly by the regular National Assembly by a vote of at least three-fourths of all its members, under Section 15 of Article XVII, a bare majority vote of all the members of the National Assembly would suffice for the purpose. The relaxation and the disparity in the vote requirement are revealing. The can only signify a recognition of the need to facilitate the adoption of amendments during the second stage of the transition period so that the interim National Assembly will be able, in a manner of speaking, to iron out the kinks in the new Constitution, remove imperfections therein, and provide for changed or changing circumstances before the establishment of the regular Government. In this contest, therefore, it is inutile speculation to assume that the Constitution was intended to render impotent or ar the effectuation of needful change at an even more critical period - the first stage. With greater reason, therefore, must the right and power to amend the Constitution during the first stage of te transition period be upheld, albeit within its express and implied constraints. Neither can it be successfully argued, in the same context and in the present posture, that the Constitution may be amended during the said first stage only by convening the interim National Assembly. That is to say and require that he said stage must first be brought to an end before any amendment may be proposed and ratified. Settled jurisprudence does not square with such a proposition. As aptly noted in Aquino vs. Commission on Elections, et al., supra, the framers of the Constitution set no deadline for the convening of the interim National Assembly because they could not have foreseen how long the crises which impelled the proclamation and justify the continued state of martial law would last. Indeed, the framers committed to the sound judgment is not subject to judicial review, save possibly to determine whether arbitrariness has infected such exercise; absent such a taint, the matter is solely in the keeping of the President. To thus content that only by convening the interim National Assembly may the Constitution be amended at this time would effectively override the judgement vested in the President, even in default of any he has acted arbitrarily or gravely abuse his discretion. Furthermore, to sustain such a contention would not only negate the mandate so resoundingly expressed by the people in two national referenda against the immediate convening of the interim National Assembly, but as well deride their overwhelming approval of the manner in which the President has exercised the legislative power to issue proclamations, orders, decrees and instructions having the stature and force of law. Given the constitutional stalemate or impasse spawned by these supervening developments, the logical query that compels itself for resolution is: By whom, then, may proposals for the amendment of the Constitution be made and in what manner may said proposals be ratified by the people? It is conventional wisdom that, conceptually, the constituent power is not to be confuse with legislative power in general because the prerogative to propose amendments to the Constitution is not in any sense embraced within the ambit of ordinary law-making. Hence, there is much to recommend the

proposition that, in default of an express grant thereof, the legislature - traditionally the delegated repository thereof - may not claim it under a general grant of legislative authority. In the same vein, neither would it be altogether unassailable to say that because by constitutional tradition and express allocation the constituent power under the Constitution is locate in the law-making agency and at this stage of the transition period the law-making authority is firmly recognized as being lodged in the President, the said constituent power should now logically be in the hands of te President who may thus exercise it in place of the interim National Assembly. Instead,, as pointed out in Gonzales vs. Commission on Elections, et al., supra, the power to amend the Constitution or to propose amendments thereto ... is part of the inherent powers of the people - as the repository of sovereignty in a republican state, such as ours - t o make, and, hence, to amend their own Fundamental Law. As such, it is undoubtedly a power that only the sovereign people, either directly by themselves or through their chosen delegate, can wield. Since it has been shown that the people, inadvertently or otherwise, have not delegated that power to inadvertently or otherwise, have not delegated that power to any instrumentality during the current stage of our hegira from crisis to normalcy, it follows of necessity that the same remains with them for them to exercise in the manner they see fit and through the agency they choose. And, even if it were conceded that - as it is reputedly the rule in some jurisdictions - a delegation of the constituent authority amounts to a complete divestiture from the people of the power delegated which they may not thereafter unilaterally reclaim from the delegate, there would be no violence donde to such rule, assuming it to be applicable here, inasmuch as that power, under the environmental circumstance adverted to, has not been delegated to anyone in the first place. The constituent power during the first stage of the transition period belongs to and remains with the people, and accordingly may be exercised by them - how and when - at their pleasure. At this juncture, a flashback to the recent and contemporary political ferment in the country proves revelatory. The people, shocked and revolted by the "obvious immorality" of the unabashed manner by which the delegates to the Constitutional Convention virtually legislated themselves into office as ipso facto members of the interim National Assembly by the mere fiat of voting for the transitory provisions of the Constitution. and the stark reality that the unwieldy political monstrosity that the interim Assembly portended to be would have proven to be a veritable drain on the meager financial resources of a nation struggling for survival, have unequivocally put their foot down, as it were, on the convocation thereof. But this patently salutary decision of the people proved to be double-edged. It likewise bound the political machinery of the Government in a virtual straight-jacket and consigned the political evolution of the nation into a state of suspended animation. Faced with the ensuing dilemma, the people understandably agitated for a solution. Through consultations in the barangays and sanggunian assemblies, the instrumentalities through which the people's voice is articulated in the unique system of participatory democracy in the country today, the underpinnings for the hastening of the return to constitutional normalcy quickly evolved into an overwhelming sentiment to amend the Constitution in order to replace the discredited interim National Assembly with what the people believe will be an appropriate agency to eventually take over the law-making power and thus pave the way for the early lifting of martial rule. In pursuit of this sentiment, and to translate its constraints into concrete action, the Pambansang Katipunan ng Barangay, the Pambansang Katipunan ng mga Kabataang Barangay, the Lupong Tagapagpaganap of the Katipunan ng mga Barangay, the Pambansang Katipunan ng mga Kabataang Barangay the Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, and finally the Batasang Bayan, to a man and as one voice, have come forward with definitive proposals for the amendment of the Constitution, and, choosing the President the only political arm of the State at this time through which that decision could be implemented and the end in view attained as their spokesman, proposed the amendments under challenge in the cases at bar. In the light of this milieu and its imperatives, one thing is inescapable: the proposals now submitted to the people for their ratification in the forthcoming referendum-plebiscite are factually not of the President; they are directly those of the people themselves speaking thru their authorized instrumentalities. The President merely formalized the said proposals in Presidential Decree No. 1033. It being conceded in all quarters that sovereignty resides in the people and it having been demonstrated that their constituent power to amend the Constitution has not been delegated by them to any instrumentality of the Government during the present stage of the transition period of our political development, the conclusion is ineluctable that their exertion of that residuary power cannot be vulnerable to any constitutional challenge as being ultra vires. Accordingly, without venturing to rule on whether or not the President is vested with constituent power as it does not appear necessary to do so in the premises the proposals here challenged, being acts of the sovereign people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to appropriate funds therefor is even less vulnerable not only because the President, in exercising said authority has acted as a mere alter ego of the people who made the proposals, but likewise because the said authority is legislative in nature rather than constituent. III Third Issue Little need be said of the claimed insufficiency and impropriety of the submission of the proposed amendments for ratification from the standpoint of time. The thesis cannot be disputed that a fair submission presupposes an adequate time lapse to enable the people to be sufficiently enlightened on the merits or demerits of the amendments presented for their ratification or rejection. However, circumstances there are which unmistakably demonstrated that the is met. Even if the proposal appear to have been formalized only upon the promulgation of Presidential Decree No. 1033 on September 22, 1976, they are actually the crystallization of sentiments that for so long have preoccupied the minds of the people and their authorized representatives, from the very lowest level of the political hierarchy. Hence, unlike proposals emanating from a legislative body, the same cannot but be said to have been mulled over, pondered upon, debated, discussed and sufficiently understood by the great masses of the nation long before they ripened into formal proposals. Besides. it is a fact of which judicial notice may well be taken that in the not so distant past when the 1973 Constitution was submitted to the people for ratification, an all-out campaign, in which all the delegates of the Constitutional Convention reportedly participated, was launched to acquaint the people with the ramifications and working of the new system of government sought to be inaugurated thereunder. It may thus well be assumed that the people in general have since acquired, in the least, a working knowledge of the entirety of the Constitution. The changes now proposed the most substantial of which being merely the replacement of the interim National assembly with another legislative arm for the Government during the transition period until the regular National Assembly shall have been constituted do not appear to be of such complexity as to require considerable time to be brought home to the full understanding of the people. And, in fact, the massive and wide-ranging informational and educational campaign to this end has been and still is in full swing, with all the media the barangay, the civic and sectoral groups, and even the religious all over the land in acting and often enthusiastic if not frenetic involvement. Indeed, when the people cast their votes on October 16, a negative vote could very well mean an understanding of the proposals which they reject; while an affirmative vote could equally be indicative Of such understanding and/or an abiding credence in the fidelity with which the President has kept the trust they have confided to him as President and administrator of martial rule

IV Conclusion It is thus my considered view that no question viable for this court to pass judgment upon is posed. Accordingly, I vote for the outright dismissal of the three petitions at bar. FERNANDO, J., concurring and dissenting: These three petitions, the latest in a series of cases starting from Planas v. Commission on Elections continuing with the epochal resolution in Javellana v. Executive Secretary and followed successively in three crucial decisions, Aquino v. Ponce Enrile Aquino v. Commission on Elections, and Aquino v Military Commission, 5 manifest to the same degree the delicate and awesome character of the function of judicial review. While previous rulings supply guidance and enlightenment, care is to be taken to avoid doctrinaire rigidity unmindful of altered circumstances and the urgencies of the times. It is inappropriate to resolve the complex problems of a critical period without full awareness of the consequences that flow from whatever decision is reached. Jural norms must be read in the context of social facts, There is need therefore of adjusting inherited principles to new needs. For law, much more so constitutional law, is simultaneously a reflection of and a force in the society that it controls. No quality then can be more desirable in constitutional adjudication than that intellectual and imaginative insight which goes into the heart of the matter. The judiciary must survey things as they are in the light of what they must become It must inquire into the specific problem posed not only in terms of the teaching of the past but also of the emerging political and legal theory, especially so under a leadership notable for its innovative approach to social problems and the vigor of its implementation. This, on the one side. It must equally be borne in mind through that this Court must be conscious of the risk inherent in its being considered as a mere subservient instrument of government policy however admittedly salutary or desirable. There is still the need to demonstrate that the conclusion reached by it in cases appropriate for its determination has support in the law that must be applied. To my mind that was the norm followed, the conclusion reached being that the three petitions be dismissed. I am in agreement. It is with regret however that based on my reading of past decisions, both Philippine and American, and more specifically my concurring opinion in Aquino v. Ponce Enrile, I must dissent from the proposition set forth in the able and scholarly opinion of Justice Martin that there is concentration of power in the President during a crisis government. Consequently, I cannot see my way clear to accepting the view that the authority to propose amendments is not open to question. At the very least, serious doubts could be entertained on the matter. 1. With due respect then, I have to dissociate myself from my brethren who would rule that governmental powers in a crisis government, following Rossiter, "are more or less concentrated in the President." Adherence to my concurring and dissenting opinion in Aquino v. Ponce Enrile leaves me no choice. It must be stated at the outset that with the sufficiency of doctrines supplied by our past decisions to point the way to what I did consider the appropriate response to the basic issue raised in the Aquino and the other habeas corpus petitions resolved jointly, it was only in the latter portion of my opinion that reference was made to United States Supreme Court pronouncements on martial law, at the most persuasive in character and rather few in number "due no doubt to the, absence in the American Constitution of any provision concerning it." 7 It was understandable then that it was only after the landmark Ex parte Milligan case, that commentators like Cooley in 1868 and Watson in 1910 paid attention, minimal by that, to the subject." It was next set forth that in the works on American constitutional law published in this century specially after the leading cases of cases Sterling v. Constant in and Duncan v. Kahanamoku, "there was a fuller treatment of the question of martial law While it is the formulation of Willoughby that for me is most acceptable, my opinion did take note that another commentator, Burdick, came out earlier with a similar appraisal. 10 Thus: "So called martial law, except in occupied territory of an enemy is merely the calling in of the aid of military forces by the executive, who is charged with the enforcement of the law, with or without special authorization by the legislature. Such declaration of martial law does not suspend the civil law, though it may interfere with the exercise of one's ordinary rights. The right to call out the military forces to maintain order and enforce the law is simply part of the Police power, It is only justified when it reasonably appears necessary, and only justifies such acts as reasonably appear necessarily to meet the exigency, including the arrest, or in extreme cases the. killing of those who create the disorder or oppose the authorities. When the exigency is over the members of the military forces are criminally and civilly habit for acts done beyond the scope of reasonable necessity. When honestly and reasonably coping with a situation of insurrection or riot a member of the military forces cannot be made liable for his acts, and persons reasonably arrested under such circumstances will not, during the insurrection or riot, be free by writ of habeas corpus." 11When the opinion cited Willoughby's concept of martial law, stress was laid on his being "Partial to the claims of liberty."12 This is evident in the explicit statement from his work quoted by me: "There is, then, strictly speaking, no such thing in American law as a declaration of martial law whereby military law is substituted for civil law. So-called declarations of martial law are, indeed, often made but their legal effect goes no further than to warn citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law. Some of the authorities stating substantially this doctrine are quoted in the footnote below Nor did I stop there. The words of Willis were likewise cited: "Martial law proper, that is, military law in case of insurrection, riots, and invasions, is not a substitute for the civil law, but is rather an aid to the execution of civil law. Declarations of martial law go no further than to warn citizens that the executive has called upon the military power to assist him in the maintenance of law and order. While martial law is in force, no new powers are given to the executive and no civil rights of the individual, other than the writ of habeas corpus, are suspended. The relations between the citizen and his stature unchanged." 14 The conclusion reached by me as to the state of American federal law on the question of martial law was expressed thus: 4'1 It is readily evident that even when Milligan supplied the only authoritative doctrine, Burdick and Willoughby did not ignore the primacy of civil liberties. Willis wrote after Sterling. It would indeed be surprising if his opinion were otherwise. After Duncan, such an approach becomes even more strongly fortified. Schwartz, whose treatise is the latest to be published, has this summary of what he considers the present state of American law: 'The Milligan and Duncan cases show plainly that martial law is the public law of necessity. Necessities alone calls it forth, necessity justifies its exercise; and necessities measures the extended degree to which it may be It is, the high Court has affirmed, an unbending rule of law that the exercise of military power, where the rights of the citizen are concerned, may, never be pushed beyond what the exigency requires. If martial law rule survive the necessities on which alone it rests, for even a single minute it becomes a mere exercise of lawless violence.' Further: Sterling v. Constantin is of basic importance. Before it, a number of decisions, including one the highest Court, went or on the theory that the executive had a free hand in taking martial law measures. Under them, it has been widely supposed that in proclamation was so far conclusive that any action taken under it was immune from judicial scrutiny. Sterling v. Constantin definitely discredits these earlier decisions and the doctrine of conclusiveness derived from them. Under Sterling v. Constantin, where martial law measures impinge upon personal or property rights-normally beyond the scope of military power, whose intervention is lawful only because an abnormal Actuation has made it necessary the executive's ipse dixit is not of itself conclusive of the necessity.'" 15

