Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-26364 May 29, 1968

MARIANO A. ALBERT, petitioner, vs. THE COURT OF FIRST INSTANCE OF MANILA (BR. VI), UNIVERSITY PUBLISHING CO., INC., and JOSE M. ARUEGO, respondents. Uy, Artiaga and Antonio M. Molina for petitioner. Aruego, Mamaril and Associates Law Office for respondents. REYES, J.B.L., J.: This case is a veritable legal marathon. Originally docketed in 1949, within a span of 19 years, the legal dispute has come to this Court four times: (1) L-9300, promulgated April 18, 1958; (2) L-15275, promulgated October 24, 1960; (3) L-18350, dismissed May 17, 1961; and (4) L-19118, promulgated January 30, 1965 (Resolution of Defendant's Motion for Reconsideration denied on June 16, 1965). The present petition for certiorari is the fifth. The time is long past when courts of justice must write finis to this case. For, Public policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law. The very object for which courts were instituted was to put an end to controversies.1 The factual setting necessary to a clear understanding of the instant petition for certiorari needs to be restated. Plaintiff Albert sued University Publishing Company, Inc. for breach of contract. Albert died before the case proceeded to trial, and Justo R. Albert, his estate's administrator, was substituted. Finally, defendant's liability was determined by this Court in L-15275. Plaintiff was to recover P15,000.00 with legal interest from judicial demand. From the inception of the suit below up to the time the judgment in L-15275 was to be executed, the corporate existence of university Publishing Company, Inc. appears to have been taken for

granted, and was not then put in issue. However, when the Court of First Instance of Manila issued on July 22, 1961 an order of execution against University Publishing Company, Inc., a new problem cropped up. By virtue of this writ, plaintiff's counsel and the Sheriff of the City of Manila went to see Jose M. Aruego who signed the contract with plaintiff on behalf and as President of University Publishing Company, Inc. They then discovered that no such entity exists. A verification made at the Securities and Exchange Commission confirmed this fact. On July 31, 1961, said Commission issued a certification "that the records of this Commission do not show the registration of UNIVERSITY PUBLISHING CO., INC., either as a corporation or partnership." 2 This triggered a verified petition in the court below on August 10, 1961 for the issuance of a writ of execution ordering the Sheriff of Manila to cause the satisfaction of the judgment against the assets and properties of Jose M. Aruego as the real defendant in the case. All along, Jose M. Aruego and his law firm were counsel for the University Publishing Company, Inc. Instead of informing the lower court that it had in its possession copies of its certificate of registration, its articles of incorporation, its by-laws and all other paper materials to its disputed corporate existence, University Publishing Company, Inc. chose to remain silent. On August 11, 1961, University Publishing Company, Inc., by counsel Aruego, Mamaril and Associates (the law firm of Jose M. Aruego aforesaid) merely countered plaintiffs petition for execution as against Aruego with an unsworn manifestation in court that "said Jose M. Aruego is not a party to this case," and, therefore, plaintiff's petition should be denied.3 Respondent court, presided over by His Honor, Judge Gaudencio Cloribel, on September 9, 1961, came up with an order, which reads thus: It appearing that Jose M. Aruego against whom the judgment rendered herein is sought to be enforced is not a party to this case, plaintiff's motion filed on August 10, 1961 is hereby denied.4 Plaintiff appealed to this Court on this sole issue: "The lower court erred in denying the plaintiffappellant's petition praying that the judgment rendered against the alleged corporation, the above-named defendant-appellee, be executed against the personal assets and properties of Jose M. Aruego, the real party to this case." In an extended opinion written by Mr. Justice Jose P. Bengzon, this Court in L-19118, on January 30, 1965, resolved the issue as follows: The fact of non-registration of University Publishing Co., Inc. in the Securities and Exchange Commission has not been disputed. Defendant would only raise the point that "University Publishing Co., Inc." and not Jose M. Aruego, is the party defendant; thereby assuming that "University Publishing Co., Inc." is an existing corporation with an independent juridical personality. Precisely, however, on account of the non-registration

it cannot be considered a corporation, not even a corporation de facto (Hall vs. Piccio, 86 Phil. 603). It has therefore no personality separate from Jose M. Aruego; it cannot be sued independently. The corporation-by-estoppel doctrine has not been invoked. At any rate, the same is inapplicable here. Aruego represented a non-existent entity and induced not only the plaintiff but even the court to believe in such representation. He signed the contract as "President" of "University Publishing Co., Inc.," stating that this was 'a corporation duly organized and existing under the laws of the Philippines,' and obviously misled plaintiff (Mariano A. Albert) into believing the same. One who has induced another to act upon his wilful misrepresentation that a corporation was duly organized and existing under the law, cannot thereafter set up against his victim the principle of corporation by estoppel (Salvatiera vs. Garlitos, 56 O.G. 3609). "University Publishing Co., Inc." purported to come to court, answering the complaint and litigating upon the merits. But as stated, "University Publishing Co., Inc." has no independent personality; it is just a name. Jose M. Aruego was, in reality, the one who answered and litigated, through his own law firm as counsel. He was in fact, if not in name, the defendant. Even with regard to corporations duly organized and existing under the law, we have in many a case pierced the veil of corporate fiction to administer the ends of justice. (Arnold vs. Willits & Patterson, Ltd., 44 Phil. 634; Koppel (Phil.), Inc. vs. Yatco, 77 Phil. 496; La Campana Coffee Factory, Inc. vs. Kaisahan ng mga Manggagawa sa La Campana, 93 Phil. 160; Marvel Building Corporation vs. David, 94 Phil. 376; Madrigal Shipping Co., Inc. vs. Ogilvie, L-8431, Oct. 30, 1958; Laguna Transportation Co., Inc. vs. S.S.S., L-14606, April 28, 1960; McConnel vs. C.A., L-10510, Mar. 17, 1961; Liddell & Co., Inc. vs. Collector of Internal Revenue, L-9687, June 30, 1961; Palacio vs. Fely Transportation Co., L-15121, August 31, 1962). And in Salvatiera vs. Garlitos, supra, p. 3073, we ruled: "A person acting or purporting to act on behalf of a corporation which has no valid existence assumes such privileges and obligations and becomes personally liable for contracts entered into or for other acts performed as such agent." Had Jose M. Aruego been named as party defendant instead of, or together, with, "University Publishing Co., Inc." there would be no room for debate as to his personal liability. Since he was not so named, the matters of "day in court" and "due process" have arisen. In this connection, it must be realized that parties to a suit are "persons who have a right to control the proceedings, to make defense, to adduce and cross-examine witnesses, and to appeal from a decision" (67 C.J.S. 887) and Aruego was, in reality, the person who had and exercised these rights. Clearly then, Aruego had his day in court as the real defendant; and due process of law has been substantially observed. By "due process of law" we mean "a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.... (4 Wheaton, U.S. 518,

581); or, as this Court has said, "Due process of law" contemplates notice and opportunity to be heard before judgment is rendered, affecting one's person or property." (Lopez vs. Director of Lands, 47 Phil. 23, 32). (Sicat vs. Reyes, L-11023, Dec. 14, 1956.) And it may not be amiss to mention here also that the "due process" clause of the Constitution is designed to secure justice as a living reality; not to sacrifice it by paying undue homage to formality. For substance must prevail over form. It may now be trite, but none the less apt, to quote what long ago we said in Alonso vs. Villamor, 16 Phil. 315, 321-322: A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art of movement and position, entraps and destroys the other. It is, rather, a contest in which each contending party fully and fairly lays before the court the facts in issue and then, brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done upon the merits. Lawsuits, unlike duels, are not to be won by a rapier's thrust. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts. There should be no vested rights in technicalities. The evidence is patently clear that Jose M. Aruego, acting as representative of a nonexistent principal was the real party to the contract sued upon; that he was the one who reaped the benefits resulting from it, so much so that partial payments of the consideration were made by him; that he violated its terms, thereby precipitating the suit in question; and that in the litigation he was the real defendant. Perforce, in line with the ends of justice, responsibility under the judgment falls on him. We need hardly state that should there be persons who under the law are liable to Aruego for reimbursement or contribution with respect to the payment he makes under the judgment in question, he may, of course, proceed against them through proper remedial measures. PREMISES CONSIDERED, the order appealed from is hereby set aside and the case remanded ordering the lower court to hold supplementary proceedings for the purpose of carrying the judgment into effect against University Publishing Co., Inc. and/or Jose M. Aruego. It is to be observed that even as this case was elevated to this Court in L-19118, University Publishing Company, Inc. or its president and counsel chose to withhold pertinent documents and papers in its possession and control. But when the foregoing judgment came, the University Publishing Company, Inc., in its motion for reconsideration thereof, asked that it be afforded opportunity to prove its corporate existence. It submitted with that motion for reconsideration, its certificate of registration, articles of incorporation, by-laws, and a certificate of reconstitution of records issued by the Securities and Exchange Commission, which was procured only from the

Securities and Exchange Commissioner on April 1, 1965 after the decision in L-19118 was promulgated. Jose M. Aruego, the president and counsel of University Publishing Company, Inc., for the first time appeared in propria persona before this Court as a "member of the Philippine Bar, private citizen." He pointedly stated that he did not submit to the jurisdiction of this Court. He wanted, though, that his side of the case be heard. He formally joined hands with University Publishing Company, Inc. on the plea of due process in his favor. He insisted that he was not a party to this litigation. The resolution of this Court, on June 16, 1965, extensively dwelt on the due process plea of Jose M. Aruego, thus: It may be worth noting again that Jose M. Aruego started the negotiation which culminated in the contract between the parties, signing said contract as president of University Publishing Co., Inc. Likewise he was the one who made partial payments up to the amount of P7,000.00 for and in behalf of University Publishing Co., Inc. He also appeared not only as a witness but as a lawyer, signing some pleadings or motions in defense of University Publishing Co., Inc., although in other instances it is one of his associates or member of his law firm who did so. Known is the fact that even a duly existing corporation can only move and act through natural persons. In this case it was Jose M. Aruego who moved and acted as or for University Publishing Co., Inc. It is elemental that the courts can only decide the merits of a given suit according to the records that are in the case. It is true that in the two previous cases decided by this Court, the first, awarding damages (L-9300), the second, clarifying the amount of P15,000.00 awarded as such (L-15275), the corporate existence of University Publishing Co., Inc. as a legal entity was merely taken for granted. However, when the said issue was squarely presented before the court, and University Publishing Co., Inc., chose to keep the courts in the dark by withholding pertinent documents and papers in its possession and control, Court had to decide the points raised according to the records of the case and whatever related matters necessarily included therein. Hence, as a consequence of the certification of the Securities and Exchange Commission that its records 'do not show the registration of University Publishing Co., Inc., either as a corporation or partnership' this Court concluded that by virtue of its non-registration it cannot be considered a corporation. We further said that it has therefore no personality separate from Jose M. Aruego and that Aruego was in reality the one who answered and litigated through his own law firm as counsel. Stated otherwise, we found that Aruego was in fact, if not in name, the defendant (Decision, p. 6). Indeed, the judge of the court of first instance wrote in his decision thus: "Defendant Aruego (all along the judge who pens this decision considered that the defendant here is the president of the University Publishing Co., Inc. since it was he who really made the contract with Justice Albert)." (Decision of CFI, p. 9, quoted in plaintiff-appellant's brief,

p. 10). And this portion of the decision made by the court a quo was never questioned by the defendant. The above statement made by the court a quo in its decision compelled this Court to carefully examine the facts surrounding the dispute starting from the time of the negotiation of the business proposition, followed by the signing of the contract; considered the benefits received; took into account the partial payments made, the litigation conducted, the decisions rendered and the appeals undertaken. After thus considering the facts and circumstances, keeping in mind that even with regard to corporations shown as duly registered and existing, we have in many a case pierced the veil of corporate fiction to administer the ends of justice, (Arnold vs. Willits & Patterson, Ltd., 44 Phil. 634; Koppel (Phil.), Inc. vs. Yatco, 77 Phil. 496; La Campana Coffee Factory, Inc. vs. Kaisahan ng mga Manggagawa sa La Campana, 93 Phil. 160; Marvel Building Corporation vs. David, 94 Phil. 376; Madrigal Shipping Co., Inc. vs Ogilvie, L8431, Oct. 30, 1958; Laguna Transportation Co., Inc. vs. S.S.S., L-14606, April 28, 1960; McConnel vs. C.A., L-10510, Mar. 17, 1961; Liddell & Co., Inc., vs. Collector of Internal Revenue, L-9687, June 30, 1961: Palacio vs. Fely Transportation Co., L-15121, August 31, 1962) we held Aruego personally responsible for his acts on behalf of University Publishing Co., Inc. Defendant would reply that in all those cases where the Court pierced the veil of corporate fiction the officials held liable were made party defendants. As stated, defendant-appellee could not even pretend to possess corporate fiction in view of its non-registration per the evidence so that from the start Aruego was the real defendant. Since the purpose of formally impleading a party is to assure him a day in court, once the protective mantle of due process of law has in fact been accorded a litigant, whatever the imperfection in form, the real litigant may be held liable as a party. Jose M. Aruego definitely had his day in court, and due process of law was enjoyed by him as a matter of fact as revealed by the records of the case. (Decision, p. 6). The dispositive portion of the decision the reconsideration of which is being sought is the following: "Premises considered, the order appealed from is hereby set aside and the case remanded ordering the lower court to hold supplementary proceedings for the purpose of carrying the judgment into effect against University Publishing Co., Inc. and/or Jose M. Aruego." According to several cases a litigant is not allowed to speculate on the decision the court may render in the case. (Rodriguez vs. Treasurer of the Philippines, 45 O.G. 4457 (Resolution); Arnault vs. Nazareno, L-3820, Resolution of August 9, 1950; Howden vs. Collector of Internal Revenue, L-19392, April 14, 1965). The University Publishing Co., Inc. speculated on a favorable decision based on the issue that Jose M. Aruego not being a formal party defendant in this case a writ of execution against him was not in order. It therefore preferred to suppress vital documents under its possession and control rather than to rebut the certification issued by the Securities and Exchange

Commission that according to its records University Publishing Co., Inc. was not registered. If the lower court's order is sustained, collection of damages becomes problematical. If a new suit is filed against Aruego, prescription might be considered as effective defense, aside from the prospect of another ten years of pending litigation. Such are the possible reasons for adopting the position of speculation of our decision. Our ruling appeared to be unfavorable to such speculation. It was only after the receipt of the adverse decision promulgated by this Court that University Publishing Co., Inc. disclosed its registration papers. For purposes of this case only and according to its particular facts and circumstances, we rule that in view of the late disclosure of said papers by the University Publishing Co., Inc., the same can no longer be considered at this stage of the proceedings.1vvphi1.nt And on the issue of whether or not the certificate of registration, the articles of incorporation, the by-laws and the certificate of the reconstitution of the records proffered by the University Publishing Company, Inc. should be admitted, this Court, in the said resolution of the motion for reconsideration, in part said: Defendant-appellee could have presented the foregoing papers before the lower court to counter the evidence of non-registration, but defendant-appellee did not do so. It could have reconstituted its records at that stage of the proceedings, instead of only on April 1, 1965, after decision herein was promulgated. xxx xxx xxx

As far as this case is concerned, therefore, University Publishing Co., Inc. must be deemed as unregistered, since by defendant-appellee's choice the record shows it to be so. Defendant-appellee apparently sought to delay the execution by remaining unregistered per the certification of the Securities and Exchange Commission. It was only when execution was to be carried out, anyway, against it and/or its president and almost 19 years after the approval of the law authorizing reconstitution that it reconstituted its records to show its registration, thereby once more attempting to delay the payment of plaintiff's claim, long since adjudged meritorious. Deciding, therefore, as we must, this particular case on its record as submitted by the parties, defendantappellee's proffered evidence of its corporate existence cannot at this stage be considered to alter the decision reached herein. This is not to preclude in future cases the consideration of properly submitted evidence as to defendant-appellee's corporate existence. WHEREFORE, the motion for reconsideration and for leave to file original papers not in the record, is hereby denied. 1wph1.t

Armed with the aforementioned decision and resolution of this Court in L-19118, petitioner returned to the lower court on July 28, 1965 with a motion for execution and approval of the bill of costs and asking specifically for the issuance of the corresponding writ against Aruego to satisfy the judgment. On July 30, 1965, Aruego moved to intervene with an opposition in intervention to the motion for execution. Alleging that the judgment of this Court in L-19118 dated January 30, 1965, which reads: PREMISES CONSIDERED, the order appealed from is hereby set aside and the case remanded ordering the lower court to hold supplementary proceedings for the purpose of carrying the judgment into effect against University Publishing Co., Inc. and/or Jose M. Aruego. should be construed in the sense that "the supplementary proceedings mentioned in the aforequoted dispositive portion of the Supreme Court Decision means no other than a proceeding to show cause why the judgment should be carried into effect against either the University Publishing Co., Inc. and/or Jose M. Aruego, as the case may be" and that until such supplementary proceedings was had petitioner could ask for the execution of the judgment against Jose M. Aruego as a matter of course, Aruego falls back on his averment (made in his manifestation already ruled out by this Court in L-19118) that he had never been a party to the case and that the judgment sought to be executed was solely against University Publishing Company, Inc. On February 21, 1966, Judge Gaudencio Cloribel, upon consideration of this motion for execution and for approval of the bill of costs, the opposition thereto by Aruego, and the reply to the opposition, granted the motion for execution and directed that a writ of execution "be issued accordingly". Aruego came back with a motion for reconsideration, adamant in his resolve that he would not pay as he was not a party to the suit. This was opposed by plaintiff. On March 5, 1966, Judge Gaudencio Cloribel reconsidered his order of February 21, 1966, and denied the motion for a writ of execution against Jose M. Aruego upon the ground that "said Jose M. Aruego has never been a party to the case and that the judgment sought to be executed is not against him." On April 4, 1966, it was petitioner's turn to file a motion for reconsideration for the reason that the question of whether or not an order of execution could issue against Aruego had already been resolved by this Court in its final judgment in L-19118. On April 20, 1966, Jose M. Aruego opposed the motion for reconsideration and prayed for supplementary proceedings to allow him as intervenor to present evidence in support thereof, alleging that the execution of the judgment against him was not sanctioned by law and

procedure and that had intervenor been impleaded or given his day in court, he could have easily proven the legitimate and due existence of the University Publishing Company, Inc. as a bona fide corporation. He attached thereto the very same articles of incorporation, certificate of registration, by-laws and certificate of the Securities and Exchange Commission in the reconstitution of its records documents which were rejected by this Court in its resolution of June 16, 1965 in L-19118. On April 28, 1966, petitioner filed his reply to Aruego's opposition upon the ground that these are matters concluded in the decision and resolution of this Court, and that respondent court cannot admit said documents without going against this Court's clear mandate. Resolution on plaintiff's motion for reconsideration was, by Judge Gaudencio Cloribel's order of May 20, 1966, held in abeyance until the termination of the supplementary proceedings, which the court thereupon granted, to allow Aruego to present evidence in support of his opposition to the motion for reconsideration. On May 28, 1966, Aruego presented in evidence the documents heretofore mentioned, and in addition, the certificate dated February 17, 1965 signed by a majority of the directors of the University Publishing Company, Inc. declaring that the corporation still exists and that the articles of incorporation have not been amended or modified. On July 13, 1966, notwithstanding plaintiff's opposition to the admission of the documents just mentioned, and his claim that the matter involved in the execution had long been finished and decided by this Court, Judge Gaudencio Cloribel denied plaintiff's motion for execution. Hence, this petition for a writ of certiorari and mandamus. 1. When this case was elevated to this Court for the fourth time in L-19118, we made it abundantly clear in the decision therein rendered and in the resolution issued thereafter, that the judgment rendered against University Publishing Company, Inc. could and should be enforced against respondent Jose M. Aruego. Our language in the dispositive portion is clear. It reads: PREMISES CONSIDERED, the order appealed from is hereby set aside and the case remanded ordering the lower court to hold supplementary proceedings for the purpose of carrying the judgment into effect against University Publishing Co., Inc. and/or Jose M. Aruego. The judgment does not contemplate of any proceeding other than for the purpose of carrying into effect the judgment against University Publishing Company, Inc. and/or Jose M. Aruego which is the proceeding on execution. It does not admit of any other interpretation such as that which is advocated by Aruego that such proceeding "is to show cause why the judgment should be carried into effect against either the University Publishing Co., Inc. and/or Jose M. Aruego." Indeed, the issue of whether or not the judgment rendered against University Publishing Company, Inc. could be enforced against Jose M. Aruego had already been definitely decided in

that case, L-19118. Even worse, all the arguments and evidence presented by Aruego before the respondent court resulting in the orders that gave rise to the present proceedings had been previously adduced before this Court and decided adversely against him in the January decision and the June resolution of 1965 in L-19118. There can be no clearer case for the principle of conclusiveness of judgment to apply. Thus, in certiorariand prohibition proceedings brought by the Manila Underwriters Insurance Co., Inc. against Judge Bienvenido A. Tan, L-17445, November 27, 1964, this Court ruled: On August 15, 1960, respondent Borja filed another motion in the same case asking the court to require petitioner again to show cause why it should not be made liable under its bond, and thereafter to issue a writ of execution against it. Petitioner opposed the motion on the ground that our decision in G.R. No. L-12256 had finally disposed of the issue raised therein. Despite this, the respondent judge, on August 30, 1960 issued an order citing petitioner to appear before it and show cause why it should not be held liable under its bond, and on September 10 of the same year, his honor also denied petitioner's motion for reconsideration of said order. Thereupon, the present action was filed. Upon the undisputed facts stated heretofore, it appears abundantly clear that the respondent judge seriously erred in issuing the orders complained of. The question of whether petitioner could still be held liable upon its bond must be deemed finally settled by our decision in G.R. No. L-12256, and any attempt to hold petitioner liable upon the bond already mentioned must necessarily be deemed as an improper attempt to reopen a case already finally adjudicated. WHEREFORE, the orders complained of are hereby declared void and of no legal force and effect. The writ of preliminary injunction issued in this case on October 26, 1960 is hereby made final. Costs against respondent Borja. The liability of Aruego has been established so plainly in the decision and resolution in L-19118 that there could not be any quibbling as to the import of the words there used. Case L-19118 was brought into being because precisely Judge Cloribel ruled that execution could not be issued against Jose M. Aruego upon the ground, so he said in his appealed order, that Aruego was not a party to the action. This Court there reversed Judge Gaudencio Cloribel. In the circumstances of this case, we are constrained to articulate a number of possibilities: that Judge Gaudencio Cloribel either (1) did not read our decision in L-19118, January 30, 1965, and our resolution in the same case promulgated on June 16, 1965; or (2) having read, did not comprehend their import; or (3) having read and understood, wantonly ignored them. It is the thinking of this Court, however, that Judge Gaudencio Cloribel simply shunted aside our decision and resolution. He could not have overlooked the fact that it was his own order of September 9, 1961 denying execution because Aruego is not a party to this case which was appealed to this Court. That very question of whether execution should issue against Aruego was squarely presented and as squarely resolved in the affirmative by this Court in L-

19118. That Gaudencio Cloribel should have insisted in his opinion after his attention to this Court's decision and resolution adverse thereto had been repeatedly called by plaintiff, is an act which deserves unsympathetic and unqualified condemnation. Judge Gaudencio Cloribel need not be reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last word on what the law is; it is the final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all other courts should take their bearings. 5 Judge Gaudencio Cloribel should have known that "[a] becoming modesty of inferior courts demands conscious realization of the position that they occupy in the interrelation and operation of the integrated judicial system of the nation."6 So it is, that in Martiniano P. Vivo vs. Hon. Gaudencio Cloribel, et al., L-23239, November 23, 1966 (18 Supreme Court Reports Anno. 713, 726), this Court stressed the need for trial judges to take cognizance of the rulings of the Supreme Court. We there reproduced the following from People vs. Santos, 56 O.G. 3546, 3552-3552, viz.: 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.7 We rule that because of the foregoing circumstances, Judge Gaudencio Cloribel acted with grave abuse of discretion. And certiorari lies. 8 2. We now come to the cry of injustice proffered by respondent Jose M. Aruego. Even upon a cursory examination of his gripe, his position at once loses leverage; the potency of his arguments vanishes. As we look in retrospect at the facts, we find that it was Aruego who executed the contract as president of the University Publishing Company, Inc. He is a lawyer. At the time he executed the contract with plaintiff, he should have known that the possibility existed that the records of the corporation had been destroyed. For, it is a matter of public knowledge that buildings which kept public records in the City of Manila had been razed by fire during the last war. He should have at least inquired whether the records of the corporation in the Securities and Exchange Commission had been saved. Of course, he knew and should have known that persons dealing with corporations are wont to look to records of the Securities and Exchange Commission for the existence or non-existence thereof. In this particular case, from the documents he himself

presented in the court below (after he had knowledge of the fact that admission thereof was denied by this Court in L-19118), he is practically the corporation itself. Because out of the capital stock of P2,000.00, he subscribed to P1,600.00, and out of the paid subscription of P500.00, he contributed the sum of P450.00, leaving but P50.00 to be spread amongst the minor stockholders. This case was filed and concluded as against the corporation. When finally, plaintiff's counsel and the Sheriff came to him as president (and incidentally counsel) of University Publishing Company, Inc. for execution of that judgment, he sought to stave off satisfaction thereof. Then, plaintiff's counsel and the Sheriff came to know that the corporation did not legally exist. Aruego could have very easily caused the corporation to pay. Or did he think that the corporation could evade payment, since the records of the corporation in the Securities and Exchange Commission had not yet been reconstituted? The resultant effect is that after long years of ligation, plaintiff is still left holding the bag. As this Court noted in L-19118, it would be too late for the plaintiff to file suit against Aruego personally. For, by then prescription has set in. Canon 22 of the Canons of Legal Ethics is a constant reminder to the members of the Bar that the conduct of a lawyer before the court "should be characterized by candor and fairness"; and it is "unprofessional and dishonorable to deal other than candidly with the facts ... in the presentation of causes." When the question of whether execution should issue against Jose M. Aruego, a member of the Bar, did emerge before the lower court in the proceedings for execution of the judgment, candor and fairness should have impelled him to tell the court that the representation of counsel for plaintiff that University Publishing Company, Inc. is not a corporation, was not true, and that the corporation had the papers and documents to show otherwise. He should not have kept this fact under wraps for so long a time while the execution proceedings were still with the lower court and before judgment on the appeal taken by plaintiff in L-19118. He has failed in these. Literally, he laid an ambush. It was only after he realized that this Court considered him as the real party in interest that he presented the fact of corporate existence to this Court to overturn the decision rendered in L-19118. Where a party "has taken a position with regard to procedure, which has been acted or relied on by his adversary or by the court," he must be held to be in estoppel "from taking an inconsistent position respecting the same matter in the same proceeding, to his adversary's prejudice." 9 This is not the first time that this Court has ordered the execution of a judgment against a person who was not formally named as party defendant in the action. In a series of cases, substantial in number, 10 this Court's stand has been consistent that the judgment for payment of back salaries of officers entitled to reinstatement may, in effect, be enforced against the city or municipality, although not by name impleaded in the suit. Reasons therefore are concretely expressed in Mangubat vs. Osmea, supra, in this wise: The necessity of making the City a respondent herein is based upon its right to defend itself, as demanded by the requirements of due process. However, these requirement have been substantially complied with in the case at bar. The parties herein have handled the case, and the same was heard and decided in the lower court, as if the City

had been named respondent in the pleadings. The officer required by law "to cause to be defended all suits against the City", namely, its mayor (Sec. 8, Commonwealth Act No. 58), is respondent in his official capacity. The officer charged with the duty to represent the City "in all civil cases wherein the city ... is a party" to wit, its city attorney (Sec. 17, Commonwealth Act No. 58) is counsel for respondents herein. In addition thereto, the auditor, the treasurer and even the municipal board of the City of Cebu, are parties respondents. There is no reason to believe that these officers and the City Mayor would have exerted greater efforts than those already displayed by them, in protesting the interests of the City of Cebu, were it formally a respondent herein. Indeed, it is only logical to expect that, having been individually named as respondents, said officers must have taken as much concern, if not more, in warding off petitioners' claim. Under the foregoing circumstances, we would be subordinating the substance to the form if the action for mandamus insofar as the claim for back salaries is concerned were either dismissed or remanded to the lower court, for the corresponding amendment of the pleadings and a repetition of the proceedings held for the last five (5) years, in order to reach the same decision rendered by the lower court and the same conclusions set forth in this decision, as regards the substantive rights of the parties. It is our considered opinion, therefore, that the ends of justice and equity would be served best if the inclusion of the City of Cebu, as one of the respondents herein, were considered a mere formality and deemed effected, as if a formal amendment of the pleadings had been made. A recent case, whose factual situation has great relevance to the present, is Torres vs. Caluag, L-20906, July 30, 1966. There, petitioner Torres was not a party defendant in a suit to recover possession of land instituted against defendant Conocido who declared that he was a mere tenant of Torres. Judgment was rendered against Conocido, and a writ of execution was issued ejecting Torres from the property. On writ of certiorari and prohibition to this Court to nullify the writ of execution aforesaid, we pronounced that when petitioner Torres testified in the court below, she had her day in court and had laid squarely before said court the issue of ownership. We then explicitly stated that the fact that petitioner was not formally made a party defendant is a mere technicality that does not serve the interest of justice. In the end, we find it pertinent to quote from the early case of Herrera vs. Barretto, 25 Phil. 245, 271, thus: ... The office of the writ of certiorari has been reduced to the correction of defects of jurisdiction solely and cannot legally be used for any other purpose. It is truly an extraordinary remedy and, in this jurisdiction, its use is restricted to truly extra-ordinary cases cases in which the action of the inferior court is wholly void; where any further steps in the case would result in a waste of time and money and would produce no result whatever; where the parties, or their privies, would be utterly deceived; where a final judgment or decree would be nought but a snare and a delusion, deciding nothing,

protecting nobody, a judicial pretention, a recorded falsehood, a standing menace. It is only to avoid such results as these that a writ of certiorari is issuable; and even here an appeal will lie if the aggrieved party prefers to prosecute it. For the reasons given, the petition for certiorari and mandamus prayed for herein is hereby granted; and (a) The orders of Judge Gaudencio Cloribel of March 5, May 20, and July 13, 1966 are hereby set aside and declared null and void; and (b) The Court a quo is hereby directed forthwith to issue a writ of execution against respondent University Publishing Company, Inc. and/or Jose M. Aruego. Treble costs shall be paid by respondent Jose M. Aruego. So ordered. 1wph1.t Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Angeles, JJ., concur. Fernando, J., is on leave. Footnotes
1

Dy Cay vs. Crossfield & O'Brien, 38 Phil. 521, 526. Record on Appeal in G.R. No. L-19118, pp. 5-6. Record on Appeal in G.R. No. L-19118, pp. 6-8. Record on Appeal in L-19118, pp. 8-9. People vs. Aquino, L-1857, January 19, 1949. Laurel, J. in People vs. Vera, 65 Phil. 56, 82. At p. 726.

