Escolar Documentos
Profissional Documentos
Cultura Documentos
SUPREME COURT
Manila
I.
EXECUTION
OF
THE
NECESSARY
CONTRACTS WITH GSIS/MHC
1. The Highest Bidder must comply with the conditions set
forth below by October 23, 1995 (reset to November 3,
1995) or the Highest Bidder will lose the right to purchase
the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
EN BANC
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant
of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos, 1 is in oked
by petitioner in its bid to acquire 51% of the shares of the Manila Hotel
Corporation (MHC) which owns the historic Manila Hotel. Opposing,
respondents maintain that the provision is not self-executing but requires
an implementing legislation for its enforcement. Corollarily, they ask
whether the 51% shares form part of the national economy and patrimony
covered by the protective mantle of the Constitution.
K.
DECLARATION
OF
THE
BIDDER/STRATEGIC PARTNER
WINNING
fauna and all marine wealth in its territorial sea, and exclusive marine zone
as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987
Constitution. According to respondents, while petitioner speaks of the
guests who have slept in the hotel and the events that have transpired
therein which make the hotel historic, these alone do not make the hotel
fall under the patrimony of the nation. What is more, the mandate of the
Constitution is addressed to the State, not to respondent GSIS which
possesses a personality of its own separate and distinct from the
Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony,
the constitutional provision invoked is still inapplicable since what is being
sold is only 51% of the outstanding shares of the corporation, not the hotel
building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony.
Moreover, if the disposition of the shares of the MHC is really contrary to
the Constitution, petitioner should have questioned it right from the
beginning and not after it had lost in the bidding.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the
Filipino nation and has practically become a historical monument which
reflects the vibrancy of Philippine heritage and culture. It is a proud legacy
of an earlier generation of Filipinos who believed in the nobility and
sacredness of independence and its power and capacity to release the full
potential of the Filipino people. To all intents and purposes, it has become
a part of the national patrimony. 6 Petitioner also argues that since 51% of
the shares of the MHC carries with it the ownership of the business of the
hotel which is owned by respondent GSIS, a government-owned and
controlled corporation, the hotel business of respondent GSIS being a part
of the tourism industry is unquestionably a part of the national economy.
Thus, any transaction involving 51% of the shares of stock of the MHC is
clearly covered by the term national economy, to which Sec. 10, second
par., Art. XII, 1987 Constitution, applies. 7
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding
rules which provides that if for any reason, the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share, is
misplaced. Respondents postulate that the privilege of submitting a
matching bid has not yet arisen since it only takes place if for any reason,
the Highest Bidder cannot be awarded the Block of Shares. Thus the
submission by petitioner of a matching bid is premature since Renong
Berhad could still very well be awarded the block of shares and the
condition giving rise to the exercise of the privilege to submit a matching
bid had not yet taken place.
It is also the thesis of petitioner that since Manila Hotel is part of the
national patrimony and its business also unquestionably part of the
national economy petitioner should be preferred after it has matched the
bid offer of the Malaysian firm. For the bidding rules mandate that if for
any reason, the Highest Bidder cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share. 8
Respondents except. They maintain that: First, Sec. 10, second par., Art.
XII, of the 1987 Constitution is merely a statement of principle and policy
since it is not a self-executing provision and requires implementing
legislation(s) . . . Thus, for the said provision to Operate, there must be
existing laws "to lay down conditions under which business may be done." 9
Second, granting that this provision is self-executing, Manila Hotel does not
fall under the term national patrimony which only refers to lands of the
public domain, waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and
2
16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way
as not to make it appear that it is non-self-executing but simply for
purposes of style. But, certainly, the legislature is not precluded from
enacting other further laws to enforce the constitutional provision so long
as the contemplated statute squares with the Constitution. Minor details
may be left to the legislature without impairing the self-executing nature of
constitutional provisions.
very terms of the provisions manifest that they are only principles upon
which the legislations must be based.Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987
Constitution is a mandatory, positive command which is complete in itself
and which needs no further guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not require any
legislation to put it in operation. It is per se judicially enforceable When our
Constitution mandates that [i]n the grant of rights, privileges, and
concessions covering national economy and patrimony, the State shall give
preference to qualified Filipinos, it means just that qualified Filipinos
shall be preferred. And when our Constitution declares that a right exists in
certain specified circumstances an action may be maintained to enforce
such right notwithstanding the absence of any legislation on the subject;
consequently, if there is no statute especially enacted to enforce such
constitutional right, such right enforces itself by its own inherent potency
and puissance, and from which all legislations must take their bearings.
Where there is a right there is a remedy. Ubi jus ibi remedium.
For more than eight (8) decades Manila Hotel has bore mute witness to the
triumphs and failures, loves and frustrations of the Filipinos; its existence is
impressed with public interest; its own historicity associated with our
struggle for sovereignty, independence and nationhood. Verily, Manila
Hotel has become part of our national economy and patrimony. For sure,
51% of the equity of the MHC comes within the purview of the
constitutional shelter for it comprises the majority and controlling stock, so
that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be
disassociated from the hotel and the land on which the hotel edifice
stands. Consequently, we cannot sustain respondents' claim that
theFilipino First Policy provision is not applicable since what is being sold is
only 51% of the outstanding shares of the corporation, not the Hotel
building nor the land upon which the building stands. 38
The argument is pure sophistry. The term qualified Filipinos as used in Our
Constitution also includes corporations at least 60% of which is owned by
Filipinos. This is very clear from the proceedings of the 1986 Constitutional
Commission
We
agree,
Madam
MR.
MONSOD.
Madam
President,
apparently the proponent is agreeable, but
5
MR
FOZ.
In connection with that
amendment, if a foreign enterprise is
qualified and a Filipino enterprise is also
qualified, will the Filipino enterprise still be
given a preference?
41
law that all laws and contracts must conform with the fundamental law of
the land. Those which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this
to other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of
price
per
share. 47 Certainly, the constitutional mandate itself is reason enough not
to award the block of shares immediately to the foreign bidder
notwithstanding its submission of a higher, or even the highest, bid. In fact,
we cannot conceive of a stronger reason than the constitutional injunction
itself.
In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering
the national economy and patrimony, thereby exceeding the bid of a
Filipino, there is no question that the Filipino will have to be allowed to
match the bid of the foreign entity. And if the Filipino matches the bid of a
foreign firm the award should go to the Filipino. It must be so if we are to
give life and meaning to the Filipino First Policy provision of the 1987
Constitution. For, while this may neither be expressly stated nor
contemplated in the bidding rules, the constitutional fiat is, omnipresent to
be simply disregarded. To ignore it would be to sanction a perilous skirting
of the basic law.
When the Constitution addresses the State it refers not only to the people
but also to the government as elements of the State. After all, government
is composed of three (3) divisions of power legislative, executive and
judicial. Accordingly, a constitutional mandate directed to the State is
correspondingly directed to the three(3) branches of government. It is
undeniable that in this case the subject constitutional injunction is
addressed among others to the Executive Department and respondent
GSIS, a government instrumentality deriving its authority from the State.
This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the
Philippines are understood to be always open to public scrutiny. These are
given factors which investors must consider when venturing into business
in a foreign jurisdiction. Any person therefore desiring to do business in the
Philippines or with any of its agencies or instrumentalities is presumed to
know his rights and obligations under the Constitution and the laws of the
forum.
It should be stressed that while the Malaysian firm offered the higher bid it
is not yet the winning bidder. The bidding rules expressly provide that the
highest bidder shall only be declared the winning bidder after it has
negotiated and executed the necessary contracts, and secured the
requisite approvals. Since the "Filipino First Policy provision of the
Constitution bestows preference on qualified Filipinos the mere tending of
the highest bid is not an assurance that the highest bidder will be declared
the winning bidder. Resultantly, respondents are not bound to make the
award yet, nor are they under obligation to enter into one with the highest
bidder. For in choosing the awardee respondents are mandated to abide by
the dictates of the 1987 Constitution the provisions of which are presumed
to be known to all the bidders and other interested parties.
Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of shares of MHC and to
execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with
the Constitution as well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the bidding rules
after the latter has matched the bid of the Malaysian firm clearly
constitutes grave abuse of discretion.
The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of
privatization. We are not talking about an ordinary piece of property in a
commercial district. We are talking about a historic relic that has hosted
many of the most important events in the short history of the Philippines
as a nation. We are talking about a hotel where heads of states would
prefer to be housed as a strong manifestation of their desire to cloak the
dignity of the highest state function to their official visits to the Philippines.
Thus the Manila Hotel has played and continues to play a significant role as
an authentic repository of twentieth century Philippine history and culture.
In this sense, it has become truly a reflection of the Filipino soul a place
with a history of grandeur; a most historical setting that has played a part
in the shaping of a country. 51
This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark this Grand Old Dame of
hotels in Asia to a total stranger. For, indeed, the conveyance of this epic
exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation
8
of a nation's soul for some pieces of foreign silver. And so we ask: What
advantage, which cannot be equally drawn from a qualified Filipino, can be
gained by the Filipinos Manila Hotel and all that it stands for is sold to
a non-Filipino? How much of national pride will vanish if the nation's
cultural heritage is entrusted to a foreign entity? On the other hand, how
much dignity will be preserved and realized if the national patrimony is
safekept in the hands of a qualified, zealous and well-meaning Filipino?
This is the plain and simple meaning of the Filipino First Policy provision of
the Philippine Constitution. And this Court, heeding the clarion call of the
Constitution and accepting the duty of being the elderly watchman of the
nation, will continue to respect and protect the sanctity of the Constitution.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ.,
concur.
EN BANC
Philippines. The next day, November 30, 1972, the President of the
Philippines issued Presidential Decree No. 73, "submitting to the Filipino
people for ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention, and
appropriating funds therefor," as well as setting the plebiscite for said
ratification or rejection of the Proposed Constitution on January 15, 1973.
Soon after, or on December 7, 1972, Charito Planas filed, with this Court,
Case G. R. No. L-35925, against the Commission on Elections, the Treasurer
of the Philippines and the Auditor General, to enjoin said "respondents or
their agents from implementing Presidential Decree No. 73, in any manner,
until further orders of the Court," upon the grounds, inter alia, that said
Presidential Decree "has no force and effect as law because the calling ...
of such plebiscite, the setting of guidelines for the conduct of the same,
the prescription of the ballots to be used and the question to be answered
by the voters, and the appropriation of public funds for the purpose, are, by
the Constitution, lodged exclusively in Congress ...," and "there is no
proper submission to the people of said Proposed Constitution set for
January 15, 1973, there being no freedom of speech, press and assembly,
and there being no sufficient time to inform the people of the contents
thereof."
Jovito R. Salonga and Associates and Rodrigo Law Office for petitioners
Gerardo Roxas, etc., et al.
Quijano and Arroyo for petitioner Eddie B. Monteclaro.
Sedfrey A. Ordonez and Associates for petitioners Sedfrey A. Ordonez, et
al.
Lorenzo M. Taada for petitioners Vidal Tan, et al.
Francis E. Garchitorena for petitioners Jose W. Diokno, et al.
Jacinto Jimenez in his own behalf.
CONCEPCION, C.J.:
On March 16, 1967, Congress of the Philippines passed Resolution No. 2,
which was amended by Resolution No. 4 of said body, adopted on June 17,
1969, calling a Convention to propose amendments to the Constitution of
the Philippines. Said Resolution No. 2, as amended, was implemented by
Republic Act No. 6132, approved on August 24, 1970, pursuant to the
provisions of which the election of delegates to said Convention was held
on November 10, 1970, and the 1971 Constitutional Convention began to
perform its functions on June 1, 1971. While the Convention was in session
on September 21, 1972, the President issued Proclamation No. 1081
placing the entire Philippines under Martial Law. On November 29, 1972,
the Convention approved its Proposed Constitution of the Republic of the
In all these cases, except the last (G.R. No. L-35979), the respondents were
required to file their answers "not later than 12: 00 (o'clock) noon of
Saturday, December 16, 1972." Said cases were, also, set for hearing and
partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was
continued on December 19, 1972. By agreement of the parties, the
aforementioned last case - G.R. No. L-35979 was, also, heard, jointly
10
with the others, on December 19, 1972. At the conclusion of the hearing,
on that date, the parties in all of the aforementioned cases were given a
short period of time within which "to submit their notes on the points they
desire to stress." Said notes were filed on different dates, between
December 21, 1972, and January 4, 1973.
the
reform
In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L35948 filed an "urgent motion," praying that said case be decided "as soon
as possible, preferably not later than January 15, 1973." It was alleged in
said motion, inter alia:
QUESTION No. 2
But we do not want the Ad Interim
Assembly to be convoked. Or if it is to be
convened at all, it should not be done so
until after at least seven (7) years from the
approval of the New Constitution by the
Citizens Assemblies.
11. That on January 11, 1973, it was reported that six (6)
more questions would be submitted to the so-called
Citizens Assemblies:
"[1] Do you approve of the citizens
assemblies as the base of popular
government to decide issues of national
interests?
"[2] Do you
Constitution?
approve
of
the
QUESTION No. 3
The vote of the Citizens Assemblies should
already be considered the plebiscite on the
New Constitution.
new
If the Citizens Assemblies approve of the
New
Constitution,
then
the
new
Constitution should be deemed ratified.
QUESTION No. 4
"[4] Do you want the elections to be held in
November, 1973 in accordance with the
provisions of the 1935 Constitution ?