There was likewise an effort on my part to show what for me is the legal effect of martial law being expressly provided for in the Constitution rather than being solely predicated on the common law power based on the urgent need for it because of compelling circumstances incident to the state of actual clash of arms: "It is not to be lost sight of that the basis for the declaration of martial law in the Philippines is not mere necessity but an explicit constitutional provision. On the other hand, Milligan, which furnished the foundation for Sterling and Duncan had its roots in the English common law. There is pertinence therefore in ascertaining its significance under that system. According to the noted English author, Dicey: 'Martial law,' in the proper sense of that term, , in which - it means the suspension of ordinary law and the temporary government of a country or parts of it be military tribunals, is unknown to the law of England. We have nothing equivalent to what is called in France the "Declaration of the State of Siege," under which the authority ordinarily vested in the civil power for the maintenance of order and police passes entirely to the army (autorite militaire). This is an unmistakable proof of the permanent supremacy of the law under our constitution. There was this qualification: 'Martial law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law. This right, or power, is essential to the very existence of orderly government, and is most assuredly recognized in the most ample manner by the law of England. It is a power which has in itself no special connection with the existence of an armed force. The Crown has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier, whether what is called a servant of the government,' such for example as a policeman, or a person in no way connected with the administration, not only has the right, but is, as a matter of legal duty, bound to assist in putting down breaches of the peace. No doubt policemen or soldiers are the persons who, as being specially employed in the maintenance of order, are most generally called upon to suppress a riot, but it is clear that all loyal subjects are bound to take their part in the suppression of riots." 16 Commitment to such an approach results in my inability to subscribe to the belief that martial law in terms of what is provided both in the 1935 and the present Constitution, affords sufficient justification for the concentration of powers in the Executive during periods of crisis. The better view, considering the juristic theory on which our fundamental law rests is that expressed by Justice Black in Duncan v. Kahanamoku: "Legislatures and courts are not merely cherished American institutions; they are indispensable to our government. 17 If there has been no observance of such a cardinal concept at the present, it is due to the fact that before the former Congress could meet in regular session anew, the present Constitution was adopted, abolishing it and providing for an interim National Assembly, which has not been convened. 18 So I did view the matter. 2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was made to the first chapter on his work on Constitutional Dictatorship where he spoke of martial rule as "a device designed for use in the crisis of invasion or rebellion. It may be most precisely defined as an extension of military government to the civilian population, the substitution of the will of a military commander for the will of the people's elected government." 19Since, for me at least, the Rossiter characterization of martial law has in it more of the common law connotation, less than duly mindful of the jural effects of its inclusion in the Constitution itself as a legitimate device for coping with emergency conditions in times of grave danger, but always subject to attendant limitations in accordance with the fundamental postulate of a charter's supremacy, I felt justified in concluding: "Happily for the Philippines, the declaration of martial law lends itself to the interpretation that the Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the primacy of liberty possess relevance. lt cannot be said that the martial rule concept of Rossiter, latitudinarian in scope, has been adopted, even on the assumption that it can be reconciled with our Constitution. What is undeniable is that President Marcos has repeatedly maintained that Proclamation No. 1081 was precisely based on the Constitution and that the validity of acts taken there under could be passed upon by the Supreme court. For me that is quite reassuring, persuaded as I am likewise that the week- of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on freedom." 20 3. Candor and accuracy compel the admission that such a conclusion his to be qualified. For in the opinion of the Court in the aforecited Aquino v. Commission on Elections, penned by Justice Makasiar, the proposition was expressly affirmed "that as Commander-in-Chief and enforcer or administrator of martial law, the incumbent President of the Philippines can reclamations, orders and decrees during the period Martial Law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the people and to the institution of reforms to prevent the resurgence of rebellion or insurrection or secession or the threat thereof as well as to meet the impact of a worldwide recession, inflation or economic crisis which presently threatens all nations including highly developed countries." 21 To that extent, Rossiter's view mainly relied upon, now possesses Juristic significant in this jurisdiction. What, for me at least, gives caused for concern is that with the opinion of the Court this intrusion of what I would consider an alien element in the limited concept of martial law as set forth in the Constitution would be allowed further incursion into the corpus of the law, with the invocation of the view expressed in the last chapter of his work approving tile "concentration of governmental power in a democracy [as] a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers." 22 It is to the credit of the late Professor Rossiter as an objective scholar that in the very same last chapter, just three pages later, he touched explicitly on the undesirable aspect of a constitutional dictatorship. Thus: "Constitutional Dictatorship is a dangerous thing. A declaration of martial law or the passage of an enabling act is a step which must always be feared and sometimes bitterly resisted, for it is at once an admission of the incapacity of democratic institutions to defend the order within which they function and a too conscious employment of powers and methods long ago outlawed as destructive of constitutional government. Executive legislation, state control of popular liberties, military courts, and arbitrary executive action were governmental features attacked by the men who fought for freedom not because they were inefficient or unsuccessful, but because they were dangerous and oppressive. The reinstitution of any of these features is a perilous matter, a step to be taken only when the dangers to a free state will be greater if the dictatorial institution is not adopted." 23 4. It is by virtue of such considerations that I find myself unable to share the view of those of my brethren who would accord recognition to the Rossiter concept of concentration of governmental power in the Executive during periods of crisis. This is not to lose sight of the undeniable fact that in this country through the zeal, vigor, and energy lavished on projects conducive to the general welfare, considerable progress has been achieved under martial rule. A fair summary may be found in a recent address of the First Lady before the delegates to the 1976 international Monetary Fund-World Bank Joint Annual Meeting: "The wonder is that so much has been done in so brief a time. Since September 1972, when President Marcos established the crisis government, peace and order have been restored in a country once avoided as one of the most unsafe in the world. We have liberated millions of Filipino farmers from the bondage of tenancy, in the most vigorous and extensive implementation of agrarian reform." 24 Further, she said: "A dynamic economy has replaced a stagnant order, and its rewards are distributed among the many, not hoarded by a few. Our foreign policy, once confined by fear and suspicion to a narrow alley of self-imposed isolation, now travels the broad expressways of friendship and constructive interaction with the whole world, these in a new spirit of confidence and self-reliance. And finally, forced to work out our own salvation, the Filipino has re-discovered the well-springs of his strength and resilience As Filipinos, we have found our true Identity. And having broken our crisis of Identity, we are no longer apologetic and afraid. "25 The very Idea of a crisis, however, signifies a transitory, certainly not a permanent, state of things. President Marcos accordingly has not been hesitant in giving utterance to his conviction that full implementation of the modified parliamentary system under the present Constitution should not be further delayed. The full restoration of civilian rule can thus be expected. That is more in accord with the imperatives of a constitutional order. It should not go unnoticed either that the President has referred to the present regime as one of "constitutional authoritarianism." That has a less objectionable ring, authority being more Identified with the Idea of law, as based on right, the very antithesis of naked force, which to the popular mind is associated with dictatorship, even if referred to as "constitutional." For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of the Court, while no doubt a partisan of d strong Presidency, was not averse to constitutional restraints even during periods of crisis. So I would interpret this excerpt from the fourth edition of his classic treatise on the

Presidency: "A regime of martial law may be compendiously, if not altogether accurately, defined as one in which the ordinary law, as administered by the ordinary courts, is superseded for the time being by the will of a military commander. It follows that, when martial law is instituted under national authority, it rests ultimately on the will of the President of the United States in his capacity as Commander-in-Chief. It should be added at once, nevertheless, that the subject is one in which the record of actual practice fails often to support the niceties of theory. Thus, the employment of the military arm in the enforcement of the civil law does not invariably, or even usually, involve martial law in the strict sense, for, as was noted in the preceding section, soldiers are often placed simply at the disposal and direction of the civil authorities as a kind of supplementary police, or posse comitatus on the other hand be reason of the discretion that the civil authorities themselves are apt to vest in the military in any emergency requiring its assistance, the line between such an employment of the military and a regime of martial law is frequently any but a hard and fast one. And partly because of these ambiguities the conception itself of martial law today bifurcates into two conceptions, one of which shades off into military government and the other into the situation just described, in which the civil authority remains theoretically in control although dependent on military aid. Finally, there is the situation that obtained throughout the North during the Civil War, when the privilege of the writ of habeas corpus was suspended as to certain classes of suspects, although other characteristics of martial law were generally absent." 26 It is by virtue of the above considerations that, with due respect to the opinion of my brethren, I cannot yield assent to the Rossiter view of concentration of governmental powers in the Executive during martial law. 5 There is necessity then, for me at least, that the specific question raised in all three petitions be squarely faced. It is to the credit of the opinion of the Court that it did so. The basic issue posed concerns the boundaries of the power of the President during this period of martial law, more precisely whether it covers proposing amendments to the Constitution. There is the further qualification if the stand of respondents be taken into account that the interim National Assembly has not been convened and is not likely to be called into session in deference to the wishes of the people as expressed in three previous referenda. It is the ruling of the majority that the answer be in the affirmative, such authority being well within the area of presidential competence. Again I find myself unable to join readily in that conviction. It does seem to me that the metes and bounds of the executive domain, while still recognizable, do appear blurred. This is not to assert that there is absolutely no basis for such a conclusion, sustained as it is by a liberal construction of the principle that underlies Aquino v. Commission on Elections as to the validity of the exercise of the legislative prerogative by the President as long as the interim National Assembly is not For me, the stage of certitude has not been reached. I cannot simply ignore the vigorous plea of petitioners that there is a constitutional deficiency consisting in the absence of any constituent power on the part of the President, the express provision of the Constitution conferring it on the by team National Assembly. 27 The learned advocacy reflected in the pleadings as well as the oral discourse of Solicitor General Estelito P. Mendoza 21 failed to erase the grave doubts in my mind that the Aquino doctrine as to the possession of legislative competence by the President during this period of transition with the interim lawmaking body not called into session be thus expanded. The majority of my brethren took that step. I am not prepared to go that far. I will explain why. The way for me, is beset with obstacles. In the first place, such an approach would lose sight of the distinction between matters legislative and constituent. That is implicit in the treatise on the 1935 Constitution by Justices Malcolm and Laurel In their casebook published the same year, one of the four decisions on the subject of constitutional amendments is Ellingham v. Dye 31 which categorically distinguished between constituent and legislative powers. Dean Sinco, a well-known authority on the subject, was quite explicit. Thus: "If there had been no express provision in the Constitution granting Congress the power to propose amendments, it would be outside its authority to assume that power. Congress may not claim it under the general grant of legislative power for such grant does not carry with it the right 'to erect the state, institute the form of its government,' which is considered a function inherent in the people. Congressional law- making authority is limited to the power of approving the laws 'of civil conduct relating to the details and particulars of the government instituted,' the government established by the people."12 If that distinction be preserved, then for me the aforecited Aquino decision does not reach the heart of the matter. Nor is this all. In the main opinion of Justice Makasiar as well as that of the then Justice, now Chief Justice, Castro, support for the ruling that the President cannot be deemed as devoid of legislative power during this transition stage is supplied by implications from explicit constitutional provisions. 13 That is not the case with the power to propose amendments. It is solely the interim National Assembly that is mentioned. That is the barrier that for me is well-nigh insurmountable. If I limit myself to entertaining doubts rather than registering a dissent on this point, it is solely because of the consideration, possessed of weight and significance, that there may be indeed in this far-from-quiescent and static period a need for al. amendments. I do not feel confident therefore that a negative vote on my part would be warranted. What would justify the step taken by the President, even if no complete acceptance be accorded to the view that he was a mere conduit of the barangays on this matter, is that as noted in both qualified concurrences by Justices Teehankee and Munoz Palma in Aquino, as far as the legislative and appropriately powers are concerned, is the necessity that unless such authority be recognized, there may be paralyzation of governmental activities, While not squarely applicable, such an approach has, to my mind, a persuasive quality as far as the power to propose amendments is concerned. Thus I would confine myself to the expression of serious doubts on the question rather than a dissent. 6. The constitutional issue posed as thus viewed leaves me free to concur in the result that the petitions be dismissed. That is to accord respect to the principle that judicial review goes no further than to checking clear infractions of the fundamental law, except in the field of human rights where a much greater vigilance is required, That is to make of the Constitution a pathway to rather than a barrier against a desirable objective. -As shown by my concurring and dissenting opinion in Tolentino Commission on Elections '34 a pre-martial law decision, the fundamental postulate that sovereignty resides in the people exerts a compelling force requiring the judiciary to refrain as much as possible from denying the people the opportunity to make known their wishes on matters of the utmost import for the life of the nation, Constitutional amendments fall in that category. I am fortified in that conviction by the teaching of persuasive American decisions There is reinforcement to such a conclusion from retired Chief Justice Concepcion's concurring and dissenting opinion in Aytona v. Castillo,17 Which I consider applicable to the present situation. These are his words: "It is well settled that the granting of writs of prohibition and mandamus is ordinarily within the sound discretion of the courts, to be exercised on equitable principles, and that said writs should be issued when the right to the relief is clear * * by As he noted in his ponencia in the later case of Gonzales v. Hechanova,19 an action for prohibition, while petitioner was sustained in his stand, no injunction was issued. This was evident in the dispositive portion where judgment was rendered "declaring that respondent Executive Secretary had and has no power to authorize the importation in question; that he exceeded his jurisdiction in granting said authority; that said importation is not sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly, denied." 40 With the illumination thus supplied, it does not necessarily follow that even a dissent on my part would necessarily compel that I vote for the relief prayed for. Certainly this is not to belittle in any way the action taken by petitioners in filing these suits. That, for me, is commendable. It attests to their belief in the rule of law. Even if their contention as to lack of presidential power be accepted in their entirety, however, there is still discretion that may be exercised on the matter, prohibition being an equitable remedy. There are, for me, potent considerations that argue against acceding to the plea. With the prospect of the interim National Assembly being convened being dim, if not nonexistent, if only because of the results in three previous referenda, there would be no constitutional agency other than the Executive who could propose amendments, which, as noted. may urgently press for adoption. Of even greater weight, to my mind, is the pronouncement by the President that the plebiscite is intended not only to solve a constitutional anomaly with the country devoid of a legislative body but also to provide. the machinery be which the termination of martial law could be hastened. That is a consummation devoutly to be wished. That does militate strongly against the stand of petitioners. The obstruction they would pose may be fraught with pernicious consequences. It may not be amiss to refer anew to what I deem the