Where the lower court alters or modifies its decision which has become final and executory (Henderson vs. Tan, 87 Phil. 466; Jabon vs. Alo, 91 Phil. 750; Villoria vs. Piccio, 95 Phil. 802; Aurelio vs. First National Surety & Ass. Co., 102 Phil. 714; Samson vs. Montejo, L-18605, October 31, 1963; Socco vs. Vda. de Leary, L-19461, October 31, 1964; Ocampo vs. Caluag, L-21113, April 27, 1967), or the decision of an appellate court (Doliente vs. Blanco, 87 Phil. 670; Manila Underwriters Insurance Co., Inc. vs. Tan, supra; Republic vs. Angeles, L-26112, June 30, 1967), certiorari lies..
9

31 C.J.S., p. 380.

10

Mission vs. del Rosario, 94 Phil. 483; Abella vs. Rodriguez, 95 Phil. 289; Uy vs. Rodriguez, 95 Phil. 493; Meneses vs. Lacson, 97 Phil. 857; Mangubat vs. Osmea, L-12837, April 30, 1959; City of Cebu vs. Piccio, L-14876, Dec. 31, 1960; Arcel vs. Osmea, L-14956, Feb. 27, 1961; Sison vs. Pajo, L-18443, May 31, 1965.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-25885 January 31, 1972 LUZON BROKERAGE CO., INC., plaintiff-appellee, vs. MARITIME BUILDING CO., INC., and MYERS BUILDING CO., INC., defendants, MARITIME BUILDING CO., INC., defendant-appellant. Ross, Salcedo, Del Rosario, Bito and Misa for plaintiff-appellee. C. R. Tiongson and L. V. Simbulan and Araneta, Mendoza and Papa for defendant Myers Building Co., Inc. Ambrosio Padilla Law Offices for defendant-appellant Maritima Building Co., Inc.

REYES, J.B.L., J.:p Direct appeal (prior to the effectivity of Republic Act 5440) by Maritime Building Co., Inc. from a decision of the Court of First Instance of Manila (in its Civil Case No. 47319), the dispositive part of which provides as follows: FOR ALL THE FOREGOING CONSIDERATIONS, judgment is hereby rendered declaring that the Myers Building Co., Inc. is entitled to receive the rentals which the plaintiff has been paying, including those already deposited in Court, thereby relieving the plaintiff of any obligation to pay the same to any other party, and ordering the Maritime Building Co., Inc. to pay the commission fees paid by the Myers Building Co., Inc. to the Clerk of this Court, plus the sum of P3,000.00 as and for attorney's fees. On the cross-claim by the Myers Building Co., Inc., the Maritima Building Co., Inc. is hereby ordered to pay the Myers Building Co., Inc. the sum of P10,000.00 damages, plus the sum of P30,000.00, representing rentals wrongfully collected by it from the plaintiff corresponding to the months of March, April and May, 1961 and the costs hereof. The antecedents of the litigation are summarized in the appealed judgment thus:

This is an action for interpleading. It appears that on April 30, 1949, in the City of Manila, the defendant Myers Building Co., Inc., owner of three parcels of land in the City of Manila, together with the improvements thereon, entered into a contract entitled "Deed of Conditional Sale" in favor of Bary Building Co., Inc., later known as Maritime Building Co., Inc., whereby the former sold the same to the latter for P1,000,000.00, Philippine currency. P50,000.00 of this price was paid upon the execution of the said contract and the parties agreed that the balance of P950,000.00 was to be paid in monthly installments at the rate of P10,000.00 with interest of 5% per annum until the same was fully paid. In Par. (O), they agreed that in case of failure on the part of the vendee to pay any of the installments due and payable, the contract shall be annulled at the option of the vendor and all payments already made by vendee shall be forfeited and the vendor shall have right to re-enter the property and take possession thereof. Later, the monthly installment of P10,000.00 above-stipulated with 5% interest per annum was amended or decreased to P5,000.00 per month and the interest was raised to 5-1/2% per annum. The monthly installments under the contract was regularly paid by the Bary Building Co., Inc. and/or the Maritime Co., Inc. until the end of February, 1961. It failed to pay the monthly installment corresponding to the month of March 1961, for which the Vice-President, George Schedler, of the Maritime Building Co., Inc., wrote a letter to the President of Myers, Mr. C. Parsons, requesting for a moratorium on the monthly payment of the installments until the end of the year 1961, for the reason that the said company was encountering difficulties in connection with the operation of the warehouse business. However, Mr. C. Parsons, in behalf of the Myers Estate, answered that the monthly payments due were not payable to the Myers Estate but to the Myers Building Co., Inc., and that the Board of Directors of the Myers Co., Inc. refused to grant the request for moratorium for suspension of payments under any condition. Notwithstanding the denial of this request for moratorium by the Myers Board of Directors the Maritime Building Co., Inc. failed to pay the monthly installments corresponding to the months of March, April and May, 1961. Whereupon, on May 16, 1961, the Myers Building Co., Inc. made a demand upon the Maritime Building Co., Inc., for the payment of the installments that had become due and payable, which letter, however, was returned unclaimed. Then, on June 5, 1961, the Myers Building Co., Inc. wrote the Maritime Building Co., Inc. another letter advising it of the cancellation of the Deed of Conditional Sale entered into between them and demanding the return of the possession of

the properties and holding the Maritime Building Co., Inc. liable for use and occupation of the said properties at P10,000.00 monthly. In the meantime, the Myers Building Co., Inc. demanded upon the Luzon Brokerage Co., Inc. to whom the Maritime Building Co., Inc. leased the properties, the payment of monthly rentals of P10,000.00 and the surrender of the same to it. As a consequence, the Luzon Brokerage Co., Inc. found itself in a payment to the wrong party, filed this action for interpleader against the Maritime Building Co., Inc. After the filing of this action, the Myers Building Co., Inc. in its answer filed a cross-claim against the Maritime Building Co., Inc. praying for the confirmation of its right to cancel the said contract. In the meantime, the contract between the Maritime Building Co., Inc. and the Luzon Brokerage Co., Inc. was extended by mutual agreement for a period of four (4) more years, from April, 1964 to March 31, 1968. The Maritime Building Co., Inc. now contends (1) that the Myers Building Co., Inc. cannot cancel the contract entered into by them for the conditional sale of the properties in question extrajudicially and (2) that it had not failed to pay the monthly installments due under the contract and, therefore, is not guilty of having violated the same. It should be further elucidated that the suspension by the appellant Maritime Building Co., Inc. (hereinafter called Maritime) of the payment of installments due from it to appellee Myers Building Co., Inc. (hereinafter designated as Myers Corporation) arose from an award of backwages made by the Court of Industrial Relations in favor of members of Luzon Labor Union who served the Fil-American forces in Bataan in early 1942 at the instance of the employer Luzon Brokerage Co. and for which F. H. Myers, former majority stockholder of the Luzon Brokerage Co., had allegedly promised to indemnify E. M. Schedler (who controlled Maritime) when the latter purchased Myers' stock in the Brokerage Company. Schedler contended that he was being sued for the backpay award of some P325,000, when it was a liability of Myers, or of the latter's estate upon his death. In his letter to Myers Corporation (Exhibit "11", Maritime) dated 7 April 1961 (two months and ten days before the initial complaint in the case at bar), Schedler claimed the following: At all times when the F. H. Myers Estate was open in the Philippine Islands and open in San Francisco, the Myers Estate or heirs assumed the defense of the Labor Union claims and led us to believe that they would indemnify us therefrom. Recently, however, for the first time, and after both the Philippine and San Francisco F. H. Myers Estates were closed, we have been notified that the F. H. Myers indemnity on the Labor Union case will not be honored, and in fact Mrs.

Schedler and I have been sued in the Philippines by my successor in interest, Mr. Wentholt, and have been put to considerable expense. You are advised that my wife and I, as the owners of the Maritime Building Company, intend to withhold any further payments to Myers Building Company or Estate, in order that we can preserve those funds and assets to set off against the potential liability to which I am now exposed by the failure of the Myers heirs to honor the indemnity agreement pertaining to the Labor claims. The trial court found the position of Schedler indefensible, and that Maritime, by its failure to pay, committed a breach of the sale contract; that Myers Company, from and after the breach, became entitled to terminate the contract, to forfeit the installments paid, as well as to repossess, and collect the rentals of, the building from its lessee, Luzon Brokerage Co., in view of the terms of the conditional contract of sale stipulating that: (d) It is hereby agreed, covenanted and stipulated by and between the parties hereto that the Vendor will execute and deliver to the Vendee a definite or absolute deed of sale upon the full payment by the vendee of the unpaid balance of the purchase price hereinabove stipulated; that should the Vendee fail to pay any of the monthly installments, when due, or otherwise fail to comply with any of the terms and conditions herein stipulated, then this Deed of Conditional Sale shall automatically and without any further formality, become null and void, and all sums so paid by the Vendee by reason thereof, shall be considered as rentals and the Vendor shall then and there be free to enter into the premises, take possession thereof or sell the properties to any other party. xxx xxx xxx (o) In case the Vendee fails to make payment or payments, or any part thereof, as herein provided, or fails to perform any of the covenants or agreements hereof, this contract shall, at the option of the Vendor, be annulled and, in such event, all payments made by the Vendee to the Vendor by virtue of this contract shall be forfeited and retained by the Vendor in full satisfaction of the liquidated damages by said Vendor sustained; and the said Vendor shall have the right to forthwith re-enter, and take possession of, the premises subject-matter of this contract. "The remedy of forfeiture stated in the next-preceding paragraph shall not be exclusive of any other remedy, but the Vendor shall have every other remedy granted it by virtue of this contract, by law, and by equity." From the judgment of the court below, the dispositive portion whereof has been transcribed at the start of this opinion, Myers duly appealed to this Court.

The main issue posed by appellant is that there has been no breach of contract by Maritime; and assuming that there was one, that the appellee Myers was not entitled to rescind or resolve the contract without recoursing to judicial process. It is difficult to understand how appellant Maritime can seriously contend that its failure or refusal to pay the P5,000 monthly installments corresponding to the months of March, April and May, 1961 did not constitute a breach of contract with Myers, when said agreement (transcribed in the Record on Appeal, pages 59-71) expressly stipulated that the balance of the purchase price (P950,000) shall be paid at the rate of Ten Thousand Pesos (P10,000) monthly on or before the 10th day of each month with interest at 5% per annum, this amount to be first applied on the interest, and the balance paid to the principal thereof; and the failure to pay any installment or interest when due shallipso facto cause the whole unpaid balance of the principal and interest to be and become immediately due and payable. (Contract, paragraph b; Record on Appeal, page 63) Contrary to appellant Maritime's averments, the default was not made in good faith. The text of the letter to Myers (Exhibit "11", Maritime), heretofore quoted, leaves no doubt that the nonpayment of the installments was the result of a deliberate course of action on the part of appellant, designed to coerce the appellee Myers Corporation into answering for an alleged promise of the late F. H. MYERS to indemnify E. W. Schedler, the controlling stock-holder of appellant, for any payments to be made to the members of the Luzon Labor Union. This is apparent also from appellant's letter to his counsel (Exhibit "12", Maritime): ... I do not wish to deposit pesos representing the months of March, April and May, since the Myers refusal to honor the indemnity concerning the labor claims has caused me to disburse (sic) roughly $10,000.00 to date in fees, cost and travel expenses. However, if the Myers people will deposit in trust with Mr. C. Parsons 25,000 pesos to cover my costs to date, I will then deposit with Mr. Parsons, in trust, 15,000 pesos for March, April and May and will also post a monthly deposit of 5,000 pesos until the dispute is settled. The dispute won't be settled in my mind, unless and until: a) The Myers people indemnify me fully the labor cases; b) The labor cases are terminated favorably to Luzon Brokerage and no liability exists; c) The Myers people pay any judgment entered on the labor cases thereby releasing me; or

d) It is finally determined either in San Francisco or in the Philippines by a court that the Myers heirs must honor the indemnity which Mr. F. H. Myers promised when I purchased Luzon Brokerage Company. Yet appellant Maritime (assuming that it had validly acquired the claims of its president and controlling stockholder, E. M. Schedler) could not ignore the fact that whatever obligation F. H. Myers or his estate had assumed in favor of Schedler with respect to the Luzon Brokerage labor case was not, and could not have been, an obligation of appellee corporation (Myers Building Company). No proof exists that the board of directors of the Myers Corporation had agreed to assume responsibility for the debts (if any) that the late Myers or his heirs had incurred in favor of Schedler. Not only this, but it is apparent from the letters quoted heretofore that Schedler had allowed the estate proceedings of the late F. M. Myers to close without providing for any contingent liability in Schedler's favor; so that by offsetting the alleged debt of Myers to him, against the balance of the price due under the "Deed of Conditional Sale", appellant Maritime was in fact attempting to burden the Myers Building Company with an uncollectible debt, since enforcement thereof against the estate of F. H. Myers was already barred. Under the circumstances, the action of Maritime in suspending payments to Myers Corporation was a breach of contract tainted with fraud or malice (dolo), as distinguished from mere negligence (culpa), "dolo" being succinctly defined as a "conscious and intentional design to evade the normal fulfillment of existing obligations" (Capistrano, Civil Code of the Philippines, Vol. 3, page 38), and therefore incompatible with good faith (Castan, Derecho Civil, 7th Ed., Vol. 3, page 129; Diaz Pairo, Teoria de Obligaciones, Vol. 1, page 116). Maritime having acted in bad faith, it was not entitled to ask the court to give it further time to make payment and thereby erase the default or breach that it had deliberately incurred. Thus the lower court committed no error in refusing to extend the periods for payment. To do otherwise would be to sanction a deliberate and reiterated infringement of the contractual obligations incurred by Maritime, an attitude repugnant to the stability and obligatory force of contracts. From another point of view, it is irrelevant whether appellant Maritime's infringement of its contract was casual or serious, for as pointed out by this Court in Manuel vs. Rodriguez, 109 Phil. 1, at page 10 The contention of plaintiff-appellant that Payatas Subdivision Inc. had no right to cancel the contract as there was only a "casual breach" is likewise untenable. In contracts to sell, where ownership is retained by the seller and is not to pass until the full payment of the price, such payment, as we said, is a positive suspensive condition, the failure of which is not a breach, casual or serious, but simply an event that prevented the obligation of the vendor to convey title from acquiring binding force, in accordance with Article 1117 of the Old Civil Code. To argue that there was only a casual breach is to proceed from the assumption that the

contract is one of absolute sale, where non-payment is a resolutory condition, which is not the case. But it is argued for Maritime that even if it had really violated the Contract of Conditional Sale with Myers, the latter could not extrajudicially rescind or resolve the contract, but must first recourse to the courts. While recognizing that paragraph (d) of the deed of conditional sale expressly provides inter alia that should the Vendee fail to pay any of the monthly installments when due, or otherwise fail to comply with any of the terms and conditions herein stipulated, then this Deed of Conditional Sale shallautomatically and without any further formality, become null and void, and all sums so paid by the Vendee by reason thereof shall be considered as rentals.. (Emphasis supplied) herein appellant Maritime avers that paragraph (e) of the deed contemplates that a suit should be brought in court for a judicial declaration of rescission. The paragraph relied upon by Maritime is couched in the following, terms: (e) It is also hereby agreed, covenanted and stipulated by and between the parties hereto that should the Vendor rescind this Deed of Conditional Sale, for any of the reasons stipulated in the preceding paragraph, the Vendee by these presents obligates itself to peacefully deliver the properties subject of this contract to the Vendor, and in the event that the Vendee refuses to peacefully deliver the possession of the properties subject of this contract to the Vendor in case of rescission, and a suit should be brought in court by the Vendor to seek judicial declaration of rescission and take possession of the properties subject of this contract, the Vendee hereby obligates itself to pay all the expenses to be incurred by reason of such suit and in addition obligates itself to pay the sum of P10,000.00, in concept of damages, penalty and attorney's fees. Correlation of this paragraph (e) with the preceding paragraph (d) of the Deed of Conditional Sale (quoted in page 5 of this opinion) reveals no incompatibility between the two; and the suit to "be brought in Court by the Vendor to seek judicial declaration of rescission" is provided for by paragraph(e) only in the eventuality that, notwithstanding the automatic annulment of the deed under paragraph (d), the Vendee "refuses to peacefully deliver the possession of the properties subject of this contract". The step contemplated is logical since the Vendor can not, by himself, dispossess the Vendee manu militari, if the latter should refuse to vacate despite the violation of the contract, since no party can take the law in his own hands. But the bringing of such an action in no way contradicts or restricts the automatic termination of the contract in case the Vendee (i.e., appellant Maritime) should not comply with the agreement. Anyway, this Court has repeatedly held that

Well settled is, however, the rule that a judicial action for the rescission of a contract is not necessary where the contract provides that it may be revoked and cancelled for violation of any of its terms and conditions" (Lopez vs. Commissioner of Customs, L-28235, 30 January 1971, 37 SCRA 327, 334,, and cases cited therein). 1 (Emphasis supplied.) Resort to judicial action for rescission is obviously not contemplated.... The validity of the stipulation can not be seriously disputed. It is in the nature of a facultative resolutory condition which in many cases has been upheld by this Court. (Ponce Enrile vs. Court of Appeals, L-27549, 30 Sept. 1969; 29 SCRA 504). The obvious remedy of the party opposing the rescission for any reason being to file the corresponding action to question the rescission and enforce the agreement, as indicated in our decision in University of the Philippines vs. Walfrido de los Angeles, L-28602, 29 September 1970, 35 SCRA 107. Of course, it must be understood that the act of a party in treating a contract as cancelled or resolved on account of infractions by the other contracting party must be made known to the other and is always provisional, being ever subject to scrutiny and review by the proper court. If the other party denies that rescission is justified, it is free to resort to judicial action in its own behalf, and bring the matter to court. Then, should the court, after due hearing, decide that the resolution of the contract was not warranted, the responsible party will be sentenced to damages; in the contrary case, the resolution will be affirmed, and the consequent indemnity awarded to the party prejudiced. In other words, the party who deems the contract violated may consider it resolved or rescinded, and act accordingly, without previous court action, but it proceeds at its own risk. For it is only the final judgment of the corresponding court that will conclusively and finally settle whether the action taken was or was not correct in law. But the law definitely does not require that the contracting party who believes itself injured must first file suit and wait for a judgment before taking extrajudicial steps to protect its interest. Otherwise, the party injured by the other's breach will have to passively sit and watch its damages accumulate during the pendency of the suit until the final judgment of rescission is rendered when the law itself requires that he should exercise due diligence to minimize its own damages (Civil Code, Article 2203). Maritime likewise invokes Article 1592 of the Civil Code of the Philippines as entitling it to pay despite its default: ART. 1592. In the sale of immovable property, even though it may have been stipulated that upon failure to pay the price at the time agreed upon the

rescission of the contract shall of right take place, the vendee may pay, even after the expiration of the period, as long as no demand for rescission of the contract has been made upon him either judicially or by a notarial act. After the demand, the court may not grant him a new term. Assuming arguendo that Article 1592 is applicable, the cross-claim filed by Myers against Maritime in the court below constituted a judicial demand for rescission that satisfies the requirements of said article. But even if it were not so, appellant overlooks that its contract with appellee Myers is not the ordinary sale envisaged by Article 1592, transferring ownership simultaneously with the delivery of the real property sold, but one in which the vendor retained ownership of the immovable object of the sale, merely undertaking to convey it provided the buyer strictly complied with the terms of the contract (see paragraph [d], ante, page 5). In suing to recover possession of the building from Maritime, appellee Myers is not after the resolution or setting aside of the contract and the restoration of the parties to the status quo ante, as contemplated by Article 1592, but precisely enforcing the provisions of the agreement that it is no longer obligated to part with the ownership or possession of the property because Maritime failed to comply with the specified condition precedent, which is to pay the installments as they fell due. The distinction between contracts of sale and contract to sell with reserved title has been recognized by this Court in repeated decisions 2 upholding the power of promisors under contracts to sell in case of failure of the other party to complete payment, to extrajudicially terminate the operation of the contract, refuse conveyance and retain the sums or installments already received, where such rights are expressly provided for, as in the case at bar. Maritime's appeal that it would be iniquituous that it should be compelled to forfeit the P973,000 already paid to Myers, as a result of its failure to make good a balance of only P319,300.65, payable at P5,000 monthly, becomes unimpressive when it is considered that while obligated to pay the price of one million pesos at P5,000 monthly, plus interest, Maritime, on the other hand, had leased the building to Luzon Brokerage, Inc. since 1949; and Luzon paid P13,000 a month rent, from September, 1951 to August 1956, and thereafter until 1961, at P10,000 a month, thus paying a total of around one and a half million pesos in rentals to Maritime. Even adding to Maritime's losses of P973,000 the P10,000 damages and P3,000 attorneys' fees awarded by the trial court, it is undeniable that appellant Maritime has come out of the entire transaction still at a profit to itself. There remains the procedural objection raised by appellant Maritime to this interpleader action filed by the Luzon Brokerage Co., the lessee of the building conditionally sold by Myers to Maritime. It should be recalled that when Maritime defaulted in its payments to Myers, and the latter notified the former that it was cancelling the contract of conditional sale, Myers also notified Luzon Brokerage, Maritime's lessee of the building, of the cancellation of the sale, and demanded that Luzon should pay to Myers the rentals of the building beginning from June, 1961, under penalty of ejectment (Record on Appeal, pages 14-15). In doubt as to who was

entitled to the rentals, Luzon filed this action for interpleader against Myers and Maritime, and deposited the rentals in court as they fell due. The appellant Maritime moved to dismiss on the ground that (a) Luzon could not entertain doubts as to whom the rentals should be paid since Luzon had leased the building from Maritime since 1949, renewing the contract from time to time, and Myers had no right to cancel the lease; and (b) that Luzon was not a disinterested party, since it tended to favor appellee Myers. The court below overruled Maritime's objections and We see no plausible reason to overturn the order. While Myers was not a party to the lease, its cancellation of the conditional sale of the premises to Maritime, Luzon's lessor, could not but raise reasonable doubts as to the continuation of the lease, for the termination of the lessor's right of possession of the premises necessarily ended its right to the rentals falling due thereafter. The preceding portion of our opinion is conclusive that Luzon's doubts were grounded under the law and the jurisprudence of this Court. No adequate proof exists that Luzon was favoring any one of the contending parties. It was interested in being protected against prejudice deriving from the result of the controversy, regardless of who should win. For the purpose it was simpler for Luzon to compel the disputants to litigate between themselves, rather than chance being sued by Myers, and later being compelled to proceed against Maritime to recoup its losses. In any event, Maritime ultimately confirmed the act of Luzon in suing for interpleader, by agreeing to renew Luzon's lease in 1963 during the pendency of the present action, and authorizing Luzon to continue depositing the rentals in court "until otherwise directed by a court of competent jurisdiction" (Exhibit "18Maritime"). The procedural objection has thus become moot. PREMISES CONSIDERED, the appealed decision should be, and hereby is, affirmed, and appellant Maritime Building Co., as well as appellee Luzon Brokerage Co., are further ordered to surrender the premises to the appellee Myers Building Co. Costs against appellant. Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Villamor and Makasiar, JJ., concur. Fernando, J., took no part.

Footnotes
1 Ponce Enrile vs. Court of Appeals, L-27549, 30 September 1969; Froilan vs. Pan Oriental Shipping Co., L-11897, 31 October 1964; De la Rama Steamship Co., Inc. vs. Tan, L-8784, 21 May 1956; Taylor vs. Uy Teng Piao, 43 Phil. 873; University of the Philippines vs. Judge de los Angeles, L-28602, 29 September 1970. 2 Manila Racing Club vs. Manila Jockey Club, 69 Phil. 57; Caridad Estates vs. Santero, 71 Phil. 114; Miranda vs. Caridad Estates, L-2077, 3 October 1950; Jocson v. Capitol Subdivision, L-6573, 28 February 1955; Manuel vs. Rodriguez, 109 Phil. 1. See also Sing Yee Cuan, Inc. vs. Santos (C. App.) 47 OG 6372.

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 HONTIVEROSBARAQUEL,Intervenors.

x--------------------------------------------------------x ARTURO M. DE CASTRO, Intervenor. x ------------------------------------------------------- x TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor. x---------------------------------------------------------x LUWALHATI RICASA ANTONINO, Intervenor. x ------------------------------------------------------- x PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors. x ------------------------------------------------------- x RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors. x -------------------------------------------------------- x PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR. VICTORINO F. BALAIS, Intervenors. x -------------------------------------------------------- x SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., Intervenor. x ------------------------------------------------------- x SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor. x ------------------------------------------------------- x JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR, and RANDALL TABAYOYONG, Intervenors. x -------------------------------------------------------- x INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE CHAPTERS, Intervenors.

x --------------------------------------------------------x SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors. x -----------------------------------------------------x JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors. x -----------------------------------------------------x G.R. No. 174299 October 25, 2006

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

DECISION

CARPIO, J.: The Case These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections ("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution. Antecedent Facts On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado ("Lambino Group"), with other groups1 and individuals, commenced gathering signatures for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify their

initiative petition under Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act ("RA 6735"). The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least twelveper 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, inCapezzuto v. State Ballot Commission, the Supreme Court of Massachusetts, affirmed by the First Circuit Court of Appeals, declared: [A] signature requirement would be meaningless if the person supplying the signature has not first seen what it is that he or she is signing. Further, and more importantly, loose interpretation of the subscription requirement can pose a significant potential for fraud. A person permitted to describe orally the contents of an initiative petition to a potential signer, without the signer having actually examined the petition, could easily mislead the signer by, for example, omitting, downplaying, or even flatly misrepresenting, portions of the petition that might not be to the signer's liking. This danger seems particularly acute when, in this case, the person giving the description is the drafter of the petition, who obviously has a vested interest in seeing that it gets the requisite signatures to qualify for the ballot.17 (Boldfacing and underscoring supplied) Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained: The purposes of "full text" provisions that apply to amendments by initiative commonly are described in similar terms. x x x (The purpose of the full text requirement is to provide sufficient information so that registered voters can intelligently evaluate

whether to sign the initiative petition."); x x x (publication of full text of amended constitutional provision required because it is "essential for the elector to have x x x the section which is proposed to be added to or subtracted from. If he is to vote intelligently, he must have this knowledge. Otherwise in many instances he would be required to vote in the dark.") (Emphasis supplied) Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed" and failure to do so is "deceptive and misleading" which renders the initiative void.19 Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the proposed amendments. However, the deliberations of the framers of our Constitution clearly show that the framers intended to adopt the relevant American jurisprudence on people's initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the framers intended that the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as valid, requires that the people must sign the "petition x x x as signatories." The proponents of the initiative secure the signatures from the people. The proponents secure the signatures in their private capacity and not as public officials. The proponents are not disinterested parties who can impartially explain the advantages and disadvantages of the proposed amendments to the people. The proponents present favorably their proposal to the people and do not present the arguments against their proposal. The proponents, or their supporters, often pay those who gather the signatures. Thus, there is no presumption that the proponents observed the constitutional requirements in gathering the signatures. The proponents bear the burden of proving that they complied with the constitutional requirements in gathering the signatures - that the petition contained, or incorporated by attachment, the full text of the proposed amendments. The Lambino Group did not attach to their present petition with this Court a copy of the paper that the people signed as their initiative petition. The Lambino Group submitted to this Court a copy of a signature sheet20 after the oral arguments of 26 September 2006 when they filed their Memorandum on 11 October 2006. The signature sheet with this Court during the oral arguments was the signature sheet attached21 to the opposition in intervention filed on 7 September 2006 by intervenor Atty. Pete Quirino-Quadra. The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the Lambino Group's Memorandum are the same. We reproduce below the signature sheet in full: Province: City/Municipality: No. of

Legislative District: Barangay:

Verified Signatures:

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?" I hereby APPROVE the proposed amendment to the 1987 Constitution. 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 3 4 5 6 7 8 9 10 _________________ Barangay Official (Print Name and Sign) _________________ Witness (Print Name and Sign) __________________ Witness (Print Name and Sign) Address Birthdate MM/DD/YY Signature Verification

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. 200602 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 signaturegathering. 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 noncompliance 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 singlesubject 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 enactmentby-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 selfexecuting 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 selfimposed 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 BicameralPresidential system to a Unicameral-Parliamentary system is a revision of the Constitution.