QUESTION No. 5
QUESTION No. 6
We want President Marcos to continue with
Martial Law. We want him to exercise his
powers with more authority. We want him
to be strong and firm so that he can
accomplish all his reform programs and
establish normalcy in the country. If all
other measures fail, we want President
Marcos
to
declare
a
revolutionary
"QUESTION No. 3
18. That, if such event would happen, then the case before
this Honorable Court could, to all intents and purposes,
become moot because, petitioners fear, and they therefore
allege, that on the basis of such supposed expression of
the will of the people through the Citizens Assemblies, it
would be announced that the proposed Constitution, with
all its defects, both congenital and otherwise, has been
ratified;
The next day, January 13, 1973, which was a Saturday, the Court issued a
resolution requiring the respondents in said three (3) cases to comment on
said "urgent motion" and "manifestation," "not later than Tuesday noon,
January 16, 1973." Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 filed a "supplemental
motion for issuance of restraining order and inclusion of additional
respondents," praying
On the same date January 15, 1973 the Court passed a resolution
requiring the respondents in said case G.R. No. L-35948 to "file an answer
15
to the said motion not later than 4 P.M., Tuesday, January 16, 1973," and
setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While
the case was being heard, on the date last mentioned, at noontime, the
Secretary of Justice called on the writer of this opinion and said that, upon
instructions of the President, he (the Secretary of Justice) was delivering to
him (the writer) a copy of Proclamation No. 1102, which had just been
signed by the President. Thereupon, the writer returned to the Session Hall
and announced to the Court, the parties in G.R. No. L-35948 inasmuch
as the hearing in connection therewith was still going on and the public
there present that the President had, according to information conveyed by
the Secretary of Justice, signed said Proclamation No. 1102, earlier that
morning. Thereupon, the writer read Proclamation No. 1102 which is of the
following tenor:
By the President:
ALEJANDRO
Executive Secretary
MELCHOR
Such is the background of the cases submitted for Our determination. After
admitting some of the allegations made in the petition in L-35948 and
denying the other allegations thereof, respondents therein alleged in their
16
Immediately after the hearing held on January 17, 1973, or since the
afternoon of that date, the Members of the Court have been deliberating
on the aforementioned cases and, after extensive discussions on the
merits thereof, have deemed it best that each Member write his own views
thereon and that thereafter the Chief Justice should state the result or the
votes thus cast on the points in issue. Hence, the individual views of my
brethren in the Court are set forth in the opinions attached hereto, except
that, instead of writing their separate opinions, some Member have
preferred to merely concur in the opinion of one of our colleagues.
With respect to the question whether or not martial law per se affects the
validity of a submission to the people for ratification of specific proposals
for amendment of the Constitution, I consider this matter as one intimately
and necessarily related to the validity of Proclamation No. 1102 of the
President of the Philippines. This question has not been explicitly raised,
however, in any of the cases under consideration, said cases having been
filed before the issuance of such Proclamation, although the petitioners in
L-35948 maintain that the issue on the referral of the Proposed
Constitution to the Citizens' Assemblies may be deemed and was raised in
their Supplemental Motion of January 15, 1973. At any rate, said question
has not been adequately argued by the parties in any of these cases, and it
would not be proper to resolve such a transcendental question without the
most thorough discussion possible under the circumstances. In fairness to
the petitioners in L-35948 and considering the surrounding circumstances,
I believe, therefore, that, instead of dismissing the case as moot and
academic, said petitioners should be given a reasonable period of time
within which to move in the premises.
Recapitulating the views expressed by the Members of the Court, the result
is this:
1. There is unanimity on the justiciable nature of the issue on the legality of
Presidential Decree No. 73.
the
petitioners
in
L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that
the issue has become moot and academic. Justices Fernando, Barredo,
Makasiar, Antonio and myself have voted to uphold the authority of the
Convention.
It is so ordered.
Makasiar, J., concur.
M. TAADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE
SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORM, THE
SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE
BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL
COMMISSION ON REORGANIZATION, THE TREASURER OF THE
PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE
COMMISSIONER OF CIVIL SERVICE, respondents.
RESOLUTION
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965
and
L-35979, decided on January 22, 1973, to which We will hereafter refer
collectively as the plebiscite cases.
Background of the Plebiscite Cases.
In all these cases, except the last (G.R. No. L-35979), the
respondents were required to file their answers "not later
than 12:00 (o'clock) noon of Saturday, December 16,
1972." Said cases were, also, set for hearing and partly
heard on Monday, December 18, 1972, at 9:30 a.m. The
hearing was continued on December 19, 1972. By
agreement of the parties, the aforementioned last case
G.R. No. L-35979 was, also, heard, jointly with the
others, on December 19, 1972. At the conclusion of the
hearing, on that date, the parties in all of the
aforementioned cases were given a short period of time
within which "to submit their notes on the points they
desire to stress." Said notes were filed on different dates,
between December 21, 1972, and January 4, 1973.
20
"11. That on January 11, 1973, it was reported that six (6)
more questions would be submitted to the so-called
Citizens Assemblies:
[2] Do you
Constitution?
approve
of
the
new
QUESTION No. 5
Probably a period of at least seven (7)
years moratorium on elections will be
enough for stability to be established in the
country, for reforms to take root and
normalcy to return.
QUESTION No. 6
We want President Marcos to continue with
Martial Law. We want him to exercise his
powers with more authority. We want him
to be strong and firm so that he can
accomplish all his reform programs and
establish normalcy in the country. If all
other measures fail, we want President
Marcos
to
declare
a
revolutionary
government along the lines of the new
Constitution without the ad interim
Assembly."
COMMENTS ON
QUESTION No. 1
In order to broaden the
base
of
citizens'
participation
in
government.
QUESTION No. 2
QUESTION No. 3
The vote of the Citizens Assemblies should
be considered the plebiscite on the New
Constitution.
QUESTION No. 3
QUESTION No. 4
22
because then, the people and their officials will not know
which Constitution is in force.
"20. That the crisis mentioned above can only be avoided if
this Honorable Court will immediately decide and announce
its decision on the present petition;
The next day, January 13, 1973, which was a Saturday, the
Court issued a resolution requiring the respondents in said
three (3) cases to comment on said "urgent motion" and
"manifestation," "not later than Tuesday noon, January 16,
1973." Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 riled a
"supplemental motion for issuance of restraining order and
inclusion of additional respondents," praying
(Sgd.)
E.
"Presiden
Philippin
MELCHOR
Then the writer of said decision expressed his own opinion on the issues
involved therein, after which he recapitulated the views of the Members of
the Court, as follows:
1. There is unanimity on the justiciable nature of the issue
on the legality of Presidential Decree No. 73.
27
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio
Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de
Peralta and Lorenzo M. Taada, against the Executive Secretary, the
Secretaries of Finance, Justice, Land Reform, and National Defense, the
Auditor General, the Budget Commissioner, the Chairman of the
Presidential Commission on Reorganization, the Treasurer of the
Philippines, the Commission on Elections and the Commissioner of Civil
Service 4 on February 3, 1973, by Eddie Monteclaro, personally and as
President of the National Press Club of the Philippines, against the
Executive Secretary, the Secretary of Public Information, the Auditor
General, the Budget Commissioner and the National Treasurer 5 and on
February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo
Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive Secretary, the
Secretary of National Defense, the Budget Commissioner and the Auditor
General.
Accordingly, the Court acting in conformity with the position taken by six
(6) of its members, 1 with three (3) members dissenting, 2 with respect to
G.R. No. L-35948, only and another member 3 dissenting, as regards all of
the cases dismissed the same, without special pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L36142 against the Executive Secretary and the Secretaries of National
Defense, Justice and Finance, to restrain said respondents "and their
subordinates or agents from implementing any of the provisions of the
28
the same having been closed by the authorities in physical possession and
control the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the said
day, the premises of the entire Legislative Building were ordered cleared by
the same authorities, and no one was allowed to enter and have access to
said premises"; that "(r)espondent Senate President Gil J. Puyat and, in his
absence, respondent President Pro Tempore Jose Roy we asked by
petitioning Senators to perform their duties under the law and the Rules of
the Senate, but unlawfully refrained and continue to refrain from doing so";
that the petitioners ready and willing to perform their duties as duly
elected members of the Senate of the Philippines," but respondent
Secretary of National Defense, Executive Secretary and Chief of Staff,
"through their agents and representatives, are preventing petitioners from
performing their duties as duly elected Senators of the Philippines"; that
"the Senate premise in the Congress of the Philippines Building ... are
occupied by and are under the physical control of the elements military
organizations under the direction of said respondents"; that, as per "official
reports, the Department of General Services ... is now the civilian agency in
custody of the premises of the Legislative Building"; that respondents
"have unlawfully excluded and prevented, and continue to so exclude and
prevent" the petitioners "from the performance of their sworn duties,
invoking the alleged approval of the 1972 (1973) Constitution of the
Philippines by action of the so-called Citizens' Assemblies on January 10,
1973 to January 15, 1973, as stated in and by virtue of Proclamation No.
1102 signed and issued by the President of the Philippines"; that "the
alleged creation of the Citizens' Assemblies as instrumentalities for the
ratification of the Constitution of the Republic of the Philippines" is
inherently illegal and palpably unconstitutional; that respondents Senate
President and Senate President Pro Tempore "have unlawfully refrained and
continue to refrain from and/or unlawfully neglected and continue to
neglect the performance of their duties and functions as such officers
under the law and the Rules of the Senate" quoted in the petition; that
because of events supervening the institution of the plebiscite cases, to
which reference has been made in the preceding pages, the Supreme
Court dismissed said cases on January 22, 1973, by a majority vote, upon
the ground that the petitions therein had become moot and academic; that
the alleged ratification of the 1972 (1973) Constitution "is illegal,
unconstitutional and void and ... can not have superseded and revoked the
1935 Constitution," for the reasons specified in the petition as amended;
that, by acting as they did, the respondents and their "agents,
representatives and subordinates ...have excluded the petitioners from an
office to which" they "are lawfully entitled"; that "respondents Gil J. Puyat
and Jose Roy have unlawfully refrained from convening the Senate for its
8th session, assuming general jurisdiction over the Session Hall and the
premises of the Senate and ... continue such inaction up to this time and ...
a writ of mandamus is warranted in order to compel them to comply with
the duties and functions specifically enjoined by law"; and that "against the
above mentioned unlawful acts of the respondents, the petitioners have no
appeal nor other speedy and adequate remedy in the ordinary course of
law except by invoking the equitable remedies of mandamus and
prohibition with
injunction."
the
provisional
remedy
of
preliminary
mandatory
This defense or theory, set up by counsel for respondents Gil J. Puyat and
Jose Roy in G.R. No. L-36165, and, also, by the Solicitor General, is
predicated upon the fact that, in Our decision in the plebiscite cases, Mr.
Justice Barredo had expressed the view that the 1935 Constitution had "pro
tanto passed into history" and "been legitimately supplanted by the
Constitution now in force by virtue of Proclamation No. 1102 ..."; that Mr.
Justice Antonio did not feel "that this Court competent to act" in said cases
"in the absence of any judicially discoverable and manageable standards"
and because "the access to relevant information is insufficient to assure
the correct determination of the issue," apart from the circumstance that
"the new constitution has been promulgated and great interests have
already arisen under it" and that the political organ of the Government has
recognized its provisions; whereas, Mr. Justice Esguerra had postulated that
"(w)ithout any competent evidence ... about the circumstances attending
the holding" of the "referendum or plebiscite" thru the Citizens'
Assemblies, he "cannot say that it was not lawfully held" and that,
accordingly, he assumed "that what the proclamation (No. 1102) says on
its face is true and until overcome by satisfactory evidence" he could not
"subscribe to the claim that such plebiscite was not held accordingly"; and
that he accepted "as a fait accompli that the Constitution adopted (by the
1971 Constitutional Convention) on November 30, 1972, has been duly
ratified.
After deliberating on these cases, the members of the Court agreed that
each would write his own opinion and serve a copy thereof on his
colleagues, and this they did. Subsequently, the Court discussed said
opinions and votes were cast thereon. Such individual opinions are
appended hereto.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that,
under these circumstances, "it seems remote or improbable that the
necessary eight (8) votes under the 1935 Constitution, and much less the
ten (10) votes required by the 1972 (1973) Constitution, can be obtained
for the relief sought in the Amended Petition" in G.R. No.
L-36165.
Accordingly, the writer will first express his person opinion on the issues
before the Court. After the exposition his aforesaid opinion, the writer will
make, concurrently with his colleagues in the Court, a resume of summary
of the votes cast by them in these cases.
30
The distinction is not without reasonable foundation. The two thirds vote
(eight [8] votes) requirement, indeed, was made to apply only to treaty
and law, because, in these cases, the participation of the two other
departments of the government the Executive and the Legislative is
present, which circumstance is absent in the case of rules, regulations and
executive orders. Indeed, a law (statute) passed by Congress is subject to
the approval or veto of the President, whose disapproval cannot be
overridden except by the vote of two-thirds (2/3) of all members of each
House of Congress. 12 A treaty is entered into by the President with the
concurrence of the Senate, 13 which is not required in the case of rules,
regulations or executive orders which are exclusive acts of the President.
Hence, to nullify the same, a lesser number of votes is necessary in the
Supreme Court than that required to invalidate a law or treaty.
II
Does the issue on the validity of Proclamation No. 1102 partake of the
nature of a political, and, hence, non-justiciable question?
The Solicitor General maintains in his comment the affirmative view and
this is his main defense. In support thereof, he alleges that "petitioners
would have this Court declare as invalid the New Constitution of the
Republic" from which he claims "this Court now derives its authority";
that "nearly 15 million of our body politic from the age of 15 years have
mandated this Constitution to be the New Constitution and the prospect of
unsettling acts done in reliance on it caution against interposition of the
power of judicial review"; that "in the case of the New Constitution, the
government has been recognized in accordance with the New
Constitution"; that "the country's foreign relations are now being
conducted in accordance with the new charter"; that "foreign governments
Administrative acts and commands of the (GovernorGeneral) President of the Philippines touching the
organization or mode of operation of the Government or
rearranging or readjusting any of the districts, divisions,
parts or ports of the (Philippine Islands) Philippines and all
acts and commands governing the general performance of
31
have taken note of it"; that the "plebiscite cases" are "not precedents for
holding questions regarding proposal and ratification justiciable"; and that
"to abstain from judgment on the ultimate issue of constitutionality is not
to abdicate duty."
words
which
Webster
said
were the
greatest contained in any written constitutional document."
(Emphasis supplied.)
"At the threshold of the case we are met with the assertion
that the questions involved are political, and not judicial. If
this is correct, the court has no jurisdiction as the
certificate of the state canvassing board would then be
final, regardless of the actual vote upon the amendment.
The question thus raised is a fundamental one; but it has
been so often decided contrary to the view contended for
by the Attorney General that it would seem to be finally
settled.