cardinal character of the jural postulate explicitly affirmed in both the 1935 and the present Constitutions that sovereignty resides in the people. So I made clear in Tolentino v. Commission on Elections and thereafter in my dissent in Javellana v. The Executive Secretary" and my concurrence in Aquino v. Commission on Elections. 42 The destiny of the country lies in their keeping. The role of leadership is not to be minimized. It is crucial it is of the essence. Nonetheless, it is their will, if given expression in a manner sanctioned by law and with due care that there be no mistake in its appraisal, that should be controlling. There is all the more reason then to encourage their participation in the power process. That is to make the regime truly democratic. Constitutional orthodoxy requires, however, that the fundamental law be followed. So I would interpret Laski, 43 Corwin, 44 Lerner, 45, BrynJones, 46and McIver.47 7. There is reassurance in the thought that this Court has affirmed its commitment to the principle that the amending process gives rise to a justiciable rather than a political question. So, it has been since the leading case of Gonzales v. Commission on Election S. 48 It has since then been followed in Tolentino v. Commission on Elections 49 Planas v. Commission on Elections," and lastly, in Javellana v. The Executive Secretary This Court did not heed the vigorous plea of the Solicitor General to resurrect the political question doctrine announced in Mabanag v. Lopez Vito. 52 This is not to deny that the federal rule in the United States as set forth in the leading case of Coleman v. Miller , 53 a 1939 decision, and relatively recent State court decisions, supply ammunition to such a contention., 51 That may be the case in the United States, but certainly not in this jurisdiction. Philippine constitutional tradition is to the contrary. It can trace its origin to these words in the valedictory address before the 1934-35 Constitutional Convention by the illustrious Claro M. Recto: "It is one of the paradoxes a democracy that the people of times place more confidence in instrumentalities of the State other than those directly chosen by them for the exercise of their sovereignty It can be said with truth, therefore, that there has invariably been a judicial predisposition to activism rather than self-restraint. The thinking all these years has been that it goes to the heart of constitutionalism. It may be said that this Court has shunned the role of a mere interpreter; it did exercise at times creative power. It has to that extent participated in the molding of policy, It has always recognized that in the large and undefined field of constitutional law, adjudication partakes of the quality of statecraft. The assumption has been that just because it cannot by itself guarantee the formation, much less the perpetuation of democratic values or, realistically, it cannot prevail against the pressure of political forces if they are bent in other directions. it does not follow that it should not contribute its thinking to the extent that it can. It has been asked, it will continue to be asked, to decide momentous questions at each critical stage of this nation's life. There must be, however, this caveat. Judicial activism gives rise to difficulties in an era of transformation and change. A society in flux calls for dynamism in "he law, which must be responsive to the social forces at work. It cannot remain static. It must be sensitive to life. This Court then must avoid the rigidity of legal Ideas. It must resist the temptation of allowing in the wasteland of meaningless abstractions. It must face stubborn reality. It has to have a feel for the complexities of the times. This is not to discount the risk that it may be swept too far and too fast in the surge of novel concepts. The past too is entitled to a hearing; it cannot just be summarily ignored. History still has its uses. It is not for this Court to renounce the virtue of systematic jural consistency. It cannot simply yield to the sovereign sway of the accomplished fact. It must be deaf to the dissonant dialectic of what appears to be a splintered society. It should strive to be a factor for unity under a rule of law. There must be, on its part, awareness of the truth that a new juridical age born before its appointed time may be the cause of unprecedented travail that may not end at birth. It is by virtue of such considerations that I did strive for a confluence of principle and practicality. I must confess that I did approach the matter with some misgivings and certainly without any illusion of omniscience. I am comforted by the thought that immortality does not inhere in judicial opinions. 8. 1 am thus led by my studies on the subject of constitutional law and, much more so, by previous judicial opinions to concur in the dismissal of the petitions. If I gave expression to byes not currently fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I am the first to recognize the worth of' the social and economic reforms so needed by the troubled present that have been introduced and implemented. There is no thought then of minimizing, much less of refusing to concede, the considerable progress that has been made and the benefits that have been achieved under this Administration. Again, to reiterate one of my cherished convictions, I certainly approve of the adherence to the fundamental principle of popular sovereignty which, to be meaningful however, requires both freedom in its manifestation and accuracy in ascertaining what it wills. Then, too, it is fitting and proper that a distinction was made between two aspects of the coming poll, the referendum and the plebiscite. It is only the latter that is impressed with authoritative force. So the Constitution requires. Lastly, there should be, as I did mention in my concurrence in Aquino v. Commission on Elections,56 full respect for free speech and press, free assembly and free association. There should be no thought of branding the opposition as the enemy and the expression of its views as anathema, Dissent, it is fortunate to note, has been encouraged. It has not been Identified with disloyalty. That ought to be the case, and not solely due to presidential decrees. Constructive criticism is to be welcomed not so much because of the right to be heard but because there may be something worth hearing. That is to ensure a true ferment of Ideas, an interplay of knowledgeable minds. There are though well- defined limits, One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent.. What I mean to stress is that except on a showing of clear and present danger, there must be respect for the traditional liberties that make a society truly free. TEEHANKEE, J., dissenting: 1. On the merits: I dissent from the majority's dismissal of the petitions for lack of merit and vote to grant the petitions for the following reasons and considerations: 1. It is undisputed that neither the 1935 Constitution nor the 1973 Constitution grants to the incumbent President the constituent power to propose and approve amendments to the Constitution to be submitted to the people for ratification in a plebiscite. The 1935 Constitution expressly vests the constituent power in Congress, be a three-fourths vote of all its members, to propose amendments or call a constitutional convention for the purpose The 1973 Constitution expressly vests the constituent power in the regular National Assembly to propose amendments (by a three-fourths vote of all its members) or "call a constitutional convention" (by a two-thirds vote of all its members) or "submit the question of calling such convention to the electorate in an election" (by a majority vote of all its members ) .2 The transitory provisions of the 1973 Constitution expressing vest the constituent power during the period of transition in the interim National Assembly "upon special call be the Prime Minister (the incumbent President 3)... by a majority ore of all its members (to) propose amendments." Since the Constitution provides for the organization of the essential departments of government, defines and delimits the powers of each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to but has been withheld from the President or Prime Minister, it follows that the President's questioned decrease proposing and submitting constitutional amendments directly to the people (without the intervention of the interim National Assembly in whom the power is expressly vested) are devoid of constitutional and legal basis. 2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case at bar In therein declaring null and void the acts of the 1971 Constitutional Convention and of the Comelec in calling a plebiscite with the general elections scheduled for November 8, 1971 for the purpose of submitting for the people's ratification an advance amendment reducing the voting age from 21 years to 18 years, and issuing writs of prohibition and injunction against the holding of the plebiscite, this Court speaking through Mr. Justice Barredo ruled that --The Constitutional provisions on amendments "dealing with the procedure or manner of amending the fundamental law are binding upon the Convention and the other departments of the government, (land) are no less binding upon the people

As long as an amendment is formulated and submitted under the aegis of the present Charter, any proposal for such amendment which is not in conformity with the letter, spirit and intent of the Charter for effecting amendments, cannot receive the sanction of this Court ; 8 The real issue here cannot be whether or not the amending process delineated by the present Constitution may be disregarded in favor of allowing the sovereign people to express their decision on the proposed amendments, if only because it is evident that the very Idea of departing from the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of law,"; 9 and -Accordingly barred the plebiscite as improper and premature, since "the provisional nature of the proposed amendments and the manner of its submission to the people for ratification or rejection" did not "conform with the mandate of the people themselves in such regard, as expressed in the Constitution itself', 10 i.e. the mandatory requirements of the amending process as set forth in the Article on Amendments. 3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis, it is clear that where the proposed amendments are violative of the Constitutional mandate on the amending process not merely for being a "partial amendment" of a "temporary or provisional character" (as in Tolentino) but more so for not being proposed and approved by the department vested by the Constitution with the constituent power to do so, and hence transgressing the substantive provision that it is only the interim National Assembly, upon special call of the interim Prime Minister, bu a majority vote of all its members that may propose the amendments, the Court must declare the amendments proposals null and void. 4. This is so because the Constitution is a "superior paramount law, unchangeable by ordinary means" 11 but only by the particular mode and manner prescribed therein by the people. As stressed by Cooley, "by the Constitution which they establish, (the people) not only tie up the hands of their official agencies but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law." 12 The vesting of the constituent power to propose amendments in the legislative body (the regular National Assembly) or the interim National Assembly during the transition period) or in a constitutional convention called for the purpose is in accordance with universal practice. "From the very necessity of the case" Cooley points out "amendments to an existing constitution, or entire revisions of it, must be prepared and matured by some body of representatives chosen for the purpose. It is obviously impossible for the whole people to meet, prepare, and discuss the proposed alterations, and there seems to be no feasible mode by which an expression of their will can be obtained, except by asking it upon the single point of assent or disapproval." This body of representatives vested with the constituent - power "submits the result of their deliberations" and "puts in proper form the questions of amendment upon which the people are to pass"-for ratification or rejection. 13 5. The Court in Tolentino thus rejected the argument "that the end sought to be achieved is to be desired" and in denying reconsideration in paraphrase of the late Claro M. Recto declared that "let those who would put aside, invoking grounds at best controversial, any mandate of the fundamental purportedly in order to attain some laudable objective bear in mind that someday somehow others with purportedly more laudable objectives may take advantage of the precedent and continue the destruction of the Constitution, making those who laid down the precedent of justifying deviations from the requirements of the Constitution the victims of their own folly." This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his dissenting opinion in the Ratification cases 14 that "we will be opening the gates for a similar disregard to the Constitution in the future. What I mean is that if this Court now declares that a new Constitution is now in force because the members of the citizens assemblies had approved said new Constitution, although that approval was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to the Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said proposed amendments is submitted to the people in any manner and what will matter is that a basis is claimed that there was approval by the people. There will not be stability in our constitutional system, and necessarily no stability in our government." 6. It is not legally tenable for the majority, without overruling the controlling precedent of Tolentino (and without mustering the required majority vote to so overrule) to accept the proposed; amendments as valid notwithstanding their being "not in conformity with the letter, spirit and intent of the provision of the Charter for effecting amendments" on the reasoning that "If the President has been legitimately discharging the legislative functions of the interim National Assembly, there is no reason why he cannot validly discharge the functions."15 In the earlier leading case of Gonzales vs. Comelec 16, this Court speaking through now retired Chief Justice Roberto Concepcion, pointer out that "Indeed, the power to Congress" 17 or to the National Assembly.18 Where it not for the express grant in the Transitory Provisions of the constituent power to the interim National Assembly, the interim National Assembly could not claim the power under the general grant of legislative power during the transition period. The majority's ruling in the Referendum cases 19 that the Transitory Provision in section 3(2) recognized the existence of the authority to legislate in favor of the incumbent President during the period of martial law manifestly cannot be stretched to encompass the constituent power as expressly vested in the interim National Assembly in derogation of the allotment of powers defined in the Constitution. Paraphrasing Cooley on the non-delegation of legislative power as one of the settled maxims of constitutional law, 20 the contituent power has been lodged by the sovereign power of the people with the interim National Assembly during the transition period and there it must remain as the sole constitutional agency until the Constitution itself is changed. As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of Angara vs. Electoral Commissioner 21, "(T)he Constitution sets forth in no uncertain language and restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living Constitution". 7. Neither is the justification of "constitutional impasses" tenable. The sentiment of the people against the convening of the interim National Assembly and to have no elections for "at least seven (7) years" Concededly could not ament the Constitution insofar as the interim National Assembly is

concerned (since it admittendly came into existence "immediately" upon the proclamation of ratification of the 1973 Constitution), much less remove the constituent power from said interim National Assembly. As stressed in the writer's separate opinion in the Referendum cases 22, "(W)hile it has been advanced that the decision to defer the initial convocation of the interim National Assembly was supported by the results of the referendum in January, 1973 when the people voted against the convening of the interim National Assembly for at least seven years, such sentiment cannot be given any legal force and effect in the light of the State's admission at the hearing that such referendums are merely consultative and cannot amend the Constitution or Provisions which call for the 'immediate existence' and 'initial convening of the interim National Assembly to 'give priority to measures for the orderly transition from the presidential to the parliamentary system' and the other urgent measures enumerated in section 5 thereof". While the people reportedly expressed their mandate against the convening of the interim National Assembly to dischange its legislative tasks during the period of transition under martial law, they certainly had no opportunity and did not express themselves against convening the interim National Assembly to discharge the constituent power to propose amendments likewise vested in it by the people's mandate in the Constitution. In point of fact, when the holding of the October 16, 1976 referendum was first announced, the newspapers reported that among the seven questions proposed by the sanggunian and barangay national executive committies for the referendum was the convening of the interim National Assembly. 23 It was further reported that the proposals which were termed tentative "will be discussed and studied by (the President), the members of the cabinet, and the security council" and that the barangays felt, notwithstanding the previous referenda on the convening of the interim National Assembly that "it is time to again ask the people's opinion of this matter " 24 8. If proposals for constitutional amendments are now deemed necessary to be discussed and adopted for submittal to the people, strict adherence with the mandatory requirements of the amending process as provided in the Constitution must be complied with. This means, under the teaching of Tolentino that the proposed amendments must validly come from the constitutional agency vested with the constituent power to do so, namely, the interim National Assembly, and not from the executive power as vested in the Prime Minister (the incumbent President) with the assistance of the Cabinet 25 from whom such power has been withheld. It will not do to contend that these proposals represent the voice of the people for as was aptly stated by Cooley "Me voice of the people, acting in their sovereign capacity, can be of legal force only when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the Constitution. ... ."26 The same argument was put forward and rejected by this Court in Tolentino which rejected the contention that the "Convention being a legislative body of the highest order (and directly elected by the people to speak their voice) is sovereign, in as such, its acts impugned by petitioner are beyond the control of Congress and the Courts" and ruled that the constitutional article on the amending process" is nothing more than a part of the Constitution thus ordained by the people. Hence, in continuing said section, We must read it as if the people said, "The Constitution may be amended, but it is our will that the amendment must be proposed and submitted to Us for ratification only in the manner herein provided'". 27 This Court therein stressed that "This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignity, ever constitution worthy of the people for which it is intended must not be prepared in haste without adequate deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no less importance than the whole Constitution itself, and perforce must be conceived and prepared with as much care and deliberation;" and that "written constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less stringent, made so by the people themselves, in regard to the process of their amendment." 28 9. The convening of the interim National Assembly to exercise the constituent power to proposed amendments is the only way to fulfill the express mandate of the Constitution. As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in the setting as in of a Comelec resolution banning the use of political taped jingles by candidates for Constitutional Convention delegates int he special 1970 elections, "the concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to amnifst fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal heirarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guart lest the restrictions on its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore of disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon the maintain inviolate what is decreed by the fundamental law." This is but to give meaning to the plan and clear mandate of section 15 of the Transitory Provisions (which allows of no other interpretation) that during the stage of transition the interim National Assembly alone exercises the constituent power to propose amendments, upon special call therefor. This is reinforced by the fact that the cited section does not grant to the regular National Assembly of calling a constitutional convention, thus expressing the will of the Convention (and presumably of the people upon ratification) that if ever the need to propose amendments arose during the limited period of transition, the interim National Assembly alone would discharge the task and no constitutional convention could be call for the purpose. As to the alleged costs involved in convening the interim National Assembly to propose amendments, among them its own abolition, (P24 million annually in salaries alone for its 400 members at P600,000.00 per annum per member, assuming that its deliberations could last for one year), suffice it to recall this Court's pronouncement in Tolentino (in reflecting a similar argument on the costs of holding a plebiscite separately from the general elections for elective officials) that "it is a matter of public knowledge that bigger amounts have been spent or thrown to waste for many lesser objectives. ... Surely, the amount of seventeen million pesos or even more is not too much a price to pay for fealty and loyalty to the Constitution ... " 30 and that

"while the financial costs of a separate plebiscite may be high, it can never be as much as the dangers involved in disregarding clear mandate of the Constitution, no matter how laudable the objective" and "no consideration of financial costs shall deter Us from adherence to the requirements of the Constitution".11 10. The imposition of martial law (and "the problems of rebellion, subversion, secession, recession, inflation and economic crisis a crisis greater than war") 32 cited by the majority opinion as justifying the concentration of powers in the President, and the recognition now of his exercising the constituent power to propose amendments to the Fundamental Law "as agent for and in behalf of the people" 33 has no constitutional basis. In the post-war Emergency Powers 33*, former Chief Justice Ricardo Paras reaffirmed for the Court the principle that emergency in itself cannot and should not create power. In our democracy the hope and survival of the nation lie in the wisdom and unselfish patriotism of all officials and in their faithful 'Adherence to the Constitution". The martial law clause of the 1973 Constitution found in Article IX, section 12 , as stressed by the writer in his separate opinion in the Referendum Cases,14 "is a verbatim reproduction of Article VII, section 10 (2) of the 1935 Constitution and provides for the imposition of martial law only 'in case of invasion, resurrection or rebellion, or imminent danger thereof, when the public safety requires it and hence the use of the legislative power or more accurately 'military power' under martial rule is limited to such necessary measures as will safeguard the Republic and suppress the rebellion (or invasion)". 35 11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by the majority in the Referendum Cases to be the recognition or warrant for the exercise of legislative power by the President during the period of martial law is but a transitory provision. Together with the martial law clause, they constitute but two provisions which are not to be considered in isolation from the Constitution but as mere integral parts thereof which must be harmonized consistently with the entire Constitution. As Cooley restated the rule: "effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words Idle and nugatory. This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcelly conceivable that a case can arise where a court would bye justified in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together. 36 The transcendental constituent power to propose and approve amendments to the Constitution as well as set up the machinery and prescribe the procedure for the ratification of his proposals has been withheld from the President (Prime Minister) as sole repository of the Executive Power, presumably in view of the immense powers already vested in him by the Constitution but just as importantly, because by the very nature of the constituent power, such amendments proposals have to be prepared, deliberated and matured by a deliberative assembly of representatives such as the interim National Assembly and hence may not be antithetically entrusted to one man. Former Chief Justice Roberto Concepcion had observed before the elevation of the l971 Constitutional Convention that the records of past plebiscites show that the constitutional agency vested with the exercise of the constituent power (Congress or the Constitutional Convention) really determined the amendments to the Constitution since the proposals were invariably ratified by the people 37 thus: "although the people have the reserved power to ratify or reject the action taken by the Convention, such power is not, in view of the circumstances attending its exercise, as effective as one might otherwise think: that, despite the requisite ratification by the people, the actual contents of our fundamental law will really be determined by the Convention; that, accordingly the people should exercise the greatest possible degree of circumspection in the election of delegates thereto ... " 38 12. Martial law concededly does not abrogate the Constitution nor obliterate its constitutional boundaries and allocation of powers among the Executive, Legislative and Judicial Departments. 39 It has thus been aptly observed that "Martial law is an emergency regime, authorized by and subject to the Constitution. Its basic premise is to preserve and to maintain the Republic against the dangers that threaten it. Such premise imposes constraints and limitations. For the martial law regime fulfills the constitutional purpose only if, by reason of martial law measures, the Republic is preserved. If by reason of such measures the Republic is so transformed that it is changed in its nature and becomes a State other than republican, then martial law is a failure; worse, martial law would have become the enemy of the Republic rather than its defender and preserver."40 II. On the question of the Court's jurisdiction to pass upon the constitutionality of the questioned presidential decrees: let it be underscored that the Court has long set at rest the question. The trail was blazed for the Court since the benchmark case of Angara vs. Electoral Commission when Justice Jose P. Laurel echoed U.S. Chief Justice Marshall's "climactic phrase" that "we must never forget that it is a Constitution we are expounding" and declared the Court's "solemn and sacred" constitutional obligation of judicial review and laid down the doctrine that the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments . . . but only asserts the solemn and sacred obliteration entrusted to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and guarantees to them". At the same time, the Court likewise adhered to the constitutional tenet that political questions, i.e. questions which are intended by the Constitutional and relevant laws to be conclusively determined by the "political", i.e. branches of government (namely, the Executive and the Legislative) are outside the Court's jurisdiction. 41