Merging the legislative and executive branches is a radical change in the structure of government. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution. By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the Lambino Group's proposed changes, it is readily apparent that the changes will radically alter the framework of government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading member of the Constitutional Commission, writes: An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document which have over-all implications for the entire document, to determine how and to what extent they should be altered. Thus, for instance a switch from the presidential system to a parliamentary system would be a revision because of its over-all impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system be because of its effect on other important provisions of the Constitution.41 (Emphasis supplied) In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution to shift from a bicameral to a unicameral legislature. The issue turned on whether the initiative "was defective and unauthorized where [the] proposed amendment would x x x affect several other provisions of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside the scope of the initiative clause, ruled as follows: The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a Unicameral Legislature affects not only many other provisions of the Constitution but provides for a change in the form of the legislative branch of government, which has been in existence in the United States Congress and in all of the states of the nation, except one, since the earliest days. It would be difficult to visualize a more revolutionary change. The concept of a House and a Senate is basic in the American form of government. It would not only radically change the whole pattern of government in this state and tear apart the whole fabric of the Constitution, but would even affect the physical facilities necessary to carry on government. xxxx

We conclude with the observation that if such proposed amendment were adopted by the people at the General Election and if the Legislature at its next session should fail to submit further amendments to revise and clarify the numerous inconsistencies and conflicts which would result, or if after submission of appropriate amendments the people should refuse to adopt them, simple chaos would prevail in the government of this State. The same result would obtain from an amendment, for instance, of Section 1 of Article V, to provide for only a Supreme Court and Circuit Courts-and there could be other examples too numerous to detail. These examples point unerringly to the answer. The purpose of the long and arduous work of the hundreds of men and women and many sessions of the Legislature in bringing about the Constitution of 1968 was to eliminate inconsistencies and conflicts and to give the State a workable, accordant, homogenous and up-to-date document. All of this could disappear very quickly if we were to hold that it could be amended in the manner proposed in the initiative petition here.43 (Emphasis supplied) The rationale of the Adams decision applies with greater force to the present petition. The Lambino Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to merge the executive and legislative departments. The initiative in Adams did not even touch the executive department. In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that would be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's present initiative, no less than 105 provisions of the Constitution would be affected based on the count of Associate Justice Romeo J. Callejo, Sr.44 There is no doubt that the Lambino Group's present initiative seeks far more radical changes in the structure of government than the initiative in Adams. The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called "revisions" because members of the deliberative body work full-time on the changes. However, the same substantive changes, when proposed through an initiative, are called "amendments" because the changes are made by ordinary people who do not make an "occupation, profession, or vocation" out of such endeavor. Thus, the Lambino Group makes the following exposition of their theory in their Memorandum: 99. With this distinction in mind, we note that the constitutional provisions expressly provide for both "amendment" and "revision" when it speaks of legislators and constitutional delegates, while the same provisions expressly provide only for "amendment" when it speaks of the people. It would seem that the apparent distinction is based on the actual experience of the people, that on one hand the common people in general are not expected to work full-time on the matter of correcting the constitution

because that is not their occupation, profession or vocation; while on the other hand, the legislators and constitutional convention delegates are expected to work full-time on the same matter because that is their occupation, profession or vocation. Thus, the difference between the words "revision" and "amendment" pertain only to the process or procedure of coming up with the corrections, for purposes of interpreting the constitutional provisions. 100. Stated otherwise, the difference between "amendment" and "revision" cannot reasonably be in the substance or extent of the correction. x x x x (Underlining in the original; boldfacing supplied) The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same proposed changes that the Lambino Group wrote in the present initiative, the changes would constitute a revision of the Constitution. Thus, the Lambino Group concedes that the proposed changes in the present initiative constitute a revision if Congress or a constitutional convention had drafted the changes. However, since the Lambino Group as private individuals drafted the proposed changes, the changes are merely amendments to the Constitution. The Lambino Group trivializes the serious matter of changing the fundamental law of the land. The express intent of the framers and the plain language of the Constitution contradict the Lambino Group's theory. Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language.45 Any theory espousing a construction contrary to such intent and language deserves scant consideration. More so, if such theory wreaks havoc by creating inconsistencies in the form of government established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's position. Any theory advocating that a proposed change involving a radical structural change in government does not constitute a revision justly deserves rejection. The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have attempted to advance without any success. In Lowe v. Keisling,46 the Supreme Court of Oregon rejected this theory, thus: Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by initiative. His theory is that Article XVII, section 2 merely provides a procedure by which the legislature can propose a revision of the constitution, but it does not affect proposed revisions initiated by the people. Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the constitution that cannot be enacted through the initiative process. They assert that the distinction between amendment and revision is determined by reviewing the scope and subject matter of the proposed enactment, and that revisions are not limited to "a formal overhauling of the constitution." They argue that this ballot measure proposes far

reaching changes outside the lines of the original instrument, including profound impacts on existing fundamental rights and radical restructuring of the government's relationship with a defined group of citizens. Plaintiffs assert that, because the proposed ballot measure "will refashion the most basic principles of Oregon constitutional law," the trial court correctly held that it violated Article XVII, section 2, and cannot appear on the ballot without the prior approval of the legislature. We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of the constitution may not be accomplished by initiative, because of the provisions of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed amendments, the court said: "From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of amending the Oregon Constitution, but it contains no similar sanction for its use as a means of revising the constitution." x x x x It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the constitution which provides the means for constitutional revision and it excludes the idea that an individual, through the initiative, may place such a measure before the electorate." x x x x Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to constitutional revisions proposed by initiative. (Emphasis supplied) Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the framers and the plain language of the Constitution. We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties arise in determining whether there is an amendment or revision. The present initiative is indisputably located at the far end of the red spectrum where revision begins. The present initiative seeks a radical overhaul of the existing separation of powers among the three co-equal departments of government, requiring far-reaching amendments in several sections and articles of the Constitution. Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years to 15 years47 is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100 percent to 60 percent is an amendment and not a revision.48 Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision.49

The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific provision being amended. These changes do not also affect the structure of government or the system of checks-and-balances among or within the three branches. These three examples are located at the far green end of the spectrum, opposite the far red end where the revision sought by the present petition is located. However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word "republican" with "monarchic" or "theocratic" in Section 1, Article II50 of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-andbalances, 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 inSantiago 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 extraconstitutional change, which means subverting the people's sovereign will and discarding the Constitution. This is one act the Court cannot and should never do. As the ultimate guardian of the Constitution, this Court is sworn to perform its solemn duty to defend and protect the Constitution, which embodies the real sovereign will of the people. Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise, the Constitution the people's fundamental covenant that provides enduring stability to our society becomes easily susceptible to manipulative changes by political groups gathering signatures through false promises. Then, the Constitution ceases to be the bedrock of the nation's stability. The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that "ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms." The Lambino Group thus admits that their "people's" initiative is an "unqualified support to the agenda" of the

incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of "people's voice" or "sovereign will" in the present initiative. This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which embodies the people's sovereign will, is the bible of this Court. This Court exists to defend and protect the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the Constitution. To allow such alteration and desecration is to lose this Court's raison d'etre. WHEREFORE, we DISMISS the petition in G.R. No. 174153. SO ORDERED. Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur.

EN BANC G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS 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 thefirst 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, theDelfin Petition should still be dismissed as it was not the proper initiatory pleading contemplated by law. Under Section 2, Article VII of the 1987 Constitution and Section 5(b) of R.A. 6735, a petition for initiative on the Constitution must be signed by at least twelve per cent (12%) of the total number of registered voters, of which every legislative district is represented by at least three per cent (3%) of the registered voters therein. The Delfin Petition did not contain signatures of the required number of voters. The decision stated: CONCLUSION This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system. WHEREFORE, judgment is hereby rendered a) GRANTING the instant petition; b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation; c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent against the Commission on Elections, but is LIFTED as against private respondents.5 Eight (8) members of the Court, namely, then Associate Justice Hilario G. Davide, Jr. (ponente), Chief Justice Andres R. Narvasa, and Associate Justices Florenz D. Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C. Hermosisima, Jr. and Justo P. Torres, fully concurred in the majority opinion. While all the members of the Court who participated in the deliberation6 agreed that the Delfin Petition should be dismissed for lack of the required signatures, five (5) members, namely, Associate Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J. Francisco and Artemio V. Panganiban, held that R.A. 6735 was sufficient and adequate to implement the people's right to amend the Constitution through initiative, and that COMELEC Resolution No. 2300 validly provided the details for the actual exercise of such right. Justice Jose C. Vitug, on the other hand, opined that the Court should confine itself to resolving the issue of whether the Delfin Petition sufficiently complied with the requirements of the law on initiative, and there was no need to rule on the adequacy of R.A. 6735. The COMELEC, Delfin and the Pedrosas filed separate motions for reconsideration of the Court's decision. After deliberating on the motions for reconsideration, six (6)7 of the eight (8) majority members maintained their position that R.A. 6735 was inadequate to implement the provision on the initiative on amendments to the Constitution. Justice Torres filed an inhibition, while Justice Hermosisima submitted a Separate Opinion adopting the position of the minority that R.A. 6735 sufficiently covers the initiative to amend the Constitution. Hence, of the thirteen (13) members of the Court who participated in the deliberation, six (6) members, namely, Chief Justice Narvasa and Associate Justices Regalado, Davide, Romero, Bellosillo and Kapunan voted to deny the motions for lack of merit; and six (6) members, namely, Associate Justices Melo, Puno, Mendoza, Francisco, Hermosisima and Panganiban voted to grant the same. Justice Vitug maintained his opinion that the matter was not ripe for judicial adjudication. The motions for reconsideration were therefore denied for lack of sufficient votes to modify or reverse the decision of March 19, 1997.8 On June 23, 1997, PIRMA filed with the COMELEC a Petition for Initiative to Propose Amendments to the Constitution (PIRMA Petition). The PIRMA Petition was supported by around five (5) million signatures in compliance with R.A. 6735 and COMELEC Resolution No. 2300, and prayed that the COMELEC, among others: (1) cause the publication of the petition in Filipino and English at least twice in newspapers of general and local circulation; (2) order all election officers to verify the signatures collected in support of the petition and submit these to the Commission; and (3) set the holding of a plebiscite where the following proposition would be submitted to the people for ratification: Do you approve amendments to the 1987 Constitution giving the President the chance to be reelected for another term, similarly with the Vice-President, so that both the highest officials of the land can serve for two consecutive terms of six years each, and also to lift the term limits for all other elective government officials, thus giving Filipino voters the freedom of choice, amending for that purpose, Section 4 of Article VII, Sections 4 and 7 of Article VI and Section 8 of Article X, respectively?

The COMELEC dismissed the PIRMA Petition in view of the permanent restraining order issued by the Court in Santiago v. COMELEC. PIRMA filed with this Court a Petition for Mandamus and Certiorari seeking to set aside the COMELEC Resolution dismissing its petition for initiative. PIRMA argued that the Court's decision on the Delfin Petition did not bar the COMELEC from acting on the PIRMA Petition as said ruling was not definitive based on the deadlocked voting on the motions for reconsideration, and because there was no identity of parties and subject matter between the two petitions. PIRMA also urged the Court to reexamine its ruling in Santiago v. COMELEC. The Court dismissed the petition for mandamus and certiorari in its resolution dated September 23, 1997. It explained: The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the Decision of this Court in G.R. No. 127325 promulgated on March 19, 1997, and its Resolution of June 10, 1997. The Court next considered the question of whether there was need to resolve the second issue posed by the petitioners, namely, that the Court re-examine its ruling as regards R.A. 6735. On this issue, the Chief Justice and six (6) other members of the Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no need to take it up. Vitug, J., agreed that there was no need for reexamination 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 reexamination 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 bicameralPresidential 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. Ejercito-Estrada, and Jinggoy Estrada; Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby Santiago and Reginald Pamugas; Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong. On August 31, 2006, the COMELEC denied due course to the Petition for Initiative. It cited this Court's ruling in Santiago v. COMELEC11 permanently enjoining the Commission from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. Forthwith, petitioners filed with this Court the instant Petition for Certiorari and Mandamus praying that the Court set aside the August 31, 2006 resolution of the COMELEC, direct respondent COMELEC to comply with Section 4, Article XVII of the Constitution, and set the date of the plebiscite. They state the following grounds in support of the petition: I. The Honorable public respondent COMELEC committed grave abuse of discretion in refusing to take cognizance of, and to give due course to the petition for initiative, because the cited Santiago ruling of 19 March 1997 cannot be considered the majority opinion of the Supreme Court en banc, considering that upon its reconsideration and final voting on 10 June 1997, no majority vote was secured to declare Republic Act No. 6735 as inadequate, incomplete and insufficient in standard. II. The 1987 Constitution, Republic Act No. 6735, Republic Act No. 8189 and existing appropriation of the COMELEC provide for sufficient details and authority for the exercise of people's initiative, thus, existing laws taken together are adequate and complete. III. The Honorable public respondent COMELEC committed grave abuse of discretion in refusing to take cognizance of, and in refusing to give due course to the petition for

initiative, thereby violating an express constitutional mandate and disregarding and contravening the will of the people. A. Assuming in arguendo that there is no enabling law, respondent COMELEC cannot ignore the will of the sovereign people and must accordingly act on the petition for initiative. 1. The framers of the Constitution intended to give the people the power to propose amendments and the people themselves are now giving vibrant life to this constitutional provision. 2. Prior to the questioned Santiago ruling of 19 March 1997, the right of the people to exercise the sovereign power of initiative and recall has been invariably upheld. 3. The exercise of the initiative to propose amendments is a political question which shall be determined solely by the sovereign people. 4. By signing the signature sheets attached to the petition for initiative duly verified by the election officers, the people have chosen to perform this sacred exercise of their sovereign power. B. The Santiago ruling of 19 March 1997 is not applicable to the instant petition for initiative filed by the petitioners. C. The permanent injunction issued in Santiago vs. COMELEC only applies to the Delfin petition. 1. It is the dispositive portion of the decision and not other statements in the body of the decision that governs the rights in controversy. IV.

The Honorable public respondent failed or neglected to act or perform a duty mandated by law. A. The ministerial duty of the COMELEC is to set the initiative for plebiscite.12 The oppositors-intervenors, ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Dr. Darby Santiago, and Dr. Reginald Pamugas; Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio 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-in-Intervention. All interventions and oppositions were granted by the Court. The oppositors-intervenors essentially submit that the COMELEC did not commit grave abuse of discretion in denying due course to the petition for initiative as it merely followed this Court's ruling in Santiago v. 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 whilestatutory 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 causeoriented 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 point46 -

MR. OPLE. To more closely reflect the intent of Section 2, may I suggest that we add to "Amendments" "OR REVISIONS OF" to read: "Amendments OR REVISION OF this Constitution." MR. AZCUNA. I think it was not allowed to revise the Constitution by initiative. MR. OPLE. How is that again? MR. AZCUNA. It was not our intention to allow a revision of the Constitution by initiative but merely by amendments. 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, oppositorsintervenors 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 selfevident 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 xxxx May I know from the committee the reason for adding the word "democratic" to "republican"? The constitutional framers of the 1935 and 1973 Constitutions were content with "republican." Was this done merely for the sake of emphasis? MR. NOLLEDO. x x x x "democratic" was added because of the need to emphasize people power and the many provisions in the Constitution that we have approved related to recall, people's organizations, initiative and the like, which recognize the participation of the people in policy-making in certain circumstances x x x x MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does meet a need x x x x MR. NOLLEDO. According to Commissioner Rosario Braid, "democracy" here is understood as participatory democracy. 74 (emphasis supplied) The following exchange between Commissioners Rene V. Sarmiento and Adolfo S. Azcuna is of the same import:75

MR. SARMIENTO. When we speak of republican democratic state, are we referring to representative democracy? MR. AZCUNA. That is right. MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and 1935 Constitutions which used the words "republican state" because "republican state" would refer to a democratic state where people choose their representatives? MR. AZCUNA. We wanted to emphasize the participation of the people in government. MR. SARMIENTO. But even in the concept "republican state," we are stressing the participation of the people x x x x So the word "republican" will suffice to cover popular representation. MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in view of the introduction of the aspects of direct democracy such as initiative, referendum or recall, it was necessary to emphasize the democratic portion of republicanism, of representative democracy as well. So, we want to add the word "democratic" to emphasize that in this new Constitution there are instances where the people would act directly, and not through their representatives. (emphasis supplied) Consistent with the stress on direct democracy, the systems of initiative, referendum, and recall were enthroned as polestars in the 1987 Constitution. Thus, Commissioner Blas F. Ople who introduced the provision on people's initiative said:76 MR. OPLE. x x x x I think this is just the correct time in history when we should introduce an innovative mode of proposing amendments to the Constitution, vesting in the people and their organizations the right to formulate and propose their own amendments and revisions of the Constitution in a manner that will be binding upon the government. It is not that I believe this kind of direct action by the people for amending a constitution will be needed frequently in the future, but it is good to know that the ultimate reserves of sovereign power still rest upon the people and that in the exercise of that power, they can propose amendments or revision to the Constitution. (emphasis supplied) Commissioner Jose E. Suarez also explained the people's initiative as a safety valve, as a peaceful way for the people to change their Constitution, by citing our experiences under the Marcos government, viz:77 MR. SUAREZ. We agree to the difficulty in implementing this particular provision, but we are providing a channel for the expression of the sovereign will of the people through this initiative system. MR. BENGZON. Is Section 1, paragraphs (a) and (b), not sufficient channel for expression of the will of the people, particularly in the amendment or revision of the Constitution? MR. SUAREZ. Under normal circumstances, yes. But we know what happened during the 20 years under the Marcos administration. So, if the National Assembly, in a

manner of speaking, is operating under the thumb of the Prime Minister or the President as the case may be, and the required number of votes could not be obtained, we would have to provide for a safety valve in order that the people could ventilate in a very peaceful way their desire for amendment to the Constitution. It is very possible that although the people may be pressuring the National Assembly to constitute itself as a constituent assembly or to call a constitutional convention, the members thereof would not heed the people's desire and clamor. So this is a third avenue that we are providing for the implementation of what is now popularly known as people's power. (emphasis supplied) Commissioner Regalado E. Maambong opined that the people's initiative could avert a revolution, viz:78 MR. MAAMBONG. x x x x the amending process of the Constitution could actually avert a revolution by providing a safety valve in bringing about changes in the Constitution through pacific means. This, in effect, operationalizes what political law authors call the "prescription of sovereignty." (emphasis supplied) The end result is Section 2, Article XVII of the 1987 Constitution which expressed the right of the sovereign people to propose amendments to the Constitution by direct action or through initiative. To that extent, the delegated power of Congress to amend or revise the Constitution has to be adjusted downward. Thus, Section 1, Article VI of the 1987 Constitution has to be reminted and now provides: "The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives,except to the extent reserved to the people by the provision on initiative and referendum." Prescinding from these baseline premises, the argument that the people through initiative cannot propose substantial amendments to change the Constitution turns sovereignty on its head. At the very least, 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 nonjusticiability, 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 2nd and 3rd Districts of Davao City on April 20, 2006 and April 26, 2006, respectively, specifically relating to the voters who supported the people's initiative. It was stated therein that the names submitted, comprising 22,668 individual voters in the 2nd District and 18,469 individual voters in the 3rd District, were found [to] be registered voters of the respective districts mentioned as verified by this Office based on the Computerized List of Voters. It must be clarified that the August 23, 2006 Certification was issued in error and by mistake for the reason that the signature verification has not been fully completed as of that date. I hereby CERTIFY that this Office has examined the signatures of the voters as appearing in the signature sheets and has compared these with the signatures appearing in the book of voters and computerized list of voters x x x 99 Petitioner Aumentado also submitted a copy of the certification dated May 8, 2006 issued by Polomolok Election Officer Glory D. Rubio to support their claim that said officer had conducted a verification of signatures in said area. The certification states: This is to certify further, that the total 68,359 registered voters of this municipality, as of the May 10, 2004 elections, 10,804 names with signatures were submitted for verification and out of which 10,301 were found to be legitimate voters as per official list of registered voters, which is equivalent to 15.07% of the total number of registered voters of this Municipality.100 In addition to the lack of proper verification of the signatures in numerous legislative districts, allegations of fraud and irregularities in the collection of signatures in Makati City were cited by Senator Pimentel, among others, to wit: (1) No notice was given to the public, for the benefit of those who may be concerned, by the Makati COMELEC Office that signature sheets have already been submitted to it for "verification." The camp of Mayor Binay was able to witness the "verification process" only because of their pro-active stance; (2) In District 1, the proponents of charter change submitted 43,405 signatures for verification. 36,219 alleged voters' signatures (83% of the number of signatures submitted) were rejected outright. 7,186 signatures allegedly "passed" COMELEC's initial scrutiny. However, upon examination of the signature sheets by Atty. Mar-len Abigail Binay, the said 7,186 signatures could not be accounted for. Atty. Binay manually counted 2,793 signatures marked with the word "OK" and 3,443 signatures marked with a check, giving only 6,236 "apparently verified signatures." Before the COMELEC officer issued the Certification, Atty. Binay already submitted to the said office not less than 55 letters of "signature withdrawal," but no action was ever taken thereon; (3) In District 2, 29,411 signatures were submitted for verification. 23,521 alleged voters' signatures (80% of those submitted) were rejected outright. Of the 5,890 signatures

which allegedly passed the COMELEC's initial scrutiny, some more will surely fail upon closer examination; (4) In the absence of clear, transparent, and uniform rules the COMELEC personnel did not know how to treat the objections and other observations coming from the camp of Mayor Binay. The oppositors too did not know where to go for their remedy when the COMELEC personnel merely "listened" to their objections and other observations. As mentioned earlier, the COMELEC personnel did not even know what to do with the many "letters of signature withdrawal" submitted to it; (5) Signatures of people long dead, in prison, abroad, and other forgeries appear on the Sigaw ng Bayan Signature Sheets. There is even a 15-year old alleged signatory; (6) There are Signature Sheets obviously signed by one person; (7) A Calara M. Roberto and a Roberto M. Calara both allegedly signed the Signature Sheets.101 Also, there are allegations that many of the signatories did not understand what they have signed as they were merely misled into signing the signature sheets. Opposed to these allegations are rulings that a person who affixes his signature on a document raises the presumption that the person so signing has knowledge of what the document contains. Courts have recognized that there is great value in the stability of records, so to speak, that no one should commit herself or himself to something in writing unless she or he is fully aware and cognizant of the effect it may have upon her on him.102 In the same vein, we have held that a person is presumed to have knowledge of the contents of a document he has signed.103 But as this Court is not a trier of facts, it cannot resolve the issue. In sum, the issue of whether the petitioners have complied with the constitutional requirement that the petition for initiative be signed by at least twelve per cent (12%) of the total number of registered voters, of which every legislative district must be represented by at least three per cent (3%) of the registered voters therein, involves contentious facts. Its resolution will require presentation of evidence and their calibration by the COMELEC according to its rules. During the oral argument on this case, the COMELEC, through Director Alioden Dalaig of its Law Department, admitted that it has not examined the documents submitted by the petitioners in support of the petition for initiative, as well as the documents filed by the oppositors to buttress their claim that the required number of signatures has not been met. The exchanges during the oral argument likewise clearly show the need for further clarification and presentation of evidence to prove certain material facts.104 The only basis used by the COMELEC to dismiss the petition for initiative was this Court's ruling in Santiago v. COMELEC that R.A. 6735 was insufficient. It has yet to rule on the sufficiency of the form and substance of the petition. I respectfully submit that this issue should be properly litigated before the COMELEC where both parties will be given full opportunity to prove their allegations. For the same reasons, the sufficiency of the Petition for Initiative and its compliance with the requirements of R.A. 6735 on initiative and its implementing rules is a question that should be resolved by the COMELEC at the first instance, as it is the body that is mandated by the

Constitution to administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall.105 VII COMELEC gravely abused its discretion when it denied due course to the Lambino and Aumentado petition. In denying due course to the Lambino and Aumentado petition, COMELEC relied on this Court's ruling 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 6-6 with one (1) justice inhibiting

himself and another justice refusing to rule on the ground that the issue was not ripe for adjudication. It ought to be beyond debate that the six (6) justices who voted that R.A. 6735 is an insufficient law failed to establish a doctrine that could serve as a precedent. Under any alchemy of law, a deadlocked vote of six (6) is not a majority and a non-majority cannot write a rule with precedential value. The opinion of the late Justice Ricardo J. Francisco is instructive, viz: As it stands, of the thirteen justices who took part in the deliberations on the issue of whether the motion for reconsideration of the March 19, 1997 decision should be granted or not, only the following justices sided with Mr. Justice Davide, namely: Chief Justice Narvasa, and Justices Regalado, Romero, Bellosillo and Kapunan. Justices Melo, Puno, Mendoza, Hermosisima, Panganiban and the undersigned voted to grant the motion; while Justice Vitug "maintained his opinion that the matter was not ripe for judicial adjudication." In other words, only five, out of the other twelve justices, joined Mr. Justice Davide's June 10, 1997 ponencia finding R.A. No. 6735 unconstitutional for its failure to pass the so called "completeness and sufficiency standards" tests. The "concurrence of a majority of the members who actually took part in the deliberations" which Article VII, Section 4(2) of the Constitution requires to declare a law unconstitutional was, beyond dispute, not complied with. And even assuming, for the sake of argument, that the constitutional requirement on the concurrence of the "majority" was initially reached in the March 19, 1997 ponencia, the same is inconclusive as it was still open for review by way of a motion for reconsideration. It was only on June 10, 1997 that the constitutionality of R.A. No. 6735 was settled with finality, sans the constitutionally required "majority." The Court's declaration, therefore, is manifestly grafted with infirmity and wanting in force necessitating, in my view, the reexamination of the Court's decision in G.R. No. 127325. It behooves the Court "not to tarry any longer" nor waste this opportunity accorded by this new petition (G.R. No. 129754) to relieve the Court's pronouncement from constitutional infirmity. The jurisprudence that an equally divided Court can never set a precedent is well-settled. Thus, in the United States, an affirmance in the Federal Supreme Court upon equal division of opinion is not an authority for the determination of other cases, either in that Court or in the inferior federal courts. In Neil v. Biggers,111 which was a habeas 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 oneyear 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. Sabido128A 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

Footnotes
1

Including Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP). This provision states: "Requirements. x x x x (b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. (c) The petition shall state the following: c.1. contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; c.2. the proposition; c.3. the reason or reasons therefor; c.4. that it is not one of the exceptions provided herein; c.5. signatures of the petitioners or registered voters; and c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition."

This provision states: "Verification of Signatures. The Election Registrar shall verify the signatures on the basis of the registry list of voters, voters' affidavits and voters identification cards used in the immediately preceding election."
4

Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI will be changed thus: Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory, and each province must have at least one member. (2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twentyfive years old on the day of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of his district for a term of five years without limitation as to the number thereof, except those under the party-list system which shall be provided for by

law and whose number shall be equal to twenty per centum of the total membership coming from the parliamentary districts.
5

Sections 1, 2, 3, and 4 of Article VII will be changed thus:

Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of Parliament from among themselves. He shall be responsible to the Parliament for the program of government.
6

Sections 1-5 of the Transitory Provisions read:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a vote of two thirds of all the members of the interim parliament. (2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under Article VII as amended. Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; provided, however, that any and all references therein to "Congress", "Senate", "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament"; that any and all references therein to "Member[s] of Congress", "Senator[s]" or "Member[s] of the House of Representatives" shall be changed to read as "Member[s] of Parliament" and any and all references to the "President" and or "Acting President" shall be changed to read "Prime Minister". Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary System of government; provided however that any and all references therein to "Congress", "Senate", "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament"; that any and all references therein to "Member[s] of Congress", "Senator[s]" or "Member[s] of the House of Representatives" shall be changed to read as "Member[s] of Parliament" and any and all references to the "President" and or "Acting President" shall be changed to read "Prime Minister". Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who are heads of executive departments. (2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He

shall initially convene the interim Parliament and shall preside over its sessions for the election of the interim Prime Minister and until the Speaker shall have been elected by a majority vote of all the members of the interim Parliament from among themselves. (3) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be delegated to him by the incumbent President. (2) The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials. Thereafter, the Vice President, as Member of Parliament, shall immediately convene the Parliament and shall initially preside over its session for the purpose of electing the Prime Minister, who shall be elected by a majority vote of all its members, from among themselves. The duly elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term of incumbent President and Vice President.
7

As revised, Article XVIII contained a new paragraph in Section 4 (paragraph 3) and a modified paragraph 2, Section 5, thus: Section 4. x x x x (3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June 2010. xxxx Section 5. x x x x (2) The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials. The duly elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term of the incumbent President and Vice President.
8

336 Phil. 848 (1997); Resolution dated 10 June 1997. The COMELEC held: We agree with the Petitioners that this Commission has the solemn Constitutional duty to enforce and administer all laws and regulations relative to the conduct of, as in this case, initiative. This mandate, however, should be read in relation to the other provisions of the Constitution particularly on initiative. Section 2, Article XVII of the 1987 Constitution provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative, upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. x x x. The Congress shall provide for the implementation of the exercise of this right. The afore-quoted provision of the Constitution being a non self-executory provision needed an enabling law for its implementation. Thus, in order to breathe life into the constitutional right of the people under a system of initiative to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolution, Congress enacted Republic Act No. 6735. However, the Supreme Court, in the landmark case of Santiago vs. Commission on Elections struck down the said law for being incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. The Supreme Court likewise declared that this Commission should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. Thus, even if the signatures in the instant Petition appear to meet the required minimum per centum of the total number of registered voters, of which every legislative district is represented by at least three per centum of the registered voters therein, still the Petition cannot be given due course since the Supreme Court categorically declared R.A. No. 6735 as inadequate to cover the system of initiative on amendments to the Constitution. This Commission is not unmindful of the transcendental importance of the right of the people under a system of initiative. However, neither can we turn a blind eye to the pronouncement of the High Court that in the absence of a valid enabling law, this right of the people remains nothing but an "empty right", and that this Commission is permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution. Considering the foregoing, We are therefore constrained not to entertain or give due course to the instant Petition.
10

Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya; Philippine Transport and General Workers Organization (PTGWO); Trade Union Congress of the Philippines; Sulong Bayan Movement Foundation, Inc.
11

Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Atty. Pete Quirino Quadra; Bayan, Bayan Muna, Kilusang Mayo Uno, Head, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Jojo Pineda, Dr. Darby Santiago, Dr. Reginald Pamugas; Loretta Ann P. Rosales, and Mario Joyo Aguja, Ana Theresa Hontiveros-Baraquel, Luwalhati Ricasa Antonino; Philippine Constitution Association (PHILCONSA), Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon, Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; Senate of the Philippines; Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador and Randall C. Tabayoyong, Integrated Bar of the Philippines, Cebu City and Cebu Province Chapters; Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio R. Osmea III, Jamby Madrigal, Jinggoy Estrada, Alfredo S. Lim and Panfilo Lacson; Joseph Ejercito Estrada and Pwersa ng Masang Pilipino.

12

This provision states: "Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years."
13

I RECORD, 387-388.