Meanwhile, the charter government had taken measures to call its own
convention to revise the existing form of government. Eventually, a new
constitution was drafted by a convention held under the authority of the
charter government, and thereafter was adopted and ratified by the
people. "(T)he times and places at which the votes were to be given, the
persons who were to receive and return them, and the qualifications of the
voters having all been previously authorized and provided for by law
passed by the charter government," the latter formally surrendered all of
its powers to the new government, established under its authority, in May
1843, which had been in operationuninterruptedly since then.
Luther v. Borden was an action for trespass filed by Luther with the Circuit
Court of the United States against Borden and others for having forcibly
entered into Luther's house, in Rhode Island, sometime in 1842. The
defendants who were in the military service of said former colony of
England, alleged in their defense that they had acted in obedience to the
commands of a superior officer, because Luther and others were engaged
in a conspiracy to overthrow the government by force and the state had
been placed by competent authority under Martial Law. Such authority was
the charter government of Rhode Island at the time of the Declaration of
Independence, for unlike other states which adopted a new Constitution
upon secession from England Rhode Island retained its form of
government under a British Charter, making only such alterations, by acts
of the Legislature, as were necessary to adapt it to its subsequent
condition as an independent state. It was under this form of government
when Rhode Island joined other American states in the Declaration of
Independence and, by subsequently ratifying the Constitution of the United
About a year before, or in May 1842, Dorr, at the head of a military force,
had made an unsuccessful attempt to take possession of the state arsenal
in Providence, but he was repulsed, and, after an "assemblage of some
hundreds of armed men under his command at Chepatchet in the June
following, which dispersed upon approach of the troops of the old
government, no further effort was made to establish" his government. "...
until the Constitution of 1843" adopted under the auspices of the charter
government "went into operation, the charter government continued to
34
assert its authority and exercise its powers and to enforce obedience
throughout the state ... ."
the cases at bar. To begin with, the case did not involve a federal question,
but one purely municipal in nature. Hence, the Federal Supreme Court was
"bound to follow the decisions of the State tribunals" of Rhode Island
upholding the constitution adopted under the authority of the charter
government. Whatever else was said in that case constitutes, therefore,
an obiter dictum. Besides, no decision analogous to that rendered by the
State Court of Rhode Island exists in the cases at bar. Secondly, the states
of the Union have a measure of internal sovereignty upon which the
Federal Government may not encroach, whereas ours is a unitary form of
government, under which our local governments derive their authority
from the national government. Again,unlike our 1935 Constitution, the
charter or organic law of Rhode Island contained no provision on the
manner, procedure or conditions for its amendment.
Then, too, the case of Luther v. Borden hinged more on the question of
recognition of government, than on recognition of constitution, and there is
a fundamental difference between these two (2) types of recognition, the
first being generally conceded to be a political question, whereas the
nature of the latter depends upon a number of factors, one of them being
whether the new Constitution has been adopted in the manner prescribed
in the Constitution in force at the time of the purported ratification of the
former, which is essentially a justiciable question. There was, in Luther v.
Borden, a conflict between two (2) rival governments, antagonistic to each
other, which is absent in the present cases. Here, the Government
established under the 1935 Constitution is the very same government
whose Executive Department has urged the adoption of the new or revised
Constitution proposed by the 1971 Constitutional Convention and now
alleges that it has been ratified by the people.
It is thus apparent that the context within which the case of Luther v.
Borden was decided is basically and fundamentally different from that of
35
and that it is not only subject to judicial inquiry, but, also, that it is the
Court's bounden duty to decide such question.
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the
President "is without authority to create the Citizens' Assemblies" through
which, respondents maintain, the proposed new Constitution has been
ratified; that said Assemblies "are without power to approve the proposed
Constitution"; 3) that the President "is without power to proclaim the
ratification by the Filipino people of the proposed Constitution"; and 4) that
"the election held (in the Citizens' Assemblies) to ratify the proposed
Constitution was not a free election, hence null and void."
The Supreme Court of the United States has meaningfully postulated that
"the courts cannot reject as 'no law suit' " because it allegedly involves a
political question "a bona fide controversy as to whether some action
denominated "political" exceeds constitutional authority." 37
III
Has the proposed new or revised Constitution been ratified conformably to
said Art. XV of the 1935 Constitution?
After an, exhaustive analysis of the cases on this subject, the Court
concluded:
The authorities are thus practically uniform in holding that
whether a constitutional amendment has been properly
adopted according to the requirements of an existing
Constitution is a judicial question. There can be little doubt
that the consensus of judicial opinion is to the effect that it
is the absolute dutyof the judiciary to determine whether
the Constitution has been amended in the manner required
by the Constitution, unless a special tribunal has been
created to determine the question; and even then many of
the courts hold that the tribunal cannot be permitted to
illegally amend the organic law. ... . 36
In the light of the foregoing, and considering that Art. XV of our 1935
Constitution prescribes the method or procedure for its amendment, it is
clear to my mind that the question whether or not the revised Constitution
drafted by the 1971 Constitutional Convention has been ratified in
accordance with said Art. XV is a justiciable one and non-political in nature,
36
Sec.
2.
The
Commission
on
Elections
shall
have exclusive charge
of
the
enforcement
and
administration of all laws relative to the conduct of
elections and shall exercise all other functions which may
be conferred upon it by law. It shall decide, save those
involving the right to vote, all administrative questions,
affecting elections, including the determination of the
number and location of polling places, and the
appointment of election inspectors and of other election
officials. All
law
enforcement
agencies
and
instrumentalities of the Government, when so required by
the Commission, shall act as its deputiesfor the purpose
of insuring fee, orderly, and honest elections. The
decisions, orders, and rulings of the Commission shall be
subject to review by the Supreme Court.
39
write, and who shall have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months preceding
the election," may exercise the right of suffrage in the Philippines. Upon
the other hand, the Solicitor General contends that said provision
merely guarantees the right of suffrage to persons possessing the
aforementioned qualifications and none of the disqualifications, prescribed
by law, and that said right may be vested by competent authorities in
personslacking some or all of the aforementioned qualifications,
and possessing some of the aforesaid disqualifications. In support of this
view, he invokes the permissive nature of the language "(s)uffrage may
be exercised" used in section 1 of Art. V of the Constitution, and the
provisions of the Revised Barrio Charter, Republic Act No. 3590, particularly
sections 4 and 6 thereof, providing that citizens of the Philippines
"eighteen years of age or over," who are registered in the list of barrio
assembly members, shall be members thereof and may participate as such
in the plebiscites prescribed in said Act.
This view is further bolstered by the fact that the 1971 Constitutional
Convention sought the submission to a plebiscite of a "partial amendment"
to said section 1 of Art. V of the 1935 Constitution, by reducing the voting
age from twenty-one (21) years to eighteen (18) years, which, however,
did not materialize on account of the decision of this Court in Tolentino v.
Commission on Elections, 45 granting the writs, of prohibition and injunction
therein applied for, upon the ground that, under the Constitution, all of the
amendments adopted by the Convention should be submitted in "an
election" or a single election, not separately or in several or distinct
38
Upon the other hand, the question, whether 18-year-old members of barrio
assemblies may vote in barrio assembly plebiscites is, to say the least, a
debatable one. Indeed, there seems to be a conflict between the last
paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the
"majority vote of all the barrio assembly members" (which include all barrio
residents 18 years of age or over, duly registered in the list of barrio
assembly members) is necessary for the approval, in an assembly
plebiscite, of "any budgetary, supplemental appropriations or special tax
ordinances," whereas, according to the paragraph preceding the
penultimate one of said section, 47 "(a)ll duly registered barrio assembly
membersqualified to vote" who, pursuant to section 10 of the same Act,
must be citizens "of the Philippines, twenty-one years of age or over, able
to read and write," and residents the barrio "during the six months
immediately preceding election, duly registered in the list of voters" and "
otherwise disqualified ..." just like the provisions of present and past
election codes of the Philippines and Art. V of the 1935 Constitution
"may vote in the plebiscite."
In fact, according to the latest official data, the total number of registered
voters 21 years of age or over in the entire Philippines, available in January
1973, was less than 12 million. Yet, Proclamation No. 1102 states that
14,976,56 "members of all the Barangays (Citizens Assemblies) voted for
the adoption of the proposed Constitution, as against ... 743,869 who voted
for its rejection," whereas, on the question whether or not the people still
wanted a plebiscite to be called to ratify the new Constitution, "...
14,298,814 answered that there was no need for a plebiscite and that the
vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite." In other words, it is conceded that the number of people
who allegedly voted at the Citizens' Assemblies for exceeded the number
of registered voters under the Election Code in force in January 1973.
55
We held:
Elections ... ." The point to be stressed here is the term "independent."
Indeed, why was the term used?
In the absence of said constitutional provision as to the independence of
the Commission, would it have been depends upon either Congress or the
Judiciary? The answer must be the negative, because the functions of the
Commission "enforcement and administration" of election laws are
neither legislative nor judicial in nature, and, hence, beyond the field
allocated to either Congress or courts of justice. Said functions are by their
nature essentially executive, for which reason, the Commission would be
under the "control" of the President, pursuant to section 10, paragraph (1)
of Art. VII of the Constitution, if Art. X thereof did not explicitly declare that
it (the Commission) is an "independent" body. In other words, in amending
the original 1935 Constitution, by inserting therein said Art. X, on the
Commission
on
Elections,
the
purpose
was
to
make
said
Commission independent principally of the Chief Executive.
Then, too, the 1935 Constitution requires "a majority of the votes cast" for
a proposed amendment to the Fundamental Law to be "valid" as part
thereof, and the term "votes cast" has a well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville
County Commissioners, 65 N.W. 956, 64 Minn. 16, to have
been used as an equivalent of "ballots cast." 56
And the reason therefor is, also, obvious. Prior to the creation of the
Commission on Elections as a constitutional organ, election laws in the
Philippines were enforced by the then Department of the Interior, through
its Executive Bureau, one of the offices under the supervision and control
of said Department. The same like other departments of the Executive
Branch of the Government was, in turn, under the control of the Chief
Executive, before the adoption of the 1935 Constitution, and had been
until the abolition of said Department, sometime ago under the control
of the President of the Philippines, since the effectivity of said Fundamental
Law. Under the provisions thereof, the Executive could so use his power of
control over the Department of the Interior and its Executive Bureau as to
place the minority party at such a great, if not decisive, disadvantage, as
to deprive it, in effect, of the opportunity to defeat the political party in
power, and, hence, to enable the same to perpetuate itself therein. To
forestall this possibility, the original 1935 Constitution was amended by the
establishment of the Commission on Elections as a constitutional
body independent primarily of the President of the Philippines.
Few laws may be found with such meticulous and elaborate set of
provisions aimed at "insuring free, orderly, and honest election," as
envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by the socalled Barangays or Citizens' Assemblies. And no reasons have been given,
or even sought to be given therefor. In many, if not most, instances, the
election were held a viva voce, thus depriving the electorate of the right to
vote secretly one of the most, fundamental and critical features of our
election laws from time immemorial particularly at a time when the
same was of utmost importance, owing to theexistence of Martial Law.
In accordance with the letter and spirit of said Art. X of the Constitution,
Rep. Act No. 6388, otherwise known as the Election Code of 1971,
implements the constitutional powers of the Commission on Elections and
grants additional powers thereto, some of which are enumerated in
sections 5 and 6 of said Act, quoted below. 64 Moreover, said Act
contains, inter alia, detailed provisions regulating contributions and other
(corrupt) practices; the establishment of election precincts; the designation
and arrangement of polling places, including voting booths, to protect the
secrecy of the ballot; formation of lists of voters, the identification and
registration of voters, the proceedings therefor, as well as for the inclusion
in, or exclusion or cancellation from said list and the publication thereof;
the establishment of municipal, provincial and files of registered voters; the
composition and appointment of board of election inspectors; the
particulars of the official ballots to be used and the precautions to be taken
to insure authenticity thereof; the procedure for the casting of votes; the
counting of votes by boards of inspectors; the rules for the appreciation of
ballots and the preparation and disposition of election returns; the
constitution and operation of municipal, provincials and national boards of
canvassers; the presentation of the political parties and/or their candidates
in each election precinct; the proclamation of the results, including, in the
case of election of public officers, election contests; and the jurisdiction of
courts of justice in cases of violation of the provisions of said Election Code
and the penalties for such violations.
Upon the other hand, said General Order No. 20 expressly suspended "the
provisions of Section 3 of Presidential Decree No. 73 insofar as they allow
free public discussion of proposed Constitution ... temporarily suspending
effects of Proclamation No. 1081 for the purposes of free open dabate on
the proposed Constitution ... ." This specific mention of the portions of the
decrees or orders or instructions suspended by General Order No. 20
necessarily implies that all other portions of said decrees, orders or
instructions and, hence, the provisions of Presidential Decree No. 73
outlining the procedure to be followed in the plebiscite for ratification or
41
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
The point is that, such of the Barrio Assemblies as were held took place
without the intervention of the Commission on Elections, and without
complying with the provisions of the Election Code of 1971 or even of those
of Presidential Decree No. 73. What is more, they were held under the
The record shows, however, that Mr. Cruz was not even a member of any
barrio council since 1972, so that he could possibly have been
a member on January 17, 1973, of a municipal association of presidents of
barrio or ward citizens' assemblies, much less of a Provincial, City or
National Association or Federation of Presidents of any such provincial or
city associations.
Accordingly, the issue boils downs to whether or not the Executive acted
within the limits of his authority when he certified in Proclamation No. 1102
"that the Constitution proposed by the nineteen hundred and seventy-one
(1971) Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines and has thereby come into
effect."
In this connection, it is not claimed that the Chief Executive had personal
knowledge of the data he certified in said proclamation. Moreover, Art. X of
the 1935 Constitution was precisely inserted to place beyond the Executive
the power to supervise or even exercise any authority whatsoever over
"all laws relative to the conduct of elections," and, hence, whether the
elections are for the choice or selection of public officers or for the
ratification or rejection of any proposed amendment, or revision of the
Fundamental Law, since the proceedings for the latter are, also, referred to
in said Art. XV as "elections".