Thus, in Gonzales, 42 (by a unanimous Court) and in Tolentino 43 (by the required constitutional majority), the Court has since consistently ruled that when proposing and approving amendments to the Constitution, the members of Congress. acting as a constituent assembly or the members of the Constitutional Convention elected directly for the purpose by not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that outs is it government of lawsom not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme Court, the power to declare a treaty unconstitutional, despite the eminently political character of treaty-making power". 44 As amplified by former Chief Justice Concepcion in Javellana vs Executive Secretary 45 (by a majority vote), "when the grant of power is qualified, conditional or subject to limitations. the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations by expected, is justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom Otherwise, said qualifications, conditions and limitations-particularly those prescribed or imposed by the Constitution would be set at naught". The fact that the proposed amendments are to be submitted to the people for ratification by no means makes the question political and non- justiciable since as stressed even in Javellana the issue of validity of the President's proclamation of ratification of the Constitution presented a justiciable and nonpolitical question Stated otherwise, the question of whether the Legislative acting as a constituent assembly or the Constitutional Convention called fol- the purpose, in proposing amendments to the people for ratification followed the constitutional procedure and on the amending process is perforce a justiciable question and does not raise a political question of police or wisdom of the proposed amendments, which if Submitted, are reserved for the people's decision. The substantive question presented in the case at bar of whether the President may legally exercise the constituent power vested in the interim National Assembly (which has not been granted to his office) and propose constitutional amendments is preeminently a justiciable issue. Justice Laurel in Angara had duly enjoined that "in times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof". To follow the easy way out by disclaiming jurisdiction over the issue as a political question would be judicial abdication. III. On the question of whether there is a sufficient and proper submittal of the proposed amendments to the people: Prescinding from the writer's view of the nullity of the questioned decree of lack of authority on the President's part to excercise the constituent power, I hold that the doctrine of fair and proper submission first enunciated by a simple majority of by Justices in Gonzales and subsequently officially adopted by the required constitutional twothirds majority of the Court in is controlling in the case at bar. 1. There cannot be said to be fair and proper submission of the proposed amendments. As ruled by this Court in Tolentino where "the proposed amendment in question is expressly saddled with reservations which naturally impair, in great measures, its very essence as a proposed constitutional amendment" and where "the way the proposal is worded, read together with the reservations tacked to it by the Convention thru Section 3 of the questioned resolution, it is too much of a speculation to assume what exactly the amendment would really amount lo in the end. All in all, as already pointed out in our discussion of movants' first ground, if this kind of amendment is allowed, the Philippines will appear before the world to be in the absurd position of being the only country with a constitution containing a provision so ephemeral no one knows until when it will bet actually in force", there can be no proper submission. In Tolentino a solitary amendment reducing the voting age to 18 years was struck down by this Court which ruled that "in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole," and that there was no proper Submission wherein the people are in the dark as to frame of reference they can base their judgment on 2. The now Chief Justice and Mr. Justice Makasiar with two other members 46 graphically pointed out in their joint separate opinion that the solitary question "would seem to be uncomplicated and innocuous. But it is one of life's verities that things which appear to be simple may turn out not to be so simple after all". 47 They further expressed "essential agreement" with Mr. Justice Conrado V. Sanchez' separate opinion in Gonzales "on the minimum requirements that must be met in order that there can be a proper submission to the people of a proposed constitutional amendment" which reads thus: ... we take the view that the words 'submitted to the people for their ratification', if construed in the light of the nature of the Constitution a fundamental charter that is legislation direct from the people, an expression of their sovereign will - is that it can only be amended by the people expressing themselves according to the procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word submitted' can only mean that the government, within its maximum capabilities, should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent. consent or rejection. If with all these safeguards the people still approve the amendment no matter how prejudicial it is to them, then so be it. For the people decree their own fate. 48

Justice Sanchez therein ended the passage with an apt citation that " ... " The great men who builded the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge Cooley, who has said 'A good Constitution should be beyond the reach of temporary excitement and. popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency. xxx xxx xxx Changes in government are to be feared unless the benefit is certain. As Montaign says: All great mutations shake and disorder state. Good does not necessarily succeed evil ;another evil may succeed and a worse'." 49 Justice Sanchez thus stated the rule that has been adopted by the Court in Tolentino that there is no proper submission "if the people are not sufficiently affirmed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner. ... .." 50 3. From the complex and complicated proposed amendments set forth in the challenged decree and the plethora of confused and confusing clarifications reported in the daily newspapers, it is manifest that there is no proper submission of the proposed amendments. Nine (9) proposed constitutional amendments were officially proposed and made known as per Presidential Decree No. 1033 dated, September 22, 1976 for submittal at the "referendum-plebiscite" called for this coming Saturday, October 16, 1976 wherein the 15-year and under 18-year- olds are enjoined to vote notwithstanding their lack of qualification under Article VI of the Constitution. Former Senator Arturo Tolentino, an acknowledged parliamentarian of the highest order, was reported by the newspapers last October 3 to have observed that "there is no urgency in approving the proposed amendments to the Constitution and suggested that the question regarding charter changes be modified instead of asking the people to vote on hurriedly prepared amendments". He further pointed out that "apart from lacking the parliamentary style in the body of the Constitution, they do not indicate what particular provisions are being repealed or amended". 52 As of this writing, October 11, 1976, the paper today reported his seven-page analysis questioning among others the proposed granting of dual legislative powers to both the President and the Batasang Pambansa and remarking that "This dual legislative authority can give rise to confusion and serious constitutional questions". 53 Aside from the inadequacy of the limited time given for the people's consideration of the proposed amendments, there can be no proper submission because the proposed amendments are not in proper form and violate the cardinal rule of amendments of written constitutions that the specific provisions of the Constitution being repealed or amended as well as how the specific provisions as amended would read, should be clearly stated in careful and measured terms. There can be no proper submission because the vagueness and ambiguity of the proposals do not sufficiently inform the people of the amendments for, conscientious deliberation and intelligent consent or rejection. 4. While the press and the Solicitor General at the hearing have stated that the principal thrust of the proposals is to substitute the interim National Assembly with an interim Batasang Pambansa, a serious study thereof in detail would lead to the conclusion that the whole context of the 1973 Constitution proper would be affected and grave amendments and modifications thereof -would apparently be made, among others, as follows: Under Amendment No. 1, the qualification age of members of the interim Batasang Pambansa is reduced to 18 years; Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld from the interim Batasang Pambansa; Under Amendment No 3, not withstanding the convening of the interim Batasang Pambansa within 30 days from the election and selection of the members (for which there is no fixed date) the incumbent President apparently becomes a regular President and Prime Minister (not ad interim); Under Amendment No. 4, the disqualifications imposed on members of the Cabinet in the Constitution such as the prohibition against the holding of more than one office in the government including government-owned or -controlled corporations would appear to be eliminated, if not prescribed by the President; Under Amendment No. 5, the President shall continue to exercise legislative powers until martial law is lifted; Under Amendment No. 6, there is a duality of legislative authority given the President and the interim Batasang Pambansa as well as the regular National Assembly, as pointed out by Senator Tolentino, with the President continuing to exercise legislative powers in case of "grave emergency or a threat or imminence thereof" (without definition of terms) or when said Assemblies "fail or are unable to act adequately on any matter for any reason that in his judgment requires immediate action", thus radically affecting provisions of the Constitution governing the said departments; Under Amendment No. 7, the barangays and Sanggunians would apparently be constitutionalized, although their functions, power and composition may be altered by law. Referendums (which are not authorized in the present 1973 Constitution) would also be constitutionalized, giving rise to the possibility fraught with grave consequences, as acknowledged at the hearing, that amendments to the Constitution may thereafter be effected by referendum, rather than by the rigid and strict amending process provided presently in Article XVI of the Constitution; Under Amendment No. 8, there is a general statement in general that the unspecified provisions of the Constitution "not inconsistent with any of these amendments" shall continue in full force and effect; and Under Amendment No. 9. the incumbent President is authorized to proclaim the ratification of the amendments by the majority of votes cast. It has likewise been stressed by the officials concerned that the proposed amendments come in a package and may not be voted upon separately but on an "all or nothing" basis. 5. Whether the people can normally express their will in a genuine manner and with due circumspection on the proposed amendments amidst the constraints of martial law is yet another question. That a period of free debate and discussion has to be declared of itself shows the limitations on free debate and discussion. The facilities for free debate and discussion over the mass media, print and otherwise are wanting. The President himself is reported to have observed the timidity of the media under martial law and to have directed the press to air the views of the opposition. 54 Indeed, the voice of the studentry as reflected in the editorial of the Philippine Collegian issue of September 23, 1976 comes as a welcome and refreshing model of conscientious deliberation, as our youth analyzes the issues "which will affect generations yet to come" and urge the people to mull over the pros and cons very carefully", as follows:

THE REFERENDUM ISSUES On October 16, the people may be asked to decide on two important national issues - the creation of a new legislative body and the lifting of martial law. On the first issue, it is almost sure that the interim National Assembly will not be convened, primarily because of its membership. Majority of the members of the defunct Congress, who are mandated by the Constitution to become members of the interim National Assembly, have gained so widespread a notoriety that the mere mention of Congress conjures the image of a den of thieves who are out to fool the people most of the time. Among the three branches of government, it was the most discredited. In fact, upon the declaration of martial law, some people were heard to mutter that a 'regime that has finally put an end to such congressional shenanigans could not be all that bad'. A substitute legislative body is contemplated to help the President in promulgating laws, and perhaps minimize the issuance of illdrafted decrees which necessitate constant amendments. But care should be taken that this new legislative body would not become a mere rubber stamp akin to those of other totalitarian countries. It should be given real powers, otherwise we will just have another nebulous creation having the form but lacking the substance. Already the President has expressed the desire that among the powers he would like to have with regard to the proposed legislative body is that of abolishing it in case 'there is a need to do so'. As to what would occasion such a need, only the President himself can determine. This would afford the Chief Executive almost total power over the legislature, for he could always offer the members thereof a carrot and a stick. On the matter of lifting martial law the people have expressed ambivalent attitudes. Some of them, remembering the turmoil that prevailed before the declaration of martial law, have expressed the fear that its lifting might precipitate the revival of the abuses of the past, and provide an occasion for evil elements to resurface with their usual tricks. Others say that it is about time martial law was lifted since the peace and order situation has already stabilized and the economy seems to have been parked up. The regime of martial law has been with us for four years now. No doubt, martial law has initially secured some reforms for the country The people were quite willing to participate in the new experiment, thrilled by the novelty of it all. After the euphoria, however, the people seem to have gone back to the old ways, with the exception that some of our freedoms were taken away, and an authoritarian regime established. We must bear in mind that martial law was envisioned only to cope with an existing national crisis, It was not meant to be availed of for a long period of time, otherwise it would undermine our adherence to a democratic form of government. In the words of the Constitution. martial law shall only be declared in times of 'rebellion, insurrection,. invasion, or imminent danger thereof, when the public safety requires it'. Since we no longer suffer from internal disturbances of a gargantuan scale, it is about time we seriously rethink the 'necessity' of prolonging the martial law regime. If we justify the continuance of martial by economic or other reasons other than the foregoing constitutional grounds, then our faith in the Constitution might be questioned. Even without martial law,. the incumbent Chief Executive still holds vast powers under the constitution. After all, the gains of the New Society can be secured without sacrificing the freedom of our people. If the converse is true, then we might have to conclude that the Filipinos deserve a dictatorial form of government. The referendum results will show whether the people themselves have adopted this sad conclusion. The response of the people to the foregoing issues will affect generations yet to come, so they should mull over the pros and cons very carefully." 6. This opinion by written in the same spirit as the President's exhortations on the first anniversary of proclamation of the 1973 Constitution that we "let the Constitution remain firm and stable" so that it may "guide the people", and that we "remain steadfast on the rule of law and the Constitution" as he recalled his rejection of the "exercise (of) power that can be Identified merely with a revolutionary government" that makes its own law, thus: . . . Whoever he may be and whatever position he may happen to have, whether in government or outside government, it is absolutely necessary now that we look solemnly and perceptively into the Constitution and try to discover for ourselves what our role is in the successful implementation of that Constitution. With this thought, therefore, we can agree on one thing and that is: Let all of us age, let all of us then pass away as a pace in the development of our country. but let the Constitution remain firm and stable and let institutions grow in strength from day to day, from achievement to achievement, and so long as that Constitution stands, whoever may the man in power be, whatever may his purpose be, that Constitution will guide the people and no man, however, powerful he may be, will dare to destroy and wreck the foundation of such a Constitution. These are the reasons why I personally, having proclaimed martial law, having been often induced to exercise power that can be Identified merely with a revolutionary government, have remained steadfast or the rule of law and the Constitution. 54* IV. A final word on the Court's resolution of October 5, 1976 which in reply to the Comelec query allowed by a vote of 7 to 3, judges of all courts, after office hours, "to accept invitations to act as resource speakers under Section 5 of Presidential Decree No. 991, as amended, as well as to take sides in discussions and debates on the referendum-plebiscite questions under Section 7 of the same Decree." 55 The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma had dissented from the majority resolution, with all due respect, on the ground that the non-participation of judges in such public discussions and debates on the referendum-plebiscite questions would preserve the traditional noninvolvement of the judiciary in public discussions of controversial issues. This is essential for the maintenance and enhancement of the people's faith and confidence in the judiciary. The questions of the validity of the scheduled referendum- plebiscite and of whether there is proper submission of the proposed amendments were precisely subjudice by virtue of the cases at bar. The lifting of the traditional inhibition of judges from public discussion and debate might blemish the image and independence of the judiciary. Aside from the fact that the fixing of a time limit for the acceptance of their courtesy resignations to avoid an indefinite state of insecurity of their tenure in office still spends litigants and their relatives and friends as well as a good sector of the public would be hesitant to air views contrary to that of the.