14

During the deliberations of the Constitutional Commission, Commissioner Rene V. Sarmiento made the following report (I RECORD 389): MR. SARMIENTO: Madam President, I am happy that the Committee on Amendments and Transitory Provisions decided to retain the system of initiative as a mode of amending the Constitution. I made a survey of American constitutions and I discovered that 13 States provide for a system of initiative as a mode of amending the Constitution Arizona, Arkansas, California, Colorado, Massachusetts, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma and Oregon. The initiative for ordinary laws only is used in Idaho, Maine, Montana and South Dakota. So, I am happy that this was accepted or retained by the Committee. xxxx The Americans in turn copied the concept of initiatives from the Swiss beginning in 1898 when South Dakota adopted the initiative in its constitution. The Swiss cantons experimented with initiatives in the 1830s. In 1891, the Swiss incorporated the initiative as a mode of amending their national constitution. Initiatives promote "direct democracy" by allowing the people to directly propose amendments to the constitution. In contrast, the traditional mode of changing the constitution is known as "indirect democracy" because the amendments are referred to the voters by the legislature or the constitutional convention.
15

Florida requires only that the title and summary of the proposed amendment are "printed in clear and unambiguous language." Advisory Opinion to the Attorney General RE Right of Citizens to Choose Health Care Providers, No. 90160, 22 January 1998, Supreme Court of Florida.
16

State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933); Whitman v. Moore, 59 Ariz. 211, 125 P.2d 445 (1942); Heidtman v. City of Shaker Heights, 99 Ohio App. 415, 119 N.E. 2d 644 (1954); Christen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958); Stop the Pay Hike Committee v. Town Council of Town of Irvington, 166 N.J. Super. 197, 399 A.2d 336 (1979); State ex rel Evans v. Blackwell, Slip copy, 2006 WL 1102804 (Ohio App. 10 Dist.), 2006-Ohio-2076.
17

407 Mass. 949, 955 (1990). Affirmed by the District Court of Massachusetts in Henry v. Conolly, 743 F. Supp. 922 (1990) and by the Court of Appeals, First Circuit, in Henry v. Conolly, 9109 F. 2d. 1000 (1990), and cited in Marino v. Town Council of Southbridge, 13 Mass.L.Rptr. 14 (2001).
18

89 P.3d 1227, 1235 (2004). Stumpf v. Law, 839 P. 2d 120, 124 (1992). Exhibit "B" of the Lambino Group's Memorandum filed on 11 October 2006.

19

20

21

Annex "B" of the Comment/Opposition in Intervention of Atty. Pete Quirino-Quadra filed on 7 September 2006.
22

www.ulap.gov.ph.

23

www.ulap.gov.ph/reso2006-02.html.

24

The full text of the proposals of the Consultative Commission on Charter Change can be downloaded at its official website at www.concom.ph.
25

The Lambino Group's Memorandum, p. 5.

26

Under the proposed Section 1(2), Article VI of the Constitution, members of Parliament shall be elected for a term of five years "without limitation as to the number thereof."
27

Under the proposed Section 4(1), Article XVIII, Transitory Provisions of the Constitution, the interim Parliament "shall continue until the Members of the regular Parliament shall have been elected and shall have qualified." Also, under the proposed Section 5(2), Article XVIII, of the same Transitory Provisions, the interim Parliament "shall provide for the election of the members of Parliament."
28

Under the proposed Section 4(3), Article XVIII, Transitory Provisions of the Constitution, the interim Parliament, within 45 days from ratification of the proposed changes, "shall convene to propose amendments to, or revisions of, this Constitution."
29

448 So.2d 984, 994 (1984), internal citations omitted. 698 P.2d 1173, 1184 (1985). I RECORD 386, 392, 402-403. 196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App. 1, 882 P.2d 91 (1994). 392 P.2d 636, 638 (1964). 930 P.2d 186, 196 (1996), internal citations omitted. Livermore v. Waite, 102 Cal. 113, 118-119 (1894).

30

31

32

33

34

35

36

Amador Valley Joint Union High School District v. State Board of Equalization, 583 P.2d 1281, 1286 (1978).
37

Id. Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991). California Association of Retail Tobacconists v. State, 109 Cal.App.4 792, 836 (2003). See note 44, infra.
th

38

39

40

41

Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 1294 (2003).
42

238 So.2d 824 (1970). Id. at 830-832.

43

44

As stated by Associate Justice Romeo J. Callejo, Sr. during the 26 September 2006 oral arguments.

45

Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10 November 2003, 415 SCRA 44; J.M. Tuason & Co., Inc. v. Land Tenure Administration, 142 Phil. 393 (1970); Gold Creek Mining Corporation v. Rodriguez, 66 Phil. 259 (1938).
46

882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v. Keisling found the amendment in question was not a revision.
47

Section 1, Article V of the Constitution. Section 11(1), Article XVI of the Constitution. Section 2, Article VII of the Constitution.

48

49

50

This section provides: "The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them."
51

Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v. COA, 366 Phil. 273 (1999). G.R. No. 129754, Resolution dated 23 September 1997.

52

53

Presidential Proclamation No. 58 dated February 11, 1987, entitled "Proclaiming the Ratification of the Constitution of the Republic of the Philippines Adopted by the Constitutional Commission of 1986, including the Ordinance Appended thereto." PUNO, J.:
1

M'cCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 407 (1819). Section 1, Article II, 1987 Constitution. 270 SCRA 106, March 19, 1997. Id. at 153. Id. at 157.

Justice Teodoro R. Padilla did not take part in the deliberation as he was related to a co-petitioner and co-counsel of petitioners.
7

Justice Davide (ponente), Chief Justice Narvasa, and Justices Regalado, Romero, Bellosillo, and Kapunan.
8

Resolution dated June 10, 1997, G.R. No. 127325.

People's Initiative for Reforms, Modernization and Action (PIRMA) v. Commission on Elections, G.R. No. 129754, September 23, 1997.
10

Amended Petition for Initiative, pp. 4-7.

11

G.R. No. 127325, March 19, 1997, 270 SCRA 106. Petition, pp. 12-14. Advisory issued by Court, dated September 22, 2006. Exhibit "B," Memorandum of Petitioner Lambino.

12

13

14

15

Barnhart, Principled Pragmatic Stare Decisis in Constitutional Cases, 80 Notre Dame Law Rev., 19111912, (May 2005).
16

Ibid. Id. at 1913.

17

18

Consovoy, The Rehnquist Court and the End of Constitutional Stare Decisis: Casey, Dickerson and the Consequences of Pragmatic Adjudication, 53 Utah Law Rev. 53, 67 (2002).
19

Id. at 68. Id. at 69. Id. at 67. Id. at 69. Consovoy, supra note 18, at 57. Id. at 58. Id. at 64. Burnet v. Coronado Oil & Gas Co., 285 U.S. 405-06 (1932) (Justice Brandeis, dissenting). Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491-492 (Justice Frankfurter, concurring). Commissioner of Internal Revenue v. Fink, 483 U.S. 89 (1987) (Justice Stevens, dissenting). Barnhart, supra note 15, at 1922. Id. at 1921.

20

21

22

23

24

25

26

27

28

29

30

31

Filippatos, The Doctrine of Stare Decisis and the Protection of Civil Rights and Liberties in the Rehnquist Court, 11 Boston College Third World Law Journal, 335, 343 (Summer 1991).
32

347 U.S. 483 (1954). 163 U.S. 537 (1896). G.R. No. 127882, December 1, 2004, 445 SCRA 1.

33

34

35

G.R. No. 139465, October 17, 2000, 343 SCRA 377. Barnhart, supra note 15, at 1915. 112 S.Ct. 2791 (1992). Section 5(b). Ibid. Santiago v. Commission on Elections, supra note 11, at 145. 85 Record of the House of Representatives 140-142 (February 14, 1989). 85 Record of the house of representatives 142-143 (February 14, 1989). Zeringue v. State Dept. of Public Safety, 467 So. 2d 1358. I RECORD, CONSTITUTIONAL COMMISSION 386, 392 (July 9, 1986). Id. at 400, 402-403. v record, constitutional commission 806 (October 10, 1986). Opposition-in-Intervention filed by ONEVOICE, p. 39. Opposition-in-Intervention filed by Alternative Law Groups, Inc., p. 30. Introduction to Political Science, pp. 397-398. Section 1, Art. II of the 1987 Constitution. Eighth Edition, p. 89 (2004). Ibid. Id. at 1346. Ibid. Third Edition, p. 67 (1969). Id. at 68. Id. at 1115. Vicente G. Sinco, Philippine Political Law, 2
nd

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

58

ed., p. 46.

59

Concurring Opinion of Mr. Justice Felix Q. Antonio in Javellana v. The Executive Secretary, No. L361432, March 31, 1973, 50 SCRA 30, 367-368.

60

J. M. Aruego, The New Philippine Constitution Explained, iii-iv (1973). E. Quisumbing-Fernando, Philippine Constitutional Law, pp. 422-425 (1984). N. Gonzales, Philippine Political Law 30 (1969 ed.).

61

62

63

Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA 317, 337 quotingCommonwealth v. Ralph, 111 Pa. 365, 3 Alt. 220 (1886).
64

L-36142, March 31, 1973, 50 SCRA 30, 367. i record, constitutional commission 373 (July 8, 1986). The opinion was actually made by Justice Felix Antonio.

65

66

67

Javellana v. Executive Secretary, supra note 64, citing Wheeler v. Board of Trustees, 37 S.E.2d 322, 327 (1946).
68

T. M. Cooley, I A Treatise on Constitutional Limitations 143-144 (8 ed. 1927). H.C. Black, Handbook of American Constitutional Law S. 47, p. 67 (2 V. Sinco, supra note 58. Ibid. No. L-1232, 79 Phil. 819, 826 (1948). IV RECORD, CONSTITUTIONAL COMMISSION 735 (September 17, 1986). Id. at 752. Id. at 769. Id. at 767-769. Id. at 377. Id. at 395. Sinco, supra note 58, at 22. Id. at 20-21. Frivaldo v. Commission on Elections, G.R. No. 120295, June 28, 1996, 257 SCRA 727. G. Wood, The Creation of the American Republic, 530. Sinco, supra note 58, at 29. State v. Moore, 103 Ark 48, 145 SW 199 (1912); Whittemore v. Seydel, 74 Cal App 2d 109 (1946).
nd

th

69

ed. 1897).

70

71

72

73

74

75

76

77

78

79

80

81

82

83

84

85

Town of Whitehall v. Preece, 1998 MT 53 (1998). G.R. No. 125416, September 26, 1996, 262 SCRA 492, 516-517, citing 42 Am. Jur. 2d, p. 653. Memorandum for petitioner Aumentado, pp. 151-152. Id. at 153-154. L-44640, October 12, 1976, 73 SCRA 333, 360-361. Section 2, Article XVII, 1987 Constitution. Annex "3," Opposition-In-Intervention of Oppositors-Intervenors ONEVOICE, INC., et al.

86

87

88

89

90

91

92

Certification dated April 21, 2006 issued by Reynne Joy B. Bullecer, Annex "B," Memorandum of Oppositor-Intervenor Pimentel, et al.; Certification dated April 20, 2006 issued by Atty. Marlon S. Casquejo, Annex "C," Memorandum of Oppositor-Intervenor Pimentel, et al.; Certification dated April 26, 2006 issued by Atty. Marlon S. Cascuejo, Annex "D," Memorandum of Oppositor-Intervenor Pimentel, et al.
93

Annex "1," Memorandum of Oppositor-Intevenor Antonino. Annex "10-A," Memorandum of Oppositor-Intevenor Joseph Ejercito Estrada, et al. Annexes 1-29, Memorandum of Oppositor-Intevenor Alternative Law Groups, Inc. Annexes 30-31, Id. Annexes 44-64, Id. Consolidated Reply of Petitioner Aumentado, p. 54. Exhibit "E," Memorandum of Petitioner Lambino. Annex "A," Consolidated Response of Petitioner Aumentado. Memorandum of Oppositor-Intevenor Pimentel, et al., pp. 12-13. Helvey v. Wiseman, 199 F. Supp. 200, 8 A.F.T.2d 5576 (1961). BNO Leasing Corp. v. Hollins & Hollins, Inc., 448 So.2d 1329 (1984). ASSOCIATE JUSTICE CARPIO: How many copies of the petition, that you mention(ed), did you print? ATTY. LAMBINO: We printed 100 thousand of this petition last February and we distributed to the different organizations that were volunteering to support us.

94

95

96

97

98

99

100

101

102

103

104

ASSOCIATE JUSTICE CARPIO: So, you are sure that you personally can say to us that 100 thousand of these were printed? ATTY. LAMBINO: It could be more than that, Your Honor. xxxxxxxxxxxx ASSOCIATE JUSTICE CARPIO: But you asked your friends or your associates to re-print, if they can(?) ATTY. LAMBINO: Yes, Your Honor. ASSOCIATE JUSTICE CARPIO: Okay, so you got 6.3 Million signatures, but you only printed 100 thousand. So you're saying, how many did your friends print of the petition? ATTY. LAMBINO: I can no longer give a specific answer to that, Your Honor. I relied only to the assurances of the people who are volunteering that they are going to reproduce the signature sheets as well as the draft petition that we have given them, Your Honor. xxxxxxxxxxxx ASSOCIATE JUSTICE CARPIO: Did you also show this amended petition to the people? ATTY. LAMBINO: Your Honor, the amended petition reflects the copy of the original petition that we circulated, because in the original petition that we filed before the COMELEC, we omitted a certain paragraph that is, Section 4 paragraph 3 which were part of the original petition that we circulated and so we have to correct that oversight because that is what we have circulated to the people and we have to correct that ASSOCIATE JUSTICE CARPIO:

But you just stated now that what you circulated was the petition of August 25, now you are changing your mind, you're saying what you circulated was the petition of August 30, is that correct? ATTY. LAMBINO: In effect, yes, Your Honor. ASSOCIATE JUSTICE CARPIO: So, you circulated the petition of August 30, but what you filed in the COMELEC on August 25 was a different petition, that's why you have to amend it? ATTY. LAMBINO: We have to amend it, because there was an oversight, Your Honor, that we have omitted one very important paragraph in Section 4 of our proposition. xxxxxxxxxxxx ASSOCIATE JUSTICE CARPIO: Okay, let's be clear. What did you circulate when you gathered the signatures, the August 25 which you said you circulated or the August 30? ATTY. LAMBINO: Both the August 25 petition that included all the provisions, Your Honor, and as amended on August 30. Because we have to include the one that we have inadvertently omitted in the August 25 petition, Your Honor. xxxxxxxxxxxx ASSOCIATE JUSTICE CARPIO: And (you cannot tell that) you can only say for certain that you printed 100 thousand copies? ATTY. LAMBINO: That was the original printed matter that we have circulated by the month of February, Your Honor, until some parts of March, Your Honor.

ASSOCIATE JUSTICE CARPIO: That is all you can assure us? ATTY. LAMBINO: That is all I can assure you, Your Honor, except that I have asked some friends, like for example (like) Mr. Liberato Laos to help me print out some more of this petition (TSN, September 26, 2006, pp. 7-17)
105

Section 2 (1), Article IX C, 1987 Constitution.

106

Chief Justice Andres R. Narvasa and Justices Hilario G. Davide, Jr., Florenz D. Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C. Hermosisima, Jr. and Justo P. Torres.
107

Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J. Francisco and Artemio V. Panganiban.
108

Justice Jose C. Vitug.

109

Only fourteen (14) justices participated in the deliberations as Justice Teodoro R. Padilla took no part on account of his relationship with the lawyer of one of the parties.
110

Citing conscience as ground. 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

111

112

Trans World Airlines, Inc. v. Hardison, 97 S. Ct. 2264 (1977); Arkansas Writers' Project, Inc. v. Ragland, 107 S. Ct. 1722, 1730 n. 7, 95 L. Ed. 2d (1987); France v. Nelson, 292 Ark. 219, 729 S.W. 2d 161 (1987).
113

40 P. 3d 886 (2006). 781 P. 2d 973 (Alaska, 1989). Id. at 982-84 (Compton, J., concurring). Id. at 975-78. Negri v. Slotkin, 244 N.W. 2d 98 (1976). 112 Fla. 734, 151 So. 284 (1933).

114

115

116

117

118

119

Penned by Justice Whitfield, and concurred in by Chief Justice Davis and Justice Terrell; Justices Ellis, Brown and Buford are of the opinion that chapter 15938, Acts of 1933, is a special or local law not duly advertised before its passage, as required by sections 20 and 21 of article 3 of the state Constitution, and therefore invalid. This evenly divided vote resulted in the affirmance of the validity of the statute but did not constitute a binding precedent on the Court.
120

62 S. Ct. 552 (1942).

121

329 F. 2d 541 (1964). 239 F. 2d 532 (9 Cir. 1956). Citing Hertz v. Woodman, 218 U.S. 205, 30 S. Ct. 621 (1910). 331 N.E. 2d 65 (1975). Neil v. Biggers, supra note 108. Catherwood v. Caslon, 13 Mees. & W. 261; Beamish v. Beamish, 9 H. L. Cas. 274.
th

122

123

124

125

126

127

Maglalang v. Court of Appeals, G.R. No. 85692, July 31, 1989, 175 SCRA 808, 811, 812; Development Bank of the Philippines v. Pundogar, G.R. No. 96921, January 29, 1993, 218 SCRA 118.
128

No. L-35440, August 19, 1982, 115 SCRA 839, citing Anticamara v. Ong, No. L-29689, April 14, 1978, 82 SCRA 337.
129

Supra note 1.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 134284, December 1, 2000. AYALA CORPORATION, petitioner. vs. ROSA-DIANA REALTY AND DEVELOPMENT CORPORATION, respondent. DE LEON, J.: Before us is a petition for review on certiorari seeking the reversal of a decision rendered by the Court of Appeals in C.A. G.R. C.V. No. 4598 entitled "Ayala Corporation vs. Rosa-Diana Realty and Development Corporation, dismissing Ayala Corporations petition for lack of merit. The facts of the case are not in dispute: Petitioner Ayala Corporation (herein-after referred to as Ayala) was the registration owner of a parcel of land located in Alfaro Street, Salcedo Village, Makati City with an area of 840 square meters, more or less and covered by Transfer Certificate of Title (TCT) No. 233435 of the Register of Deeds of Rizal. On April 20, 1976, Ayala sold the lot to Manuel Sy married to Vilma Po and Sy Ka Kieng married to Rosa Chan. The Deed of Sale executed between Ayala and the buyers contained Special conditions of sale and Deed Restrictions. Among the Special Conditions of Sale were. a. The vendee shall build on the lot and submit the building plans to the vendor before September 30, 1976 for the latters approval. b. The construction of the building shall start on or before March 30, 1977 and completed before 1979. Before such completion, neither no the title released even if the purchase price shall have been fully paid. c. There shall be no resale of the property. The Deed Restrictions, on the other hand, contained the stipulation that the gross floor area of the building to be constructed shall not be more than five (5) times the lot area and the total height shall not exceed forty two (42) meters. The restrictions were to expire in the year 2025. Manuel Sy and Sy Ka Kieng failed to construct the building in violation of the Special Conditions of Sale. Notwithstanding the violation, Manuel Sy anf Sy Ka Kieng, in April 1989, were able to sell the lot to respondent Rosa-Diana Realty and Development Corporation (hereinafter referred to as Rosa-Diana) with Ayalas approval. As a consideration for Ayala to release the Certificate of title of the subject property, Rosa Diana, on July 27, 1989 executed an Undertaking, together

with the buildings plans for a condominium project, known as "The Peak", Ayala released title to the lot, thereby enabling Rosa-Diana t register the deed of sale in its favor and obtain Certificate of Title No. 165720 in its name. The title carried as encumbrances the special conditions of sale and the deed restrictions. Rosa-Dianas building plans as approved by Ayala were subject to strict compliance of cautionary notices appearing on the building plans and to the restrictions encumbering the Lot regarding the use and occupancy of the same. Thereafter, Rosa-Diana submitted to the building official of Makati another set of building plans for "The Peak" which Rosa-Diana submitted to Ayala for approval envisioned a 24-meter high, seven (7) storey condominium project with a gross floor area of 3,968.56 square meters, the building plans which Rosa-Diana submitted to the building official of Makati, contemplated a 91.65 meter high, 38 storey condominium building with a gross floor area of 23,305.09 square meters.1 Needless to say, while the first set of building plans complied with the deed restrictions, the latter set seceded the same. During the construction of Rosa-Dianas condominium project, Ayala filed an action with the Regional Trial Court (RTC) of Makati, Branch 139 for specific performance, with application for a writ of preliminary injunction/temporary restraining order against Rosa-Diana Realty seeking to compel the latter to comply with the contractual obligations under the deed of restrictions annotated on its title as well as with the building plans it submitted to the latter. In the alternative, Ayala prayed for rescission of the sale of the subject lot to Rosa-Diana Realty. The lower court denied Ayalas prayer for injunctive relief, thus enabling Rosa-Diana to complete the construction of the building. Undeterred, Ayala tried to cause the annotation of a notice of lis pendens on Rosa-Dianas title. The Register of Deeds of Makati, however, refused registration of the notice of lis pendens on the ground that the case pending before the trial court, being an action for specific performance and/or rescission, is an action in personal which does not involve the title, use or possession of the property.2 The Land Registration Authority (LRA) reversed the ruling of the Register of Deeds saying that an action for specific performance or recession may be classified as a proceeding of any kind in court directly affecting title to the land or the use or occupation thereof for which a notice of lis pendens may be held proper.3 The decision of the LRA, however, was overturned by the Court of Appeals in C.A. G.R. S.P. No. 29157. In G.R. No. 112774, We affirmed the ruling of the CA on February 16, 1994 saying. We agree with respondent court that the notice of lis pendens is not proper in this instance. The case before the trial court is a personal action since the cause of action thereof arises primarily from the alleged violation of the Deed of Restriction. In the meantime, Ayala completed its presentation of evidence before the trial court. RosaDiana filed a Demurrer to Evidence averring that Ayala failed to establish its right to the relief sought in-as much as (a) Ayala admittedly does not enforce the deed restrictions uniformly and strictly (b) Ayala has lost its right/power to enforce the restrictions due to its own acts and

omissions; and (c) the deed restrictions are no longer valid and effective against lot buyers in Ayalas controlled subdivision. The trial court sustained Rosa-Dianas Demurrer to Evidence saying that Ayala was guilty of abandonment and/or estoppel due to its failure to enforce the terms of deed of restrictions and special conditions of sale against Manuel Sy and Sy Ka Kieng. The trial court noted that notwithstanding the violation of the special conditions of sale, Manuel Sy and Sy Ka Kieng were able to transfer the title to Rosa-Diana with the approval of Ayala. The trial court added that Ayalas failure to enforce the restrictions with respect to Trafalgar, Shellhouse, Eurovilla, LPL Plaza, Parc Regent, LPL Mansion and Leronville, which are located within Salcedo Village, shows that Ayala discriminated against those which it wants to have the obligation enforced. The trial court then concluded that for Ayala to discriminatory choose which obligor would be made to follow certain conditions and which should not, did not seem fair and legal. The Court of Appeals affirmed the ruling of the trial court saying that the "appeal is seated by the doctrine of the law of the case in C.A. G.R. S.P. No. 29157" where it was stated that xxx Ayala is bared from enforcing the Deed of Restriction in question pursuant to the doctrine of waiver and estoppel. Under the terms of the deed of sale, the vendee Sy Ka Kieng assumed faithful compliance with the special conditions of sale and with the Salcedo Village Deed of Restrictions. One of the conditions was that a building would be constructed within one year. However, Sy Ka Kieng failed to construct the building as required under the Deed Sale. Ayala did nothing to enforce the terms of the contract. In fact, it even agreed to the sale of the lot by Sy Ka Kieng in favor of petitioner Realty in 1989 or thirteen (13) years later. We, therefore, see no justifiable reason for Ayala to attempt to enforce the terms of the conditions of sale against the petitioner. xxx The Court of Appeals also cited C.A. G.R. C.V. No. 46488 entitled, "Ayala Corporation vs. Ray Burton Development Corporation which relied on C.A. G.R. S.P. No. 29157 in ruling that Ayala is barred from enforcing the deed restrictions in dispute. Upon a motion for reconsideration filed by herein petitioner, the Court of Appeals clarified that "the citation of the decision in Ayala Corporation vs. Ray Burton Development Corporation, Ca G.R. C.V. No. 46488, February 27, 1996, was made not because said decision is res judicata to the case at bar but rather because it is precedential under the doctrine of stare decisis." Upon denial of said motion for reconsideration, Ayala filed the present appeal. Ayala contends that the pronouncement of the Court of Appeals in C.A. G.R. S.P. No. 29157 that it is estopped from enforcing the deed restrictions is merely obiter dicta inasmuch as the only issue raised in the aforesaid case was the propriety of a lis pendens annotation on RosaDianas certificate of title.

Ayala avers that Rosa-Diana presented no evidence whatsoever on Ayalas supposed waiver or estoppel in C.A. G.R. S.P. No. 29157. Ayala likewise pointed out that at the time C.A. G.R. S.P. No. 29157 was on appeal, the issues of the validity and continued viability of the deed of restrictions and their enforceability by Ayala were joined and then being tried before the trial court. Petitioners assignment of errors in the present appeal may essentially be summarized as follows: I. The Court of Appeals acted in manner not in accord with law and the applicable decisions of the Supreme Court in holding that the doctrine of the law of the case, or stare decisis, operated to dismiss Ayalas appeal. The Court of Appeals erred as a matter of law and departed from the accepted and usual course of judicial proceedings when it failed to expressly pass upon the specific errors assigned in Ayalas appeal.

II.

A discussion on the distinctions between law of the case, stare decisis and obiter dicta is in order. The doctrine of the law of the case has certain affinities with, but is clearly distinguishable from, the doctrines of res judicata and stare decisis, principally on the ground that the rule of the law of the case operates only in the particular case and only as a rule of policy and not as one of law.4 At variance with the doctrine of stare decisis, the ruling adhered to in the particular case under the doctrine of the law of the case need not be followed as a precedent in subsequent litigation between other parties, neither by the appellate court which made the decision followed on a subsequent appeal in the same case, nor by any other court. The ruling covered by the doctrine of the law of the case is adhered to in the single case where it arises, but is not carried into other cases as a precedent.5 On the other hand, under the doctrine of stare decisis, once a point of law has been established by the court, that point of law will, generally, be followed by the same court and by all courts of lower rank in subsequent cases where the same legal issue is raised.6 Stare decisis proceeds from the first principle of justice that, absent powerful countervailing considerations, like cases ought to be decided alike.7 The Court of Appeals, in ruling against petitioner Ayala Corporation stated that the appeal is sealed by the doctrine of the law of the case, referring to G.R. No. 112774 entitled "Ayala Corporation, petitioner vs. Courts of Appeals, et al., respondents". The Court of Appeals likewise made reference to C.A. G.R. C.V. No. 46488 entitled, "Ayala Corporation vs. Ray Burton Development Corporation, Inc." in ruling against petitioner saying that it is jurisprudentially under the doctrine of stare decisis. It must be pointed out that the only issue that was raised before the Court of Appeals in C.A. G.R. S.P. No. 29157 was whether or not the annotation of lis pendens is proper. The Court of

Appeals, in its decision, in fact stated "the principal issue to be resolved is: whether or not an action for specific performance, or in the alternative, rescission of deed of sale to enforce the deed of restrictions governing the use of property, is a real or personal action, or one that affects title thereto and its use or occupation thereof.8 In the aforesaid decision, the Court of Appeals even justified the cancellation of the notice of lis pendens on the ground that Ayala had ample protection should it succeed in proving its allegations regarding the violation of the deed of restrictions, without unduly curtailing the right of the petitioner to fully enjoy its property in the meantime that there is as yet no decision by the trial court.9 From the foregoing, it is clear that the Court of Appeals was aware that the issue as to whether petitioner is estopped from enforcing the deed of restrictions has yet to be resolved by the trial court. Though it did make a pronouncement that the petitioner is estopped from enforcing the deed of restrictions, it also mentioned at the same time that this particular issue has yet to be resolved by the trial court. Notably, upon appeal to this Court, We have affirmed the ruling of the Court of Appeals only as regards the particular issue of the propriety of the cancellation of the notice of lis pendens. We see no reason then, how the law of the case or stare decisis can be held to be applicable in the case at bench. If at all, the pronouncement made by the Court of Appeals that petitioner Ayala is barred from enforcing the deed of restrictions can only be considered as obiter dicta. As earlier mentioned the only issue before the Court of Appeals at the time was the propriety of the annotation of the lis pendens. The additional pronouncement of the Court of Appeals that Ayala is estopped from enforcing the deed of restrictions even as it recognized that this said issue is being tried before the trial court was not necessary to dispose of the issue as to the propriety of the annotation of the lis pendens. A dictum is an opinion of a judge which does not embody the resolution or determination of the court, and made without argument, or full consideration of the point, not the proffered deliberate opinion of the judge himself.10 It is not necessarily limited to issues essential to the decision but may also include expressions of opinion which are not necessary to support the decision reached by the court. Mere dicta are not binding under the doctrine of stare decisis11. While the Court of Appeals did not err in ruling that the present petition is not barred by C.A. G.R. C.V. No. 46488 entitled "Ayala Corporation vs. Ray Burton Development Inc." under the doctrine of res judicata, neither, however, can the latter case be cited as presidential under the doctrine of stare decisis. It must be pointed out that at the time the assailed decision was rendered, C.A. G.R. C.V. No. 46488 was on appeal with this Court. Significantly, in the decision. We have rendered in Ayala Corporation vs. Ray Burton Development Corporation12 which became final and executory on July 5, 1999 we have clearly stated that "An examination of the decision in the said Rosa-Diana case reveals that the sole issue raised before the appellate court was the propriety of the lis pendens annotation. However, the appellate court went beyond the sole issue and made factual findings bereft of any basis in the record to inappropriately rule that AYALA is in estoppel and has waived its right to enforce the subject restrictions. Such ruling

was immaterial to the annotation of the lis pendens. The finding of estoppel was thus improper and made in excess of jurisdiction." Coming now to the merits of the case, petitioner avers that the Court of Appeals departed from the usual course of judicial proceedings when it failed to expressly pass upon the specific errors assigned in its appeal. Petitioner reiterates its contention that law and evidence do not support the trial courts findings that Ayala has waived its right to enforce the deed of restrictions. We find merit in the petition. It is basic that findings of fact of the trial court and the Court of Appeals are conclusive upon the Supreme Court when supported by substantial evidence.13 We are constrained, however, to review the trial court' findings of fact, which the Court of Appeals chose not to pass upon, in as much as there is ample evidence on record to show that certain facts were overlooked which would affect the disposition of the case. In its assailed decision of February 4, 1994, the trial court, ruled in favor of respondent RosaDiana Realty on the ground that Ayala had not acted fairly when it did not institute an action against the original vendees despite the latters violation of the Special Conditions of Sale but chose instead to file an action against herein respondent Rosa-Diana. The trial court added that although the 38-storey building of Rosa-Diana is beyond the total height restriction, it was not violative of the National Building Code. According to the trial court the construction of the 38 storey building known as "The Peak" has not been shown to have been prohibited by law and neither is it against public policy. It bears emphasis that as complainant, Ayala had the prerogative to initiate an action against violators of the deed restrictions. That Rosa-Diana had acted in bad faith is manifested by the fact that it submitted two sets of building plans, one which was in conformity with the deed restrictions submitted to Ayala and MACEA, and the other, which exceeded the height requirement in the deed restrictions to the Makati building official for the purpose of procuring a building permit from the latter. Moreover, the violation of the deed restrictions committed by respondent can hardly be denominated as a minor violation. It should be pointed out that the original building plan which was submitted to and approved by petitioner Ayala Corporation, envisioned a twenty four (24) meter high, seven (7) storey condominium whereas the respondents building plan which was submitted to and approved by the building official of Makati is that of a thirty eight (38) storey, 91.65 meters high, building. At present, the Peak building of respondent which actually stands at 133.65 meters with a total gross floor area of 23,305.09 square meters, seriously violates the dimensions indicated in the building plans submitted by Rosa-Diana to petitioner Ayala for approval in as much as the Peak building exceeds the approved height limit by about 109 meters and the allowable gross floor area under the applicable deed restrictions by about 19,105 square meters. Clearly, there was a gross violation of the deed restrictions and evident bad faith by the respondent.