The Solicitor General stated, in his argument before this Court, that he had
been informed that there was in each municipality a municipal association
of presidents of the citizens' assemblies for each barrio of the municipality;
that the president of each such municipal association formed part of a
provincial or city association of presidents of such municipal associations;
that the president of each one of these provincial or city associations in
turn formed part of a National Association or Federation of Presidents of
such Provincial or City Associations; and that one Francisco Cruz from
Pasig, Rizal, as President of said National Association or Federation,
reported to the President of the Philippines, in the morning of January 17,
1973, the total result of the voting in the citizens' assemblies all over the
country from January 10 to January 15, 1973. The Solicitor General further
intimated that the said municipal associations had reported the results of
the citizens' assemblies in their respective municipalities to the
corresponding Provincial Association, which, in turn, transmitted the results
43
administration
of
all
laws
relative
to
the
conduct
of
elections," independently of the Executive, and there is not even a
certification by the Commission in support of the alleged results of the
citizens' assemblies relied upon in Proclamation No. 1102 apart from the
fact that on January 17, 1973 neither the alleged president of the
Federation of Provincial or City Barangays nor the Department of Local
Governments had certified to the President the alleged result of the
citizens' assemblies all over the Philippines it follows necessarily that,
from a constitutional and legal viewpoint, Proclamation No. 1102
is not even prima facie evidence of the alleged ratification of the proposed
Constitution.
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165,
asserts openly that Art. XV of the Constitution has not been complied with,
and since the alleged substantial compliance with the requirements thereof
partakes of the nature of a defense set up by the other respondents in
these cases, the burden of proving such defense which, if true, should
be within their peculiar knowledge is clearly on such respondents.
Accordingly, if despite the extensive notes and documents submitted by
the parties herein, the members of the Court do not know or are not
prepared to say whether or not the majority of the people or of those who
took part in the Citizens' Assemblies have assented to the proposed
Constitution, the logical step would be to give due course to these cases,
require the respondents to file their answers, and the plaintiffs their reply,
and, thereafter, to receive the pertinent evidence and then proceed to the
determination of the issues raised thereby. Otherwise, we would be placing
upon the petitioners the burden of disproving a defense set up by the
respondents, who have not so farestablished the truth of such defense.
Even more important, and decisive, than the foregoing is the circumstance
that there is ample reason to believe that many, if not most, of the people
did not know that the Citizens' Assemblies were, at the time they were
held, plebiscites for the ratification or rejection of the proposed
And, apparently, the parties in said cases entertained the same belief, for,
on December 23, 1972 four (4) days after the last hearing of said
cases 76 the President announced the postponement of the plebiscite
scheduled by Presidential Decree No. 73 to be held on January 15, 1973,
after consultation with the Commission on Elections and the leaders of
Congress, owing to doubts on the sufficiency of the time available to
translate the proposed Constitution into some local dialects and to comply
with some pre-electoral requirements, as well as to afford the people a
reasonable opportunity to be posted on the contents and implications of
said transcendental document. On January 7, 1973, General Order No. 20
was issued formally, postponing said plebiscite "until further notice." How
can said postponement be reconciled with the theory that the proceedings
in the Citizens' Assemblies scheduled to be held from January 10 to January
46
If this was the situation in Bataan one of the provinces nearest to Manila
as late as January 11, 1973, one can easily imagine the predicament of
the local officials and people in the remote barrios in northern and
southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In
fact, several members of the Court, including those of their immediate
families and their household, although duly registered voters in the area of
Greater Manila, were not even notified that citizens' assemblies would be
held in the places where their respective residences were located. In the
Prohibition and Amendment case, 77 attention was called to the "duty cast
upon the court of taking judicial cognizance of anything affecting the
existence
and
validity
of
any
law
or
portion
of
the
Constitution ... ." In line with its own pronouncement in another case, the
Federal Supreme Court of the United States stressed, in Baker v.
Carr, 78 that "a court is not at liberty to shut its eyes to an obvious mistake,
when the validity of the lawdepends upon the truth of what is declared."
In the light of the foregoing, I cannot see how the question under
consideration can be answered or resolved otherwise than in the negative.
V
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and has
been run, since January 17, 1971, under the Constitution drafted by the
1971 Constitutional Convention; that the political department of the
Government has recognized said revised Constitution; that our foreign
relations are being conducted under such new or revised Constitution; that
the Legislative Department has recognized the same; and that the people,
in general, have, by their acts or omissions, indicated their conformity
thereto.
47
2. The "Legislature in its formal official act adopting a joint resolution, July
15, 1902, recognizing the Constitution ordained by the Convention ...";
3. The "individual oaths of its members to support it, and by its having
been engaged for nearly a year, in legislating under it and putting its
provisions
into
operation ...";
No matter how good the intention behind these statement may have been,
the idea implied therein was too clear anominous for any member of
Congress who thought of organizing, holding or taking part in a session of
Congress, not to get the impression that he could hardly do so without
inviting or risking the application of Martial Law to him. Under these
conditions, I do not feel justified in holding that the failure of the members
of Congress to meet since January 22, 1973, was due to their recognition,
acquiescence in or conformity with the provisions of the aforementioned
Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081,
placing the entire Philippines under Martial Law, neither am I prepared to
declare that the people's inaction as regards Proclamation No. 1102, and
their compliance with a number of Presidential orders, decrees and/or
instructions some or many of which have admittedly had salutary effects
issued subsequently thereto amounts, constitutes or attests to a
and the records do not show that any such certification, to the President
of the Philippines or to the President Federation or National Association of
presidents of Provincial Associations of presidents of municipal association
presidents of barrio or ward assemblies of citizens would not, legally and
constitutionally, be worth the paper on which it is written. Why? Because
said Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection of a
proposed amendment or revision of the Constitution and, hence, to
tabulate the results thereof. Worse still, it is the department which,
according to Article X of the Constitution, should not and must not be all
participate in said plebiscite if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 84 the
Highest Court of the United States that courts "willnot stand
impotent before an obvious instance of a manifestly unauthorized exercise
of power." 85
I cannot honestly say, therefore, that the people impliedly or expressly
indicated their conformity to the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about the
procedure followed in these five (5) cases. In this connection, it should be
noted that the Court has not decided whether or not to give due course to
the petitions herein or to require the respondents to answer thereto.
Instead, it has required the respondents to comment on the respective
petitions with three (3) members of the voting to dismiss them outright
and then considers comments thus submitted by the respondents as
motions to dismiss, as well as set the same for hearing. This was due to the
transcendental nature of the main issue raised, the necessity of deciding
the same with utmost dispatch, and the main defense set up by
respondents herein, namely, the alleged political nature of said issue,
placing the same, according to respondents, beyond the ambit of judicial
inquiry and determination. If this defense was sustained, the cases could
readily be dismissed; but, owing to the importance of the questions
involved, a reasoned resolution was demanded by public interest. At the
same time, respondents had cautioned against a judicial inquiry into the
merits of the issues posed on account of the magnitude of the evil
consequences, it was claimed, which would result from a decision thereon,
if adverse to the Government.
Before answering this question, I would like to ask the following: If, instead
of being certified by the aforementioned officers of Congress, the so-called
enrolled bill were certified by, say, the President of the Association of Sugar
Planters and/or Millers of the Philippines, and the measure in question were
a proposed legislation concerning Sugar Plantations and Mills sponsored by
said Association, which even prepared the draft of said legislation, as well
as lobbied actually for its approval, for which reason the officers of the
Association, particularly, its aforementioned president whose honesty
and integrity are unquestionable were present at the deliberations in
Congress when the same approved the proposed legislation, would the
enrolled bill rule apply thereto? Surely, the answer would have to be in the
negative. Why? Simply, because said Association President has absolutely
no official authority to perform in connection therewith, and, hence, his
certification is legally, as good as non-existent.
As a matter of fact, some of those issues had been raised in the plebiscite
cases, which were dismissed as moot and academic, owing to the issuance
of Proclamation No. 1102 subsequently to the filing of said cases, although
before the rendition of judgment therein. Still one of the members of the
Court (Justice Zaldivar) was of the opinion that the aforementioned issues
should be settled in said cases, and he, accordingly, filed an opinion
passing upon the merits thereof. On the other hand, three (3) members of
the Court Justices Barredo, Antonio and Esguerra filed separate
opinions favorable to the respondents in the plebiscite cases, Justice
Barredo holding "that the 1935 Constitution has pro tanto passed into
history and has been legitimately supplanted by the Constitution in force
by virtue of Proclamation 1102." 86 When the petitions at bar were filed, the
same three (3) members of the Court, consequently, voted for the
dismissal of said petitions. The majority of the members of the Court did
not share, however, either view, believing that the main question that
arose before the rendition of said judgment had not been sufficiently
discussed and argued as the nature and importance thereof demanded.
The parties in the cases at bar were accordingly given every possible
opportunity to do so and to elucidate on and discuss said question. Thus,
apart from hearing the parties in oral argument for five (5) consecutive
days morning and afternoon, or a total of exactly 26 hours and 31
minutes the respective counsel filed extensive notes on their or
arguments, as well as on such additional arguments as they wished to
submit, and reply notes or memoranda, in addition to rejoinders thereto,
aside from a sizeable number of document in support of their respective
contentions, or as required by the Court. The arguments, oral and written,
submitted have been so extensive and exhaustive, and the documents
filed in support thereof so numerous and bulky, that, for all intents and
purposes, the situation is as if disregarding forms the petitions had
been given due course and the cases had been submitted for decision.
We must realize that the New Society has many achievements which would
have been very difficult, if not impossible, to accomplish under the old
dispensation. But, in and for the judiciary, statesmanship should not prevail
over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law
and faithful adherence thereto are basic, fundamental and essential parts
of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of their
individual opinions and/or concurrences as appended hereto, the writer will
now make, with the concurrence of his colleagues, a resume or summary of
the votes cast by each of them.
Accordingly, the majority of the members of the Court believe that they
should express their views on the aforementioned issues as if the same
were being decided on the merits, and they have done so in their individual
opinion attached hereto. Hence, the resume of the votes cast and the tenor
of the resolution, in the last pages hereof, despite the fact that technically
the Court has not, as yet, formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ
of mandamus prayed for against Gil J. Puyat and Jose Roy, President and
President Pro Tempore respectively of the Senate, it being settled in our
jurisdiction, based upon the theory of separation of powers, that the
judiciary will not issue such writ to the head of a co-equal department, like
the aforementioned officers of the Senate.
The five questions thus agreed upon as reflecting the basic issues herein
involved are the following:
In all other respects and with regard to the other respondent in said case,
as well as in cases L-36142, L-36164, L-36236 and L-36283, my vote is that
the petitions therein should be given due course, there being more
than prima facie showing that the proposed Constitution has not been
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court
hold that under their view there has been in effect substantial compliance
with the constitutional requirements for valid ratification.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that "the people have already accepted the 1973
Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold
that there can be no free expression, and there has even been no
expression, by the people qualified to vote all over the Philippines, of their
acceptance or repudiation of the proposed Constitution under Martial Law.
Justice Fernando states that "(I)f it is conceded that the doctrine stated in
some American decisions to the effect that independently of the validity of
the ratification, a new Constitution once accepted acquiesced in by the
people must be accorded recognition by the Court, I am not at this stage
prepared to state that such doctrine calls for application in view of the
shortness of time that has elapsed and the difficulty of ascertaining what is
the mind of the people in the absence of the freedom of debate that is a
concomitant feature of martial law." 88
Three (3) members of the Court express their lack of knowledge and/or
competence to rule on the question. Justices Makalintal and Castro are
joined by Justice Teehankee in their statement that "Under a regime of
martial law, with the free expression of opinions through the usual media
vehicle restricted, (they) have no means of knowing, to the point of judicial
certainty, whether the people have accepted the Constitution." 89
Justice Barredo qualified his vote, stating that "(A)s to whether or not the
1973 Constitution has been validly ratified pursuant to Article XV, I still
maintain that in the light of traditional concepts regarding the meaning
and intent of said Article, the referendum in the Citizens' Assemblies,
specially in the manner the votes therein were cast, reported and
canvassed, falls short of the requirements thereof. In view, however, of the
fact that I have no means of refusing to recognize as a judge that factually
there was voting and that the majority of the votes were for considering as
approved the 1973 Constitution without the necessity of the usual form of
4. On the fourth question of relief, six (6) members of the Court, namely,
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted
to DISMISS the petition. Justice Makalintal and Castro so voted on the
strength of their view that "(T)he effectivity of the said Constitution, in the
final analysis, is the basic and ultimate question posed by these cases to
resolve which considerations other than judicial, an therefore beyond the
competence of this Court, 90 are relevant and unavoidable." 91
51
ON THE CASE
"(a) An examination of the decisions shows that the courts have almost
uniformly exercised the authority to determine the validity of the proposal,
submission, or ratification of constitutional amendments. It has
been judicially determined whether a proposed amendment received the
constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v.
Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl.
744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6
L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779;
Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re
Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.]
134 Fed. 423); whether a proposed amendment is a single amendment,
within the constitutional requirement that every amendment must be
separately submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert
v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis.
318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722;
Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo.
369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87
Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149);
whether the failure to enter the resolution of submission upon the
legislative journals invalidates the amendment (Koehler v. Hill, 60 Iowa,
543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11
Pac. 3; West v. State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22
Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St.
Rep. 895); whether the description of the amendment and the form of the
ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v.
Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149; Murphy Chair Co. v.
Attorney General [Mich.] 112 N.W. 127); whether the method of submission
sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164
Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a
notice relative to it is sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50
L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the
submission may be well by resolution as by a legislative act approved by
the executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568;
Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward Lesueur, 132 Mo.
410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732;
State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what election the
amendment be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
IN RE McCONAUGHY
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said:
"It is contended that the determination of the question whether an
amendment to the Constitution has been carried involves the exercise of
political, and not judicial, power. If this be so, it follows that the
promulgation of any purported amendment by the executive or any
executive department is final, and that the action cannot be questioned by
the judiciary; but, with reference to the conditions precedent to submitting
been legally adopted. After approving the statement quoted from Collier v.