Judge. Justices Makasiar and Munoz Palma who share these views have agreed that we make them of record here, since we understand that the permission given in the resolution is nevertheless addressed to the personal decision and conscience of each judge, and these views may he of some guidance to them. BARREDO, J.,: concurring: While I am in full agreement with the majority of my brethren that the herein petitions should be dismissed, as in fact I vote for their dismissal, I deem it imperative that I should state separately the considerations that have impelled me to do so. Perhaps, it is best that I should start by trying to disabuse the minds of those who have doubts as to whether or not I should have taken part in the consideration and resolution of these cases. Indeed, it would not be befitting my position in this Highest Tribunal of the land for me to leave unmentioned the circumstances which have given cause, I presume, for others to feel apprehensive that my participation in these proceedings might detract from that degree of faith in the impartiality that the Court's judgment herein should ordinarily command. In a way, it can be said, of course, that I am the one most responsible for such a rather problematical situation, and it is precisely for this reason that I have decided to begin this opinion with a discussion of why I have not inhibited myself, trusting most confidently that what I have to say will be taken in the same spirit of good faith, sincerity and purity of purpose in which I am resolved to offer the same. Plain honesty dictates that I should make of record here the pertinent contents of the official report of the Executive Committee of the Katipunan ng mga Sanggunian submitted to the Katipunan itself about the proceedings held on August 14, 1976. It is stated in that public document that: THE ISSUE WITH REGARDS To THE CONVENING OF A LEGISLATIVE body came out when the President express his desire to share his powers with other people. Aware of this, a five-man Committee members of the Philippine Constitution Association (PHILCONSA) headed by Supreme Court Justice Antonio Barredo proposed on July 28, the establishment of 'Sangguniang Pambansa' or 'Batasang Pambansa' which would help the President in the performance of his legislative functions. The proposed new body will take the place of the interim National Assembly which is considered not practical to convene at this time considering the constitution of its membership. Upon learning the proposal of Justice Barredo, the country's 42,000 barangay assemblies on August 1 suggested that the people be consulted on a proposal to create a new legislative body to replace the interim assembly provided for by the Constitution. The suggestion of the barangay units was made through their national association, Pambansang Katipunan ng mga Barangay headed by Mrs. Nora Z. Patines. She said that the people have shown in at least six instances including in the two past referenda that they are against the convening of the interim National Assembly. She also said that since the people had ruled out the calling of such assembly and that they have once proposed that the President create instead the Sangguniang Pambansa or a legislative advisory body, then the proposal to create a new legislative must necessarily be referred to the people. The federation of Kabataang Barangay, also numbering 42,000 units like their elder counterparts in the Katipunan ng mga Barangay also asserted their own right to be heard on whatever plans are afoot to convene a new legislative body. On August 6, a meeting of the national directorate of PKB was held to discuss matters pertaining to the stand of the PKB with regards to the convening of a new legislative body. The stand of the PKB is to create a legislative advisory council in place of the old assembly. Two days after, August 8, the Kabataang Barangay held a symposium and made a stand which is the creation of a body with full legislative powers. A nationwide clamor for the holding of meeting in their respective localities to discuss more intellegently the proposal to create a new legislative body was made by various urban and rural Sangguniang Bayans. Numerous requests made by some members coming from 75 provincial and 61 city SB assemblies, were forwarded to the Department of Local Government and Community Development (DLGCD). On August 7, Local Government Secretary, Jose A. Rono granted the request by convening the 91 member National Executive Committee of the Pambansang Katipunan ng mga Sanggunian on August 14 which was held at Session Hall, Quezon City. Invited also to participate were 13 Regional Federation Presidents each coming from the PKB and the PKKB Actually, the extent of my active participation in the events and deliberations that have culminated in the holding of the proposed referendum- plebiscite on October 16, 1976, which petitioners are here seeking to enjoin, has been more substantial and meaningful than the above report imparts. Most importantly, aside from being probably the first person to publicly articulate the need for the creation of an interim legislative body to take the place of. the interim National Assembly provided for in the Transitory Provisions of the Constitution, as suggested in the above report, I might say that I was the one most vehement and persistent in publicly advocating and urging the authorities concerned to directly submit to the people in a plebiscite whatever amendments of the Constitution might be considered necessary for the establishment of such substitute interim legislature. In the aforementioned session of the Executive Committee of the Katipunan, I discourse on the indispensability of a new interim legislative body as the initial step towards the early lifting of martial law and on the fundamental considerations why in our present situation a constitutional convention would be superfluous in amending the Constitution. Moreover, it is a matter of public knowledge that in a speech I delivered at the Coral Ballroom of the Hilton Hotel in the evening of August 17, 1976, I denounced in no uncertain terms the plan to call a constitutional convention. I reiterated the same views on September 7, 1976 at the initial conference called by the Comelec in the course of the information and educational campaign it was enjoined to conduct on the subject. And looking back at the subsequent developments up to September 22, 1976, when the Batasang Bayan approved and the President signed the now impugned Presidential Decree No. 1033, it is but human for me to want to believe that to a certain extent my strong criticisms and resolute stand against any other alternative procedure of amending the Constitution for the purpose intended had borne fruit.

I must hasten to add at this point, however, that in a larger sense, the initiative for all I have done, was not altogether mine alone. The truth of the matter is that throughout the four years of this martial law government, it has always been my faith, as a result of casual and occasional exchanges of thought with President Marcos, that when the appropriate time does come, the President would somehow make it known that in his judgment, the situation has already so improved as to permit the implementation, if gradual, of the constitutionally envisioned evolution of our government from its present state to a parliamentary one. Naturally, this would inevitably involve the establishment of a legislative body to replace the abortive interim National Assembly. I have kept tract of all the public and private pronouncements of the President, and it was the result of my reading thereof that furnished the immediate basis for my virtually precipitating, in one way or another, the materialization of the forthcoming referendum-plebiscite. In other words, in the final analysis, it was the President's own attitude on the matter that made it opportune for me to articulate my own feelings and Ideas as to how the nation can move meaningfully towards normalization and to publicly raise the issues that have been ventilated by the parties in the instant cases. I would not be human, if I did not consider myself privileged in having been afforded by Divine Providence the opportunity to contribute a modest share in the formulation of the steps that should lead ultimately to the lifting of martial law in our country. Indeed, I am certain every true Filipino is anxiously looking forward to that eventuality. And if for having voiced the sentiments of our people, where others would have preferred to be comfortably silent, and if for having made public what every Filipino must have been feeling in his heart all these years, I should be singled out as entertaining such preconceived opinions regarding the issues before the Court in the cases at bar as to preclude me from taking part in their disposition, I can only say that I do not believe there is any other Filipino in and out of the Court today who is not equally situated as I am . The matters that concern the Court in the instant petitions do not involve merely the individual interests of any single person or group of persons. Besides, the stakes in these cases affect everyone commonly, not individually. The current of history that has passed through the whole country in the wake of martial law has swept all of us, sparing none, and the problem of national survival and of restoring democratic institutions and Ideals is seeking solution in the minds of all of us. That I have preferred to discuss publicly my own thoughts on the matter cannot mean that my colleagues in the Court have been indifferent and apathetic about it, for they too are Filipinos. Articulated or not, all of us must have our own preconceived Ideas and notions in respect to the situation that confronts the country. To be sure, our votes and opinions in the- major political cases in the recent past should more or less indicate our respective basic positions relevant to the issues now before Us. Certainly, contending counsels cannot be entirely in the dark in this regard. I feel that it must have been precisely because of such awareness that despite my known public participation in the discussion of the questions herein involved, none of the parties have sought my inhibition or disqualification. Actually, although it may be difficult for others to believe it, I have never allowed my preconceptions and personal inclinations to affect the objectivity needed in the resolution of any judicial question before the Court. I feel I have always been able to appreciate, fully consider and duly weigh arguments and points raised by all counsels, even when they conflict with my previous views. I am never beyond being convinced by good and substantial ratiocination. Nothing has delighted me more than to discover that somebody else has thought of more weighty arguments refuting my own, regardless of what or whose interests are at stake. I would not have accepted my position in the Court had I felt I would not be able to be above my personal prejudices. To my mind, it is not that a judge has preconceptions that counts, it is his capacity and readiness to absorb contrary views that are indispensable for justice to prevail. That suspicions of prejudgment may likely arise is unavoidable; but I have always maintained that whatever improper factors might influence a judge will unavoidably always appear on the face of the decision. In any event, is there better guarantee of justice when the preconceptions of a judge are concealed? Withal, in point of law, I belong to the school of thought that regards members of the Supreme Court as not covered by the general rules relative to disqualification and inhibition of judges in cases before them. If I have in practice actually refrained from participating in some cases, it has not been because of any legal ground founded on said rules, but for purely personal reasons, specially because, anyway, my vote would not have altered the results therein. It is my considered opinion that unlike in the cases of judges in the lower courts, the Constitution does not envisage compulsory disqualification or inhibition in any case by any member of the Supreme Court. The Charter establishes a Supreme Court "composed of a Chief Justice and fourteen Associate Justices", with the particular qualifications therein set forth and to be appointed in the manner therein provided. Nowhere in the Constitution is there any indication that the legislature may designate by law instances wherein any of the justices should not or may not take part in the resolution of any case, much less who should take his place. Members of the Supreme Court are definite constitutional officers; it is not within the power of the lawmaking body to replace them even temporarily for any reason. To put it the other way, nobody who has not been duly appointed as a member of the Supreme Court can sit in it at any time or for any reason. The Judicial power is vested in the Supreme Court composed as the Constitution ordains - that power cannot be exercised by a Supreme Court constituted otherwise. And so, when as in the instant where, if any of the member of Court is to abstain from taking part, there would be no quorum - and no court to render the decision - it is the includible duty of all the incumbent justices to participate in the proceedings and to cast their votes, considering that for the reasons stated above, the provisions of Section 9 of the Judiciary Act do not appear to conform with the concept of the office of Justice of the Supreme Court contemplated in the Constitution. The very nature of the office of Justice of the Supreme Court as the tribunal of last resort and bulwark of the rights and liberties of all the people demands that only one of dependable and trustworthy probity should occupy the same. Absolute integrity, mental and otherwise, must be by everyone who is appointed thereto. The moral character of every member of the Court must be assumed to be such that in no case whatsoever. regardless of the issues and the parties involved, may it be feared that anyone's life, liberty or property, much less the national interests, would ever be in jeopardy of being unjustly and improperly subjected to any kind of judicial sanction. In sum, every Justice of the Supreme Court is expected to be capable of rising above himself in every case and of having full control of his emotions and prejudices, such that with the legal training and experience he must of necessity be adequately equipped with, it would be indubitable that his judgment cannot be but objectively impartial, Indeed, even the appointing power, to whom the Justices owe their positions, should never hope to be unduly favored by any action of the Supreme Court. All appointments to the Court are based on these considerations, hence the ordinary rules on inhibition and disqualification do not have to be applied to its members. With the preliminary matter of my individual circumstances out of the way, I shall now address myself to the grave issues submitted for Our resolution. -IIn regard to the first issue as to whether the questions posed in the petitions herein are political or justiciable, suffice it for me to reiterate the fundamental position I took in the Martial Law cases, 1 thus As We enter the extremely delicate task of resolving the grave issues thus thrust upon Us. We are immediately encountered by absolute verities to guide Us all the way. The first and most important of them is that the Constitution (Unless expressly stated

otherwise, all references to the Constitution in this discussion are to both the 1935 and 1973 charters, since, after all, the pertinent provisions are practically Identical in both is the supreme law of the land. This means among other things that all the powers of the government and of all its officials from the President down to the lowest emanate from it. None of them may exercise any power unless it can be traced thereto either textually or by natural and logical implication. "The second is that it is settled that the Judiciary provisions of the Constitution point to the Supreme Court as the ultimate arbiter of all conflicts as to what the Constitution or any part thereof means. While the other Departments may adopt their own construction thereof, when such construction is challenged by the proper party in an appropriate case wherein a decision would be impossible without determining the correct construction, the Supreme Court's word on the matter controls. xxx xxx xxx xxx xxx xxx The fifth is that in the same manner that the Executive power conferred upon the Executive by the Constitution is complete, total and unlimited, so also, the judicial power vested in the Supreme Court and the inferior courts, is the very whole of that power, without any limitation or qualification. xxx xxx xxx xxx xxx xxx From these incontrovertible postulates, it results, first of all, that the main question before Us is not in reality one of jurisdiction, for there can be no conceivable controversy, especially one involving a conflict as to the correct construction of the Constitution, that is not contemplated to be within the judicial authority of the courts to hear and decide. The judicial power of the courts being unlimited and unqualified, it extends over all situations that call for the as certainment and protection of the rights of any party allegedly violated, even when the alleged violator is the highest official of the land or the government itself. It is, therefore, evidence that the Court's jurisdiction to take cognizance of and to decide the instant petitions on their merits is beyond challenge. In this connection, however, it must be borne in mind that in the form of government envisaged by the framers of the Constitution and adopted by our people, the Court's indisputable and plenary authority to decide does not necessarily impose upon it the duty to interpose its fiat as the only means of settling the conflicting claims of the parties before it. It is ingrained in the distribution of powers in the fundamental law that hand in hand with the vesting of the judicial power upon the Court, the Constitution has coevally conferred upon it the discretion to determine, in consideration of the constitutional prerogatives granted to the other Departments, when to refrain from imposing judicial solutions and instead defer to the judgment of the latter. It is in the very nature of republican governments that certain matters are left in the residual power of the people themselves to resolve, either directly at the polls or thru their elected representatives in the political Departments of the government. And these reserved matters are easily distinguishable by their very nature, when one studiously considers the basic functions and responsibilities entrusted by the charter to each of the great Departments of the government. To cite an obvious example, the protection, defense and preservation of the state against internal or external aggression threatening its very existence is far from being within the ambit of judicial responsibility. The distinct role then of the Supreme Court of being the final arbiter in the determination of constitutional controversies does not have to be asserted in such contemplated situations, thereby to give way to the ultimate prerogative of the people articulated thru suffrage or thru the acts of their political representatives they have elected for the purpose. Indeed, these fundamental considerations are the ones that lie at the base of what is known in American constitutional law as the political question doctrine, which in that jurisdiction is unquestionably deemed to be part and parcel of the rule of law, exactly like its apparently more attractive or popular opposite, judicial activism, which is the fullest exertion of judicial power, upon the theory that unless the courts intervene injustice might prevail. It has been invoked and applied by this Court in varied forms and mode of projection in several momentous instances in the past, (Barcelona vs. Baker, 5 Phil. 87; Severino vs. Governor-General, 16 Phil. 366; Abueva vs. Wood, 45 Phil. 612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil. 654; Montenegro vs. Castaneda, 91 Phil. 882, Santos vs. Yatco, 55 O.G. 8641 [Minute Resolution of Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.) and it is the main support of the stand of the Solicitor General on the issue of jurisdiction in the cases at bar. It is also referred to as the doctrine of judicial self-restraint or abstention. But as the nomenclatures themselves imply, activism and self- restraint are both subjective attitudes, not inherent imperatives. The choice of alternatives in any particular eventuality is naturally dictated by what in the Court's considered opinion is what the Constitution envisions should be by in order to accomplish the objectives of government and of nationhood. And perhaps it may be added here to avoid confusion of concepts, that We are not losing sight of the traditional approach based on the doctrine of separation of powers. In truth, We perceive that even under such mode of rationalization, the existence of power is secondary, respect for the acts of a co-ordinate, co-equal and independent Department being the general rule, particularly when the issue is not encroachment of delimited areas of functions but alleged abuse of a Department's own basic prerogatives. (59 SCRA, pp. 379-383.) Applying the foregoing considerations to the cases at bar, I hold that the Court has jurisdiction to pass on the merits of the various claims of petitioners. At the same time, however, I maintain that the basic nature of the issues herein raised requires that the Court should exercise its constitutionally endowed prerogative to refrain from exerting its judicial authority in the premises. Stripped of incidental aspects, the constitutional problem that confronts Us stems from the absence of any clear and definite express provision in the Charter applicable to the factual milieu herein involved. The primary issue is, to whom, under the circumstances, does the authority to propose amendments to the Constitution property belong? To say, in the light of Section 15 of Article XVII of the Charter, that that faculty lies in the interim National Assembly is to beg the main question. Indeed, there could be no occasion for doubt or debate, if it could ' only be assumed that the interim National Assembly envisaged in Sections 1 and 2 of the same Article XVII may be convoked. But precisely, the fundamental issue We are called upon to decide is whether or not it is still constitutionally possible to convene that body. And relative to that question, the inquiry centers on whether or not the political developments since the ratification of the Constitution indicate that the people have in effect enjoined the convening of the interim National Assembly altogether. On this score, it is my assessment that the results of the referenda of January 10-15, 1973, July 27-28, 1973 and February 27, 1975 clearly show that the great majority of our people, for reasons plainly obvious to anyone who would consider the composition of that Assembly, what with its more than 400 members automatically voted into it by the Constitutional Convention together with its own members, are against its being convoked at all.