It may not be amiss to mention that the deed restrictions were revised in a general membership meeting of the association of lot owners in Makati Central Business District the Makati Commercial Estate Association, Inc. (MACEA). Whereby direct height restrictions were abolished in lieu of floor area limits. Respondent, however, did not vote for the approval of this revision during the General Membership meeting, which was held on July 11, 1990 at the Manila Polo Clud Pavilion, Makati, and Metro Manila. Hence, respondent continues to be bound by the original deed restrictions applicable to Lot 7, Block 1 and annotated on its title to said lot. In any event, assumingarguendo that respondent voted for the approval of direct height restrictions in lieu of floor area limits, the total floor area of its Peak building would still be violative of the floor area limits to the extent of about 9,865 square meters of allowable floor area under the MACEA revised restrictions. Respondent Rosa-Diana avers that there is nothing illegal or unlawful in the building plans which it used in the construction of the Peak condominium inasmuch as it bears the imprimatur of the building official of Makati, who is tasked to determine whether building and construction plans are in accordance with the law, notably, the National Building Code." Respondent Rosa-Diana, however, misses the point inasmuch as it has freely consented to be bound by the deed restrictions when it entered into a contract of sale with spouses Manuel Sy and Sy Ka Kieng. While respondent claims that it was under the impression that Ayala was no longer enforcing the deed restrictions, the Undertaking14it executed belies this same claim. In said Undertaking, respondent agreed to construct and complete the construction of the house on said lot as required under the special condition of sale." Respondent likewise bound itself to abide and comply with x x x the condition of the rescission of the scale by Ayala Land, Inc. on the grounds therein stated x x x. Contractual obligations between parties have the force of law between them and absent any allegation that the same are contrary to law, morals, good custom, public order or public policy, they must be complied with in good faith. Hence, Article 1159 of the New Civil Code provides. "Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith." Respondent Rosa-Diana insists that the trial court had already ruled that the undertaking executed by its Chairman and President cannot validly bind Rosa-Diana and hence, it should not be held bound by the deed restrictions. We agree with petitioner Ayalas observation that respondent Rosa-Dianas special and affirmative defenses before the trial court never mentioned any allegation that its president and chairman were not authorized to execute the Undertaking. It was inappropriate therefore for the trial court to rule that in the absence of any authority or confirmation from the Board of Directors of respondent Rosa-Diana, its Chairman and the President cannot validly enter into an undertaking relative to the construction of the building on the lot within one year from July 27,

1989 and in accordance with the deed restrictions, Curiously, while the trial court stated that it cannot be presumed that the Chairman and the President can validly bind respondent RosaDiana to enter into the aforesaid Undertaking in the absence of any authority or confirmation from the Board of Directors, the trial court held that the ordinary presumption of regularity of business transactions is applicable as regards the Deed of Sale which was executed by Manuel Sy and Sy Ka Kieng and respondent Rosa-Diana. In the light of the fact that respondent RosaDiana never alleged in its Answer that its president and chairman were not authorized to execute the Undertaking, the aforesaid ruling of the trial court is without factual and legal basis and suppressing to say the least. The fact alone that respondent Rosa-Diana conveniently prepared two sets of building plans with one set which fully conformed to the Deed Restrictions and another in gross violation of the same should have cautioned the trial court to conclude that respondent Rose-Diana was under the erroneous impression that the Deed Restrictions were no longer enforceable and that it never intended to be bound by the Undertaking signed by its President and Chairman. We reiterate that contractual obligations have the force of law between parties and unless the same is contrary to public policy morals and good customs, they must be complied by the parties in good faith. Petitioners, in its Petition, prays that judgement be rendered: a. ordering Rosa-Diana Realty and Development Corporation to comply with its contractual obligations in the construction of the Peak by removing, or closing down and prohibiting Rosa-Diana from using, selling, leasing or otherwise disposing, of the portions of areas thereof constructed beyond or in excess of the approved height, as shown by the building plans submitted to, and approved by, Ayala, including any other portion of the building constructed not in accordance with the said building plans, during the effectivity of the Deed Restrictions; b. Alternatively, in the event specific performance has become impossible; 1. ordering the cancellation and recession of the April 20, 1976 Deed of Sale by Ayala in favor of the original vendees thereof as well as the subsequent Deed of Sale executed by such original vendees in favor of Rosa-Diana, and ordering Rosa-Diana to return Ayala Lot 7, Block 1 of Salcedo Village; 2. ordering the cancellation of Transfer Certificate of Title No. 165720 (in the name of Rosa-Diana) and directing the office of the Register of Deeds of Makati to issue a new title over the lot in the name of Ayala; and 3. Ordering Rosa-Diana to pay Ayala attorneys fees in the amount of P500, 000.00, exemplary damages in the amount of P5, 000,000.00 and the costs of suit. It must be noted that during the trial respondent Rosa-Diana was able to complete the construction of The Peak as a building with a height of thirty-eight (38) floors or 133.65 meters. Having been completed for a number of years already, it would be reasonable to assume that it is now fully tenanted. Consequently, the remedy of specific performance by respondent is no

longer feasible. However, neither can we grant petitioners prayer for the cancellation and rescission of the April 20, 1976 Deed of Sale by petitioner Ayala in favor of respondent RosaDiana inasmuch as the resale of the property by the original vendees, spouses Manuel Sy and Ka Kieng to comply with their obligation to construct a building within one year from April 20, 1976, has effectively waived its right to rescind the sale of the subject lot to the original vendees. Faced with the same question as to the proper remedy available to petitioner in the case of "Ayala Corporation vs. Ray Burton Development Inc., a case which is on all fours with the case at bench, we ruled therein that the party guilty of violating the deed restrictions may only be held alternatively liable for substitute performance of its obligation, that is, for the payment of damages. In the aforesaid case it was observed that the Consolidated and Revised Deed Restrictions (CRDR) imposed development charges on constructions which exceed the estimated Gross Limits permitted under the original Deed Restrictions but which are within the limits of the CRDRs.1wphi1.nt The pertinent portion of the Deed of Restrictions reads: 3. DEVELOPMENT CAHRGE For building construction within the Gross Floor Area limits defined under Paragraphs C-2.1 to C-2.4 above, but which will result in a Gross Floor Area exceeding certain standards defined in Paragraphs C-3.1-C below, the OWNER shall pay MACEA, prior to the construction of any new building a DEVELOPMENT CHARGE as a contribution to a trust fund to be administered by MACEA. This trust fund shall be used to improve facilities and utilities in Makati Central District. 3.1 The amount of the development charge that shall be due from the OWNER shall be computed as follows: DEVELOPMENT CAHRGE = A x (B-C-D) Where: A is equal to the a Area Assessment which shall be set at Five Hundred Pesos (P500.00) until December 31, 1990. Each January 1st thereafter, such amount shall increase by ten percent (10%) over the immediately preceding year; provided that beginning 1995 and at the end of every successive five-year period thereafter, the increase in the Area Assessment shall be reviewed and adjusted by the VENDOR to correspond to the accumulated increase in the construction cost index during the immediately preceding five years as based on the weighted average of wholesale price and wage indices of the National Census and Statistics Office and the Bureau of Labor Statistics. B Is equal to the Gross Floor Area of the completed or expanded building in square meters.

C is equal to the estimated Gross Floor Area permitted under the original deed restrictions, derived by multiplying the lot area by the effective original FAR shown below for each location. We then ruled in the aforesaid case that the development; charges are a fair measure of compensatory damages which therein respondent Ray Burton Development Inc. is liable to Ayala Corporation. The dispositive portion of the decision in the said case, which is squarely applicable to the case at bar, reads as, follows: WHEREFORE, premises considered, the assailed Decision of the Court of Appeals dated February 27, 1996, in CA G.R. C.V. No. 46488, and its Resolution dated October 7, 1996 are hereby REVERSED and SET ASIDE, and in lieu thereof judgement is hereby rendered finding that: 1. The Deed Restrictions are valid and petitioner AYALA is not estopped from enforcing them against lot owners who have not yet adopted the Consolidated and Revised Deed Restrictions. 2. Having admitted that the Consolidated and Revised Deed Restrictions are the applicable Deed Restrictions to Ray Burton Development Corporation, RBDC should be, and is bound by the same. 3. Considering that Ray Burton Development Corporations Trafalgar plaza exceeds the floor area limits of the Deed Restrictions, RBDC is hereby ordered to pay development charges as computed under the provisions of the consolidated and Revised Deed Restrictions currently in force. 4. Ray Burton Development corporation is further ordered to pay AYALA exemplary damages in the amount of P2, 500,000.00 attorneys fees in the amount of P250,000.00 SO ORDERED: There is no reason why the same rule should not be followed in the case at bar, the remedies of specific performance and/or rescission prayed for by petitioner no longer being feasible. In accordance with the peculiar circumstances of the case at bar, the development charges would certainly be a fair measure of compensatory damages to petitioner Ayala. Exemplary damages in the sum of P2, 500,000.00 as prayed for by petitioner are also in order inasmuch as respondent Rosa-Diana was in evident bad faith when it submitted a set of building plans in conformity with the deed restrictions to petitioner Ayala for the sole purpose of obtaining title to the property, but only to prepare and later on submit another set of buildings plans which are in gross violation of the Deed Restrictions. Petitioner Ayala is likewise entitled to an award of attorneys fees in the sum of P250, 000.00. WHEREFORE, the assailed Decision of the Court of Appeals dated December 4, 1997 and its Resolution dated June 19, 1998, C.A. G.R. C.V. No. 4598, are REVERSED and SET ASIDE. In lieu thereof, judgement is rendered.

a. orderings respondent Rosa-Diana Realty and Development Corporation to pay development charges as computed under the provisions of the consolidated and Revised Deed Restrictions currently in force; and b. ordering respondent Rosa-Diana Realty and Development Corporation to pay petitioner Ayala Corporation exemplary damages in the sum of P2,500,00.00, attorneys fees in the sum of P250,000.00 and the costs of the suit. SO ORDERED. Bellosillo, Mendoza, Quisumbing, and Buena, JJ., concur.
1 C.A. G.R. C.V. No. 45987 stated that the 2nd set of building plans contemplated a 91.65 meter high, 38 storey, condominium with a gross floor area of 23,305.09 meters. However, the height clearance permit granted by Department of Transportation and Communications shows that Rosa-Diana sought a permit for a proposed 133.05 meter high, 30 storey building (Rollo, p. 133) It is likewise interesting to note that although under the 2nd set of the building plans, the gross floor area of the building allegedly covers 223,305.09 square meters, the sanitary/plumbing permit issued by the Metropolitan Manila Commission shows that the total area of the building is in fact 32,208 square meters (Rollo, p. 129). 2 C.A. Rollo, p. 355. 3 C.A. Rollo, pp. 348-350 4 5 Am Jur 2d, Appeal and Error 746. 5 Allen vs. Bryant, 155 Cal 256 100 P 704. 6 5 Am Jur 2d, Appellate Review 599 citing Samsel v. Wheeler Transp. Servs., 246 Kan 336, 789 P2d 541. 7 5 Am Jur 2d, Appellate Review 599 citing State ex rel, Moore v. Molpus (Miss) 578 So 2d 624. 8 Rollo, p. 322. 9 Rollo, p. 326. 10 21 C.J.S. 311 citing State vs. Tingle, 60 S 728, 103 Miss 672; In re Here's estate, 300 NY S 103, 165 Misc 616. 11 20 Am Jur 2d, Courts 39. 12 294 SCRA 48, 64 [1998]. 13 Banson vs. Court of Appeals, 246 SCRA 42, 46 [1995].

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-49090 February 28, 1947

TEODORA L. VDA. DE MIRANDA Y OTROS, demandantes-apelantes, vs. FELICIANO IMPERIAL Y JUANA DE IMPERIAL, demandados-apelados. D. Manuel M. Calleja and D. Ramon C. Fernandez on behalf of the appellants. D. Toribio p. Prez on behalf of the respondents. BRIONES, J.: This is a matter of pre-war. Presented the demand before the Court of first instance of Albay on 25 November 1941, i.e., almost on the eve of the outbreak of the war of the Pacific. The Court gave its judgment on 17 March 1943. Raise the issue before the Supreme Court, under the appeal brought by the applicant on June 9, 1943. Until he could decide, the dossier will burn together with the other dossiers of this Court in the conflagration of Manila during the battle of liberation. What we therefore have before us is a record reconstituted with documents provided by counsel for the appellant, namely: (a) copies of the record of appeal (record on appeal); (b) copies of the allegation submitted by the appellant lawyers. The appeal has not submitted any allegation or by itself, or through his lawyer. Lawyers on both sides were duly notified of the proceedings of reconstitution by the Commissioner of this Court, but the only that have appeared have been advocates of the appellant, delivering copies of that mentioned. Alleges in the lawsuit that prior to 17 November 1938 the demanded cnjuges, Feliciano Imperial and Imperial Juana, debian Imperial Elijah the amount of P1, 000; in consideration to this debt and to guarantee payment had loaned, in quality of antichresis, said Elias Imperial possession and enjoyment of three plots of land its propiedead rice; that on the aforementioned date 17 November 1938, respondents proposed to the applicant, Theodora l. VDA De Miranda, to give them the amount of P1, 000 to rescue Elias Imperial lands, subrogandose it as creditor rather than elias under the same terms and conditions of the contract of antichresis concluded with this last; that as you want that the plaintiff had the quantity ordered and, in addition, the respondent is his sister-in-law, being the widow of a brother, I accept the proposition, effectively delivering the amount of P1, 000 to the defendants, who in his time returned her to Elias Imperial for the rescue of farms; that case of relatives, the contract was not reduced to writing, but after the rescatey have done stated Elas Imperial at the foot of the documents of the three plots of land ownership, these documents were handed over in the very act of redemption to the

applicant which was then present in the company of the respondent, as evidence of the loan and the transfer of the new contract of antichresis; Since the applicant was enjoying products, receiving their participation in crop for 1939 and 1940 at the rate of two crops a year and in the first harvest of 1941, or a total of 5 crops on November 17, 1938 to April 1941; the applicant could not already enjoy the second harvest of 1941 or the corresponding to October, because respondents resolved since then appropriating this harvest and subsequent to the present; the harvest collection by respondents in October, 1941, and should belong to the applicant, was 50 cavanes of palay, whose trading on the market was P2.50 the cavan, a total amount of p120. Therefore, the applicant requests that, "under the first plea for action, condemning defendants to give a document of mortgage in favour of the applicant guarantees the three plots of land mentioned above to ensure payment to the applicant of the thousand pesos paid by it to Mr. Elias Imperial on behalf of these defendants, fixing a period of three months for the payment therein"", or time period that is reasonable according to prudent judgment of the Court and by an interest at the rate of twelve (12) percent a year;" and "under the second reason for action, condemning defendant to pay the applicant the sum of P120 as the value of the palay harvest lifted of the plots of land described in this lawsuit and illegally appropriated by these defendants"", as well as the coasts of the trial;" and "requests, then any other just and equitable remedy." With regard to the first plea of action the defendants defend themselves claiming they only received from the applicant the amount of P500, which added other P500 to rescue Elias Imperial grounds; and that such debt was more than paid P500 with products of the land that received the plaintiff in 5 consecutive vintages, "went in this way automatically the rights and obligations of the parties." The second reason for action, they refuse, and say that the vintage collection in October 1941 and all that were collected were then legally they defendants; and the harvest in October, as well as in previous years, reported them as participation 70 palay cavanes. Respondents raised, moreover, in its reply a counter-claim alleging (1) that between the plaintiff and the defendant, Imperial Juana, welcome a verbal agreement in action which this received the sum of P500 to rescue the terrnos refefridos, on the understanding that the plaintiff would do his all products under the same terms and conditions of the previous contract with Elias Imperial, until your credit to be entirely paid with such products: (2) that, in fact, the rescue was done by returning Elias documents to Juana with a note at the foot of the same debt cancellation, but that after the plaintiff took provided these documents under the pretext of familiar with the surrounding land, and this is the explanation of as the documents ended up in the hands of the applicant reteniendolos until the day of the hearing; (3) that, in addition to the 3 plots in question, the applicant enjoy products of a fourth parcel of the defendants, amounts to 10 cavanes of palay in each harvest; (4) that the 4 plots of land the applicant came to receive as participation in 5 harvests that gathered a total of 400 cavanes of palay, and that the then cavan was trading at P2.50 on the market; (5) that, therefore, the plaintiff made no less than P1, 000 with the products received by it, and discounting of such sum the P500 owed by the respondents, more P100 interest at the legal rate, is still in favour of these a balance of P400, by what you call for judgment is made against the applicant for this last amount.

After seen the matter the Court gave its judgment in which estimated proven conclusively made diguientes: (1) that by about 10 years prior to November 17, 1938 the defendants wore owing to Eleas Imperal the amount of P1, 000: (2) that between the creditor and the debtor has had the accessory contract of antichresis whereby that would as effectively enjoy during this period of 10 years for all products 3 land that was mentioned, these adherents products such as borrowed money interests; (3) who, during and enjoy the land, nor a single grain of palay produced were aplicio to pay or repay the principal on the loan; (4) given on November 17, 1938 respondents of the plaintiff not P500, as those allege, but P1, 000, to rescue the hands of Elias Imperial estates being the agreement between the parties that the applicant is subrogaria as creditor rather than the Elias Imperial under the same terms and conditions of the contract of antichresis concluded with this; that "after careful consideration of the evidence and all attendant circumstances, the Court concludes, and therefore so declares, that the plaintiff actually presto to the demandadosP1, 000 and that the agreement between the parties was that the applicant sign 3 products plots previously released antichresis in favour of Elias Imperial as interest on the loan until it was entirely paid"; that, in effect, the applicant was quietly receiving products in 5 consecutive cosehcas, but after the harvest of April, 1941, the defendants any completely to the plaintiff, appropiating of all crops. The facts set out in the judgment, as it is extracted, it is clear that the contract of antichresis that relates to this matter is defined in the article of the Civil Code that preceptua 1885 as follows: "the contracting parties can stipulate that interest on the debt is offset with the fruits of the property given in antichresis." However, the Court a quo, rather than implement the article as was by the facts that declares tested and established in the trial, makes the following statement: "However, however this Convention, the claim of the respondents that the amount of the products received by the applicant should apply to the payment of its debt after deducting capital interest at the legal rate"", it should be held." I.e. the Court applies to the case not the article 1885 already mentioned but the article 1881 of the Civil Code, the text of which is, namely: "by the antichresis the creditor acquires the right to receive the fruits of a property of his debtor with obligation to apply them to the payment of interest, if they should, then your credit capital." And the Court based its conclusion on the ruling handed down by the previous Court of appeal in the matter of Santa Rosa against Noble (R.G. not. 43769, 35 Off.) Gaz., 2734; The Lawyer's Journal, Vol. V, no. 23, p. 1109), presentation by the Hon. judge. Jose Lopez Vito. So the Court a quo, after making the corresponding operation arithmetic by applying products, first, to the payment of interests, and then the debt capital, awarded in favour of the plaintiff a balance of P435.17 and ordered that you continue applying to satisfy them the products of the land until their complete payment or that the defendants resolved it once with interest at the rate of 6 per cent a year from 1 of May 1941. Against the ruling issued so the applicant brought the present appeal not raising more than questions of law, namely: that the Court incurrio in error does not apply to the present case in all its rigor to the article of the Civil Code 1885; that the Court could, in a fiat, create arbitrarily to parties a no contract between them. that the article 1885 refers specifically to a type of antichresis and the article and the article 1881 to another; When the Convention is, as in the case which concerns us, that the products of the farm given in in antichresis compensated by interest on the debt, any part of those products should apply to

the repayment of the capital; and she, the appellant, therefore, has right to return complete capital of your credit, i.e. the amount of P1, 000, more products or corresponding interests. The Court a quo founded its judgment in the above-mentioned two issues entirely analog, especially because both come from the same region - the bicolana - and relate to a contract very common in this region, the contract called there commonly "sangla" or "pledge," and that in Mindanao and the Visayas where they speak the cebuano dialect is called "saop" and also "turn" at times. It seems superfluous to say that the judgments of this Court only feel jurisprudence or doctrine in this jurisdiction. However, this not started that a finding or ruling of the Court of appeals which covers any point of law not resolved yet in our jurisprudence can serve standard legal the lower courts, and that this conclusion or pronouncement raise doctrine if, after tested in elcrisol of analysis and judicial review, hallaramos he had merit and sufficient for its consagracioncomo Carat rule of jurisprudence. To this effect and to this end we have examined carefully and thoroughly the judgment of the Court of appeal in the referred case of Santa Rosa against Noble, from, as said in the region bicolana is as well as that we are discussing. Without sign - not we are now called to do so, or it is necessary to do - the interesting findings makes in that judgment, the Court of appeal however believe that the Court a quo erro when applying to the present case, since there are fundamental differences, namely between the two cases: First difference: in the matter of the Court of appeal the usury was an "issue," a capital point in dispute. Why says that Court in its judgment: "but the defendants argue that the agreement contained in the Exhibit E is user, which raises the question of whether law No. 2655 known for usury law that establishes the rate of interest that is permissible to charge in loans, it is applicable to the contract of antichresis." Although it does not say in a way, the Court of appeal, to decide that the Usuara law was applicable, setting accordingly interest collectible in the statutory rate of 6 per cent, almost enjuicio and declare the contract of antichresis concerned how user. In the event that we have before us the question of usury is not suscito never or in the allegations nor enel judgment; and in case there are no pronunciamento in fact on usury; and whatever that in this appeal not is planteam rather than issues of law particulars by established and admitted the facts entered in the sentenica without discussion, said is our power of review has to cenirse strictly and inflexibly to such facts, unless it allowed us to go more alla of his radio. After all, it is not strange that the defendants have not raised any question on usury, because popr 10 years had been debtors Elias Imperial without, apparently, differences that empenaran their relationships (in fact Elias declare in the view in favour of the defendants), and we have already seen that the applicant has not done rather than stand instead of Elias in the contract of antichresis.

Second difference: it is clear that the antichresis contained in the aforementioned issue of Santa Rosa against Noble is defined in the article 1881 of the Civil Code, antichresis in which "the creditor acquires the right to receive the fruits of a property of his debtor with obligation to apply them to the payment of interest, if they should, then your credit capital." Here is what the Court of appeal, in its judgment that we discuss on here: "in as to whether the same rate established by law against usury should be applied when there is a stipulation expressed in that fruits are starting with the interest on the debt in accordance with to the article 1885, quaere: not being the case which has been submitted for our consideration today"", having us declared that the" e "Exhibit falls under as required in the article 1881 of the Civil Code." (The italics are ours.)En cambio, la anticresis sobre que versa el presente asunto es la definida en el articulo 1885, el cual dispone "que los contratantes pueden estipular que se compensen los intereses de la deuda con los frutos de la finca dada en anticresis." He aqui el terminante pronunciamiento del Juzgado a quo sobre el particular: "After a careful consideration of the evidence and all the attending circumstances, the court concludes, and therefore holds, that the plaintiff actually loaned the defendants P1,000, and that the agreement between the parties was that the plaintiff would receive the products of the three parcels of land formerly conveyed in antichresis to Elias Imperial as interests on said loan until the same is paid."1(Las cursivas son nuestras.) Exist, according to same conclusion of the Court a quo, this Pact that farms products be offset with the interest on the debt, in accordance with the 1885 of the Civil Code, article is arbitrary and changing it legally, doing parties procedure which they have not yet concluded, or to put it more specifically, transforming the Covenant actually agreed on something that falls under an article of the code was not in the mind or in the will of the Contracting Parties. The article 1255 of the Civil Code prescribes that "the Contracting Parties may establish agreements, you clauses and conditions have convenient, provided that they are not contrary to the laws, morals, or order public." This excludes contracts judicial fiat. The courts can interpret contracts; what you can do is shaping them, for jar them to the parties. We agree with the Court of appeal the contract called "sangla" or "turn" (on property) in Bicol, "soap" or "turn on" in the Visayas and Mindanao, actually has the antichresis characters and, therefore, can be considered as such. In addition to the sale with retro Pact, that contract is the better known and usual in our towns and rural districts - of the arrow hand farmers and peasants, whether to improve and expand their crops, already for buy new land that increase their possessions as to marry their children and equip them, and even sometimes to give a burial worthy and appropriate to their dead. And why not say it? Per the game unhappy passion sometimes culminates also in that contract for sour existence if nor for the ruin of the small owner. The question that now we have to determine is, namely: does is automatic or ministerialmente applicable to the antichresis of usury, as it seems to deem the Appeal judgment? Undoubtedly that do not. The antichresis contract - either under the 1881 article, because low the 1885 of the Civil Code - article is not necessarily usuraria; It can be, Yes, usuraria. But so so can declare, it is not only absolutely necessary that usury is an "issue," a contentious capital point in allegations and the trial, so that each party has its "day in court", is say that it can defend

properly and adequately, but that, in addition, you must demonstrate and established positively that usury is of such proportions thaton repel the conscience, tilt the encouragement to believe that the contract has been used as a costume or artilugo to violate or evade the law of usury. The reason for this is quite simple: in the antichresis there is a contingent, random, element by nature. The perception of the products by the creditor, which is its main feature, is subject to various contingencies and eventualities. It can come to a bad harvest, either none, already because it has desfogado a typhoon, already because you have overflowed rivers came a flood, already because a flock of locusts devastated the crops and plantations, and deep social upheavals have subverted the peace and order preventing tilling of fields, and so on, and so on. So that, to the antichresis, cannot be applied automatically, ministerialmente, articles 2, 3 and 8 of the Act No. 2655 on usury, because these refer to the perception of a fixed quantity of products: the debtor has them delivered nounce, or its equivalent in money, is good or bad harvest, has or has not. The fact that sometimes the antichresis the amount of fruits, to make the liquidation, exceed rates established by the law of usury, does the position of the user contract, because the law assumes to such excess is the dividend that collects the creditor in return for the premium of risks and contingencies have paid above the capital of your credit. The American jurisprudence also known certain types of contract similar to our "sangla" or "saop" as demonstrate it the following authorities: In view, however, of the rule that a creditor's return need not be limited to the statutory rate when it is affected by a contingency putting the whole of it at hazard, a contract is ordinarily not usurious under which the creditor is to receive, in consideration of his loan or forbearance, property or services of uncertain value, even though the probable value is greater than lawful interest, unless the excess is so palpable as to show a corrupt intent to violate or evade the usury laws, unless the contract is made for the purpose of such violation or evasion.2 (66 C.J., 212.) Where the lender is to receive something else than money for his loan, as property or services, the value of such profit being necessarily uncertain, the contract is not usurious, even though the probable value is greater than legal interest, unless the consideration so given is so palpably in excess of the cetain profit allowed by law as to show a corrupt intent to violate the usury laws." 2 39 Cyc. 959; Wright vs. McAlezander, 11 Ala., 236; Rapier v. Gulf City Paper C., 77 Ala., 126. (102 Southern Reporter, p. 204.) So, an agreement that instead of interest, the lender of money should receive the rents and profits of certain land for a term of years, is not usurious where no intention to evade the statue is shown; and thefact that such rents and profits happen to amount to more than lawful interests does not render the contract usurious.3(Webb on Usury, p. 85.) Manresa, expounding on the antichresis regard conveniences while sometimes it lends itself as an instrument of usury, made the following comments wise:

By proceeding in this way the authors of code, responded with great success to a necessity imposed by the modern principles that inspire the laws of mutual, according to which there is no reason any economic or legal to condemn the antichresis. In addition, attempted in this way to avoid damages to the debtor which, in another case, were inevitable, because experience well palpably had demonstrated that, despite the ban of laws, the anticretico Covenant was very frequent in practice, because is eludian provisions prohibitory, disguising the Convention with the form or the name of sales to retro Pact, so far from favor to the borrower, as he is proposed by the legislature, is you caused great loss, every time that with the possibility granted to the creditor the enjoyment of the fruits to apply them to the depreciation of interests or partial payment of capital, be they saw forced to dispose of the property in the manner indicated, desprendiendose of a property could hardly return to acquire. Com to the Cod (Manresa) CIV. Spanish, vol. 12, p. (545) The rule, as it is, or should be, the following: (a) the antichresis known in this country with the name "sangla" vernacular or "saop" can not prosecuted and declared as usuraria, unless same usury itself arises as an "issue", a contentious point between the parties, in accordance with the procedural rules estatuidas on the particular; (b) and so the contract deemed and declared position of the user it is not enough that the products of the property given to the perciberse by the creditor, antichresis, exceed any both legal rates interests, but need the excess is so palpable, as repulsive and so shocking to the conscience than of necessarily the sensation that the contract has been set to hide the intention to nasty violate or evade the law of usury; (c) not mediating these circumstances, "sangla" or "saop" must be respected and compliance be expeditious low the article 1881 or the article 1885 of the Civil Code, as is the case, and the courts nothing will be to change the terms of the antichresis, which must be law between the parties. The case which concerns us offers some difficulties in regards to the bug that should dictate. The applicant requests it to condemn and oblique the defendants to grant their favor a document of mortgage on the three plots of land to ensure payment of the debt of P1, 000, "setting in the said document within three months for payment, or the period that is reasonable according to the preduente Court and trial by an interest at the rate of 12 per cent a year;" "or in place, any other remedy that was coming." In our view, this would not do more that delay the provision and final settlement of the matter to the detriment of the parties and an expeditious administration of justice. Having taken possession of the defendants of the plots of land for them transferred in antichresis to plaintiffs and enjoyed its fruits from the month of October 1941 to a date, and demostratod plaintiffs their conformity to the anticretico contract by circulation to the present the demand on 25 November 1941, not to recover such business of land, but to demand the payment of the debt with interest from that date, upon revocation of the sentenciaapelada, have the following fault:.