Frierson, supra, that 'we entertain no doubt that, to change the
Constitution in an other mode than by a convention, every requisite which
is demanded by the instrument itself must be observed, and the omission
of any one is fatal to the amendment,' the court held that, 'as substance of
right is grander and more potent than methods of form,' there had been
substantial compliance with the constitutional requirement that a proposed
amendment to the Constitution must be entered at length on the
legislative journal. It appears that the joint resolution making submission
simply provided that a proposition should be submitted to the electors at
the general election of 1880. It did not declare that the machinery of the
general election law should control, or that any particular officers or board
would receive, count, or canvass the votes cast. But the existing election
machinery was adequate, and the votes were received, counted, and
canvassed, and the result declared as fully as though it had been in terms
so ordered. These methods had been followed in the adoption of previous
amendments, and was held that, conceding the irregularity of the
proceedings the Legislature and the doubtful scope of the provisions for
the election, yet in view of the very uncertainty of such provision the past
legislative
history of
similar
propositions,
the universal
prior
acquiescence in the same forms of procedure and the popular
and unchallenged acceptance of the legal pendency before the people of
the question of the amendment for decision, and in view of the duty cast
upon the court taking judicial knowledge of anything affecting the
existence and validity of any law or portion of the Constitution, it must be
adjudged that the proposed amendment became part of the Constitution.
The effect was to hold that a provision of the Constitution requiring the
proposed amendment to be entered in full on the journals was directory,
and not mandatory. This liberal view was approved in State v. Winnett
(Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369,
Pac. 167, 102 Am. St. Rep. 34. But it has not been universally accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in
commenting upon the Kansas case said: 'The reasoning by which the
learned court reached the conclusion it did is not based on any sound legal
principles, butcontrary to them. Neither the argument nor the conclusion
can command our assent or approval. The argument isillogical, and based
on premises which are without any sound foundation, and rests merely on
assumption.' See, also, the well-considered case of Kadderly v. Portland, 44
Or. 118, 74 Pac. 710, 75 Pac. 222. All these casesconcede the jurisdiction
of the court to determine whether, in submitting a proposed amendment to
the people, the Legislature legally observed the constitutional provisions
as to the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac.
424, 25 L.R.A. 312, the court, at the instance of a citizen and a taxpayer,
restrained the Secretary of State from taking steps to submit to the people
a proposed amendment to the Constitution agreed to by the Legislature on
the ground that the Legislature had not acted in conformity with the
Constitution and that the proposed amendment was of such a character
that it could not properly become a part of the Constitution. The Supreme
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an
amendment to the Constitution had been legally submitted and adopted by
the people was held to be judicial, and not political, in its nature. The
amendment under consideration changed the Constitution by providing for
an elective, instead of an appointive, judiciary. It was contented that the
amendments had been improperly submitted and adopted by a majority of
the qualified voters voting at election, as required by the Constitution. The
law did direct how the result of the election should be determined. The
Legislature by joint resolution recited that the election had been duly held
throughout the state, and, as it appeared from the returns made to the
Secretary of State, that 21,169 votes were cast in favor of, and 8,643 votes
against, the amendment, it resolved 'that said amendment be, and hereby
is, inserted into the Constitution of the state of Mississippi as a part of the
Constitution.' In fact, the amendment was not submitted in the
manner prescribed by the Constitution, and it did not receive a majority of
all the qualified voters voting at the election. It was argued that the rules
prescribed by the Constitution "are all for the guidance of the Legislature,
and from the very nature of the thing the Legislature must be
the exclusive judge of all questions to be measured or determined by these
rules. Whether the question be political, and certainly a legislative one, or
judicial, to be determined by the courts, this section of rules, not only of
procedure, but of final judgment as well, confides to the separate
magistracy of the legislative department full power to hear, consider, and
adjudge that question. The Legislature puts the question to
the qualified electors.
The qualified electors
answer
back
to
the
Legislature. "If it shall appear" to the Legislature that its question has been
answered in the affirmative, the amendment is inserted and made a part of
the Constitution. The Governor and the courts have no authority to speak
at any stage of the proceedings between the sovereign and the
Legislature, and when the matter is thus concluded it is closed, and the
judiciary is as powerless to interfere as the executive.' But it was held that
the question whether the proposition submitted to the voters constituted
one, or more than one, amendment, whether the submission was
according to the requirements of the Constitution, and whether the
proposition was in fact adopted, were all judicial, and not political,
questions. 'We do not,' said Chief Justice Whitfield, 'seek a jurisdiction not
imposed upon us by the Constitution. We could not, if we would, escape
the exercise of that jurisdiction which the Constitution has imposed upon
us. In the particular instance in which we are now acting, our duty to know
what the Constitution of the state is, and in accordance with our oaths to
support and maintain it in its integrity, imposed on us a most difficult and
embarrassing duty, one which we have not sought, but one which, like all
others, must be discharged."
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was
held that it was the duty of the judicial department of the government to
determine whether the legislative department or its officers had observed
the constitutional injunctions in attempting to amend the Constitution, and
to annul their acts if they had not done so. The case is an interesting and
54
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the
identical question which we have under consideration. In reference to the
contention that the Constitution intended to delegate to the Speaker of the
55
EN BANC
RESOLUTION
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965
and
L-35979, decided on January 22, 1973, to which We will hereafter refer
collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered,
from which We quote:
On March 16, 1967, Congress of the Philippines passed
Resolution No. 2, which was amended by Resolution No. 4
of said body, adopted on June 17, 1969, calling a
Convention to propose amendments to the Constitution of
the Philippines. Said Resolution No. 2, as amended, was
implemented by Republic Act No. 6132, approved on
August 24, 1970, pursuant to the provisions of which the
election of delegates to said Convention was held on
November 10, 1970, and the 1971 Constitutional
Convention began to perform its functions on June 1, 1971.
While the Convention was in session on September 21,
1972, the President issued Proclamation No. 1081 placing
the entire Philippines under Martial Law. On November 29,
1972, the Convention approved its Proposed Constitution of
the Republic of the Philippines. The next day, November
30, 1972, the President of the Philippines issued
Presidential Decree No. 73, "submitting to the Filipino
people for ratification or rejection the Constitution of the
Republic of the Philippines proposed by the 1971
Constitutional Convention, and appropriating funds
therefor," as well as setting the plebiscite for said
ratification or rejection of the Proposed Constitution on
January 15, 1973.
In all these cases, except the last (G.R. No. L-35979), the
respondents were required to file their answers "not later
than 12:00 (o'clock) noon of Saturday, December 16,
1972." Said cases were, also, set for hearing and partly
heard on Monday, December 18, 1972, at 9:30 a.m. The
hearing was continued on December 19, 1972. By
agreement of the parties, the aforementioned last case
G.R. No. L-35979 was, also, heard, jointly with the
others, on December 19, 1972. At the conclusion of the
hearing, on that date, the parties in all of the
COMMENTS ON
QUESTION No. 1
QUESTION No. 2
"11. That on January 11, 1973, it was reported that six (6)
more questions would be submitted to the so-called
Citizens Assemblies:
approve
of
the
QUESTION No. 3
new
QUESTION No. 4
QUESTION No. 5
Probably a period of at least seven (7)
years moratorium on elections will be
enough for stability to be established in the
country, for reforms to take root and
normalcy to return.
59
QUESTION No. 6
Do you still
want
a
plebiscite
to be called
to ratify the
new
Constitutio
n?"
QUESTION No. 3
The vote of the Citizens Assemblies should
be considered the plebiscite on the New
Constitution.
Then the writer of said decision expressed his own opinion on the issues
involved therein, after which he recapitulated the views of the Members of
the Court, as follows:
MELCHOR
Accordingly, the Court acting in conformity with the position taken by six
(6) of its members, 1 with three (3) members dissenting, 2 with respect to
G.R. No. L-35948, only and another member 3 dissenting, as regards all of
the cases dismissed the same, without special pronouncement as to costs.
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio
Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de
Peralta and Lorenzo M. Taada, against the Executive Secretary, the
Secretaries of Finance, Justice, Land Reform, and National Defense, the
Auditor General, the Budget Commissioner, the Chairman of the
65
notes shall include his reply to the notes already filed by the petitioners in
G.R. Nos. L-36164 a L-36165. Counsel for the petitioners, likewise, moved
and were granted an extension of time, to expire on March 10, 1973, within
which to file, as they did, their notes in reply to those submitted by the
Solicitor General on March 3, 1973. On March 21, 1973, petitioners in L36165 filed a "Manifestation a Supplemental Rejoinder," whereas the Office
of the Solicitor General submitted in all these cases a "Rejoinder
Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed that
each would write his own opinion and serve a copy thereof on his
colleagues, and this they did. Subsequently, the Court discussed said
opinions and votes were cast thereon. Such individual opinions are
appended hereto.
Accordingly, the writer will first express his person opinion on the issues
before the Court. After the exposition his aforesaid opinion, the writer will
make, concurrently with his colleagues in the Court, a resume of summary
of the votes cast by them in these cases.
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their
separate comment therein, alleging that "(t)he subject matter" of said case
"is a highly political question which, under the circumstances, this ...Court
would not be in a position to act upon judicially," and that, in view of the
opinions expressed by three members of this Court in its decision in the
plebiscite cases, in effect upholding the validity of Proclamation No. 1102,
"further proceedings in this case may only be an academic exercise in
futility."
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that,
under these circumstances, "it seems remote or improbable that the
necessary eight (8) votes under the 1935 Constitution, and much less the
ten (10) votes required by the 1972 (1973) Constitution, can be obtained
for the relief sought in the Amended Petition" in G.R. No.
L-36165.
The distinction is not without reasonable foundation. The two thirds vote
(eight [8] votes) requirement, indeed, was made to apply only to treaty
and law, because, in these cases, the participation of the two other
departments of the government the Executive and the Legislative is
present, which circumstance is absent in the case of rules, regulations and
executive orders. Indeed, a law (statute) passed by Congress is subject to
the approval or veto of the President, whose disapproval cannot be
overridden except by the vote of two-thirds (2/3) of all members of each
House of Congress. 12 A treaty is entered into by the President with the
concurrence of the Senate, 13 which is not required in the case of rules,
regulations or executive orders which are exclusive acts of the President.
Hence, to nullify the same, a lesser number of votes is necessary in the
Supreme Court than that required to invalidate a law or treaty.
Administrative acts and commands of the (GovernorGeneral) President of the Philippines touching the
organization or mode of operation of the Government or
rearranging or readjusting any of the districts, divisions,
parts or ports of the (Philippine Islands) Philippines and all
acts and commands governing the general performance of
duties by public employees or disposing of issues of
general concern shall be made effective in executive
orders.
68
II
Does the issue on the validity of Proclamation No. 1102 partake of the
nature of a political, and, hence, non-justiciable question?
The Solicitor General maintains in his comment the affirmative view and
this is his main defense. In support thereof, he alleges that "petitioners
would have this Court declare as invalid the New Constitution of the
Republic" from which he claims "this Court now derives its authority";
that "nearly 15 million of our body politic from the age of 15 years have
mandated this Constitution to be the New Constitution and the prospect of
unsettling acts done in reliance on it caution against interposition of the
power of judicial review"; that "in the case of the New Constitution, the
government has been recognized in accordance with the New
Constitution"; that "the country's foreign relations are now being
conducted in accordance with the new charter"; that "foreign governments
have taken note of it"; that the "plebiscite cases" are "not precedents for
holding questions regarding proposal and ratification justiciable"; and that
"to abstain from judgment on the ultimate issue of constitutionality is not
to abdicate duty."
The reason why the issue under consideration and other issues of similar
character are justiciable, not political, is plain and simple. One of the
principal bases of the non-justiciability of so-called political questions is the
principle of separation of powers characteristic of the Presidential
system of government the functions of which are classified or divided,
by reason of their nature, into three (3) categories, namely: 1) those
involving the making of laws, which are allocated to the legislative
department; 2) those concerned mainly with the enforcement of such laws
and of judicial decisions applying and/or interpreting the same, which
belong to the executive department; and 3) those dealing with the
settlement of disputes, controversies or conflicts involving rights, duties or
prerogatives that are legally demandable and enforceable, which are
apportioned to courts of justice. Within its own sphere butonly
within such sphere each department is supreme and independent of the
others, and each is devoid of authority, not only to encroach upon the
powers or field of action assigned to any of the other departments, but,
also, to inquire into or pass upon the advisability or wisdom of the acts
performed, measures taken or decisions made by the other departments
provided that such acts, measures or decisions are within the area
allocated thereto by the Constitution. 25
"At the threshold of the case we are met with the assertion
that the questions involved are political, and not judicial. If
this is correct, the court has no jurisdiction as the
certificate of the state canvassing board would then be
final, regardless of the actual vote upon the amendment.
The question thus raised is a fundamental one; but it has
been so often decided contrary to the view contended for
by the Attorney General that it would seem to be finally
settled.
xxx xxx xxx
"... What is generally meant, when it is said that a question
is political, and not judicial, is that it is a matter which is to
be exercised by the people in their primary political
capacity, or that it has been specifically delegated to some
other
department
or
particular
officer
of
the
government, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re
Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green
vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher
vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St.
Rep.
220.
Thus
theLegislature
may
in
its
discretion determine whether it will pass law or submit a
proposed constitutional amendment to the people. The
courts have no judicial control over such matters, not
merely becausethey involve political questions, but
because they are matters which the people have by the
Constitution delegated to the Legislature. The Governor
may exercise the powers delegated him, free from judicial
control, so long as he observes the laws act within the
limits of the power conferred. Hisdiscretionary acts cannot
be controllable, not primarily because they are of a politics
nature, but because the Constitution and laws have placed
the particular matter under his control. But every officer
under constitutional government must act accordingly to
law and subject its restrictions, and every departure
therefrom or disregard thereof must subject him to that
restraining and controlling power of the people, acting
through the agency of the judiciary; for it must be
words
which
Webster
said
were the
greatest contained in any written constitutional document."
(Emphasis supplied.)