Whether or not such a manifest determination of the sentiments of the people should be given effect without a formal amendment of the Constitution is something that constitutional scholars may endlessly debate on. What cannot be disputed, however, is that the government and the nation have acquiesced to, it and have actually operated on the basis thereof. Proclamation 1103 which, on the predicate that the overwhelming majority of the people desire that the interim Assembly be not convened, has ordained the suspension of its convocation, has not been assailed either judicially or otherwise since the date of its promulgation on January 17, 1973. In these premises, it is consequently the task of the Court to determine what, under these circumstances, is the constitutional relevance of the interim National Assembly to any proposal to amend the Constitution at this time. It is my considered opinion that in resolving that question, the Court must have to grapple with the problem of what to do with the will of the people, which although manifested in a manner not explicitly provided for in the Constitution, was nevertheless official, and reliable, and what is more important clear and unmistakable, despite the known existence of well-meaning, if insufficiently substantial dissent. Such being the situation, I hold that it is not proper for the Court to interpose its judicial authority against the evident decision of the people and should leave it to the political department of the government to devise the ways and means of resolving the resulting problem of how to amend the Constitution, so long as in choosing the same, the ultimate constituent power is left to be exercised by the people themselves in a wellordered plebiscite as required by the fundamental law. -2Assuming We have to inquire into the merits of the issue relative to the constitutional authority behind the projected amendment of the Charter in the manner provided in Presidential Decree 1033, I hold that in the peculiar situation in which the government is today, it is not incompatible with the Constitution for the President to propose the subject amendments for ratification by the people in a formal plebiscite under the supervision of the Commission on Elections. On the contrary, in the absence of any express prohibition in the letter of the Charter, the Presidential Decree in question is entirely consistent with the spirit and the principles underlying the Constitution. The correctness of this conclusion should become even more patent, when one considers the political developments that the people have brought about since the ratification of the Constitution on January 17,1973. I consider it apropos at this juncture to repeat my own words in a speech I delivered on the occasion of the celebration of Law Day on September 18, 1975 before the members of the Philippine Constitution Association and their guests: To fully comprehend the constitutional situation in the Philippines today, one has to bear in mind that, as I have mentioned earlier, the martial law proclaimed under the 1935 Constitution overtook the drafting of the new charter by the Constitutional Convention of 1971. It was inevitable, therefore, that the delegates had to take into account not only the developments under it but, most of all, its declared objectives and what the President, as its administrator, was doing to achieve them. In this connection, it is worthy of mention that an attempt to adjourn the convention was roundly voted down to signify the determination of the delegates to finish earliest their work, thereby to accomplish the mission entrusted to them by the people to introduce meaningful reforms in our government and society. Indeed, the constituent labors gained rapid tempo, but in the process, the delegates were to realize that the reforms they were formulating could be best implemented if the martial law powers of the President were to be allowed to subsist even after the ratification of the Constitution they were approving. This denouement was unusual. Ordinarily, a constitution born out of a crisis is supposed to provide all the needed cures and can, therefore, be immediately in full force and effect after ratification. Not so, with our 1973 Constitution, Yes, according to the Supreme Court, 'there is no more judicial obstacle to the new Constitution being considered in force and effect', but in truth, it is not yet so in full. Let me explain. To begin with, in analyzing the new Constitution, we must be careful to distinguish between the body or main part thereof and its transitory provisions. It is imperative to do so because the transitory provisions of our Constitution are extraordinary in the sense that obviously they have been designed to provide not only for the transition of our government from the presidential form under the past charter to a parliamentary one as envisaged in the new fundamental law, but also to institutionalize, according to the President, the reforms introduced thru the exercise of his martial law powers. Stated differently, the transitory provisions, as it has turned out, has in effect established a transition government, not, I am sure, perceived by many. It is a government that is neither presidential nor parliamentary. It is headed, of course, by President Marcos who not on retains all his powers under the 1935 Constitution but enjoys as well those of the President and the Prime Minister under the new Constitution. Most importantly, he can and does legislate alone. But to be more accurate, I should say that he legislates alone in spite of the existence of the interim National Assembly unequivocally ordained by the Constitution, for the simple reason that he has suspended the convening of said assembly by issuing Proclamation No. 1103 purportedly 'in deference to the sovereign will of the Filipino people' expressed in the January 10-15, 1973 referendum. Thus, we have here the unique case of a qualified ratification. The whole Constitution was submitted for approval or disapproval of the people, and after the votes were counted and the affirmative majority known, we were told that the resulting ratification was subject to the condition that the interim National Assembly evidently established in the Constitution as the distinctive and indispensable element of a parliamentary form of government should nevertheless be not convened and that no elections should be held for about seven years, with the consequence that we have now a parliamentary government without a parliament and a republic without any regular election of its officials. And as you can see, this phenomenon came into being not by virtue of the Constitution but of the direct mandate of the sovereign people expressed in a referendum. In other words, in an unprecedented extraconstitutional way, we have established, wittingly or unwittingly, a direct democracy through the Citizens Assemblies created by Presidential Decree No. 86, which later on have been transformed into barangays, a system of government proclaimed by the President as 'a real achievement in participatory democracy.' What I am trying to say, my friends, is that as I perceive it, what is now known as constitutional authoritarianism means, in the final analysis, that the fundamental source of authority of our existing government may not be necessarily found within the four corners of the Constitution but rather in the results of periodic referendums conducted by the Commission on Elections in a manner well known to all of us This, as I see it, is perhaps what the President means by saying that under the new Constitution he has extra-ordinary powers independently of martial law - powers sanctioned directly by the people which may not even be read in the language of the Constitution. in brief, when we talk of the rule of law nowadays, our frame of reference should not necessarily be the Constitution but the outcome of referendums called from time to time by the President. The sooner we imbibe this vital concept the more intelligent will our perspective be in giving our support and loyalty to the existing government. What is more, the clearer will it be that except for the fact that all the powers of government are being exercised by the President, we - do not in reality have a dictatorship but an experimental type of direct democracy." In the foregoing disquisition, I purposely made no mention of the referendum of February 27, 1975. It is important to note, relative to the main issue now before Us, that it was originally planned to ask the people in that referendum whether or not they would like the interim National Assembly to convene, but the Comelec to whom the task of preparing the questions was assigned was prevailed upon not to include any -such question anymore, precisely because it was the prevalent view even among the delegates to the Convention as well as the members of the old Congress concerned that that matter

had already been finally resolved in the previous referenda of January and July 1973 in the sense that. the Assembly should not be convened comparable to res adjudicata. It is my position that as a result of the political developments since January 17, 1973 the transitory provisions envisioning the convening of the interim National Assembly have been rendered legally inoperative. There is no doubt in my mind that for the President to convoke the interim National Assembly as such would be to disregard the will of the people - something no head of a democratic republican state like ours should do. And I find it simply logical that the reasons that motivated the people to enjoin the convening of the Assembly - the unusually large and unmanageable number of its members and the controversial morality of its automatic composition consisting of all the incumbent elective national executive and legislative officials under the Old Constitution who would agree to join it and the delegates themselves to the Convention who had voted in favor of the Transitory Provisions - apply not only to the Assembly as an ordinary legislature but perhaps more to its being a constituent body. And to be more realistic, it is but natural to conclude that since the people are against politicians in the old order having anything to do with the formulation of national policies, there must be more reasons for them to frown on said politicians taking part in amendment of the fundamental law, specially because the particular amendment herein involved calls for the abolition of the interim National Assembly to which they belong and its substitution by the Batasang Pambansa. It is argued that in law, the qualified or conditional ratification of a constitution is not contemplated. I disagree. It is inconsistent with the plenary power of the people to give or withhold their assent to a proposed Constitution to maintain that they can do so only wholly. I cannot imagine any sound principle that can be invoked to support the theory that the proposing authority can limit the power of ratification of the people. As long as there are reliable means by which only partial approval can be manifested, no cogent reason exists why the sovereign people may not do so. True it is that no proposed Constitution can be perfect and it may therefore be taken with the good and the bad in it, but when there are feasible ways by which it can be determined which portions of it, the people disapprove. it would be stretching technicality beyond its purported office to render the final authority - the people impotent to act according to what they deem best suitable to their interests. In any event, I feel it would be of no consequence to debate at length regarding the legal feasibility of qualified ratification. Proclamation 1103 categorically declares that: WHEREAS, fourteen million nine hundred seventy six thousand five hundred sixty-one (14,976.561) members of all the Barangays voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; but a majority of those who approved the new Constitution conditioned their votes on the demand that the interim National Assembly provided in its Transitory Provisions should not be convened. and in consequence, the President has acted accordingly by not convening the Assembly. The above factual premises of Proclamation 1103 is not disputed by petitioners. Actually, it is binding on the Court, the same being a political act of a coordinate department of the government not properly assailed as arbitrary or whimsical. At this point, it must be emphasized in relation to the contention that a referendum is only consultative, that Proclamation 1103, taken together with Proclamation 1102 which proclaimed the ratification of the Constitution, must be accorded the same legal significance as the latter proclamation, as indeed it is part and parcel if the Act of ratification of the Constitution, hence not only persuasive but mandatory. In the face of the incontrovertible fact that the sovereign people have voted against the convening of the interim National Assembly, and faced with the problem of amending the Constitution in order precisely to implement the people's rejection of that Assembly, the problem of constitutional dimension that confronts Us, is how can any such amendment be proposed for ratification by the people? To start with, it may not be supposed that just because the office or body designed by the constitutional convention to perform the constituent function of formulating proposed amendments has been rendered inoperative by the people themselves, the people have thereby foreclosed the possibility of amending the Constitution no matter how desirable or necessary this might be. In this connection, I submit that by the very nature of the office of the Presidency in the prevailing scheme of government we have - it being the only political department of the government in existence - it is consistent with basic principles of constitutionalism to acknowledge the President's authority to perform the constituent function, there being no other entity or body lodged with the prerogative to exercise such function. There is another consideration that leads to the same conclusion. It is conceded by petitioners that with the non-convening of the interim Assembly, the legislative authority has perforce fallen into the hands of the President, if only to avoid a complete paralysis of law-making and resulting anarchy and chaos. It is likewise conceded that the provisions of Section 3 (2) of Article XVII invest the President with legislative power for the duration of the transition period. From these premises, it is safe to conclude that in effect the President has been substituted by the people themselves in place of the interim Assembly. Such being the case, the President should be deemed as having been granted also the cognate prerogative of proposing amendments to the Constitution. In other words, the force of necessity and the cognate nature of the act justify that the department exercising the legislative faculty be the one to likewise perform the constituent function that was attached to the body rendered impotent by the people's mandate. Incidentally, I reject most vehemently the proposition that the President may propose amendments to the Constitution in the exercise of his martial law powers. Under any standards, such a suggestion cannot be reconciled with the Ideal that a Constitution is the free act of the people. It was suggested during the oral, argument that instead of extending his legislative powers by proposing the amendment to create a new legislative body, the President should issue a decree providing for the necessary apportionment of the seats in the Regular National Assembly and call for an election of the members thereof and thus effect the immediate normalization of the parliamentary government envisaged in the Constitution. While indeed procedurally feasible, the suggestion overlooks the imperative need recognized by the constitutional convention as may be inferred from the obvious purpose of the transitory provisions, for a period of preparation and acquaintance by all concerned with the unfamiliar distinctive features and practices of the parliamentary system. Accustomed as we are to the presidential system, the Convention has seen to it that there should be an interim parliament under the present leadership, which will take the corresponding measures to effectuate the efficient and smooth transition from the present system to the new one. I do not believe this pattern set by the convention should be abandoned. The alternative of calling a constitutional convention has also been mentioned. But, in the first place, when it is considered that whereas, under Section 1 (1) and (2) of Article XVI, the regular National Assembly may call a Constitutional Convention or submit such a call for approval of the people, Section 15 of Article XVII, in reference to interim National Assembly, does not grant said body the prerogative of calling a convention, one can readily appreciate that the spirit of the Constitution does not countenance or favor the calling of a convention during the transition, if only because such a procedure would be time consuming, cumbersome and expensive. And when it is further noted that the requirement as to the number of votes needed for a proposal is only a majority, whereas it is three-fourths in respect to regular Assembly, and, relating this point to the provision of Section 2 of Article XVI to the effect that all ratification plebiscites must be held "not later than three months after the approval" of the proposed amendment by the proposing authority, the