(1) Is sentenced the defendants to pay plaintiffs the amount of thousand pesos (P1, 000), the latter credit amount, with interest at the rate of 6 per cent a year from November 25, 1941, in which present demand, and legal costs, plaintiffs must pay this amount with interests and costs, or deposited in the Court of first instance of Albay within three months cash since officially lift the present moratorium; (2) In default of payment, as ordered in the preceding paragraph, the three plots of land on which relates to this matter is sold by the Sheriff at public auction in accordance with the law on mortgage credit payment; (3) In the meantime not will make payment, as prescribed in this statement, the amount owed with their legal interests and court costs to pass as a lien (lien) preferred the three parcels of land in question. So is ordered. Moran, Pres, fair, Bengzon, Padilla and Tuazon, mm, are compliant.

Separate Opinions PARAS, J., dissenting: Although the trial court held that "the plaintiff actually loaned the defendants P1,000, and that the agreement between the parties was that the plaintiff would receive the products of the three parcels of land formerly conveyed in antichresis to Elias Imperial as interests on said loan until the same is paid," it nevertheless sustained, citing the decision of the Court of Appeals in the case of Santa Rosa vs. Noble (35 Off. Gaz., 2724), "the contention of the defendants that the value of the products received by the plaintiff, after deducting therefrom the interests at legal rate, should be applied to the principal of their debt." The plaintiff has appealed; does not controvert the correctness of the appraisal made by the trial court of the value of the products received by her from the lots in question: but contends that said court should have applied article 1885 of the Civil Code which provides that "the contracting parties may stipulate that the interest of the debt be set off against the fruits of the estate given in antichresis." In other words, it is the view of the plaintiff that the products, regardless of their value, should belong to her in payment of the interest on defendant's loan of P1,000. This is also the view expressed in the majority opinion. I dissent. The right of the contracting parties to establish any pacts, clauses, and conditions they may deem advisable, is subject to the proviso that "they are not contrary to law, morals, or public order." (Article 1255, Civil Code.) After the enactment of the Usury Law (Act No. 2655), which fixes the rate of interest, in the absence of express stipulation, at six per centum per annum (section 1) and provides (section 8) that "all loans under which payment is to be made in agricultural products or seed or in any other kind of commodities shall also be null and void unless they provide that such products or seeds or other commodities shall be appraised at the

time when the obligation falls due at the current local market price," article 1885 of the Civil Code must be considered modified, if not repealed under the repealing clause (section 11) of the Usury Law. In other words, any antichretic agreement, under either article 1881 or article 1885, may now be validly enforced only in the light of the provisions of the Usury Law. The unrestricted freedom conceded in article 1855 was good before the Government had laid down its policy regarding interest on loans. El articulo 1881 sanciona, pues, la regla general que ha de regir forzosa y necesariamente siempre que no exista el pacto especial indicado, y el 1885 establece la excepcion de esa regla para el caso de que se estipule dicho pacto. Este es consecuencia de la libertad concedida para la fijacion de los intereses, pues abolida la tasa legal por la ley de 1856, las partes pueden fijar libremente la cuantia y condicion de dichos intereses, pudiendo percibirse los mismos en dinero que en especie, y, por consiguiente, compensarse los intereses con los frutos. (12 Manresa, Codigo Civil, pag. 482.) The majority argue that the Usury Law cannot be applied because the defense of usury was not set up. It appears, however, that, as amitted by the majority, the defendant alleged in his answer that "la demandante hizo no menos de P1,000 en los productos recibidos por ella, y descontando de dicha suma los P500 adeudados por los demandados, mas P100 en concepto de intereses al tipo legal, todavia queda a favor de estos un saldo de P400, por lo que piden se dicte sentencia contra la demandante por esta ultima cantidad." If this allegation did not amount to a charge that the plaintiff received more than the legal interest, it was sufficient to apprise the court and the plaintiff that it was the contention of the defendant that the plaintiff had no right to apply the products entirely in compensation of the interest notwithstanding their agreement, and this issue should be decided in the light of existing law which it was not necessary for the defendant to specify in his answer. We would not thus be digressing from the issues raised by the parties, or creating new ones, by simply adjudicating concrete cases conformably to law. . . . es manifiesto que los Tribunales pueden en cada caso concreto apreciar la naturaleza de la obligacion y condiciones a ella anejas, si determinado pacto la constituye para los efectos procedentes en derecho. . . . (11 Manresa, Codigo Civil, pag. 550.) The contingent character of the arrangement contemplated by Article 1885, cannot warrant its continued existence. The Usury Law, which is of later date and therefore controlling, protects borrowers and at the same time eliminate the element of chance that may prove disadvantageous to lenders who are to be paid in agricultural products. The appealed judgment should be affirmed.

Footnotes
1

"After careful consideration of the tests and the concomitant circumstances, the Court concludes, and therefore so declares, that the applicant currently presto the P1, 000 respondents, and that the agreement between the parties was that the applicant sign products of the three plots of land given previously in antichresis Elias Imperial as interest on the loan referred"", until it is paid."
2

"In view, however, the rule that the yield of a creditor not must be limited to the legal rate when it is affected by a contingency that it puts everything at risk, a contract is not ordinarily user when the creditor receives in consideration to your loan or largesse, property or services of uncertain value, although this is higher than the rate or interest legal"", unless the excess is so palpable that demonstrate an intention to corrupt violate or evade the law of usury, or unless the contract had been made for the purpose of such violation or evasion" (66 C.J., 212)).
3

"When the contract is to ensure that the lender receives anything other than money for your loan, that is, in kind or services, siendoel value of such necessarily uncertain profit, the contract is not user although the likely value is greater than the interest legal, unless the consideration given so is so palpably in excess of profit permitted by law that reveal and demonstrate the intention to vicious of violating the usury laws." (39 Cyc., 959;) Wright vs. McAlexander, 11 wing., 236; Rapier vs. Gulf City Paper Co., 77 wing, 126.).
4

"So that a contract that, instead of interest, the lender receives the rents and profits of some ground for a period of years, isn't user if it is not shown there was intention to evade the law;" "and the fact that such income and gains mounted to more that the rate or no legal interest makes the user contract." (Webb on usury, p.) (85)

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 146091 July 28, 2008

MARIA PAZ V. NEPOMUCENO, joined by her husband, FERMIN A. NEPOMUCENO, Petitioners, vs. CITY OF SURIGAO and SALVADOR SERING in his capacity as City Mayor of Surigao, Respondents. DECISION CORONA, J.: Petitioners assail the February 29, 2000 decision1 and October 12, 2000 resolution of the Court of Appeals (CA) in CA-G.R. CV No. 56461 affirming with modification the decision of the Regional Trial Court (RTC) of Surigao City, Branch 32, in Civil Case No. 4570. Civil Case No. 4570 was a complaint for "Recovery of Real Property and/or its Market Value" filed by petitioner Maria Paz Nepomuceno to recover a 652 sq. m. portion2 of her 50,000 sq. m. lot3 which was occupied, developed and used as a city road by the city government of Surigao. Maria Paz alleged that the city government neither asked her permission to use the land nor instituted expropriation proceedings for its acquisition. On October 4, 1994, she and her husband, co-petitioner, Fermin A. Nepomuceno, wrote respondent (then Surigao City Mayor) Salvador Sering a letter proposing an amicable settlement for the payment of the portion taken over by the city. They subsequently met with Mayor Sering to discuss their proposal but the mayor rebuffed them in public and refused to pay them anything. In a letter dated January 30, 1995, petitioners sought reconsideration of the mayors stand. But again, the city mayor turned this down in his reply dated January 31, 1995. As a consequence, petitioners claimed that they suffered mental anguish, embarrassment, disappointment and emotional distress which entitled them to moral damages. In their answer, respondents admitted the existence of the road in question but alleged that it was constructed way back in the 1960s during the administration of former Mayor Pedro Espina. At that time, the lot was owned by the spouses Vicente and Josefa Fernandez who signed a road right-of-way agreement in favor of the municipal government. However, a copy of the agreement could no longer be found because the records were completely destroyed and lost when the Office of the City Engineer was demolished by typhoon Nitang in 1994. After hearing the parties and evaluating their respective evidence, the RTC rendered its decision4 and held:

WHEREFORE, premises considered, judgment is hereby rendered ordering the City of Surigao to pay to Maria Paz V. Nepomuceno and her husband, Fermin Nepomuceno, the sum of P5,000.00 as attorneys fees, and the further sum of P3,260.00 as compensation for the portion of land in dispute, with legal interest thereon from 1960 until fully paid, and upon payment, directing her to execute the corresponding deed of conveyance in favor of the said defendant. The Clerk of Court shall execute the necessary instrument in the event of her failure to do so. The claims for moral and exemplary damages are denied for lack of basis. No pronouncement as to costs. SO ORDERED.5 Unsatisfied with that decision, the petitioners appealed to the CA. As stated earlier, the CA modified the RTC decision and held that petitioners were entitled to P30,000 as moral damages for having been rebuffed by Mayor Sering in the presence of other people. It also awarded petitioners P20,000 as attorneys fees and litigation expenses considering that they were forced to litigate to protect their rights and had to travel to Surigao City from their residence in Ormoc City to prosecute their claim. The CA affirmed the decision of the trial court in all other respects. Petitioners filed a motion for reconsideration but it was denied. Hence, this petition. Petitioners claim that, in fixing the value of their property, justice and equity demand that the value at the time of actual payment should be the basis, not the value at the time of the taking as the RTC and CA held. They demandP200/sq. m. or a total sum of P130,400 plus legal interest. In the alternative, petitioners pray for the re-examination of the meaning of just compensation and cite the separate concurring opinion of Justice Antonio Barredo in Municipality of La Carlota v. Spouses Gan.6 Petitioners also assert that the CA decision in Spouses Mamerto Espina, Sr. and Flor Espina v. City of Ormoc7should be applied to this case because of the substantial factual similarity between the two cases. In that case, the City of Ormoc was directed to institute a separate expropriation proceeding over the subject property. Moreover, petitioners maintain that exemplary damages should be awarded because respondent City of Surigao illegally took their property. Petitioners arguments are without merit. In a long line of cases, we have consistently ruled that where actual taking is made without the benefit of expropriation proceedings and the owner seeks recovery of the possession of the property prior to the filing of expropriation proceedings, it is the value of the property at the time of taking that is controlling for purposes of compensation.8 As pointed out in Republic v. Lara,9 the reason for this rule is:

The owner of private property should be compensated only for what he actually loses; it is not intended that his compensation shall extend beyond his loss or injury. And what he loses is only the actual value of his property at the time it is taken. This is the only way the compensation to be paid can be truly just; i.e., "just" not only to the individual whose property is taken, "but to the public, which is to pay for it." Thus, the value of petitioners property must be ascertained as of 1960 when it was actually taken. It is as of that time that the real measure of their loss may fairly be adjudged. The value, once fixed, shall earn interest at the legal rate until full payment is effected, conformably with other principles laid down by case law.10 Regarding petitioners contention on the applicability of Article 1250 of the Civil Code,11 Republic v. CA12 is enlightening: Article 1250 of the Civil Code, providing that, in case of extraordinary inflation or deflation, the value of the currency at the time of the establishment of the obligation shall be the basis for the payment when no agreement to the contrary is stipulated, has strict application only to contractual obligations. In other words, a contractual agreement is needed for the effects of extraordinary inflation to be taken into account to alter the value of the currency. (emphasis supplied)1avvphi1 Since there was never any contractual obligation between the parties in this case, Article 1250 of the Civil Code finds no application. Moreover, petitioners cannot properly insist on the application of the CA decision in Spouses Mamerto Espina, Sr. and Flor Espina v. City of Ormoc.13 A decision of the CA does not establish judicial precedent. A ruling of the CA on any question of law is not binding on this Court.14 In fact, the Court may review, modify or reverse any such ruling of the CA. Finally, we deny petitioners prayer for exemplary damages. Exemplary damages may be imposed by way of example or correction for the public good.15 The award of these damages is meant to be a deterrent to socially deleterious actions.16 Exemplary damages would have been appropriate had it been shown that the city government indeed misused its power of eminent domain.17 In this case, both the RTC and the CA found there was no socially deleterious action or misuse of power to speak of. We see no reason to rule otherwise. WHEREFORE, the petition is hereby DENIED. Costs against petitioners. SO ORDERED. RENATO C. CORONA Associate Justice

WE CONCUR: REYNATO S. PUNO Chief Justice Chairperson ANTONIO T. CARPIO Associate Justice ADOLFO S. AZCUNA Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

Footnotes
1

Penned by Associate Justice Delilah Vidallon-Magtolis (retired) and concurred in by Associate Justices Eloy R. Bello, Jr. (retired) and Mercedes Gozo-Dadole (retired) of the Fourteenth Division of the Court of Appeals. Rollo, pp. 18-27.
2

It was surveyed and identified as Lot No. 900-A-2. The lot was inherited by petitioner Maria Paz from her father and stepmother, spouses Vicente Fernandez and Josefa Elumba.
3

The lot is registered in the name of petitioner Maria Paz V. Nepomuceno under Transfer Certificate of Title No. 3659 and located in Barangay San Roque (Tobongan), Surigao City.
4

Penned by Judge Diomedes M. Eviota. Rollo, pp. 28-41. Id., p. 41.

150-A Phil. 588, 597 (1972). According to Justice Barredo, the basis of the value of the property should be the value of the currency at the time of the taking, pursuant to the benefits of Article 1250 of the Civil Code, in addition to the payment of interest.
7

CA G.R. CV No. 28856, 12 August 1996.

Manila International Airport Authority v. Rodriguez, G.R. No. 161836, 28 February 2006, 483 SCRA 619, 627; Republic v. Sarabia, G.R. No. 157847, 25 August 2005, 468 SCRA 142; Ansaldo v. Tantuico, Jr., G.R. No. 50147, 03 August 1990, 188 SCRA 300; Alfonso v. Pasay City, 106 Phil. 1017 (1960).
9

96 Phil. 170 (1954). Ansaldo v. Tantuico, Jr., supra note 8, at pp. 304-305. See note in footnote 6. 433 Phil. 106 (2002). Supra note 7.

10

11

12

13

14

Systra Philippines, Inc. v. Commissioner of Internal Revenue, G.R. No. 176290, 21 September 2007.
15

Article 2229, Civil Code. Benguet Electric Cooperative, Inc. v. CA, 378 Phil. 1137, 1151 (1999).

16

17

Cf. Republic v. CA, G.R. No. 147245, 31 March 2005; National Power Corporation v. CA and Pobre, G.R. No. 106804, 12 August 2004.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-38398 December 8, 1933

In the matter of the Involuntary Insolvency of Rafael Fernandez. PHILIPPINE TRUST COMPANY and SMITH, BELL & COMPANY, LTD., as Trustee of the properties of the San Nicolas Iron Works, Ltd.,claimants-appellants, vs. L. P. MITCHELL ET AL., opponents-appellees. Ross, Lawrence and Selph and Antonio T. Carrascoso, Jr. for appellants. DeWitt, Perkins and Brady for appellee Mitchell. Duran, Lim and Tuason for appellees Guillermo A. Cu Unjieng and The Yek Tong Lin Fire & Marine Insurance Co., Ltd.

MALCOLM, J.: The issue in this case is whether or not the claims of the Philippine Trust Company and Smith, Bell & Company, Ltd., in its capacity as trustee of the properties of the San Nicolas Iron Works, Ltd., presented in the involuntary insolvency proceedings of Rafael Fernandez, should be classified as ordinary or preferred. A resolution of the issue in turn depends on an answer to the question of whether or not claims not classified as preferred under the Insolvency Law, Act No. 1956, gain a special right of priority under the Civil Code. In passing it may be remarked that this is neither a new issue nor a new question, and that our purpose is to reexamine the issue and the question in the light of present knowledge of the law, the authorities, and legal reason, with the hope that the discussion which has intermittently taken up the time of the court for many years may be definitely closed. The facts are not in dispute. As stated by the trial judge and as accepted by the parties, the Philippine Trust Company granted to Rafael Fernandez a credit up to P100,000, and Fernandez, as security for the repayment thereof, pledged to the bank seven hundred shares of stock of the Peoples Bank and Trust Company. Fernandez defaulted, and on petition being made to the court, the pledged property was sold at public auction and the sale was approved and confirmed by the court. After crediting Fernandez' obligation with the proceeds of the sale, there remained a balance due from him to the Trust Company of P62,151.70. Fernandez was also indebted to Smith, Bell & Co., Ltd., as trustee of the San Nicolas Iron Works, Ltd., in the sum of P93,444.67, the repayment of which was guaranteed to the company by Fernandez by a real estate mortgage of certain properties in the City of Manila. Fernandez

defaulted, and the company caused the mortgaged properties to be sold at public auction. After crediting Fernandez' obligation with the proceeds of the sale, there remained a balance due from him to the company of P8,861.39. In the insolvency court claimants asked that the deficiencies remaining of the credits be paid by the assignee as preferred claims. Opposition was entered by the assignee. An order was promulgated by the trial judge disallowing the claims as preferred and simply admitting them as ordinary claims. The action taken by the two companies in causing the pledged properties to be sold at public auction was asserted in the insolvency proceedings under authority of section 59 of the Insolvency Law. Although the record is not entirely clear, the parties proceed under the assumption, and so we can assume, that the pledge as well as the mortgage were public instruments. The parties further mutually concede that if the Insolvency Law alone controls, there is no such thing in that law as a preferred claim for deficiency; that if the Civil Code be given effect, the claims are preferred, articles 1924 and 1929 applying, and that the precise question now before the court was decided in the case of the Involuntary Insolvency of Mariano Velasco & Co. ([1930], 55 Phil., 353). It is thus apparent that the issue is not encumbered or complicated by extraneous matter. The law which is sought to be applied to the facts comes from varied sources: from the Spanish civil law, from American procedural law, and from the statute law of the State of California. In the Civil Code, articles 1924 and 1929 are invoked by the movants. The Code of Civil Procedure was mentioned by the trial judge, and in section 524 provides that, "No new bankruptcy proceedings shall be instituted until a new bankruptcy law shall come into force in the Islands. All existing laws and orders relating to bankruptcy and proceedings therein are hereby repealed. ..." The third source of authority is the Insolvency Law, Act No. 1956, which is in great part a copy of the Insolvency Act of California. Sections 29 and 59 thereof provide the procedure for a creditor who holds the mortgage or pledge of real or personal property to participate in the insolvency proceedings and to benefit by the Insolvency Law. Sections 48, 49 and 50 are given up to the subject of classification and preferences of creditors. Section 49 provides in part that "All creditors, except those whose claims are mentioned in the next following section, whose debts are duly proved and allowed shall be entitled to share in the property and estate pro rata, after the property belonging to other persons referred to in the last preceding section has been deducted therefrom, without priority or preference whatever ... ." Section 50 enumerates the preferred claims, without including mortgages or pledges, adding that "all other creditors shall be paid pro rata." Section 83 of the Insolvency Law repeals all Acts and part of Acts inconsistent with the provisions of the Law. The applicable authorities relied upon by the claimants find their beginnings in the cases of Smith, Bell & Co. vs. Estate of Maronilla ([1916], 41 Phil., 557); Kuenzle & Streiff vs. Villanueva ([1916], 41 Phil., 611); and Tec Bi & Co.vs. Chartered Bank of India, Australia and China ([1917], 41 Phil., 819). The doctrine in these cases was carried forward to culmination in the Involuntary Insolvency of Mariano Velasco & Co., supra. In effect it was the ruling in these

cases that the preferential right of the civil law should be treated as approximately equivalent to the lien of the Insolvency Law and that the statutory preferences furnished by the Civil Code were not destroyed by the Insolvency Law. The current of antagonistic authority goes way back to the year 1906, when in the case of Peterson vs. Newberry (6 Phil., 260), the opinion was expressed that article 1924 of the Civil Code, in so far as it is applicable to bankruptcy and estates of deceased persons, was repealed by the enactment of the Code of Civil Procedure. The burden of the theme was then taken up in the elaborate concurring and dissenting opinion of Justice Moreland in Kuenzle & Streiff vs. Villanueva, supra, in which he announced as a grave question whether or not the Insolvency Law does not repeal articles 1922 to 1926 of the Civil Code as well as the other provisions of the old law contained in that Code. Later, dissenting and concurring opinions in a number of cases, principally written by the writer of this opinion, have given force to a more emphatic presentation of the viewpoint that the Insolvency Law is complete in itself. In the same field stand expressions, whether obiter or not we will not attempt to say, to be found in the majority opinion in the case of Ingersoll vs. National Bank ([1922], 43 Phil., 308), namely: Upon the question of preference of the claim of the Philippine Guaranty Company, Act No. 1956 of the Philippine Legislature, known as the Insolvency Law, is complete within itself. Section 48, Chapter 6, specifically defines the "classification and preference of creditors." There are nine subdivisions in this section, each of which specifies and defines what claims of the nature of the Philippine Guaranty Company or kindred thereto are not mentioned or included in either subdivision. Neither can it be construed to come within any of the provisions of section 50 of the Act. Where the law specifies and defines what claims are to be preferred, it must follow that any claim, which is not in the nature of, or kindred to, those specified, is not a preferred claim, and should not have a preference. In the case of the Involuntary Insolvency of Mariano Velasco & Co., supra, a credit was secured by a mortgage, and after the foreclosure of the mortgage a portion of the credit was left unpaid. It was held that the deficiency was still evidenced by a public instrument and in accordance with the Civil Code must be allowed as a preferred claim. That was the view of the majority in which five members of the court agreed. Four members of the court dissented. Is the court with new membership compelled to follow blindly the doctrine of the Velasco case? The rule of stare decisis is entitled to respect. Stability in the law, particularly in the business field, is desirable. But idolatrous reverence for precedent, simply as precedent, no longer rules. More important than anything else is that the court should be right. And particularly is it not wise to subordinate legal reason to case law and by so doing perpetuate error when it is brought to mind that the views now expressed conform in principle to the original decision and that since the first decision to the contrary was sent forth there has existed a respectable opinion of nonconformity in the court. Indeed, on at least one occasion has the court broken away from the

revamped doctrine, while even in the last case in point the court was as evenly divided as it was possible to be and still reach a decision. Freeing ourselves from the incubus of precedent, we have to look to legislative intention. The legislative purpose was as plainly indicated as words may convey it by the express repeal in the Code of Civil Procedure of all existing laws relating to bankruptcy. The legislative purpose was a second time evidenced by the passage of the Insolvency Law. That law was carefully framed with the purpose of covering the entire subject of bankruptcy and insolvency. In all material respects the law was meant to be and is complete in itself. Just as a provision in an insolvency law can not continue to be in force with the provisions on the same subject in a later law, so is the former civil law modified by implication by the special statute without the necessity of an express repealing clause. Any attempt to fuse the elements of the Insolvency Law inspired by modern commercial practice, with the elements of the Civil Code intended to harmonize with Spanish laws, is impracticable. It has been taken for granted that the Code of Civil Procedure and the Insolvency Law swept away numerous parts of the Spanish Code of Commerce. If those laws did that, it needs no elaborate argumentation to prove that the same laws had a somewhat similar effect on the Spanish Civil Code. When a party avails himself of the Insolvency Law, he does so acknowledging its supremacy and cannot take advantage of it and at the same time take advantage of an old law which, at least in so far as it relates to insolvency, has been supplanted by a modern law given up to that subject. To permit that would be to run counter to the Insolvency Law, to render worthless and inoperative fundamental provisions of that law, and to nullify the legislative purpose. Public policy will be best served by accepting the Insolvency Law as it is without a strained effort to join it up with a code which never contemplated the ends which the Insolvency Law was enacted to advance. On a survey of the entire filed of insolvency in its relation through the Code of Civil Procedure and the Insolvency Law to the Civil Code, we unhesitatingly revoke the doctrine announced in the case of the Involuntary Insolvency of Mariano Velasco & Co., supra. We rule that claims not classified as preferred under the Insolvency Law cannot be thus classified with the aid of the Civil Code and gain no special right of priority under the Insolvency Law which is exclusively controlling. Accordingly, the order appealed from will be affirmed, with costs against the appellants. Abad Santos, Hull, Vickers, Butte, and Diaz, JJ., concur.

Separate Opinions

IMPERIAL, J., with whom concur AVANCEA, C.J., and VILLA-REAL, J., dissenting: The facts of the case are recited correctly in the majority opinion as follows: . . . the Philippine Trust Company granted to Rafael Fernandez a credit up to P100,000, and Fernandez, as security for the repayment thereof, pledged to the bank seven hundred shares of stock of the Peoples Bank and Trust Company. Fernandez defaulted, and on petition being made to the court, the pledged property was sold at public auction and the sale was approved and confirmed by the court. After crediting Fernandez' obligation with the proceeds of the sale, there remained a balance due from him to the Trust Company of P62,151.70. Fernandez was also indebted to Smith, Bell & Co., Ltd., as trustee of the San Nicolas Iron Works, Ltd., in the sum of P93,444.67, the repayment of which was guaranteed to the company by Fernandez by a real estate mortgage of certain properties in the City of Manila. Fernandez defaulted, and the company caused the mortgaged properties to be sold at public auction. After crediting Fernandez' obligation with the proceeds of the sale, there remained a balance due from him to the company of P8,861.39. In the insolvency court claimants asked that the deficiencies remaining of the credits be paid by the assignee as preferred claims. Opposition was entered by the assignee. An order was promulgated by the trial judge disallowing the claims as preferred and simply admitting them as ordinary claims. Almost since its organization this court has consistently held that the preferences and priorities created by the Civil Code in Title XVII, Book IV, continue in force in this jurisdiction as long as they are not expressly or by implication repealed by the provisions of the Code of Civil Procedure (Martinez vs. Holliday, Wise & Co., 1 Phil., 194; Olivaresvs. Hoskyn & CO., 2 Phil., 689; Peterson vs. Newberry, 6 Phil., 260; Gochuico vs. Ocampo, 7 Phil., 15; Soler vs. Alzoua and Mitchell, 8 Phil., 539; Pea vs. Mitchell, 9 Phil., 587 and 10 Phil., 739; Meyers vs. Thein, 15 Phil., 303; McMicking vs. Co Piaco, 24 Phil., 439; Mc Micking vs. Lichauco, 27 Phil., 386; Molina Salvador vs. Somes, 31 Phil., 76; E. Viegelmann & Co., vs. Perez, 37 Phil., 678; Javellana vs. Mirasol and Nuez, 40 Phil., 761; Tec Bi & Co. vs. Chartered Bank of India, Australia and China, 41 Phil., 819; and Kuenzle & Streiff vs. Villanueva, 41 Phil., 611.). As regards the Insolvency Law (Act No. 1956) this court has also invariably declared that said preferences and priorities were not repealed by it, but they are included in the word "lien" as used in section 59 of said Act, as amended.(E. Viegelmann & Co. vs. Perez, supra; Tec Bi & Co. vs. Chartered Bank of India, Australia and China,supra; Hunter, Kerr & Co. vs. Murray, 48 Phil., 499; and O'Brein vs. China Banking Corporation, 55 Phil., 353.)

In Tec Bi & Co. case this court, after a careful review of all the laws relating to the provisions of section 59 of the Insolvency Law, said: It has been suggested that under our former rulings, these "statutory preferences" cannot be treated asliens affecting the property of the debtor, as that word is used in the above cited section of the Bankruptcy Act. But while it is true that we have held in a number of decisions, that these "statutory preferences" of the Civil Code are not liens in the strict and limited sense of that word as used in Anglo-American jurisprudence, and while we have taken considerable pains to distinguish the nature and effect of these "statutory preferences" (sometimes called "civil law liens" by American law writers), from that of "liens", as that word is used in the strict technical parlance of the American and English authorities; nevertheless, there can be no question that when a right to one of these "statutory preferences" has actually been asserted, in the course of judicial proceedings which have for their object the distribution of funds derived from the sale of all or any part of the assets of the debtor, by a proper party to such proceedings, as intervenor or otherwise; the consequences flowing therefrom are closely assimilated to, and substantially identical with those arising as a result of the assertion in the course of such proceedings, of a recorded "liens" as used in section 59 of the Insolvency Law should be held to include "statutory preferences" such as those now under consideration if and when they are duly asserted in the course of bankruptcy proceedings. We are not unaware of the fact that this construction of the language of the statute may give rise to some practical difficulties in the administration in insolvency proceedings; but we do not apprehend that these difficulties will prove to be any less surmountable than similar practical difficulties with which our courts have been confronted, in applying and construing the terms of many other statutes enacted in recent years, wherein the general provisions and the terminology in which they are expressed have been borrowed directly from American or English precedents, in the enactment of which the legislator had in mind provisions of substantive law radically different from those of the Spanish substantive law still in force in these Islands.