Luther v. Borden was an action for trespass filed by Luther with the Circuit
Court of the United States against Borden and others for having forcibly
entered into Luther's house, in Rhode Island, sometime in 1842. The
defendants who were in the military service of said former colony of
England, alleged in their defense that they had acted in obedience to the
commands of a superior officer, because Luther and others were engaged
in a conspiracy to overthrow the government by force and the state had
been placed by competent authority under Martial Law. Such authority was
the charter government of Rhode Island at the time of the Declaration of
Independence, for unlike other states which adopted a new Constitution
upon secession from England Rhode Island retained its form of
government under a British Charter, making only such alterations, by acts
of the Legislature, as were necessary to adapt it to its subsequent
condition as an independent state. It was under this form of government
when Rhode Island joined other American states in the Declaration of
Independence and, by subsequently ratifying the Constitution of the United
States, became a member of the Union. In 1843, it adopted a new
Constitution.
Prior thereto, however, many citizens had become dissatisfied with the
charter government. Memorials addressed by them to the Legislature
having failed to bring about the desired effect, meetings were held and
associations formed by those who belonged to this segment of the
population which eventually resulted in a convention called for the
drafting of a new Constitution to be submitted to the people for their
adoption or rejection. The convention was not authorized by any law of the
existing government. The delegates to such convention framed a new
Constitution which was submitted to the people. Upon the return of the
votes cast by them, the convention declared that said Constitution had
been adopted and ratified by a majority of the people and became the
paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number of
citizens of the state, contested, however, the validity of said proceedings.
This notwithstanding, one Thomas W. Dorr, who had been elected governor
under the new Constitution of the rebels, prepared to assert authority by
71
Meanwhile, the charter government had taken measures to call its own
convention to revise the existing form of government. Eventually, a new
constitution was drafted by a convention held under the authority of the
charter government, and thereafter was adopted and ratified by the
people. "(T)he times and places at which the votes were to be given, the
persons who were to receive and return them, and the qualifications of the
voters having all been previously authorized and provided for by law
passed by the charter government," the latter formally surrendered all of
its powers to the new government, established under its authority, in May
1843, which had been in operationuninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military force,
had made an unsuccessful attempt to take possession of the state arsenal
in Providence, but he was repulsed, and, after an "assemblage of some
hundreds of armed men under his command at Chepatchet in the June
following, which dispersed upon approach of the troops of the old
government, no further effort was made to establish" his government. "...
until the Constitution of 1843" adopted under the auspices of the charter
government "went into operation, the charter government continued to
assert its authority and exercise its powers and to enforce obedience
throughout the state ... ."
It is thus apparent that the context within which the case of Luther v.
Borden was decided is basically and fundamentally different from that of
the cases at bar. To begin with, the case did not involve a federal question,
but one purely municipal in nature. Hence, the Federal Supreme Court was
"bound to follow the decisions of the State tribunals" of Rhode Island
upholding the constitution adopted under the authority of the charter
government. Whatever else was said in that case constitutes, therefore,
an obiter dictum. Besides, no decision analogous to that rendered by the
State Court of Rhode Island exists in the cases at bar. Secondly, the states
of the Union have a measure of internal sovereignty upon which the
Federal Government may not encroach, whereas ours is a unitary form of
government, under which our local governments derive their authority
from the national government. Again,unlike our 1935 Constitution, the
charter or organic law of Rhode Island contained no provision on the
manner, procedure or conditions for its amendment.
Then, too, the case of Luther v. Borden hinged more on the question of
recognition of government, than on recognition of constitution, and there is
a fundamental difference between these two (2) types of recognition, the
first being generally conceded to be a political question, whereas the
nature of the latter depends upon a number of factors, one of them being
whether the new Constitution has been adopted in the manner prescribed
72
90th Congress of the U.S. Said dismissal was predicated upon the
ground, inter alia, that the issue was political, but the Federal Supreme
Court held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of American
jurisprudence on the matter. Owing to the lucidity of its appraisal thereof,
We append the same to this opinion as Annex A thereof.
After an, exhaustive analysis of the cases on this subject, the Court
concluded:
In the light of the foregoing, and considering that Art. XV of our 1935
Constitution prescribes the method or procedure for its amendment, it is
clear to my mind that the question whether or not the revised Constitution
drafted by the 1971 Constitutional Convention has been ratified in
accordance with said Art. XV is a justiciable one and non-political in nature,
and that it is not only subject to judicial inquiry, but, also, that it is the
Court's bounden duty to decide such question.
The Supreme Court of the United States has meaningfully postulated that
"the courts cannot reject as 'no law suit' " because it allegedly involves a
political question "a bona fide controversy as to whether some action
denominated "political" exceeds constitutional authority." 37
III
Has the proposed new or revised Constitution been ratified conformably to
said Art. XV of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the
President "is without authority to create the Citizens' Assemblies" through
which, respondents maintain, the proposed new Constitution has been
ratified; that said Assemblies "are without power to approve the proposed
Constitution"; 3) that the President "is without power to proclaim the
ratification by the Filipino people of the proposed Constitution"; and 4) that
"the election held (in the Citizens' Assemblies) to ratify the proposed
Constitution was not a free election, hence null and void."
Sec.
2.
The
Commission
on
Elections
shall
have exclusive charge
of
the
enforcement
and
administration of all laws relative to the conduct of
elections and shall exercise all other functions which may
be conferred upon it by law. It shall decide, save those
involving the right to vote, all administrative questions,
affecting elections, including the determination of the
number and location of polling places, and the
appointment of election inspectors and of other election
officials. All
law
enforcement
agencies
and
instrumentalities of the Government, when so required by
the Commission, shall act as its deputiesfor the purpose
of insuring fee, orderly, and honest elections. The
decisions, orders, and rulings of the Commission shall be
subject to review by the Supreme Court.
39
What is relevant to the issue before Us is the fact that the constitutional
provision
under
consideration
was
meant
to
be
and
is
a grant or conferment of a right to persons possessing the qualifications
and none of the disqualifications therein mentioned, which in turn,
constitute a limitation of or restriction to said right, and cannot,
accordingly, be dispensed with, except by constitutional amendment.
Obviously, every such constitutional grant or conferment of a right is
necessarily a negation of the authority of Congress or of any other branch
of the Government to deny said right to the subject of the grant and, in
this sense only, may the same partake of the nature of a guarantee. But,
this does not imply not even remotely, that the Fundamental Law allows
Congress or anybody else to vest in those lacking the qualifications and
having the disqualifications mentioned in the Constitution the right of
suffrage.
partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into
the Administrative Code of 1916 Act 2657 as chapter 20 thereof, and
then in the Administrative Code of 1917 Act 2711 as chapter 18
thereof, which, in turn, was amended by Act 3387, approved on December
3, 1927. Sections 431 and 432 of said Code of 1917, prescribing,
respectively, the qualifications for and disqualifications from voting, are
quoted below. 44 In all of these legislative acts, the provisions concerning
the qualifications of voters partook of the nature of a grant or recognition
of the right of suffrage, and, hence, of adenial thereof to those who lacked
the requisite qualification and possessed any of the statutory
disqualifications. In short, the history of section 1, Art. V of the
Constitution, shows beyond doubt than the same conferred not
guaranteed the authority to persons having the qualifications prescribed
therein and none of disqualifications to be specified in ordinary laws and,
necessary implication, denied such right to those lacking any said
qualifications, or having any of the aforementioned disqualifications.
to read and write," and residents the barrio "during the six months
immediately preceding election, duly registered in the list of voters" and "
otherwise disqualified ..." just like the provisions of present and past
election codes of the Philippines and Art. V of the 1935 Constitution
"may vote in the plebiscite."
I believe, however, that the apparent conflict should resolved in favor of
the 21-year-old members of the assembly, not only because this
interpretation is in accord with Art. V the Constitution, but, also, because
provisions of a Constitution particularly of a written and rigid one, like
ours generally accorded a mandatory status unless the intention to the
contrary is manifest, which is not so as regards said Art. V for otherwise
they would not have been considered sufficiently important to be included
in the Fundamental Law of the land. 48 Besides, it would be illogical, if not
absurd, believe that Republic Act No. 3590 requires, for the most
important measures for which it demands in addition to favorable action
of the barrio council the approval of barrio assembly through
a plebiscite, lesser qualifications than those prescribed in dealing with
ordinary measures for which such plebiscite need not be held.
This view is further bolstered by the fact that the 1971 Constitutional
Convention sought the submission to a plebiscite of a "partial amendment"
to said section 1 of Art. V of the 1935 Constitution, by reducing the voting
age from twenty-one (21) years to eighteen (18) years, which, however,
did not materialize on account of the decision of this Court in Tolentino v.
Commission on Elections, 45 granting the writs, of prohibition and injunction
therein applied for, upon the ground that, under the Constitution, all of the
amendments adopted by the Convention should be submitted in "an
election" or a single election, not separately or in several or distinct
elections, and that the proposed amendment sought to be submitted to a
plebiscite was not even a complete amendment, but a "partial
amendment" of said section 1, which could be amended further, after its
ratification, had the same taken place, so that the aforementioned partial
amendment
was,
for
legal
purposes,
no
more
than
a provisional or temporary amendment. Said partial amendment was
predicated upon the generally accepted contemporary construction that,
under the 1935 Constitution, persons below twenty-one (21) years of age
could not exercise the right of suffrage, without a previous amendment of
the Constitution.
Upon the other hand, the question, whether 18-year-old members of barrio
assemblies may vote in barrio assembly plebiscites is, to say the least, a
debatable one. Indeed, there seems to be a conflict between the last
paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the
"majority vote of all the barrio assembly members" (which include all barrio
residents 18 years of age or over, duly registered in the list of barrio
assembly members) is necessary for the approval, in an assembly
plebiscite, of "any budgetary, supplemental appropriations or special tax
ordinances," whereas, according to the paragraph preceding the
penultimate one of said section, 47 "(a)ll duly registered barrio assembly
membersqualified to vote" who, pursuant to section 10 of the same Act,
must be citizens "of the Philippines, twenty-one years of age or over, able
In fact, according to the latest official data, the total number of registered
voters 21 years of age or over in the entire Philippines, available in January
1973, was less than 12 million. Yet, Proclamation No. 1102 states that
14,976,56 "members of all the Barangays (Citizens Assemblies) voted for
the adoption of the proposed Constitution, as against ... 743,869 who voted
76
for its rejection," whereas, on the question whether or not the people still
wanted a plebiscite to be called to ratify the new Constitution, "...
14,298,814 answered that there was no need for a plebiscite and that the
vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite." In other words, it is conceded that the number of people
who allegedly voted at the Citizens' Assemblies for exceeded the number
of registered voters under the Election Code in force in January 1973.
It seems to
us that
a vote
is cast
when
a ballot is deposited indicating a "choice." ... The word
"cast" means "deposit (a ballot) formally or officially ... .
In short, said Art. XV envisages with the term "votes cast" choices
made on ballots not orally or by raising by the persons taking part in
plebiscites. This is but natural and logical, for, since the early years of the
American regime, we had adopted the Australian Ballot System, with its
major characteristics, namely, uniform official ballotsprepared and
furnished by the Government and secrecy in the voting, with the
advantage of keeping records that permit judicial inquiry, when necessary,
into the accuracy of the election returns. And the 1935 Constitution has
been consistently interpreted in all plebiscites for the ratification rejection
of proposed amendments thereto, from 1935 to 1967. Hence, the viva
voce voting in the Citizens' Assemblies was and is null and void ab initio.
It has been held that "(t)he power to reject an entire poll ... should be
exercised ... in a case where it is impossible to ascertain with reasonable
certainty the true vote," as where "it is impossible to separate the legal
votes from the illegal or spurious ... ." 54
In Usman v. Commission on Elections, et al.,
55
We held:
Just as essential as compliance with said Art. V of the 19 Constitution is
that of Art. X thereof, particularly its sections 1 and 2. Indeed, section 1
provides that "(t)here shall be an independent Commission on
Elections ... ." The point to be stressed here is the term "independent."
Indeed, why was the term used?
Then, too, the 1935 Constitution requires "a majority of the votes cast" for
a proposed amendment to the Fundamental Law to be "valid" as part
thereof, and the term "votes cast" has a well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville
County Commissioners, 65 N.W. 956, 64 Minn. 16, to have
been used as an equivalent of "ballots cast." 56
And the reason therefor is, also, obvious. Prior to the creation of the
Commission on Elections as a constitutional organ, election laws in the
Philippines were enforced by the then Department of the Interior, through
its Executive Bureau, one of the offices under the supervision and control
of said Department. The same like other departments of the Executive
77
Branch of the Government was, in turn, under the control of the Chief
Executive, before the adoption of the 1935 Constitution, and had been
until the abolition of said Department, sometime ago under the control
of the President of the Philippines, since the effectivity of said Fundamental
Law. Under the provisions thereof, the Executive could so use his power of
control over the Department of the Interior and its Executive Bureau as to
place the minority party at such a great, if not decisive, disadvantage, as
to deprive it, in effect, of the opportunity to defeat the political party in
power, and, hence, to enable the same to perpetuate itself therein. To
forestall this possibility, the original 1935 Constitution was amended by the
establishment of the Commission on Elections as a constitutional
body independent primarily of the President of the Philippines.
that "(t)he decisions, orders, and ruling of the Commission" shall not be
subject to review, except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution,
Rep. Act No. 6388, otherwise known as the Election Code of 1971,
implements the constitutional powers of the Commission on Elections and
grants additional powers thereto, some of which are enumerated in
sections 5 and 6 of said Act, quoted below. 64 Moreover, said Act
contains, inter alia, detailed provisions regulating contributions and other
(corrupt) practices; the establishment of election precincts; the designation
and arrangement of polling places, including voting booths, to protect the
secrecy of the ballot; formation of lists of voters, the identification and
registration of voters, the proceedings therefor, as well as for the inclusion
in, or exclusion or cancellation from said list and the publication thereof;
the establishment of municipal, provincial and files of registered voters; the
composition and appointment of board of election inspectors; the
particulars of the official ballots to be used and the precautions to be taken
to insure authenticity thereof; the procedure for the casting of votes; the
counting of votes by boards of inspectors; the rules for the appreciation of
ballots and the preparation and disposition of election returns; the
constitution and operation of municipal, provincials and national boards of
canvassers; the presentation of the political parties and/or their candidates
in each election precinct; the proclamation of the results, including, in the
case of election of public officers, election contests; and the jurisdiction of
courts of justice in cases of violation of the provisions of said Election Code
and the penalties for such violations.