adoption of the most simple manner of amending the charter, as that provided for in the assailed Presidential Decree 1033 suggests itself as the one most in accord with the intent of the fundamental law. There is nothing strange in adopting steps not directly based on the letter of the Constitution for the purpose of amending or changing the same. To cite but one important precedent, as explained by Mr. Justice Makasiar in his concurring opinion in Javellana 2, the present Constitution of the United States was neither proposed nor ratified in the manner ordained by the original charter of that country, the Articles of Confederation and Perpetual Union. In brief. if the convening and operation of the interim National Assembly has been effectuated through a referendum-plebiscite in January, 1973, and ratified expressly and impliedly in two subsequent referenda, those of July, 1973 and February, 1975, why may not a duly held plebiscite suffice for the purpose of creating a substitute for that Assembly? It should be borne in mind that after all, as indicated in the whereas of the impugned Presidential Decree, actually, the proposed amendments were initiated by the barangays and sanggunian members. In other words, in submitting the amendments for ratification, the President is merely acting as the conduit thru whom a substantial portion of the people, represented in the Katipunan ng Mga Sanggunian, Barangay at Kabataang Barangay, seek the approval of the people as a whole of the amendments in question. If all these mean that the sovereign people have arrogated unto themselves the functions relative to the amendment to the Constitution, I would regard myself as totally devoid of legal standing to question it, having in mind that the most fundamental tenet on which our whole political structure rests is that "sovereignty resides in the people and all government authority emanates from them." In the light of the foregoing considerations, I hold that Presidential Decree No. 1033 does not infringe the Constitution, if only because the specific provision it is supposed to infringe does not exist in legal contemplation since it was coevally made inoperative when the people ratified the Constitution on January 17, 1973. I am fully convinced that there is nothing in the procedure of amendment contained in said decree that is inconsistent with the fundamental principles of constitutionalism. On the contrary, I find that the Decree, in issue conforms admirably with the underlying tenet of our government - the sovereignty and plenary power of the people. On the issue of whether or not October 16, 1976 is too proximate to enable the people to sufficiently comprehend the issues and intelligently vote in the referendum and plebiscite set by Presidential Decree 1033, all I can say is that while perhaps my other colleagues are right in holding that the period given to the people is adequate, I would leave it to the President to consider whether or not it would be wiser to extend the same. Just to avoid adverse comments later I wish the President orders a postponement. But whether such postponement is ordered or not, date of the referendum- plebiscite anywhere from October 16, 1976 to any other later date, would be of no vital import. In conclusion, I vote to dismiss all the three petitions before Us. MAKASIAR, J., concurring and dissenting: Since the validity or effectivity of the proposed amendments is to be decided ultimately by the people in their sovereign capacity, the question is political as the term is defined in Tanada, et al. vs. Cuenco, et al. (103 Phil. 1051), which is a bar to any judicial inquiry, for the reasons stated in Our opinion in Javellana, et al. vs. Executive Secretary, et al. (L-36142); Tan, et al. vs. Executive Secretary, et al. (L,36164); Roxas, et al. vs Executive Secretary, et al. (L-36165); Monteclaro, etc., et al. vs' Executive Secretary, et al. (@36236); and Ditag et al. vs. Executive Secretary, et al. (L-W283, March 31, 1973, 50 SCRA 30, 204-283). The procedure for amendment is not important Ratification by the people is all that is indispensable to validate an amendment. Once ratified, the method of making the proposal and the period for submission become relevant. The contrary view negates the very essence of a republican democracy - that the people are sovereign - and renders meaningless the emphatic declaration in the very first provision of Article II of the 1973 Constitution that the Philippines is a republican state, sovereignty resides in the people and all government authority emanates from them. It is axiomatic that sovereignty is illimitable The representatives cannot dictate to the sovereign people. They may guide them; but they cannot supplant their judgment, Such an opposite view likewise distrusts the wisdom of the people as much as it despises their intelligence. It evinces a presumptuous pretension to intellectual superiority. There are thousands upon thousands among the citizenry, who are not in the public service, who are more learned and better skilled than many of their elected representatives. Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004, Jan. 31, 1975, 62 SCRA 275, 298-302) that the President as enforcer or administrator of martial rule during the period of martial law can legislate; and that he has the discretion as to when the convene the interim National Assembly depending on prevailing conditions of peace and order. In view of the fact that the interim National Assembly has not been convoked in obedience to the desire of the people clearly expressed in the 1973 referenda, the President therefore remains the lone law-making authority while martial law subsists. Consequently, he can also exercise the power of the interim National Assembly to propose amendments to the New Constitution (Sec. 15,,Art. XVII If, as conceded by petitioner Vicente Guzman (L-44684), former delegate to the 1971 Constitutional Convention which drafted the 1973 Constitution. the President, during the period of martial law, can call a constitutional convention for the purpose, admittedly a constituent power, it stands to reason that the President can likewise legally propose amendments to the fundamental law. ANTONIO, J., concurring: I At the threshold, it is necessary to clarify what is a "political question". It must be noted that this device has been utilized by the judiciary "to avoid determining questions it is ill equipped to determine or that could be settled in any event only with the effective support of the political branches." 1 According to Weston, judges, whether "personal representatives of a truly sovereign king, or taking their seats as the creatures of a largely popular sovereignty speaking through a written constitution, derive their power by a delegation, which clearly or obscurely as the case may be, deliminates and delimits their delegated jurisdiction.* * * Judicial questions * * * are those which the sovereign has set to be decided in the courts. Political questions, similarly, are those which the sovereign has entrusted to the so-called political departments of government or has reserved to be settled by its own extra-government or has reserved to be settled by its own extra-governmental action." 2 Reflecting a similar concept, this Court has defined a "political question" as a "matter which is to be exercised by the people in their primary political capacity or that has been specifically delegated to some other department or particular officer of the government, with discretionary power to act." 3 In other words, it refers to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. 4

In determining whether an issue falls within the political question category, the absence of satisfactory creterion for a judicial determination or the appropriateness of attributing finality to the action of the political departments of government is a dominant consideration. This was explained by Justice Brennan in Baker v. Carr, 5 thus : Prominent on the surface of any case held to involve political question is found a textually demonstrable constitutional lack of judicially discoverrable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from from multifarious pronouncements by various departments on one question. . . . To decide whether a matter has in a measure been committed by the Constitution to another branch of government or retained be the people to be decided by them in their sovereign capacity, or whether that branch exceeds whatever authority has been committed, is indeed a delicate exercise in constitutional interpretation. In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy of the ratification by state legislatures of a constitutional amendment is a political question. On the question of whether the State Legislature could constitutionally relative an amendment, after the same had been previously rejected by it, it was held that the ultimate authority over the question was in Congress in the exercise of its control over the promulgation of the adoption of the amendment. And in connection with the second question of whether the amendment has lost its, vitality through the lapse of time, the Court held that the question was likewise political, involving "as it does ... an appraisal of a great variety of relevant conditions, political, social and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of juridical authority to assert judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually ratified. On the other hand, these conditions are appropriate for the consideration of the political departments of the Government. The questions they involve are essentially political and not justiciable." ' In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed that: The Constitution grants Congress exclusive power to control submission off constitutional amendments. Final determination by Congress their ratification by three-fourths of the States has taken place 'is conclusive upon the courts.' In the exercise of that power, Congress, of course, is governed by the Constitution. However, A whether submission, intervening procedure for Congressional determination of ratification conforms to the commands of the Constitution, call for decisions by apolitical department of questions of a t@ which this Court has frequently designated 'political.' And decision of a 'political question' by the political department' to which the Constitution has committed it 'conclusively binds the judges, as well as all other officers, citizens and subjects of ... government. Proclamation under authority of Congress that an amendment has been ratified will carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution, learning to the judiciary its traditional authority of interpretation. To the extent that the Court's opinion in the present case even by implieding assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over submission and by ratification of amendments, we are unable to agree. Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in Mabanag v. Lopez Vitol, 7 speaking through Mr. Justice Pedro Tuason, ruled that the process of constitutional amendment, involving proposal and ratification, is a political question. In the Mabang case, the petitioners sought to prevent the enforcement of a resolution of Congress proposing the "Parity Amendment" to the Philippine Constitution on the ground that it had not been approved by the three-fourths vote of all the members of each house as required be Article XV of the 1935 Constitution. It was claimed that three (3) Senators and eight (8) members of the House of Representatives had been suspended and that their membership was not considered in the determination of the three- fourths %- ore In dismissing the petition on the ground that the question of the validity of the proposal was political, the Court stated: "If ratification of an amendment is a political question, a proposal which leads to ratification has to be a political question. The question to steps complement each other in a scheme intended to achieve a single objective. It is to be noted that amendatory process as provided in Section I of Article XV of the Philippine Constitution 'consists of (only) two distinct parts: proposal and ratification.' There is no logic in attaching political character to one and withholding that character from the other. Proposal to amend the Constitution is a highly political function performed by the Congress in its sovereign legislative capacity and committed to its charge by the Constitution itself. ..." (At pages 4-5, Italics supplied.) It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether or not a Resolution of Congress, acting as a constituent assembly violates the Constitution is essentially justiciable, not political, and hence, subject to judicial review." What was involved in Gonzales, however, was not a proposed What was involved in Gonzales, however, was not a proposed amendment to the Constitution but an act of Congress, 9 submitting proposed amendments to the Constitution. Similarly, in Tolentino v. Commission an Elections, 10 what was involved was not the validity of the proposal to lower the voting age but rather that of the resolution of the Constitutional Convention submitting the proposal for ratification. The question was whether piecemeal amendments to the Constitution could submitted to the people for approval or rejection. II Here, the point has been stressed that the President is acting as agent for and in behalf of the people in proposing the amendment. there can be no question that in the referendums of January, 1973 and in the subsequent referendums the people had clearly and categorically rejected the calling of the interim National Assembly. As stated in the main opinion, the Lupang Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, the Kabataang Barangay organizations and the various sectoral groups had proposed the replacement of the interim National Assembly. These barangays and the Sanggunian assemblies are effective instrumentalities through which the desires of the people are articulated and expressed. The Batasang Bayan (Legislative Council), composed of nineteen (19) cabinet members and nine (9) officials with cabinet rank, and ninety-one (91) members of the Lupang Tagapagpaganap (Executive Committee) of the Katipunan ng mga Sangguniang Bayani voted in their special session to submit directly to the people in a plebiscite on October 16, 1976 the afore-mentioned constitutional amendments. Through the Pambansang Katipunan by Barangay and the Pampurok ng Katipunan Sangguniang Bayan, the people have expressed their desire not only to abolish the interim National Assembly, but to replace it with a more representative body acceptable to them in order to effect the desirable constitutional changes necessary to hasten the political evolution of the government towards the parliamentary system, while at the same time

ensuring that the gains of the New Society, which are vital to the welfare of the people, shall be safeguarded. The proposed constitutional amendments, therefore, represent a consensus of the people. It would be futile to insist that the intemi National Assembly should have been convened to propose those amendments pursuant to Section 15 of Article XVII of the Constitution. This Court, in the case of Aquino v. Commission or Elections, 11 took judicial notice of the fact that in the referendum of January, 1973, a majority of those who approved the new Constitution conditioned their votes on the demand that the interim National Assembly provided in the Transitory Provisions should not be and the President "in deference to the sovereign will of the Filipino people" declared that the convening of said body shall be suspended. 12 As this Court observed in the Aquino case: His decision to defer the initial convocation of the byiitttit National Assembly was supported by the sovereign people at the by referendum in January, 1973 when the people voted to postpone the convening of the interim National Assembly until after at least seven (7) years from the approval of the new Constitution. And the reason why the same question was eliminated from the questions to be submitted at the referendum on February 27, 1975, is that even some members of the Congress and delegates of the Constitutional Convention, who are already byjso ofitto members of the intetini National Assembly are against such inclusion; because the issue was already bycciled in the January, 1973 referendum by the sovereign people indicating thereby their disenchantment with any Assembly as the former Congress failed to institutionalize the reforms they demanded and wasted public funds through endless debates without relieving the suffering of the general mass of citizenry (p. 302.) The action of the President in suspending the convening of the interim National Assembly has met the overwhelming approval of the people in subsequent referenda. Since it was the action by the people that gave binding force and effect to the new Constitution, then it must be accepted as a necessary consequence that their objection against the immediate convening of the interim National Assembly must be respected as a positive mandate of the sovereign. In the Philippines, which is a unitary state, sovereignty "resides in the people and all government authority emanates from them."13 The term "People" as sovereign is comprehensive in its context. The people, as sovereign creator of all political reality, is not merely the enfranchised citizens but the political unity of the people. 14 It connotes, therefore, a people which exists not only in the urgent present but in the continuum of history. The assumption that the opinion of The People as voters can be treated as the expression of the interests of the People as a historic community was, to the distinguished American journalist and public philosopher, Walter Lipunan, unwarranted. Because of the discrepancy between The People as Voters and the People as the corporate nation, the voters have no title to consider themselves the proprietors of the commonwealth and to claim that their interests are Identical to the public interest. A prevailing plurality of the voters are not The People. The claim that they are is a bogus title invoked to justify the usurpation of the executive power by representative assemblies and the intimidation of public men by demagogue politicians. In fact demagoguery can be described as the sleight of hand by which a faction of The People as voters are invested with the authority of The People. That is why so many crimes are committed in the People's name 15 In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to propose amendments or to amend the Constitution is part of the inherent power of the people as the repository of sovereignty in a republican state. While Congress may propose amendments to the Constitution, it acts pursuant to authority granted to it by the people through the Constitution. Both the power to propose and the authority to approve, therefore, inhere in the people as the bearer of the Constitution making power. Absent an interim National Assembly upon whom the people, through the Constitution, have delegated the authority to exercise constituent powers, it follows from necessity that either the people should exercise that power themselves or through any other instrumentality they may choose. For Law, like Nature, abhors a vacuum (natural vacuum abhorret). The question then is whether the President has authority to act for the people in submitting such proposals for ratification at the plebiscite of October 16. The political character of the question is, therefore, particularly manifest, considering that ultimately it is the people who will decide whether the President has such authority. It certainly involves a matter which is to be exercised by the people in their sovereign capacity, hence, it is essentially political, not judicial. While it is true that the constituent power is not to be confuse with legislative power in general because the prerogative to propose amendments is not embraced within the context of ordinary lawmaking, it must be noted that the proposals to be submitted for ratification in the forthcoming referendum are, in the final analysis, actually not of the President but directly of the people themselves, speaking through their authorized instrumentalities. As the Chief Justice aptly stated in his concurring opinion in this case: ... The President merely formalized the said proposals in Presidential Decree No. 1033. It being conceded in all quarters that sovereignty resides in the people and it having been demonstrated that their constituent power to amend the Constitution has not been delegated by them to any instrumentality of the Government during the present stage of the transition period of our political development, the conclusion is ineluctable that their exertion of that residuary power cannot be vulnerable to any constitutional challenge as beingultravires. Accordingly, without venturing to rule on whether or not the President is vested with constituent power - as it does not appear necessary to do so in the premises - the proposals here challenged, being acts of the sovereign people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to appropriate funds therefor is even less vulnerable not only because the President, in exercising said authority, has acted as a mere ofiffet byf of the people who made the proposals, but likewise because the said authority is legislative in nature rather than constituent. This is but a recognition that the People of the Philippines have the inherent, sole and exclusive right of regulating their own government, and of altering or abolishing their Constitution whenever it may be necessary to their safety or happiness. There appears to be no justification, under the existing, circumstances, for a Court to create by implication a limitation on - the sovereign power of the people. As has been clearly explained in a previous case:

There is nothing in the nature of the submission which should cause the free exercise of it to be obstructed, or that could render it dangerous to the stability of the government; because the measure derives all its vital force from the action of the people at the ballot box, and there can never be danger in submitting in an established form to a free people, the proposition whether they will change their fundamental law The means provided for the exercise of their Sovereign right of changing their constitution should receive such a construction as not to trammel the exercise of the right. Difficulties and embarrassments in its exercise are in derogation of the right of free government, which is inherent in the people; and the best security against tumult and revolution is the free and unobstructed privilege to the people of the State to change their constitution in the mode prescribed by the instrument. III The paramount consideration that impelled Us to arrive at the foregoing opinion is the necessity of ensuring popular control over the constituent power. "If the people are to control the constituent power - the power to make and change the fundamental law of the State," observed Wheeler," "the process of Constitutional change must not be based too heavily upon existing agencies of government." Indeed, the basic premise of republicanism is that the ordinary citizen, the common man. can be trusted to determine his political destiny. Therefore, it is time that the people should be accorded the fullest opportunity to decide the laws that shall provide for their governance. For in the ultimate analysis, the success of the national endeavor shall depend on the vision, discipline and I by ininess of the moqqqtai will of every Filipino. IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the petitions. Aquino, J., concur.