Strong and compelling reasons of public policy, in this jurisdiction as elsewhere, have resulted in the enactment of legislation providing special security in one form or another, for credits for construction, repair and preservation of personal property; transportation charges; seeds and other agricultural advances; rents; credits evidenced in solemn judgments; and the like. The security in such cases, furnished under statutory authority in the United States, in the form of liens on the property of the debtor, was not affected, nor intended to be affected by the enactment of the American prototypes of the provisions of our Insolvency Law and our Code of Civil Procedure; and we are satisfied that it was not the intention of the legislature to destroy, without providing a substitute therefor, the security in the form of "statutory preferences" furnished in our Civil Code in like cases, and that the language of these statutes does not sustain such a contention.

Merchants, manufacturers, bankers and the public in general have relied upon the uniform decisions and rulings of this court and they have undoubtedly been guided in their transactions in accordance with what we then said to be the correct construction of the law. Now, without any new and powerful reason we try to substantially modify our previous rulings by declaring that the preferences and priorities above referred to are not recognized by the Insolvency Law. The Legislature has had occasion to review our rulings in the cases above cited and it could readily have amended the law had it been of the opinion that said policy was unsound or inadvisable. In our opinion the principle of stare decisis et non quieta movere should be maintained and respected and for this reason we dissent from the opinion of the majority and we believe that the appealed decision should be reversed. Avancea, C.J., and Villa-real, J., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. L-69773-75 August 28, 1986 HABIB ALI, et al., petitioners, vs. THE COMMISSION ON ELECTIONS, et al., respondents. G.R. Nos. L-69765-67 August 28, 1986 MAHADI M. PIMPING, petitioner, vs. THE COMMISSION ON ELECTIONS, et al., respondents. G.R. No. L-69846 August 28, 1986 RASHID SAMPACO, petitioner, vs. THE COMMISSION ON ELECTIONS, et al., respondents. R E SO L U T I O N

ALAMPAY, J.: In the majority decision of the Court, promulgated on November 19, 1985, rendered in the three above captioned cases, which were all decision of the Court, promulgated on November 19, 1985, rendered in the three above captioned cases, which were all consolidated, the separate petitions for certiorari filed by the respective petitioners therein were dismissed for lack of merit. On December 13, 1985, a joint motion for reconsideration of the aforestated decision was filed by petitioner Mahadi M. Pimping, in G.R. Nos. 69765-67 and by petitioners, Habib Ali, et al., in G.R. Nos. 69773-75. Likewise, in G.R. No. 69846, a similar motion for reconsideration, dated December 20, 1985, was submitted by petitioner Rashid Sampaco thru his counsel. In the resolution of the Court dated January 7, 1986, respondents were asked to comment on the aforestated motions for reconsideration. On February 21, 1986, the Office of the Solicitor General as counsel for public respondent Commission on Elections, moved to dismiss said motions for reconsideration for lack of merit, contending that said motions are pro forma, and do not raise any new and substantial argument that may justify a modification or reversal of the decision in this case.

Considering the events which thereafter transpired, and which led to a change in administration of our government, pursuant, therefore, to the provisions of Section 18 of Rule 3, of the Rules of Court, the new Solicitor General, by our resolution of April 3, 1986 and reiterated in another resolution dated April 29, 1986, was directed to submit his Comment on said motions filed by the respective petitioners therein, for reconsideration of the decision of November 19, 1985, and to state whether or not he maintains the action and position taken by his predecessor in office. In their manifestation of compliance, dated April 22, 1986, petitioners Mahadi M. Pimping and Habib All, et al., in G.R. Nos. 69765-67 and G.R. Nos. 69773-75, thru a common counsel, expressed the view that the instant cases have not become moot with the change of administration and the expiration of the term of the officers involved, because the determination of the validity of the elections of private respondents will have a bearing on the right of petitioners to claim for damages. Respondent Salam N. Pangadapun in G.R. Nos. 69765-67, complying with the Court's resolution of April 3, 1986, in her Manifestation dated May 30, 1986 states that the said case has already become moot and academic, considering that an officer-in-charge has already been appointed to the contested position. Complying with the mentioned resolutions of this Court, the new Solicitor General, as counsel for public respondent COMELEC, submitted a manifestation, dated May 7, 1986, stating therein that the COMELEC, in its letter dated April 30, 1986, maintains the validity of its decision in installing as local elective officials in Marawi City the private respondents named in the petitions. However, public respondent COMELEC states that on the basis of the information received from the Ministry of Local Government, Messrs. Hadji Abbas M. Basman and Sultan Ali M. Mindalano have now been designated as officers-in-charge for the offices of Mayor and Vice-Mayor of Marawi City, respectively. In the stated manifestation of the new Solicitor General, the Court finds no statement that there is any need for any modification, much less reversal of the decision rendered in this case. In view of all the foregoing, the Court Resolved to DENY the motions for reconsideration filed by the herein petitioners in the three aforementioned cases for lack of merit and on the further consideration that the said motions have now been rendered moot and academic. Narvasa, Melencio-Herrera and Gutierrez, JJ., concur.

Separate Opinions

TEEHANKEE, C.J., dissenting: maintained his dissent from the majority decision of November 19, 1985. While the pending motions for reconsideration of the decision may be said to have been rendered moot and academic by the appointments of officers-in-charge to the contested positions with the change of government since February 25, 1986 under a new President of the Republic, Her Excellency Corazon C. Aquino, still the glaring errors of law committed by the Comelec at the time should not be allowed to stand uncorrected and unrectified in our jurisprudence books. For brevity's sake, I reproduce herein by reference my dissenting opinion of November 19, 1985. The main thesis of my dissent is that the Comelec may not arbitrarily decide an election protest based on alleged widespread election frauds and irregularities claimed to have been committed by the contending parties-which essentially requires the revision, recount and appreciation of the ballots cast without conducting such revision, recount and appreciation. The reasons for this stand may be briefly restated, as follows: (a) Commissioner Ramon H. Felipe, Jr., in abstaining from the questioned Resolution aptly stated that "I abstained in view of the lack of necessary revision of ballots in the protested and counter-protested precincts in spite of the long pendency of this case for the past 4 years, which revision would have furnished us an impartial basis for a fair decision;" (b) The Comelec's very own rules mandatorily require (not directorily, as presumed without basis or citation by the majority decision) such revision and recount of the ballots, in line with the long-established usage since elections were held in the country; (c) Both protagonists for the vice-mayoralty prayed in their pleadings for such revision, recount and appreciation of the ballots cast in the questioned voting centers; (d) The Comelec was remiss in not discharging its ministerial duty under its own above-cited rules to appoint the committees on revision of the ballots and to order the protagonists to submit their respective members and substitutes. The Comelec allowed four years to be spent by the experts in examining the ballots. When it realized that there was only one year more left of the office terms, it could not, without violating due process, short-circuit the proceedings brought about by its own inaction, skip the revision and recount as "dilatory" when such recount is the very heart of election protests, and rush to half-baked judgment. It is elementary in election cases, that the private interest of the candidates is merely incidental, what matters is the public interest in the institution of free and honest suffrage and the determination of the true results and true verdict of the electorate.

Respondent Comelec disregarded its own Rules and denied due process to petitioners in the promulgation of the questioned Resolution. Under its own Resolution No. 1450, the promulgation shall be on a date previously fixed with advance notice served on the parties or their counsels. No such notice was given to petitioners-protegees. But applying a double standard, respondents-protestants were served copy of the Resolution and Order denying reconsideration and declaring the Resolution "final and executory" in their favor, on the very same day that they were dated, January 7, 1985 and January 29, 1985, respectively. Petitioners learned of the Comelec adverse action only in the newspapers. Such discriminatory treatment allowed respondents to unlawfully assume the contested offices with the military's intervention without giving petitioners an opportunity to seek timely injunctive relief from this Court and notwithstanding the Minister of Local Government's opinion that the Comelec decision was not final and was subject to this Court's final review and decision. Needless to say, the Comelec Rule (section 23 of Res. No. 1450) making its decision "final and executory" ten (10) days after their promulgation is manifestly void and unconstitutional when Article XII-C, section 11 of the Constitution provides a thirty-day period for appeal of any Comelec decision or ruling to the Supreme Court, thus: "Any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof." While the case may have become moot, this Court should go on record as disowning the unpredictable and improvised decisions of the Comelec in the past regime, whereby it arbitrarily disregarded its own settled rules and the parties' basic rights to due process. Feria, Yap, Fernan, Cruz and Paras, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-46930 June 10, 1988 DALE SANDERS, AND A.S. MOREAU, JR, petitioners, vs. HON. REGINO T. VERIDIANO II, as Presiding Judge, Branch I, Court of First Instance of Zambales, Olongapo City, ANTHONY M. ROSSI and RALPH L. WYERS, respondents.

CRUZ, J.: The basic issue to be resolved in this case is whether or not the petitioners were performing their official duties when they did the acts for which they have been sued for damages by the private respondents. Once this question is decided, the other answers will fall into place and this petition need not detain us any longer than it already has. Petitioner Sanders was, at the time the incident in question occurred, the special services director of the U.S. Naval Station (NAVSTA) in Olongapo City. 1 Petitioner Moreau was the commanding officer of the Subic Naval Base, which includes the said station. 2 Private respondent Rossi is an American citizen with permanent residence in the Philippines, 3 as so was private respondent Wyer, who died two years ago. 4 They were both employed as gameroom attendants in the special services department of the NAVSTA, the former having been hired in 1971 and the latter in 1969. 5 On October 3, 1975, the private respondents were advised that their employment had been converted from permanent full-time to permanent part-time, effective October 18, 1975. 6 Their reaction was to protest this conversion and to institute grievance proceedings conformably to the pertinent rules and regulations of the U.S. Department of Defense. The result was a recommendation from the hearing officer who conducted the proceedings for the reinstatement of the private respondents to permanent full-time status plus backwages. The report on the hearing contained the observation that "Special Services management practices an autocratic form of supervision." 7 In a letter addressed to petitioner Moreau on May 17, 1976 (Annex "A" of the complaint), Sanders disagreed with the hearing officer's report and asked for the rejection of the abovestated recommendation. The letter contained the statements that: a ) "Mr. Rossi tends to alienate most co-workers and supervisors;" b) "Messrs. Rossi and Wyers have proven, according to their immediate supervisors, to be difficult employees to supervise;" and c) "even

though the grievants were under oath not to discuss the case with anyone, (they) placed the records in public places where others not involved in the case could hear." On November 7, 1975, before the start of the grievance hearings, a-letter (Annex "B" of the complaint) purportedly corning from petitioner Moreau as the commanding general of the U.S. Naval Station in Subic Bay was sent to the Chief of Naval Personnel explaining the change of the private respondent's employment status and requesting concurrence therewith. The letter did not carry his signature but was signed by W.B. Moore, Jr. "by direction," presumably of Moreau. On the basis of these antecedent facts, the private respondent filed in the Court of First Instance of Olongapo City a for damages against the herein petitioners on November 8, 1976. 8 The plaintiffs claimed that the letters contained libelous imputations that had exposed them to ridicule and caused them mental anguish and that the prejudgment of the grievance proceedings was an invasion of their personal and proprietary rights. The private respondents made it clear that the petitioners were being sued in their private or personal capacity. However, in a motion to dismiss filed under a special appearance, the petitioners argued that the acts complained of were performed by them in the discharge of their official duties and that, consequently, the court had no jurisdiction over them under the doctrine of state immunity. After extensive written arguments between the parties, the motion was denied in an order dated March 8, 1977, 9on the main ground that the petitioners had not presented any evidence that their acts were official in nature and not personal torts, moreover, the allegation in the complaint was that the defendants had acted maliciously and in bad faith. The same order issued a writ of preliminary attachment, conditioned upon the filing of a P10,000.00 bond by the plaintiffs, against the properties of petitioner Moreau, who allegedly was then about to leave the Philippines. Subsequently, to make matters worse for the defendants, petitioner Moreau was declared in a default by the trial court in its order dated August 9, 1977. The motion to lift the default order on the ground that Moreau's failure to appear at the pre-trial conference was the result of some misunderstanding, and the motion for reconsideration of the denial of the motion to dismiss, which was filed by the petitioner's new lawyers, were denied by the respondent court on September 7, 1977. This petition for certiorari, prohibition and preliminary injunction was thereafter filed before this Court, on the contention that the above-narrated acts of the respondent court are tainted with grave abuse of discretion amounting to lack of jurisdiction. We return now to the basic question of whether the petitioners were acting officially or only in their private capacities when they did the acts for which the private respondents have sued them for damages.

It is stressed at the outset that the mere allegation that a government functionary is being sued in his personal capacity will not automatically remove him from the protection of the law of public officers and, if appropriate, the doctrine of state immunity. By the same token, the mere invocation of official character will not suffice to insulate him from suability and liability for an act imputed to him as a personal tort committed without or in excess of his authority. These wellsettled principles are applicable not only to the officers of the local state but also where the person sued in its courts pertains to the government of a foreign state, as in the present case. The respondent judge, apparently finding that the complained acts were prima facie personal and tortious, decided to proceed to trial to determine inter alia their precise character on the strength of the evidence to be submitted by the parties. The petitioners have objected, arguing that no such evidence was needed to substantiate their claim of jurisdictional immunity. Pending resolution of this question, we issued a temporary restraining order on September 26, 1977, that has since then suspended the proceedings in this case in the courta quo. In past cases, this Court has held that where the character of the act complained of can be determined from the pleadings exchanged between the parties before the trial, it is not necessary for the court to require them to belabor the point at a trial still to be conducted. Such a proceeding would be superfluous, not to say unfair to the defendant who is subjected to unnecessary and avoidable inconvenience. Thus, in Baer v. Tizon, 10 we held that a motion to dismiss a complaint against the commanding general of the Olongapo Naval Base should not have been denied because it had been sufficiently shown that the act for which he was being sued was done in his official capacity on behalf of the American government. The United States had not given its consent to be sued. It was the reverse situation in Syquia v. Almeda Lopez," where we sustained the order of the lower court granting a where we motion to dismiss a complaint against certain officers of the U.S. armed forces also shown to be acting officially in the name of the American government. The United States had also not waived its immunity from suit. Only three years ago, in United States of America v. Ruiz, 12 we set aside the denial by the lower court of a motion to dismiss a complaint for damages filed against the United States and several of its officials, it appearing that the act complained of was governmental rather than proprietary, and certainly not personal. In these and several other cases 13 the Court found it redundant to prolong the other case proceedings after it had become clear that the suit could not prosper because the acts complained of were covered by the doctrine of state immunity. It is abundantly clear in the present case that the acts for which the petitioners are being called to account were performed by them in the discharge of their official duties. Sanders, as director of the special services department of NAVSTA, undoubtedly had supervision over its personnel, including the private respondents, and had a hand in their employment, work assignments, discipline, dismissal and other related matters. It is not disputed that the letter he had written was in fact a reply to a request from his superior, the other petitioner, for more information regarding the case of the private respondents. 14 Moreover, even in the absence of such request, he still was within his rights in reacting to the hearing officer's criticismin effect a

direct attack against him-that Special Services was practicing "an autocratic form of supervision." As for Moreau,what he is claimed to have done was write the Chief of Naval Personnel for concurrence with the conversion of the private respondents' type of employment even before the grievance proceedings had even commenced. Disregarding for the nonce the question of its timeliness, this act is clearly official in nature, performed by Moreau as the immediate superior of Sanders and directly answerable to Naval Personnel in matters involving the special services department of NAVSTA In fact, the letter dealt with the financial and budgetary problems of the department and contained recommendations for their solution, including the re-designation of the private respondents. There was nothing personal or private about it. Given the official character of the above-described letters, we have to conclude that the petitioners were, legally speaking, being sued as officers of the United States government. As they have acted on behalf of that government, and within the scope of their authority, it is that government, and not the petitioners personally, that is responsible for their acts. Assuming that the trial can proceed and it is proved that the claimants have a right to the payment of damages, such award will have to be satisfied not by the petitioners in their personal capacities but by the United States government as their principal. This will require that government to perform an affirmative act to satisfy the judgment, viz, the appropriation of the necessary amount to cover the damages awarded, thus making the action a suit against that government without its consent. There should be no question by now that such complaint cannot prosper unless the government sought to be held ultimately liable has given its consent to' be sued. So we have ruled not only in Baer but in many other decisions where we upheld the doctrine of state immunity as applicable not only to our own government but also to foreign states sought to be subjected to the jurisdiction of our courts. 15 The practical justification for the doctrine, as Holmes put it, is that "there can be no legal right against the authority which makes the law on which the right depends. 16 In the case of foreign states, the rule is derived from the principle of the sovereign equality of states which wisely admonishes that par in parem non habet imperium and that a contrary attitude would "unduly vex the peace of nations." 17 Our adherence to this precept is formally expressed in Article II, Section 2, of our Constitution, where we reiterate from our previous charters that the Philippines "adopts the generally accepted principles of international law as part of the law of the land. All this is not to say that in no case may a public officer be sued as such without the previous consent of the state. To be sure, there are a number of well-recognized exceptions. It is clear that a public officer may be sued as such to compel him to do an act required by law, as where, say, a register of deeds refuses to record a deed of sale; 18or to restrain a Cabinet member, for example, from enforcing a law claimed to be unconstitutional; 19 or to compel the national treasurer to pay damages from an already appropriated assurance fund; 20 or the commissioner of internal revenue to refund tax over-payments from a fund already available for the

purpose; 21 or, in general, to secure a judgment that the officer impleaded may satisfy by himself without the government itself having to do a positive act to assist him. We have also held that where the government itself has violated its own laws, the aggrieved party may directly implead the government even without first filing his claim with the Commission on Audit as normally required, as the doctrine of state immunity "cannot be used as an instrument for perpetrating an injustice." 22 This case must also be distinguished from such decisions as Festejo v. Fernando, 23 where the Court held that a bureau director could be sued for damages on a personal tort committed by him when he acted without or in excess of authority in forcibly taking private property without paying just compensation therefor although he did convert it into a public irrigation canal. It was not necessary to secure the previous consent of the state, nor could it be validly impleaded as a party defendant, as it was not responsible for the defendant's unauthorized act. The case at bar, to repeat, comes under the rule and not under any of the recognized exceptions. The government of the United States has not given its consent to be sued for the official acts of the petitioners, who cannot satisfy any judgment that may be rendered against them. As it is the American government itself that will have to perform the affirmative act of appropriating the amount that may be adjudged for the private respondents, the complaint must be dismissed for lack of jurisdiction. The Court finds that, even under the law of public officers, the acts of the petitioners are protected by the presumption of good faith, which has not been overturned by the private respondents. Even mistakes concededly committed by such public officers are not actionable as long as it is not shown that they were motivated by malice or gross negligence amounting to bad faith. 24 This, to, is well settled . 25 Furthermore, applying now our own penal laws, the letters come under the concept of privileged communications and are not punishable, 26 let alone the fact that the resented remarks are not defamatory by our standards. It seems the private respondents have overstated their case. A final consideration is that since the questioned acts were done in the Olongapo Naval Base by the petitioners in the performance of their official duties and the private respondents are themselves American citizens, it would seem only proper for the courts of this country to refrain from taking cognizance of this matter and to treat it as coming under the internal administration of the said base. The petitioners' counsel have submitted a memorandum replete with citations of American cases, as if they were arguing before a court of the United States. The Court is bemused by such attitude. While these decisions do have persuasive effect upon us, they can at best be invoked only to support our own jurisprudence, which we have developed and enriched on the basis of our own persuasions as a people, particularly since we became independent in 1946. We appreciate the assistance foreign decisions offer us, and not only from the United States but also from Spain and other countries from which we have derived some if not most of our own

laws. But we should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which we cannot come to our own decisions through the employment of our own endowments We live in a different ambience and must decide our own problems in the light of our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and justice. The private respondents must, if they are still sominded, pursue their claim against the petitioners in accordance with the laws of the United States, of which they are all citizens and under whose jurisdiction the alleged offenses were committed. Even assuming that our own laws are applicable, the United States government has not decided to give its consent to be sued in our courts, which therefore has not acquired the competence to act on the said claim,. WHEREFORE, the petition is GRANTED. The challenged orders dated March 8,1977, August 9,1977, and September 7, 1977, are SET ASIDE. The respondent court is directed to DISMISS Civil Case No. 2077-O. Our Temporary restraining order of September 26,1977, is made PERMANENT. No costs. SO ORDERED. Narvasa, Gancayco, Grino-Aquio and Medialdea, JJ., Concur.

Footnotes
1 Rollo, pp. 2, 26. 2 Ibid. 3 Id. 4 Id., p. 319. 5 Id., pp. 4, 27, 91. 6 Id., pp. 5, 91. 7 Id., p. 5, 28, 91. 8 Id., pp- 26-34. 9 Id., pp- 90-94. 10 57 SCRA 1. 11 84 Phil. 312.

12 136 SCRA 487. 13 Lim v. Brownell, et al., 107 Phil. 344; Parreo v. McGranery, 92 Phil. 791; Lim v. Nelson, 87 Phil. 328; Marvel Building Corp. v. Philippine War Damage Commission, 85 Phil. 27. 14 Rollo, pp. 35-40. 15 Syquia v. Almeda Lopez, supra; Marvel Building Corp. v. Philippine War Damage Commission,supra; Lim v. Nelson, supra; Philippine Alien Property Administration v. Castelo, 89 Phil. 568; Parreo v. McGranery, supra; Johnson v. Turner, 94 Phil. 807-all cited in Baer case; United States of America v. Ruiz, supra. 16 Kawanakoa v. Polybank, 205 U.S. 349. 17 De Haber v. Queen of Portugal, 17 QB 171. 18 Krivenko v. Register of Deeds, 79 Phil. 461. 19 Javellana v. Executive Secretary, 50 SCRA 30: Ichong v. Hernandez, 101 Phil. 1155. 20 Treasurer of the Philippines v. Court of Appeals, G.R. No. L-42805, August 31, 1987. 21 National Development Company v. Commissioner of Internal Revenue, 151 SCRA 472. 22 Amigable v. Cuenca, 43 SCRA 360, reiterating Ministerio v. Court of First Instance of Cebu, 40 SCRA 464. 23 50 O.G. 1556. 24 Philippine Racing Club, Inc., et al. v. Bonifacio, et al., 109 Phil. 233. 25 Cabungcal, et al. v. Cordova, et al., 11 SCRA 584, cited in Mabutol v. Pascual, 124 SCRA 867; Mindanao Realty Corp. v. Kintanar, 6 SCRA 814; U.S. v. Santos, 36 Phil. 853. 2' 26 Art. 354, par. 1, Revised Penal Code; see also U.S. v. Bustos, 37 Phil. 731; and Deano v. Godinez, 12 SCRA 843.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-58289 July 24, 1982 VALENTINO L. LEGASPI, petitioner, vs. THE HONORABLE MINISTER OF FINANCE and THE HONORABLE COMMISSIONER and/or THE BUREAU OF INTERNAL REVENUE; respondents.

BARREDO, J.: Petition filed by the Honorable Valentino L. Legaspi, incumbent member of the interim Batasang Pambansa, praying that this Court declare Presidential Decree 1840 "granting tax amnesty and filing of statement of assets and liabilities and some other purposes" unconstitutional. The petition contains the following allegations: 5. That said decree was issued by the President under supposed legislative powers granted him under Amendment No. 6 of the Constitution proclaimed in full force and effect as of October 27, 1976 pursuant to Proclamation No. 1595 and which is quoted as follows: Whenever in the Judgment of the President, 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 instruction, which shall form part of the law of the land. 6. That said decree was promulgated despite the fact that under the Constitution "(T)he legislative power shall be vested in a Batasang Pambansa" (Sec. 1, Article VIII) and the President may grant amnesty only with concurrence of the Batasang Pambansa (Sec. 11, Art. VII); 7. That Amendment No. 6 is not one of the powers granted the President by the Constitution as amended in the plebiscite of April 7, 1981; that while Section 16 of Art. VII of the Constitution provides:

All powers vested in the President of the Philippines under the 1935 Constitution and the laws of the land which are not herein provided for on conferred upon any official shall be deemed and are hereby vested in the President unless the Batasang Pambansa provides otherwise. such re-confirmation of existing powers did not mean to include the President's legislative powers under Amendment No. 6: by "the laws of the land which are not herein provided for or conferred upon any official" only those laws that have been passed by the existing and/or prior legislature are intended; 8. That the Respondents are intending and in fact implementing the provisions of the questioned decree and the same tends to affect all taxpayers in the Philippines including herein Petitioner; that he is now in a quandary on whether to take advantage of the benefits of said decree since the same is of doubtful constitutionality leaving him no protection as guaranteed by the decree and thus subject him to prosecution for violation of which otherwise would have held him immune under said decree; 9. That as a member of the Batasang Pambansa he knows that the subject of the questioned decree has not been brought to the attention of the Batasang Pambansa requiring immediate attention, the fact being that the original tax amnesty decree which the questioned decree amended or modified has long been effective and implemented by the Respondents while the Batasang Pambansa was in session; 10. That Presidential Decree No. 1840 is patently null and void having been passed without the concurrence of the Batasang Pambansa and it is likewise of public interest and of the nation that the question of whether the President retained his legislative power after lifting Martial Law and after the Constitution was amended on April 7, 1981 be resolved; 11. That the questioned decree being the first dated after the lifting of Martial Law and the April 7 amendments brings to test the validity of the exercise of standby emergency powers invoked in Amendment No. 6. (Pp. 3-6, record.) As the petitioner himself puts it in his memorandum, the issue is: Whether the 1973 Constitution as amended by Plebiscite-Referendum of 1976, retained the same amendments, more particularly Amendment No. 6, after it was again amended in the Plebiscite held on April 7, 1981? On the issue thus formulated by petitioner, it is maintained that "Amendment No. 6 is rendered inoperable, deleted and/or repealed by the amendments of April 7, 1981". Opening his discussion of this proposition thus:

Amendment No. 6 as originally submitted to the people for ratification under Pres. Dec. No. 1033, and thereafter approved reads as follows: 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 instruction, which shall form part of the law of the land. Whether the matter or that there was an exigency which required immediate action let it be conceded that in the judgment of the President such facts do exist. (Emphasis ours) It is to be observed that the original text mentions President (Prime Minister). This is so because under No. 3 of the same amendment, ... 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 1935 Constitution and the powers vested in the President and the Prime Minister under this Constitution. Parenthetically, the term "Incumbent President" employed in the transitory provisions could only refer to President Ferdinand E. Marcos (Aquino vs. Commission on Elections, 62 SCRA 275). After the April 7 amendments there exists no longer "a President (Prime Minister)" but "A President"and "A Prime Minister." They are now two different offices which cannot be held by a single person not a transitory one but a regular one provided for and governed by the main provisions of the newly amended Constitution. Subsequent events accept the reality that we are no longer governed by the transitory provisions of the Constitution. (Pp. 27-28, Record.) petitioner rationalizes his affirmative position thereon this wise: Is Amendment No. 6 of the 1973 Constitution as approved in 1976 reproduced or unaffected by the April 7, 1981 amendment? Or, is it considered repealed by Omission?