Few laws may be found with such meticulous and elaborate set of
provisions aimed at "insuring free, orderly, and honest election," as
envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by the socalled Barangays or Citizens' Assemblies. And no reasons have been given,
or even sought to be given therefor. In many, if not most, instances, the
election were held a viva voce, thus depriving the electorate of the right to
vote secretly one of the most, fundamental and critical features of our
election laws from time immemorial particularly at a time when the
same was of utmost importance, owing to theexistence of Martial Law.
No. 86-A directing the immediate submission of the result thereof to the
Department of Local Governments Community Development is not
necessarily inconsistent with, and must be subordinate to the
constitutional power of the Commission on Elections to exercise its
"exclusive authority over the enforcement and administration of all laws to
the conduct of elections," if the proceedings in the Assemblies would
partake of the nature of an "election" or plebiscite for the ratification or
rejection of the proposed Constitution.
We are told that Presidential Decree No. 86 was further amended by
Presidential Decree No. 86-B, dated 1973, ordering "that important national
issues shall from time to time; be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with Presidential Decree No. 86-A
dated January 5, 1973 and that the initial referendum include the matter of
ratification of the Constitution by the 1971 Constitutional Convention" and
that "(t)he Secretary of the Department of Local Governments and
Community Development shall insure the implementation of this order." As
in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing
directives do not necessarily exclude exercise of the powers vested by the
1935 Constitution in the Commission on Elections, even if the Executive
had the authority to repeal Art. X of our Fundamental Law which he does
not possess. Copy of Presidential Decree No. 86-B is appended hereto as
Annex B hereof.
Upon the other hand, said General Order No. 20 expressly suspended "the
provisions of Section 3 of Presidential Decree No. 73 insofar as they allow
free public discussion of proposed Constitution ... temporarily suspending
effects of Proclamation No. 1081 for the purposes of free open dabate on
the proposed Constitution ... ." This specific mention of the portions of the
decrees or orders or instructions suspended by General Order No. 20
necessarily implies that all other portions of said decrees, orders or
instructions and, hence, the provisions of Presidential Decree No. 73
outlining the procedure to be followed in the plebiscite for ratification or
rejection of the proposed Constitution remained in force, assuming that
said Decree is valid.
The point is that, such of the Barrio Assemblies as were held took place
without the intervention of the Commission on Elections, and without
complying with the provisions of the Election Code of 1971 or even of those
of Presidential Decree No. 73. What is more, they were held under the
supervision of the very officers and agencies of the Executive Department
sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse
still, said officers and agencies of the 1935 Constitution would be favored
thereby, owing to the practical indefinite extension of their respective
terms of office in consequence of section 9 of the Transitory Provisions,
found in Art. XVII of the proposed Constitution, without any elections
therefor. And the procedure therein mostly followed is such that there isno
reasonable means of checking the accuracy of the returns files by the
officers who conducted said plebiscites. This is another patent violation of
Art. of the Constitution which can hardly be sanctioned. And, since the
provisions of this article form part of the fundamental scheme set forth in
the 1935 Constitution, as amended, to insure the "free, orderly, and
honest" expression of the people's will, the aforementioned violation
thereof renders null and void the contested proceedings or alleged
plebiscite in the Citizens' Assemblies, insofar as the same are claimed to
have ratified the revised Constitution proposed by the 1971 Constitutional
Convention. "... (a)ll the authorities agree that the legal definition of an
election, as well as that which is usually and ordinarily understood by the
term, is a choosing or as election by those having a right to participate (in
the selection) of those who shall fill the offices, or of the adoption or
rejection of any public measure affecting the territory involved. 15 Cyc.
(Citizens Assemblies) throughout the Philippines and has thereby come into
effect."
In this connection, it is not claimed that the Chief Executive had personal
knowledge of the data he certified in said proclamation. Moreover, Art. X of
the 1935 Constitution was precisely inserted to place beyond the Executive
the power to supervise or even exercise any authority whatsoever over
"all laws relative to the conduct of elections," and, hence, whether the
elections are for the choice or selection of public officers or for the
ratification or rejection of any proposed amendment, or revision of the
Fundamental Law, since the proceedings for the latter are, also, referred to
in said Art. XV as "elections".
IV
Has
the
proposed
Constitution
aforementioned
been
approved
by
a
majority
of
the
people
in
Citizens'
Assemblies
allegedly
held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No. 1102,
the validity of which is precisely being contested by petitioners herein.
Respondents claim that said proclamation is "conclusive" upon this Court,
or is, at least, entitled to full faith and credence, as an enrolled bill; that the
proposed Constitution has been, in fact, ratified, approved or adopted by
the "overwhelming" majority of the people; that Art. XV of the 1935
Constitution has thus been "substancially" complied with; and that the
Court refrain from passing upon the validity of Proclamation No. 1102, not
only because such question is political in nature, but, also, because should
the Court invalidate the proclamation, the former would, in effect, veto the
action of the people in whom sovereignty resides and from its power are
derived.
The Solicitor General stated, in his argument before this Court, that he had
been informed that there was in each municipality a municipal association
of presidents of the citizens' assemblies for each barrio of the municipality;
that the president of each such municipal association formed part of a
provincial or city association of presidents of such municipal associations;
that the president of each one of these provincial or city associations in
turn formed part of a National Association or Federation of Presidents of
such Provincial or City Associations; and that one Francisco Cruz from
Pasig, Rizal, as President of said National Association or Federation,
reported to the President of the Philippines, in the morning of January 17,
1973, the total result of the voting in the citizens' assemblies all over the
country from January 10 to January 15, 1973. The Solicitor General further
intimated that the said municipal associations had reported the results of
the citizens' assemblies in their respective municipalities to the
corresponding Provincial Association, which, in turn, transmitted the results
of the voting in the to the Department of Local Governments and
Community Development, which tabulated the results of the voting in the
citizens' assemblies throughout the Philippines and then turned them over
to Mr. Franciso Cruz, as President or acting President of the National
Association or Federation, whereupon Mr. Cruz, acting in a ceremonial
capacity, reported said results (tabulated by the Department of
Governments and Community Development) to the Chief Executive, who,
accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of any
barrio council since 1972, so that he could possibly have been
a member on January 17, 1973, of a municipal association of presidents of
barrio or ward citizens' assemblies, much less of a Provincial, City or
National Association or Federation of Presidents of any such provincial or
city associations.
Accordingly, the issue boils downs to whether or not the Executive acted
within the limits of his authority when he certified in Proclamation No. 1102
"that the Constitution proposed by the nineteen hundred and seventy-one
(1971) Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the Barangays
constitutional" by said Court. "The district court found that the amendment
had no in fact been adopted, and on this appeal" the Supreme Court was
"required to determine the correctness of that conclusion."
Referring to the effect of the certification of the State Board of Canvassers
created by the Legislature and of theproclamation made by the Governor
based thereon, the Court held: "It will be noted that this board does no
more than tabulate the reports received from the various county board and
add up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9
L.R.A. (U.S.) 1221. It is settled law that the decisions of election officers,
and canvassing boards are not conclusive and that the final decision must
rest with the courts, unless the law declares that the decisions of the board
shall be final" and there is no such law in the cases at bar. "... The
correctness of the conclusion of the state board rests upon the correctness
of the returns made by the county boards and it isinconceivable that it was
intended that this statement of result should be final and conclusive
regardless of the actual facts. The proclamation of the Governor
adds nothing in the way of conclusiveness to the legal effect of the action
of the canvassing board. Its purpose is to formally notify the people of the
state of the result of the voting as found by the canvassing board. James
on Const. Conv. (4th Ed.) sec. 523."
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165,
asserts openly that Art. XV of the Constitution has not been complied with,
and since the alleged substantial compliance with the requirements thereof
partakes of the nature of a defense set up by the other respondents in
these cases, the burden of proving such defense which, if true, should
be within their peculiar knowledge is clearly on such respondents.
Accordingly, if despite the extensive notes and documents submitted by
the parties herein, the members of the Court do not know or are not
prepared to say whether or not the majority of the people or of those who
took part in the Citizens' Assemblies have assented to the proposed
Constitution, the logical step would be to give due course to these cases,
require the respondents to file their answers, and the plaintiffs their reply,
and, thereafter, to receive the pertinent evidence and then proceed to the
determination of the issues raised thereby. Otherwise, we would be placing
upon the petitioners the burden of disproving a defense set up by the
respondents, who have not so farestablished the truth of such defense.
And, apparently, the parties in said cases entertained the same belief, for,
on December 23, 1972 four (4) days after the last hearing of said
cases 76 the President announced the postponement of the plebiscite
scheduled by Presidential Decree No. 73 to be held on January 15, 1973,
after consultation with the Commission on Elections and the leaders of
Congress, owing to doubts on the sufficiency of the time available to
translate the proposed Constitution into some local dialects and to comply
with some pre-electoral requirements, as well as to afford the people a
reasonable opportunity to be posted on the contents and implications of
said transcendental document. On January 7, 1973, General Order No. 20
was issued formally, postponing said plebiscite "until further notice." How
can said postponement be reconciled with the theory that the proceedings
in the Citizens' Assemblies scheduled to be held from January 10 to January
15, 1973, were "plebiscites," in effect, accelerated, according to the theory
of the Solicitor General, for the ratification of the proposed Constitution? If
said Assemblies were meant to be the plebiscites or elections envisaged in
Art. XV of the Constitution, what, then, was the "plebiscite" postponed by
General Order No. 20? Under these circumstances, it was only reasonable
for the people who attended such assemblies to believe that the same
were not an "election" or plebiscite for the ratification or adoption of said
proposed Constitution.
Even more important, and decisive, than the foregoing is the circumstance
that there is ample reason to believe that many, if not most, of the people
did not know that the Citizens' Assemblies were, at the time they were
held, plebiscites for the ratification or rejection of the proposed
Constitution. Hence, in Our decision in the plebiscite cases, We said, inter
alia:
Meanwhile, or on December 17, 1972, the President had
issued an order temporarily suspending the effects of
Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution. On December 23, the
President announced the postponement of the plebiscite
for the ratification or rejection of the Proposed Constitution.
No formal action to this effect was taken until January 7,
1973, when General Order No. 20 was issued, directing
"that the plebiscite scheduled to be held on January 15,
1973, be postponed until further notice." Said General
Order No. 20, moreover, "suspended in the meantime" the
"order of December 17, 1972, temporarily suspending the
effects of Proclamation No. 1081 for purposes of free and
open debate on the proposed Constitution.
If this was the situation in Bataan one of the provinces nearest to Manila
as late as January 11, 1973, one can easily imagine the predicament of
the local officials and people in the remote barrios in northern and
southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In
fact, several members of the Court, including those of their immediate
families and their household, although duly registered voters in the area of
Greater Manila, were not even notified that citizens' assemblies would be
held in the places where their respective residences were located. In the
Prohibition and Amendment case, 77 attention was called to the "duty cast
upon the court of taking judicial cognizance of anything affecting the
existence
and
validity
of
any
law
or
portion
of
the
Constitution ... ." In line with its own pronouncement in another case, the
Federal Supreme Court of the United States stressed, in Baker v.
Carr, 78 that "a court is not at liberty to shut its eyes to an obvious mistake,
when the validity of the lawdepends upon the truth of what is declared."
In the light of the foregoing, I cannot see how the question under
consideration can be answered or resolved otherwise than in the negative.
V
84
Consequently, I am not prepared to concede that the acts the officers and
offices of the Executive Department, in line with Proclamation No. 1102,
connote a recognition thereof o an acquiescence thereto. Whether they
recognized the proposed Constitution or acquiesce thereto or not is
something that cannot legally, much less necessarily or even normally, be
deduced from their acts in accordance therewith, because the are bound to
obey and act in conformity with the orders of the President, under whose
"control" they are, pursuant to the 1935 Constitution. They have
absolutely no other choice, specially in view of Proclamation No. 1081
placing the Philippines under Martial Law. Besides, by virtue of the very
decrees, orders and instructions issued by the President thereafter, he had
assumed all powers of Government although some question his
authority to do so and, consequently, there is hardly anything he has
done since the issuance of Proclamation No. 1102, on January 17, 1973
declaring that the Constitution proposed by the 1971 Constitutional
Convention has been ratified by the overwhelming majority of the people
that he could not do under the authority he claimed to have under
Martial Law, since September 21, 1972, except the power of supervision
over inferior courts and its personnel, which said proposed Constitution
would place under the Supreme Court, and which the President has not
ostensibly exercised, except as to some minor routine matters, which the
Department of Justice has continued to handle, this Court having preferred
to maintain the status quo in connection therewith pending final
determination of these cases, in which the effectivity of the
aforementioned Constitution is disputed.
2. The "Legislature in its formal official act adopting a joint resolution, July
15, 1902, recognizing the Constitution ordained by the Convention ...";
3. The "individual oaths of its members to support it, and by its having
been engaged for nearly a year, in legislating under it and putting its
provisions
into
operation ...";
4. The "judiciary in taking the oath prescribed thereby to support it and by
enforcing its provisions ..."; and
5. The "people in their primary capacity by peacefully accepting it and
acquiescing in it, by registering as voters under it to the extent of
thousands throughout the State, and by voting, under its provisions, at a
general election for their representatives in the Congress of the United
States."