MUNOZ PALMA, J., dissenting: I concur fully with the remarkably frank (so characteristic of him) dissenting opinion of my distinguished colleague, Justice Claudio Teehankee. If I am writing this brief statement it is only to unburden myself of some thoughts which trouble my mind and leave my conscience with no rest nor peace. Generally, one who dissents from a majority view of the Court takes a lonely and at times precarious road, the burden byeing lightened only by the thought that in this grave task of administering justice, when matters of conscience are at issue, one must be prepared to espouse and embrace a rightful cause however unpopular it may be. 1. That sovereignty resides in the people and all government authority emanates from them is a fundamental, basic principle of government which cannot be disputed, but when the people have opted to govern themselves under the mantle of a written Constitution, each and every citizen, from the highest to the lowliest, has the sacred duty to respect and obey the Character they have so ordained. By the Constitution which they establish, they not only tie up he hands of their official agencies, but their own hands as well; and neither the officers of the state, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law. (Cooley's Constitutional Limitations, 7th Ed. p. 56, Italics Our). The afore-quoted passage from the eminent jurist and author Judge Cooley although based on declarations of law of more than a century ago, lays down a principle which to my mind is one of the enduring cornerstones of the Rule of Law. it is a principle with which I have been familiar as a student of law under the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice Jose P. Laurel, and which I pray will prevail at all times to ensure the existence of a free, stable, and civilized society. The Filipino people,. wanting to ensure to themselves a democratic republican form of government, have promulgated a Constitution whereby the power to govern themselves has been entrusted to and distributed among three branches of government; they have also mandated in clear and unmistakable terms the method by which provisions in their fundamental Charter may be amended or revised. Having done so, the people are bound by these constitutional limitations. For while there is no surrender or abdication of the people's ultimate authority to amend, revise, or adopt a new Constitution, sound reason demands that they keep themselves within the procedural bounds of the existing fundamental law. The right of the people to amend or change their Constitution if and when the need arises is not to be denied, but we assert that absent a revolutionary state or condition in the country the change must be accomplished through the ordinary, regular and legitimate processes provided for in the Constitution.' I cannot subscribe therefore to the view taken by the Solicitor General that the people, being sovereign, have the authority to amend the Constitution even in a manner different from and contrary to that expressly provided for in that instrument, and that the amendatory process is intended more as a limitation of a power rather than a grant of power to a particular agency and it should not be construed as limiting the ultimate sovereign will of the people to decide on amendments to the Constitution .2 Such a view will seriously undermine the very existence of a constitutional government and will permit anarchy and/or mob rule to set afoot and prevail. Was it the Greek philosopher Plato who warned that the rule of the mob is a prelude to the rule of the tyrant? I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine Constitution, Notes and Cases" as relevant to my point: . . . the amendatory provisions are called a 'constitution of sovereighty' because they define the constitutional meaning of 'sovereignty of the people.' Popular sovereignty, as embodied in the Philippine Constitution, is not extreme popular sovereignty. As one American writer put it: A constitution like the American one serves as a basic check upon the popular will at any given time. It is the distinctive function of such written document to classify certain things as legal fundamentals; these fundamentals may not be changed except by the slow and cumbersome process of amendment. The people themselves have decided, in constitutional convention assembled, to limit

themselves ana future generations in the exercise of the sovereign power which they would otherwise possess. And it is precisely such limitation that enables those subject to governmental authority to appeal from the people drunk to the people sober in time of excitement and hysteria. The Constitution, in the neat phrase of the Iowa court, is the protector of the people against injury by the .people. * Truly, what need is there for providing in the Constitution a process by which the fundamental law may be amended if, after all, the people by themselves can set the same at naught even in times of peace when civil authority reigns supreme? To go along with the respondents' theory in this regard is to render written Constitutions useless or mere "ropes of sand allowing for a government of men instead of one of laws. For it cannot be discounted that a situation may arise where the people are heralded to action at a point of a gun or by the fiery eloquence of a demagogue, and where passion overpowers reason, and mass action overthrows legal processes. History has recorded such instances, and I can think of no better example than that of Jesus Christ of Judea who was followed and loved by the people while curing the sick, making the lame walk and the blind see, but shortly was condemned by the same people turned into fanatic rabble crying out "Crucify Him, Crucify Him" upon being incited into action by chief priests and elders of Jerusalem. Yes, to quote once more from Judge Cooley: A good Constitution should be beyond the reason of temporary excitement and popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if the government is to be sale can be allowed efficiency. .... Changes in government are to be feared unless the benefit is certain." (quoted in Ellingham v. Dye, 99 N.E. 1, 15,) 3 Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v. Hall, 159 N.W., 281; Opinion of Marshall, J. in State ex. rel. Poster v. Marcus, 152 N.W., 419; From Kochier v. Hill, Vol. 15, N.W., 609, we quote: xxx xxx xxx It has been said that changes in the constitution may be introduced in disregard of its provisions; that if the majority of the people desire a change the majority must be respected, no matter how the change may be effected; and that the change, if revolution, is peaceful resolution. ... We fear that the advocates of this new doctrine, in a zeal to accomplish an end which the majority of the people desire, have looked at but one phase of the question, and have not fully considered the terrible consequences which would almost certainly follow a recognition of the doctrine for which they contend. It may be that the incorporation of this amendment in the constitution, even if the constitution has to be broken to accomplish it, would not of itself produce any serious results. But if it should be done by sanctioning the doctrine contended for, a precedent would be set which would plague the state for all future time. A Banquo's ghost would arise at our incantation which would not down at our bidding. xxx xxx xxx We ought to ponder long before we adopt a doctrine so fraught with danger to republican institutions. ... xxx xxx xxx Appellants' counsel cite and rely upon section 2, art. 1, of the constitution of the staff This section is a portion of the bill of rights, and is as follows: 'All political power is inherent in the people. Government is instituted for the protection, security, and benefit of of the people; and they have the right at all times to alter or reform the same, whenever the public good may require.' Abstractly considered, there can bye no doubt of the correctness of the propositions embraced in this suction. These principles are older than constitutions and older than governments. The people did not derive the rights referred to by on the constitution. and, in their nature, thee are such that the people cannot surrender them ... . 2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite on October 16, 1976 for the purpose, among other things, of amending certain provisions of the 1973 Constitution are null and void as they contravene the express provisions on the amending process of the 1973 Constitution laid down in Article XVI, Section 1 (1) and Article XVII, Section 15, more particularly the latter which applies during the present transition period. The Opinion of Justice Teehankee discusses in detail this particular matter. I would just wish to stress the point that although at present there is no by tterint National Assembly which may propose amendments to the Constitution, the existence of a so-called "vacuum" or "hiatus" does not justify a transgression of the constitutional provisions on the manner of amending the fundamental law. We cannot cure one infirmity - the existence of a "vacuum" caused by the non-convening of the interim National Assembly - with another infirmity, that is, doing violence to the Charter. All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed and a worse. (Am. Law Rev. 1889, p. 311., quoted in Ellingham v. Dye, supra, p. 15) Respondents contend that the calling of the referendum-plebiscite for the purpose indicated is a step necessary to restore the state of normalcy in the country. To my mind, the only possible measure that will lead our country and people to a condition of normalcy is the lifting or ending of the state of martial law. If I am constrained to make this statement it is because so much stress was given during the hearings of these cases on this particular point, leaving one with the impression that for petitioners to contest the holding of the October 16 referendum-plebiscite is for them to assume a position of blocking or installing the lifting of martial law, which I believe is unfair to the petitioners. Frankly, I cannot see the connection between the two. My esteemed colleagues should pardon me therefore if I had ventured to state that the simple solution to the simple solution to the present dilemma is the lifting of martial law and the implementation of the constitutional provisions which will usher in the parliamentary form of government ordained in the Constitution, which, as proclaimed in Proclamation 1102, the people themselves have ratified.

If the people have indeed ratified the 1973 Constitution, then they are bound by their act and cannot escape from the pretended unfavorable consequences thereof, the only y being to set in motion the constitutional machinery by which the supposed desired amendments may properly be adopted and submitted to the electorate for ratification. Constitutional processes are to be observed strictly, if we have to maintain and preserve the system of government decreed under the fundamental Charter. As said by Justice Enrique Fernando in Mutuc vs. Commission on Elections ... The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest funcitonary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. ... (36 SCRA, 228, 234, italics Ours) A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox of the Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty are not meant to give rein to passion or thoughtless impulse but to allow the exercise of power by the people for the general good by tistlercoitaitt restraints of law. 3 . The true question before Us is is one of power. Does the incumbent President of the Philippines possess constituent powers? Again, the negative answer is explained in detail in the dissenting opinion of Justice Teehankee. Respondents would justify the incumbent President's exercise of constituent powers on theory that he is vested with legislative powers as held by this Court in Benigno S. Aquino, Jr., et al. vs. Commission on Elections, et al., L-40004, January 31, 1975. 1 wish to stress that although in my separate opinion in said case I agreed that Section 3 (2) of the Transitory provisions grants to the incumbent President legislative powers, I qualified my statement as follows: .... As to, whether, or not, this unlimited legislative qqqjwwel of the President continues by exist even after the ratification of the Constitution is a matter which I am not ready to concede at the moment, and which at any rate I believe is not essential in resolving this Petition for reasons to be given later. Nonetheless, I hold the view that the President is empowered to issue proclamations, orders, decrees, etc. to carry out and implement the objectives of the proclamation of martial law be it under the 1935 or 1973 Constitution, and for the orderly and efficient functioning of the government, its instrumentalities, and agencies. This grant of legislative power is necessary to fill up a vacuum during the transition period when the interim National Assembly is not yet convened and functioning, for otherwise, there will be a disruption of official functions resulting in a collapse of the government and of the existing social order. (62 SCRA, pp. 275,347) I believe it is not disputed that legislative power is essentially different from constituent power; one does not encompass the other unless so specified in the Charter, and the 1973 Constitution contains provisions in this regard. This is well-explained in Justice Teehankee's Opinion. The state of necessity brought about by the current political situation, invoked by the respondents, provides no source of power to propose amendments to the existing Constitution. Must we "bend the Constitution to suit the law of the hour or cure its defects "by inflicting upon it a wound which nothing can heal commit one assault after the other "until all respect for the fundamental law is lost and the powers of government are just what those in authority please to call them?'" 5 Or can we now ignore what this Court, speaking through Justice Barredo, said in Tolentino vs. Comelec: ... let those who would put aside, invoking grounds at best controversial, any mandate of the fundamental law purportedly by order to attain some laudable objective bear in mind that someday somehow others with purportedly more laudable objectives may take advantages of the precedent in continue the destruction of the Constitution, making those who laid down the precedent of justifying deviations from the requirements of the Constitution the victims of their own folly. 6 Respondents emphatically assert that the final word is the people's word and that ultimately it is in the hands of the people where the final decision rests. (Comment, pp. 18, 19, 22) Granting in gratia argument that it is so, let it be an expression of the will of the people a normal political situation and not under the aegis of martial rule for as I have stated in Aquino vs. Comelec, et al., supra, a referendum (and now a plebiscite) held under a regime of martial law can be of no far reaching significance because it is being accomplished under an atmosphere or climate of fear as it entails a wide area of curtailment and infringement of individual rights, such as, human liberty, property rights, rights of free expression and assembly, protection against unreasonable searches and seizures, liberty of abode and of travel, and so on. 4. The other issues such as the sufficiency and proper submission of the proposed amendments for ratification by the people are expounded in Justice Teehankee's Opinion. I wish to stress indeed that it is incorrect to state that the thrust of the proposed amendments is the abolition of the interim National Assembly and its substitution with an "interim Batasang Pambansa their in by in Proposed amendment No. 6 will permit or allow the concentration of power in one man - the Executive - Prime Minister or President or whatever you may call him - for it gives him expressly (which the 1973 Constitution or the 1935 Constitution does not) legislative powers even during the existence of the appropriate legislative body, dependent solely on the executive's judgment on the existence of a grave emergency or a threat or imminence thereof ** I must be forgiven if, not concerned with the present, I am haunted however by what can happen in the future, when we shall all be gone. Verily, this is a matter of grave concern which necessitates full, mature, sober deliberation of the people but which they can do only in a climate of freedom without the restraints of martial law. I close, remembering what Claro M. Recto, President of the Constitutional Convention which drafted the 1935 Philippine Constitution, once said: . ... Nor is it enough that our people possess a written constitution in order that their government may be called constitutional. To be deserving of this name, and to drive away all lanirer of anarchy as well as of dictatorship whether by one man or a few, it is necessary that both the government authorities and the people faithfully observe and obey the constitution, and that the citizens be duly conversant not only with their rights but also with their duties... 7 Jose P. Laurel who served his people as Justice of the Supreme Court of this country gave this reminder; the grave and perilous task of halting transgressions and vindicating cherished rights is reposed mainly oil the Judiciary and therefore let the Courts be the vestal keepers of the purity and sanctity of our Constitution.' On the basis of the foregoing, I vote to declare Presidential Decrees Nos. 991 and 1033 unconstitutional and enjoin the implementation thereof. CONCEPCION JR., J., concurring:

I vote for the dismissal of the petitions. 1. The issue is not political and therefore justiciable. The term "political question", as this Court has previously defined, refers to those questions which, under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government. It is concerned with the issues dependent upon the wisdom, not legality, of a particular measure. 1 Here, the question raised is whether the President has authority to propose to the people amendments to the Constitution which the petitioners claim is vested solely upon the National Assembly, the constitutional convention called for the purpose, and the by the National Assembly. This is not a political question since it involves the determination of conflicting claims of authority under the constitution. In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or not a Resolution of Congress, acting as a constituent assembly, violates the Constitution, ruled that the question is essentially justiciable, not political, and hence, subject to judicial review. In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to its position regarding its jurisdiction vis-a-vis the constitutionality of the acts of Congress, acting as a constituent assembly, as well as those of a constitutional convention called for the purpose of proposing amendments to the constitution. Insofar as observance of constitutional provisions on the procedure for amending the constitution is concerned, the issue is cognizable by this Court under its powers of judicial review. 2. As to the merits, a brief backdrop of the decision to hold the referendum-plebiscite will help resolve the issue. It is to be noted that under the 1973 Constitution, an interim National Assembly was organized to bring about an orderly transition from the presidential to the parliamentary system of government.' The people, however, probably distrustful of the members who are old time politicians and constitutional delegates who had voted themselves by to membership in the interim National Assembly, voted against the convening of the said interim assembly for at least seven years thus creating a political stalemate and a consequent delay' in the transformation of the government into the parliamentary system. To resolve the impasse, the President, at the instance of the barangays and sanggunian assemblies through their duly authorized instrumentalities who recommended a study of the feasibility of abolishing and replacing the by interim National Assembly with another interim body truly representative of the people in a reformed society, issued Presidential Decree No. 991, on September 2, 1976, calling for a national referendum on October -16, 1976 to ascertain the wishes of the people as to the ways and means that may be available to attain the objective; providing for a period of educational and information campaign on the issues; and establishing the mechanics and manner for holding thereof. But the people, through their barangays, addressed resolutions to the Batasang Bayan, expressing their desire to have the constitution amended, thus prompting the President to issue Presidential Decree No. 1033, stating the questions to @ submitted to the people in the referendum-plebiscite on October 16,1976. As will be seen, the authority to amend the Constitution was removed from the interim National Assembly and transferred to the seat of sovereignty itself. Since the Constitution emanates from the people who are the repository of all political powers, their authority to amend the Constitution through the means they have adopted, aside from those mentioned in the Constitution, cannot be gainsaid. Not much reflection is also needed to show that the President did not exercise his martial law legislative powers when he proposed the amendments to the Constitution. He was merely acting as an instrument to carry out the will of the people. Neither could he convene the interim National Assembly, as suggested by the petitioners, without doing violence to the people's will expressed overwhelmingly when they decided against convening the interim assembly for at least seven years. 3. The period granted to the people to consider the proposed amendments is reasonably long and enough to afford intelligent discussion of the issues to be voted upon. PD 991 has required the barangays to hold assemblies or meetings to discuss and debate on the referendum questions, which in fact they have been doing. Considering that the proposed amendments came from the representatives of the people themselves, the people must have already formed a decision by this time on what stand to take on the proposed amendments come the day for the plebiscite. Besides, the Constitution itself requires the holding of a plebiscite for the ratification of an amendment not later than three (3) months after the approval of such amendment or revision but without setting a definite period within which such plebiscite shall not be held. From this I can only conclude that the framers of the Constitution desired that only a short period shall elapse from the approval of such amendment or resolution to its ratification by the people.