The Constitutional provisions of the Presidency do not restate the provisions of Amendment No. 6 which grants the President (Prime Minister) limited powers to legislate. This is tantamount to a withdrawal or deletion of such grant. There is no way by which the incumbent President be referred to anymore as the "incumbent President" in the amendment of 1976. While it is true that Amendment No. 6 fails to distinguish between "incumbent" and "regular" all provisions with reference to the powers of the Presidency is deemed foreclosed by Article VII of the newly amended Constitution. Article VII enumerates presidential powers. To construe that the 1976 Amendments are still applicable, other than that referring to the Interim Batasang Pambansa would be an incompatibility to the application of the present constitutional provisions. Generally taken, the 1976 amendments are amendments to the transitory provisions of the Constitution. Insofar as the office of the President or the Prime Minister is concerned they have ceased to be governed by the transitory provisions but under the newly amended Constitution. Batas Pambansa Blg. 125 called for the election of a President under the newly amended Constitution. President Marcos ran as candidate and was proclaimed the duly elected President of the Philippines by resolution no. 2 of the Batasang Pambansa dated June 21, 1981. He took his oath of office as the duly elected President. The Prime Minister, the Members of the Cabinet and the Executive Committee took their oaths after having been appointed and are now exercising their functions pursuant to the new provisions. We even consider ourselves the Fourth Republic because of a new system of government. What particular part of the newly amended Constitution would Amendment No. 6 fit in? President Ferdinand E. Marcos ceased to be the incumbent resident referred to in the transitory provisions or in the 1976 amendments. The Solicitor General argued that Amendment No. 6 provided for the contingency that the office would be separated consisting of a ceremonial President and a Prime Minister who will be he executive. Yet, without express constitutional grant the President now assumes a power intended to be that of the Prime Minister. The intent of the 1981 amendments could not be interpreted any other way except that after the amendment it would no longer be proper to exercise those reposed upon the Prime Minister. Powers previously reposed upon the Prime Minister were expressly removed from him and given to the President. Amendment No. 6 is not one of those. The proposed amendments under Batasan . No. 104 became Question No. 1 in the ballot of April 7, 1981 plebiscite to which the voter was asked (B.P. Blg. 122):

Do you vote for the approval of an amendment to the Constitution and to Amendment No. 2, as proposed by the Batasang Pambansa in Resolution No. 2, which, in substance, calls for the establishment of a modified parliamentary system, amending for this purpose Articles VII, VIII and IX of the Constitution, with the following principal features: ... Nowhere in feature (1) was it submitted that the President would enjoy conditional or qualified legislative powers as modified parliamentary system. The original intent to set out the original act or section as amended is most commonly indicated by a statement in the amendatory act that the original law is amended to "read as follows." The new statute is a substitute for the original act or section. Only those provisions of the original act or section repeated in the amendment are retained (Paras vs. Land Registration Commission, July 26, 1960, L-16011). That "The Legislative power shall be vested in the Batasang Pambansa" is an old provision which has been retained. This in essence was Question No. 1 in the April 7 Plebiscite as to who exercise legislative powers and who are to execute. Nowhere in the approved Amendment can it be hinted that the hybrid-type of government also includes a one-man legislature. The intent to repose legislation only upon the Batasan is very apparent. The adoption of the new Constitution repeals and supersedes all the provisions of the older one not continued in force by the new instrument (16 C.J.S. 88). (Pp. 30-33, Record.) After mature study and deliberation and considering the peculiar circumstances that dictated the formulation of Amendment No. 6, the Court's conclusion is, that Assemblyman-Petitioners posture lacks, to say the least, sufficient merit. Constitutional law is not simply the literal application of the words of the Charter. The ancient and familiar rule of constitutional construction that has consistently maintained its intrinsic and transcendental worth is that the meaning and understanding conveyed by the language, albeit plain, of any of its provisions do not only portray the influence of current events and developments but likewise the inescapable imperative considerations rooted in the historical background and environment at the time of its adoption and thereby caused their being written as part and parcel thereof. As long as this Court adheres closest to this perspective in viewing any attack against any part of the Constitution, to the end of determining what it actually encompasses and how it should be understood, no one can say We have misguided Ourselves. None can reasonably contend We are treading the wrong way. True enough Article VIII, Sec. 1 of the Philippine Constitution as amended in 1981 explicitly ordains that "(T)he legislative power shall be vested in a Batasang Pambansa". Section 2, however, readily reveals that the Batasang Pambansa contemplated in that Section 1 is the

regular assembly (formerly referred to as National Assembly, now as Batasang Pambansa evidently to indigenize the nomenclature, which, incidentally should have been done also with the Pangulo and Pangunang Ministro), to be elected in May 1984, per Sec. 5(1) of the same Article. Thus, to begin with, in the instant case, We must keep in mind that at least for the present and until 1984, what can be properly discussed here are only the legislative powers of the interim Batasang Pambansa as such. Without intending any reflection on any of those responsible for the Idea, it may be that it is for non-essential reasons that the current legislative assembly is being referred to generally simply as the Batasang Pambansa. For in legal truth and in actual fact, and as expressly admitted by petitioner, it is inherently no more no less than the same interim. Batasang Pambansa created by Amendment No. 2 by virtue of the Referendum-Plebiscite of October 16-17, 1976. And, in this connection, it may be observed that indubitably, and as a necessary and logical consequence, the amendment of Amendment No. 2 in 1981 carried with it the corresponding appropriate adjustments literal and otherwise of Amendment Nos. 3 and 4, although these latter two were not specifically mentioned in the proposal pursuant to BP-CA Resolution No. 4 of the Batasan, acting as a constituent body nor in the Plebiscite Referendum Act itself, much less in the ballots presented to and used by the voters. This is because it cannot be denied that Amendments 3 and 4 are by their very nature inseparable parts of amendment No. 2. But examining closely how the 1981 amendments altered Amendment No. 2, it will be readily seen that the only change consisted of the non-inclusion of the "incumbent President" as member of the assembly in pursuance of the fundamental objective to separate the Presidency from the regular legislative body and thereby establish in our country a modified form of parliamentary government more appropriate for and suitable to the peculiar conditions of our political development and the idiosyncrasies of our people, and at the same time introduce into it features that would strengthen its structure so as to enable the government to cope with emergencies or abnormal situations, not only like those that presently exist but even those that might arise in the future. Thus, it is characterized with a presidency more powerful than the idea of a strong President desired by President Quezon and actually embodied in the 1935 Constitution. It is, therefore, evident that the reference to Amendment No. 2 in the amendments of 1981 was not intended at all to convert or upgrade the present existing assembly into the regular Batasang Pambansa. To repeat, what we have now is still the interim Batasang Pambansa created in 1976. Importantly, it must be said that had the present Batasan, acting as a constituent body, ever thought of making itself the regular National Assembly, the very odious spectacle that the people rejected when in the referendum of January 10-15, 1973 they repulsed and repudiated the interim National Assembly provided for in Sections 1 and 2 of Article XVII (Transitory Provisions) of the 1973 Constitution whereby the members of the old Congress of the Philippines made themselves automatically members of the interim assembly would have resuscitated, and we can readily imagine how the reaction of our people would have been exactly the same as in 1973 and for sure the 1981 proposed constitutional amendment affecting the Batasang would again have been denied sanction by our people.

Having arrived at the ineludible that the present Batasan is still interim, it also ineluctably follows that its legislative authority cannot be more exclusive now after 1981 amendments than when it was originally created in 1976. Thus even as the interim Batasan which came into being "in lieu of the Interim National Assembly" by virtue of Amendment No. 2 consequently acquired "the same powers and its Members the same functions, responsibilities, rights and privileges, and disqualifications as the regular National Assembly and the members thereof", there can be no question that coeval with the creation of the interim Batasan, Amendment No. 6 came into force and effect. And Amendment No. 6 mandates in unequivocal and unambiguous terms the grant of concurrent legislative authority to an official (the President [Prime Minister]) who is not in the Batasan itself. In brief, the inexorable logic of the events that brought forth the present Batasan leads to no other conclusion than that the legislative authority vested in it by Amendment No. 2, read together with Section 1, Article XVII and Section 1, of Article VIII of the 1973 Constitution, is subject to the external concurrent legislative prerogative that Amendment No. 6 vests on the "President (Prime Minister)." Actually, the insistence of petitioner that Amendment No. 6 has been repealed by the 1981 amendments springs from another point of view. It is fundamentally based on analysis and ratiocination related to the language and tenor thereof. Petitioner maintains that said amendments vested extraordinary legislative powers on "the President (Prime Minister)" and on nobody else, and since there is no one who is President (Prime Minister) under our present governmental set-up pursuant to 1981 amendments, no one in the existing government can exercise said powers. The persuasive force of such theory is more apparent than real. As We have said earlier, the Constitution is not merely a literal document to be always read according to the plain and ordinary signification of its words. Beneath and beyond the literal terms of the Charter, like a mine of incalculably immense treasures, are elements and factors radiating from political and economic developments of the situation prevailing at the time of the inclusion of any particular provision thereof or amendment thereto. It is only from the light of the implications of such elements and factors that the real essence and significance of the words of the constitutional provision under scrutiny can be properly and adequately seen and comprehended. With reference to Amendment No. 6, it is of decisive importance that anyone who would try to decipher its true import should be acquainted with its ration d'tre, i.e., the whys and the wherefores thereof. Contrary to the imputations of petitioner, this amendment is not rooted in the authoritarian, much less dictatorial tendencies or inclinations of anyone. Any tinge or tint of authoritarianism in it is not there for the sake of the Ideology of dictatorship or authoritarian itself. Such hue of a one-man authoritarianism it somehow connotes is there only because it is so dictated by paramount considerations that are needed in order to safeguard the very existence and integrity of the nation and all that it stands for. Perhaps the truismalmost a dogmawell recognized by constitutionalists and political scientists of all persuasions as a convenient pragmatic rule for survival of nations, namely, that in an emergency, the best form of

government is a dictatorship, might have been in the mind of those who formulated it, but it is quite obvious, as will be explained anon, that other fundamental factors must have been taken into account in order precisely to minimize the rigors and generally feared oppressiveness of a dictatorship in an unrestricted martial regime, its being dubbed as martial law "Philippine style" notwithstanding. At this juncture, it must be emphatically made clear that explicitly the power that Amendment No. 6 vests upon the "President (Prime Minister)" are to be exercised only on two specified occasions, namely, (1) "when in (his judgment) a grave emergency exists or there is a threat or imminence thereof" and (2) "whenever the interim Batasang Pambansa or the regular National Assembly (now regular Batasang Pambansa) fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action." The power is to "issue necessary decrees, orders, or letters of instruction which shall form part of the law of the land." As the tenor of the amendment readily imparts, such power may be exercised even when the Batasan is in session. Obviously, therefore, it is a power that is in the nature of the other Powers which the Constitution directly confers upon the President or allows to be delegated to him by the Batasan in times of crises and emergencies. Indeed, it is but fitting and proper that in framing the fundamental law of the land which sets up a form of government and defines and delimits the powers thereof and its officers, reserving as they must plenary sovereignty to themselves, the people should prudently provide what powers may and should be exercised by the government and/or its officials in times of crises and emergencies that could jeopardize the very life and/or territorial integrity of the country. Even as individual rights and liberties are valued and enshrined as inviolable, the people, as they write their Charter thru a convention or other legitimate means, cannot ignore that in the event of war, insurrection, rebellion or invasion, including any other critical situation, any one of which cannot but affect the regular course of normal constitutional processes and institutions as well as the prerogatives and freedoms of individual citizens of and inhabitants within the country, appropriate protective, defensive and rehabilitative measures must be provided therein and may be made to function or operate. Accordingly, both in the 1935 Constitution of the Philippines and in that of 1973, the following provisions were precisely intended to operate during such perilous situations: 1. In times of war or other national emergency, the Batasang Pambansa may by law authorize the President for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Batasang Pambansa, such powers shall cease upon its next adjournment. The 1935 version of this provision differs from it in that what was granted to the President was not the broad authority "to exercise such powers necessary and proper" but only to issue rules and regulations purported to accomplish the same objective. 2. Section 10(2) of Article VII of the 1935 Constitution provided thus:

... (2) The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection or rebellion or imminent danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under the martial law... Under Section 12 of Article IX of the 1973 Constitution, exactly the same powers were conferred on the Prime Minister. However, what is now Section 9 of Article VIII under the 1981 amendments transferred all said powers to the President. As can be seen, as authorized by the Commander-in-Chief clause of all our Constitutions, there have been as there still are three other measures that may be resorted to during an emergency, namely: (1) Call out such armed forces to prevent or suppress lawless violence, invasion, insurrection or rebellion or imminent danger thereof, when public safety requires it; (2) Suspend the privilege of the writ of habeas corpus, and (3) Place the Philippines or any part thereof under martial law. It appears, therefore, that within the four corners of the Constitution itself, whether that of 1935 or that of 1973, there were four constitutionally designed ways of coping with abnormal situations in the country, namely: (1) the so-called emergency powers delegated by the assembly to the President; (2) the calling of the armed forces; (3) the suspension of the privilege of the writ of habeas corpus and (4) the placing of the country or any part thereof under martial law. Understandably, it is to be supposed that these measures are to be resorted to one after the other according to the degree of gravity of the situation. A backward glance at our past experiences since the implantation of American sovereignty in our country at the turn of the century should remind us that at one time or another all of these four measures have been resorted to, albeit martial law proclamations in the long past were limited in area and duration because of the localized nature of the disturbances they were meant to remedy. Bearing all the foregoing considerations in mind, the question that naturally arises at this juncture is what need is there for the power contemplated in Amendment No. 6? Why does the country have to have a one-man legislating authority concurrent with the Batasang Pambansa? Are the above-discussed safeguards not enough?

At this point, it must be noted that Amendment No. 6 does not refer only to the interim Batasang Pambansa but also to the regular "National Assembly" (now Batasang Pambansa), a consideration which lends force to the conclusion that the 1981 amendments could not have been intended nor understood to do away with it. What, indeed, is the fundamental ration d'tre of Amendment No. 6? It is to be recalled that the said amendment was formulated in October 1976, more than fully four years after the whole Philippines was first placed under martial law pursuant to Proclamation 1081 dated September 21, 1972. True, without loss of time, President Marcos made it clear that there was no military take-over of the government, and that much less was there being established a revolutionary government, even as he declared that said martial law was of a double-barrelled typed, unfamiliar to traditional constitutionalists and political scientists for two basic and transcendental objectives were intended by it: (1) the quelling of nationwide subversive activities characteristic not only of a rebellion but of a state of war fanned by a foreign power of a different Ideology from ours, and not excluding the stopping effectively of a brewing, if not a strong separatist movement in Mindanao, and (2) the establishment of a New Society by the institution of disciplinary measures designed to eradicate the deep-rooted causes of the rebellion and elevate the standards of living education and culture of our people, and most of an the social amelioration of the poor and underprivileged in the farms and in the barrios, to the end that hopefully insurgency may not rear its head in this country again. The immediate reaction of some sectors of the nation was of astonishment and dismay, for even if everyone knew that the gravity of the disorder, lawlessness, social injustice, youth and student activism and other disturbing movements had reached a point of peril, they felt that martial law over the whole country was not yet warranted. Worse, political motivations were ascribed to be behind the proclamation, what with the then constitutionally unextendible term of President Marcos about to expire, and this suspicion became more credible when opposition leaders and outspoken anti-administration media people who did not hesitate to resort even to libel were immediately placed under indefinite detention in military camps and other unusual restrictions were imposed on travel, communication, freedom of speech and of the press, etc. In a word, the martial law regime was anathema to no small portion of the populace. Criticisms or objections thereto were, of course, mostly covert, but there were even instances of open resistance. Truth to tell, martial law is generally unwelcome anywhere in the world. And when it is prolonged without anyone knowing when it would be lifted, the feeling of discontent grows and spreads. Indeed, it is difficult to describe fully in an opinion like this all that many consider obnoxious in martial law. Suffice it to say that the New Society that came out of it did have its laudatory features appreciated by large segments of the people, but with many cases of abuses of the military marring such receptive attitude, the clamor for the early lifting of martial law became more and more audible. We can definitely say that no one more than President Marcos was aware of those feelings and sentiments and, in fact, even of the undercurrents of resistance. And as We visualize the situation he found himself in, he was faced with no less than a dilemma. He was convinced of

the advantages, not personally to him, but to general welfare of martial law, but at the same time he was also conscious that martial law, in any form call it Philippine style, smiling, benign or with any other euphemistic adjective was growing to be more and more distasteful. Even the New Society it was supposed to bring about was slowly losing its splendor. Backsliding was creeping in some ways, discipline was loosening. But over and above all such adverse developments, the perils to national security and public order still remained, if in a slightly lesser degree. It was in the light of the above circumstances and as a means of solving the dilemma aforementioned that the concept embodied in Amendment No. 6 was born. In brief, the central Idea that emerged was that martial law may be earlier lifted, but to safeguard our country and people against any abrupt dangerous situation which would warrant the exercise of some authoritarian powers, the latter must be constitutionally allowed, thereby to obviate the need to proclaim martial law and its concomitants, principally the assertion by the military of prerogatives that made them appear superior to the civilian authorities below the President. In other words, the problem was what may be needed for national survival or the restoration of normalcy in the face of a crisis or an emergency should be reconciled with the popular mentality and attitude of the people against martial law. We have said earlier that the Constitution has four built-in measures to cope with crises and emergencies. To reiterate, they are: (a) emergency powers expressly delegated by the Batasan; (b) call of the armed forces, who otherwise are supposed to be in the barracks; (c) suspension of the privilege of the writ of habeas corpus; and (d) martial law. Of these four, the people dislike martial law most and would, if possible, do away with it in the Constitution. And the President who first conceived of what is now Amendment No. 6 knew this. Thus, Our understanding of the development of events and attitudes that led to the adoption of Amendment No. 6 is that in addition to the four measures authorized in the body of the charter, this amendment is supposed to be a fifth one purportedly designed to make it practically unnecessary to proclaim martial law, except in instances of actual surface warfare or rebellious activities or very sophisticated subversive actions that cannot be adequately met without martial law itself. Very evidently, the purpose of Amendment No. 6 is that the Philippines be henceforth spared of martial law unless manifest extreme situations should ever demand it. To recapitulate, the amendments of October 1976 were deliberately designed against martial law. The creation thereby of the interim Batasang Pambansa in lieu of the interim National Assembly which never came into being because of vehement and justified popular repudiation thereof was definitely an indispensable step towards the lifting of martial law. Everyone can understand that martial law could not be lifted without a legislative body to make the laws. The legislative authority could not be left in the hands of the President (Prime Minister). It would have been anachronistic to lift martial law and still leave the law-making authority with the President (Prime Minister) alone. Relatedly but more importantly, the vesting of the legislative authority to the interim Batasang Pambansa, without more or exclusively, would have maintained the safeguards of national

security only to the four traditional constitutional measures repeatedly discussed above, including martial law. The framers of the amendment realized only too well they had to look for a remedy thereto, the dislike of the people, justified or not, of martial law. And so, to make the proclamation of martial law remotest, but nevertheless enable the government to meet emergencies effectively, they conceived the Idea of granting to the President (Prime Minister) the power endowed to him by Amendment No. 6. Skeptics and hardcore critics of the administration there must be who would sarcastically allude to Amendment No. 6 as martial law just the same but only like a dog with merely another collar. A word of explanation is thus called for of the vital differences between one and the other. The attitude of those who are opposed to Amendment No. 6 must be due to lack of sufficient acquaintance with the real essence of the various constitutionally authorized emergency measures imperatively needed to safeguard the national security and integrity already discussed above. The delegation of legislative power thru the issuance of rules and regulations to carry out a national policy declared by the Batasan has its own virtues as a restrained way of conferring law-making authority to the Executive during an emergency. It is limited, restricted, subject to conditions and temporary. It is obviously the simplest remedy to cope with an abnormal situation resulting in the least violence to revered democratic republican processes constitutionally established. But being purely a political and legislative remedy, it cannot be adequate when lawless violence becomes generalized and public safety is in jeopardy, hence the need to call out the armed forces. And when such situation still aggravates to the point of requiring the preventive incarceration or detention of certain leaders or over active elements, it becomes inevitable to suspend the privilege of the writ of habeas corpus. Should matters really go out of hand even after the putting into effect of the measures aforementioned, under the constitution. without Amendment No. 6, the only recourse would be to proclaim martial law. But inasmuch as martial law is an extreme measure that carries with it repressive and restrictive elements unpopular to liberty loving and democratically minded sectors of the country, it is but natural to think of it only as a very last resort. Well, it is to avoid the necessity of resorting to the proclamation of martial law that Amendment No. 6 was conceived. Paraphrasing President Marcos himself, martial law is the law of the gun, that implies coercion and an active and direct role in the government by the military. Thus, the virtue of Amendment No. 6 is that such undesirable features of martial law do not have to accompany the exercise of the power thereby conferred on the Executive. To be sure, the calling out of the armed forces and the suspension of the privilege of the writ of habeas corpus, which are concomitants of martial law, may be left out or need not be resorted to when the President acts by virtue of such power. It is, therefore, evident that it is grossly erroneous to say that Amendment No. 6 is in reality no less than disguised martial law.

Apparently conceding, at least in gratia argumenti, the truth and the logic of all the foregoing discussion and conclusions, petitioner raises the question of how can Amendment No. 6 fit into the new set up under the 1981 amendments, which abolished the dual position of President Marcos of President-Prime Minister mandated by the 1976 Amendment No. 3. According to petitioner, President Marcos is President now (no longer President-Prime Minister) pursuant to the 1981 amendments and by virtue of his election as such as proclaimed by the Batasan on June 21, 1981. Not without a bit of sarcasm, petitioner even refers to the reference to the status of our government after the inauguration of President Marcos as the Fourth Republic. How then, petitioner asks, can the President of the Fourth Philippine Republic exercise powers granted to the President-Prime Minister of the provisional government established by the Transitory Provisions and conferred upon him only by Amendment No. 6 of October 1976? If We go solely by the rules of literature, a considerable degree of plausibility, as We have intimated earlier in this opinion, may be conceded to the pose of petitioner. It indeed seems that since the positions of President and Prime Minister have been separated by the 1981 amendments and the same do not state to whom the power under Amendment No. 6 would appertain, neither the present President nor the present Prime Minister can exercise such power. But again, We hold that petitioner is laboring under a misconception of facts and of the principles of constitutional construction. Earlier hereinabove, We discoursed on the inevitability of the conclusion that the current Batasan, being merelyinterim "in lieu of the interim National Assembly" established under Section 1 of the Transitory Provisions, it is subject to the provisions of Amendment No. 6 which was approved and ratified together with the creation of the Batasan. We have also made a rather extensive exposition of the whys and wherefores behind Amendment No. 6. As may be noted, the ultimate thrust of Our discussion is to establish as a legal proposition that behind and beneath the words of the amendment, the literal reference to "the President (Prime Minister)" in Amendment No. 6 was the intention to make such reference descriptive of the person on whom is vested the totality of the executive power under the system of government established thereby. For as a matter of general principle in constitutional law, belonging as he does to the political department of the government, it is only with such official that, the high prerogative of policy determination can be shared. And in this connection, it is very important to note that the amendment does not speak of the "incumbent President" only, as in the other amendments, like Nos. 1, 3 and 5, but of the President, meaning to include all future presidents. More, Amendment No. 6 makes mention not only of the interim Batasan but also of the regular one. All these unmistakably imply that the power conferred upon the President thereby was not for President Marcos alone but for whoever might be President of the Philippines in the future. As to the parenthetical mention therein of the Prime Minister, We are of the considered view that it was necessary to do so because under the governmental system then, which was markedly Prime Ministerial, the substantive executive powers were vested in the Prime Minister, the President being merely the symbolical and ceremonial head of state, and the two positions were being held by one and the same person. In other words, the power was contemplated to be conferred upon whomsoever was vested the executive power, and that is as it should be, for, to

reiterate, from the very nature of the power itself, the authority to legislate should be allowed, if at all, to be shared only with one in the political department, directly deriving power from the vote of the people. Withal, as the Solicitor General aptly posits, it is neither sound nor in consonance with well and long settled principles of constitutional construction to recognize amendments or repeals of constitutional provisions by implications, specially in regard to a transcendental matter as that herein under discussion. Indeed, the fact that Amendment No. 6 was not in any way or sense mentioned in the amendments submitted to the people for ratification in 1981 and there being nothing in the latter intrinsically inconsistent with the former, it is safe to conclude that it would be deceiving the people themselves and depriving them of something they had decided in 1976 to be part of the fundamental law of the land to now eliminate the power conferred by them upon the Executive of sharing legislative authority with the Batasan on appropriate occasions of emergency and urgency. Anent petitioner's claim that the President may not constitutionally grant the amnesty provided for in P.D. 1840, to Our mind, the following well taken brief answer of the Solicitor General, with whom We fully agree, is more than sufficient to dispose of the same adversely to petitioner's stance: Petitioner argues that Presidential Decree 1840 is likewise invalid for it did not enjoy the concurrence of the Batasan. He relies on Article VII, Section 11 of the Constitution which provides that The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures and with the concurrence of the Batasang Pambansa, grant amnesty. Again, we beg to disagree. Article VII, sec. 11, applies only when the President is exercising his power of executive clemency. In the case at bar, Presidential Decree 1840 was issued pursuant to his power to legislate under Amendment No. 6. It ought to be indubitable that when the President acts as legislator as in the case at bar, he does not need the concurrence of the Batasan. Rather, he exercises concurrent authority vested by the Constitution. We cannot close this opinion without underscoring the patent tendency and unrelenting effort of the leadership of the country to make our government and our way of life indigenously Filipino as much as it is possible to make them so. It has, of course, tried its utmost to see what is good in other lands, but it has chosen generally to bring out what is best in our own traditions, usages, customs and systems that have proven efficacious and beneficial during the times of our forebears. The sanggunians and barangays, which have inherited from the Filipinos of the past and that have been institutionalized in Constitutional Amendment No. 7 of 1976 have, as everyone can see, proven to be unshakable bedrocks for the foundation of duly constituted

governmental authority with firm nationwide mass base. Our present government, if in some ways similar to any foreign one, is in truth a product of our own genius in political science and matters of government. Nowhere else in the world but in the Philippines are martial law decrees and acts subject to the judicial scrutiny of the Supreme Court. Amendment No. 6 is of the same strain. It is our native and indigenous way of coping with crucial situations. We are Filipinos, so much so that the writer of this opinion has purposely avoided reference to, much less lifted quotations from alien jurisprudence and authorities. If only in this particular case, it is but appropriate to use language and style of our own. All the above premises taken into account. Our considered conclusion and judgment is that Amendment No. 6 of October 1976 of the Constitution of 1973 has not been in anyway altered or modified, much less repealed by the constitutional amendments of 1981. WHEREFORE, the petition is dismissed. No costs. Makasiar, Concepcion, Jr. Guerrero, Plana, Escolin, Vasquez and Relova, JJ., concur. Melencio-Herrera, J., concur in the result. Teehankee, I., reserves his vote. Gutierrez, Jr. J., is on leave.

Separate Opinions

AQUINO, J., concurring: I concur. Amendment No. 6 qualifies or limits Amendment No. 5, which provides that "the incumbent President shall continue to exercise legislative powers until martial law shall have been lifted". Hence, Amendment No. 6 should be read as if it begins with the clause: "However, despite the lifting of martial law, ..." ABAD SANTOS, J., concurring: I concur in the result. I should state that as Secretary of Justice I participated in the drafting of the 1976 Amendment to the Constitution; that Amendment No. 6 was intended to give to the President (Prime Minister) the power to issue decrees, etc. subject to the conditions specified therein even after the lifting of martial law as shown by the fact that it is not only

the interim Batasang Pambansa which is mentioned but also the regular National Assembly; that the words President (Prime Minister) were used in Amendment No. 6 (and also in Amendment No. 4) simply because at that time both positions were occupied by the incumbent President; that the fact that at present one person is President and another person is Prime Minister does not mean the President has lost his power under Amendment No. 6 for that power was intended to be used by the head of government; and that what has to be borne in mind is that the structure of the government at Present is essentially that of the presidential type for the President is both head of state and head of government while the Prime Minister, despite his lofty title, is but an alter ego of the President. DE CASTRO, J.: concurring: The only issue raised by petitioner to which I wish to address myself in this separate opinion, being in full concurrence with how the other issues are disposed of in the majority opinion, is whether Amendment No. 6 (1976) is still in force after the 1981 Amendments to the 1973 Constitution. Amendment No. 6 reads: 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 instruction, which shall form part of the law of the land. What should be emphatically pointed out is that the effectiveness of this provision is intended to continue into the future, even beyond the regime of the interim national assembly (Batasan Pambansa), as a wise and permanent feature of Our constitutional system. This is clear from the reference made therein of the regular National Assembly, the lifetime of which is without a pre-fixed limit, as is the very existence of the Republic itself. If for this reason alone, its abrogation or elimination from the Constitution of which the original intention was to make it a part and parcel, may be effected only by no less than a clear and express repeal. No such mode of repeal is discoverable from the 1981 amendments of the Constitution. Petitioner would, however, see a repeal by "omission." I fail to see such kind of repeal. The power granted by Amendment No. 6 is, by its language, to be exercised by the "President (Prime Minister)." These words are interpreted by petitioner as meaning that only when the President is at the same time the Prime Minister, which can only refer to President Ferdinand E. Marcos, may the power granted by Amendment No. 6 be deemed to remain effective. But when, as it happened after the 1981 amendments and the last presidential elections, the two offices had ceased to be combined or unite in the person, of President Marcos, the office of Prime Minister being now held by another official, Prime Minister Cesar Virata, the power conferred by Amendment No. 6 may no longer be exercised by any official and therefore the amendment is deemed erased from the Constitution. This is a most

simplistic interpretation that does not do justice to the transcendentally important objectives of the amendment. It is here where I would wish to express my view that in using the words "President (Prime Minister)" in Amendment No. 6, the intent is for the President to exercise the power while he is in possession of the high executive prerogatives, but when there shall be a regular Prime Minister, it is to the latter that the power would pertain not to the President anymore, because under the Constitution at the time the 1976 Amendments were adopted it was envisioned that the President would be vested only with essentially ceremonial powers, the highest executive powers to be then exercised by the Prime Minister. The word "Prime Minister" immediately following the word "President", but enclosed in parenthesis was therefore, meant to indicate that when the change will take place whereby the Prime Minister takes over the executive powers from the President, then it is the former, not the latter, who would exercise the power defined in Amendment No. 6, to obviate thereby the need of a new amendment. The word "President" would automatically be replaced by the word "Prime Minister", thus continuing in force the provision of Amendment No. 6. To my mind, this is the more reasonable interpretation than to say that the aforementioned words were merely descriptive of the actual nature of the position held by the "incumbent President" as, indeed only the incumbent President could possibly combine the two positions in his single personality. If this were the intention, there would have been no need to enclose the word "Prime Minister" in parenthesis. In doing so, the intention is made clear that it is the Prime Minister who automatically takes over the exercise of the power when the President is stripped of real executive power and vested with mainly ceremonial powers, as obtains in most parliamentary governments. With the intent as above indicated thus so clearly manifested the 1981 amendment, far from repealing Amendment No. 6 by omission as petitioner contends, should be construed as having the effect of vesting the power defined therein in the Chief Executive as now provided in the 1981 amendments. This official is none other than the President to whom were transferred the powers originally intended to be vested in the Prime Minister as the chief executive official in a parliamentary system that the 1973 Constitution, at the beginning, intended to establish for our government. The President would accordingly be the proper official to exercise the power granted by Amendment No. 6 which, by its intrinsic provision, should be maintained in effect by all reasonable intendment rather than deemed repealed only by implication which is never favored. The view herein expressed would, in my humble opinion, accord more to how the people voted for the amendments of 1981 who, it may be safe to assert, never had the least intent, to erase Amendment No. 6 from the Constitution which in 1976, they solemnly resolved to permanently enshrine as a new but wise and transcendentally desirable concept of constitutional power of legislation, dictated by the highest interest of national welfare and security. Much less had they any awareness that by voting for the amendments, they would be voting for the elimination of Amendment No. 6 from the Constitution, for such a result was never given to their conscious

understanding. It is fundamental in the interpretation of statutes and Constitutions that what is controlling is the legislative intent, or the intent of those who enact the law or the Constitution, who, in the case of the latter, are mainly the people without whose ratification any amendment proposed by the constituent body would be of no effect. The petitioner himself seems ready to be counted among those who would not question the wisdom and urgent need of Amendment No. 6, reason for which the majority opinion may have been needlessly over-burdened with a lengthy discourse over the reasons behind, and justification for, the adoption of Amendment No. 6 which were supposed to have been known by all before the people went to the polls to vote for its ratification. This I say, with apologies to the learned ponente, and hasten to admit that the disquisition is delectably erudite and scholarly. For the petitioner himself said: "Whether the matter or that there was an emergency which required immediate action, let it be conceded that in the judgment of the President such facts do exists." If he now questions the constitutionality of Amendment No. 6, it is more on ground of form rather than of substance, based merely on his feeling of skepticism that it no longer fits into the pattern or format of the 1973 Constitution as amended on April 7, 1981. Fernando, C.J., concurs and reserves the right to file a brief statement of his views.