Note that the New Constitution of Virginia, drafted by a convention whose
members were elected directly by the people, was not submitted to the
people for ratification or rejection thereof. But, it was recognized, not by
the convention itself, but by other sectors of the Government, namely, the
Governor; the Legislature not merely by individual acts of its members,
but by formal joint resolution of its two (2) chambers; by the judiciary; and
by the people, in the various ways specified above. What is more, there
was no martial law. In the present cases, none of the foregoing acts of
acquiescence was present. Worse still, there is martial law, the strict
enforcement of which was announced shortly before the alleged citizens'
assemblies. To top it all, in the Taylor case, the effectivity of the contested
amendment was not contested judicially until about one (1) year after the
amendment had been put into operation in all branches of the
Government, and complied with by the people who participated in the
elections held pursuant to the provisions of the new Constitution. In the
cases under consideration, the legality of Presidential Decree No. 73 calling
a plebiscite to be held on January 15, 1973, was impugned as early as
December 7, 1972, or five (5) weeks before the scheduled plebiscite,
whereas the validity of Proclamation No. 1102 declaring on January 17,
1973, that the proposed Constitution had been ratified despite General
Order No. 20, issued on January 7, 1972, formally and officially suspending
the plebiscite until further notice was impugned as early as January 20,
1973, when L-36142 was filed, or three (3) days after the issuance of
Proclamation No. 1102.
No matter how good the intention behind these statement may have been,
the idea implied therein was too clear anominous for any member of
Congress who thought of organizing, holding or taking part in a session of
Congress, not to get the impression that he could hardly do so without
inviting or risking the application of Martial Law to him. Under these
conditions, I do not feel justified in holding that the failure of the members
of Congress to meet since January 22, 1973, was due to their recognition,
acquiescence in or conformity with the provisions of the aforementioned
Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081,
placing the entire Philippines under Martial Law, neither am I prepared to
declare that the people's inaction as regards Proclamation No. 1102, and
their compliance with a number of Presidential orders, decrees and/or
instructions some or many of which have admittedly had salutary effects
issued subsequently thereto amounts, constitutes or attests to a
and the records do not show that any such certification, to the President
of the Philippines or to the President Federation or National Association of
presidents of Provincial Associations of presidents of municipal association
presidents of barrio or ward assemblies of citizens would not, legally and
constitutionally, be worth the paper on which it is written. Why? Because
said Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection of a
proposed amendment or revision of the Constitution and, hence, to
tabulate the results thereof. Worse still, it is the department which,
according to Article X of the Constitution, should not and must not be all
participate in said plebiscite if plebiscite there was.
Court (Justice Zaldivar) was of the opinion that the aforementioned issues
should be settled in said cases, and he, accordingly, filed an opinion
passing upon the merits thereof. On the other hand, three (3) members of
the Court Justices Barredo, Antonio and Esguerra filed separate
opinions favorable to the respondents in the plebiscite cases, Justice
Barredo holding "that the 1935 Constitution has pro tanto passed into
history and has been legitimately supplanted by the Constitution in force
by virtue of Proclamation 1102." 86 When the petitions at bar were filed, the
same three (3) members of the Court, consequently, voted for the
dismissal of said petitions. The majority of the members of the Court did
not share, however, either view, believing that the main question that
arose before the rendition of said judgment had not been sufficiently
discussed and argued as the nature and importance thereof demanded.
The parties in the cases at bar were accordingly given every possible
opportunity to do so and to elucidate on and discuss said question. Thus,
apart from hearing the parties in oral argument for five (5) consecutive
days morning and afternoon, or a total of exactly 26 hours and 31
minutes the respective counsel filed extensive notes on their or
arguments, as well as on such additional arguments as they wished to
submit, and reply notes or memoranda, in addition to rejoinders thereto,
aside from a sizeable number of document in support of their respective
contentions, or as required by the Court. The arguments, oral and written,
submitted have been so extensive and exhaustive, and the documents
filed in support thereof so numerous and bulky, that, for all intents and
purposes, the situation is as if disregarding forms the petitions had
been given due course and the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they
should express their views on the aforementioned issues as if the same
were being decided on the merits, and they have done so in their individual
opinion attached hereto. Hence, the resume of the votes cast and the tenor
of the resolution, in the last pages hereof, despite the fact that technically
the Court has not, as yet, formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ
of mandamus prayed for against Gil J. Puyat and Jose Roy, President and
President Pro Tempore respectively of the Senate, it being settled in our
jurisdiction, based upon the theory of separation of powers, that the
judiciary will not issue such writ to the head of a co-equal department, like
the aforementioned officers of the Senate.
In all other respects and with regard to the other respondent in said case,
as well as in cases L-36142, L-36164, L-36236 and L-36283, my vote is that
the petitions therein should be given due course, there being more
than prima facie showing that the proposed Constitution has not been
As a matter of fact, some of those issues had been raised in the plebiscite
cases, which were dismissed as moot and academic, owing to the issuance
of Proclamation No. 1102 subsequently to the filing of said cases, although
before the rendition of judgment therein. Still one of the members of the
87
Perhaps others would feel that my position in these cases overlooks what
they might consider to be the demands of "judicial statesmanship,"
whatever may be the meaning of such phrase. I am aware of this
possibility,
if
not
probability;
but
"judicial
statesmanship,"
though consistent with Rule of Law, cannot prevail over the latter. Among
consistent ends or consistent values, there always is a hierarchy, a rule of
priority.
We must realize that the New Society has many achievements which would
have been very difficult, if not impossible, to accomplish under the old
dispensation. But, in and for the judiciary, statesmanship should not prevail
over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law
and faithful adherence thereto are basic, fundamental and essential parts
of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of their
individual opinions and/or concurrences as appended hereto, the writer will
now make, with the concurrence of his colleagues, a resume or summary of
the votes cast by each of them.
Justice Barredo qualified his vote, stating that "(A)s to whether or not the
1973 Constitution has been validly ratified pursuant to Article XV, I still
maintain that in the light of traditional concepts regarding the meaning
and intent of said Article, the referendum in the Citizens' Assemblies,
specially in the manner the votes therein were cast, reported and
canvassed, falls short of the requirements thereof. In view, however, of the
fact that I have no means of refusing to recognize as a judge that factually
there was voting and that the majority of the votes were for considering as
approved the 1973 Constitution without the necessity of the usual form of
The five questions thus agreed upon as reflecting the basic issues herein
involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or
political and therefore non-justiciable, question?
88
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court
hold that under their view there has been in effect substantial compliance
with the constitutional requirements for valid ratification.
Two (2) members of the Court, namely, Justice Zaldivar and myself hold
that there can be no free expression, and there has even been no
expression, by the people qualified to vote all over the Philippines, of their
acceptance or repudiation of the proposed Constitution under Martial Law.
Justice Fernando states that "(I)f it is conceded that the doctrine stated in
some American decisions to the effect that independently of the validity of
the ratification, a new Constitution once accepted acquiesced in by the
people must be accorded recognition by the Court, I am not at this stage
prepared to state that such doctrine calls for application in view of the
shortness of time that has elapsed and the difficulty of ascertaining what is
the mind of the people in the absence of the freedom of debate that is a
concomitant feature of martial law." 88
with the result that there are not enough votes to declare that the new
Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four
(4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and
Teehankee, all the aforementioned cases are hereby dismissed. This being
the vote of the majority, there is no further judicial obstacle to the new
Constitution being considered in force and effect.
It is so ordered.
Three (3) members of the Court express their lack of knowledge and/or
competence to rule on the question. Justices Makalintal and Castro are
joined by Justice Teehankee in their statement that "Under a regime of
martial law, with the free expression of opinions through the usual media
vehicle restricted, (they) have no means of knowing, to the point of judicial
certainty, whether the people have accepted the Constitution." 89
4. On the fourth question of relief, six (6) members of the Court, namely,
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted
to DISMISS the petition. Justice Makalintal and Castro so voted on the
strength of their view that "(T)he effectivity of the said Constitution, in the
final analysis, is the basic and ultimate question posed by these cases to
resolve which considerations other than judicial, an therefore beyond the
competence of this Court, 90 are relevant and unavoidable." 91
OF THE
MINNESSOTA SUPREME COURT
DECISION
89
ON THE CASE
IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have almost
uniformly exercised the authority to determine the validity of the proposal,
submission, or ratification of constitutional amendments. It has
been judicially determined whether a proposed amendment received the
constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v.
Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl.
744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6
L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779;
Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re
Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.]
134 Fed. 423); whether a proposed amendment is a single amendment,
within the constitutional requirement that every amendment must be
separately submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert
v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis.
318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722;
Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo.
369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87
Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149);
whether the failure to enter the resolution of submission upon the
legislative journals invalidates the amendment (Koehler v. Hill, 60 Iowa,
543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11
Pac. 3; West v. State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22
Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St.
Rep. 895); whether the description of the amendment and the form of the
ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v.
Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149; Murphy Chair Co. v.
Attorney General [Mich.] 112 N.W. 127); whether the method of submission
sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164
Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a
notice relative to it is sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50
L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the
submission may be well by resolution as by a legislative act approved by
the executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568;
Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward Lesueur, 132 Mo.
410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732;
State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what election the
amendment be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said:
"It is contended that the determination of the question whether an
amendment to the Constitution has been carried involves the exercise of
political, and not judicial, power. If this be so, it follows that the
promulgation of any purported amendment by the executive or any
executive department is final, and that the action cannot be questioned by
the judiciary; but, with reference to the conditions precedent to submitting
been legally adopted. After approving the statement quoted from Collier v.
Frierson, supra, that 'we entertain no doubt that, to change the
Constitution in an other mode than by a convention, every requisite which
is demanded by the instrument itself must be observed, and the omission
of any one is fatal to the amendment,' the court held that, 'as substance of
right is grander and more potent than methods of form,' there had been
substantial compliance with the constitutional requirement that a proposed
amendment to the Constitution must be entered at length on the
legislative journal. It appears that the joint resolution making submission
simply provided that a proposition should be submitted to the electors at
the general election of 1880. It did not declare that the machinery of the
general election law should control, or that any particular officers or board
would receive, count, or canvass the votes cast. But the existing election
machinery was adequate, and the votes were received, counted, and
canvassed, and the result declared as fully as though it had been in terms
so ordered. These methods had been followed in the adoption of previous
amendments, and was held that, conceding the irregularity of the
proceedings the Legislature and the doubtful scope of the provisions for
the election, yet in view of the very uncertainty of such provision the past
legislative
history of
similar
propositions,
the universal
prior
acquiescence in the same forms of procedure and the popular
and unchallenged acceptance of the legal pendency before the people of
the question of the amendment for decision, and in view of the duty cast
upon the court taking judicial knowledge of anything affecting the
existence and validity of any law or portion of the Constitution, it must be
adjudged that the proposed amendment became part of the Constitution.
The effect was to hold that a provision of the Constitution requiring the
proposed amendment to be entered in full on the journals was directory,
and not mandatory. This liberal view was approved in State v. Winnett
(Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369,
Pac. 167, 102 Am. St. Rep. 34. But it has not been universally accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in
commenting upon the Kansas case said: 'The reasoning by which the
learned court reached the conclusion it did is not based on any sound legal
principles, butcontrary to them. Neither the argument nor the conclusion
can command our assent or approval. The argument isillogical, and based
on premises which are without any sound foundation, and rests merely on
assumption.' See, also, the well-considered case of Kadderly v. Portland, 44
Or. 118, 74 Pac. 710, 75 Pac. 222. All these casesconcede the jurisdiction
of the court to determine whether, in submitting a proposed amendment to
the people, the Legislature legally observed the constitutional provisions
as to the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac.
424, 25 L.R.A. 312, the court, at the instance of a citizen and a taxpayer,
restrained the Secretary of State from taking steps to submit to the people
a proposed amendment to the Constitution agreed to by the Legislature on
the ground that the Legislature had not acted in conformity with the
Constitution and that the proposed amendment was of such a character
that it could not properly become a part of the Constitution. The Supreme
Court of Colorado, in People v. Sours, supra, refused to exercise this
authority.
"The entire question received elaborate consideration in Koehler v. Hill, 60
Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, which concededly
had been adopted by the people, had not, before its submission, been
entered in full upon the legislative journals, as required by the Constitution,
and it was held that this was a material variance in both form and
substance from the constitutional requirements, and that the amendment
did not, therefore, become a part of the Constitution. As to the claim that
the question was political, and not judicial, it was said that, while it is not
competent for courts to inquire into the validity of the Constitution and the
form of government under which they themselves exist, and from which
they derive their powers, yet, where the existing Constitution prescribes a
method for its own amendment, an amendment thereto, to be valid, must
be adopted in strict conformity to that method; and it is the duty of the
courts in a proper case, when an amendment does not relate to their own
power or functions, to inquire whether, in the adoption of the
amendment, the provisions of the existing Constitution have been
observed, and, if not, to declare the amendment invalid and of no force.
This case was followed in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. 76, the question whether a proposed
amendment to the Constitution had been legally adopted was treated as
a judicial question. By the Constitution a proposed amendment was
required to be approved by Legislatures before its submission to the
people. In this instance a bill was passed which contained 17 amendments.
The next Legislature rejected 9 and adopted 8 of the amendments, and
submitted them to the people.The majority of the people voted for their
adoption; but it was contended that the Constitution contemplated and
required that the same bill and the same amendments, without change,
should approved by both Legislatures, and that it did not follow because
91
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that
prior to 1876 a proposed amendment to Constitution could not be
submitted to the people at any other than a general election; but, as the
amendment under consideration had been submitted after the Constitution
been changed, it had been legally submitted and adopted.
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was
held that it was the duty of the judicial department of the government to
determine whether the legislative department or its officers had observed
the constitutional injunctions in attempting to amend the Constitution, and
to annul their acts if they had not done so. The case is an interesting and
well-considered one. The Constitution provided the manner in which
proposed amendments should be submitted to the people, but did not
provide a method for canvassing the votes. The Legislature having agreed
to certain proposed amendments, passed an act for submitting the same to
the people. This statute provided for the transmission to the Secretary of
State of certificate showing the result of the voting throughout the state,
and made it the duty of the Governor at the designated time summon four
or more Senators, who, with the Governor, should constitute a board of
state canvassers to canvass and estimate the votes for and against each
amendment. This board was to determine and declare which of the
proposed amendments had been adopted and to deliver a statement of the
results to the Secretary of State, and "any proposed amendment, which by
said certificate and determination of the board of canvassers shall appear
to have received in its favor the majority of all the votes cast in the state
for and against said proposed amendment, shall from the time of filing
such certificate be and become an amendment to and a part of the
Constitution of the state; and it shall be the duty of the Governor of the
state forthwith, after such a determination, to issue a proclamation
declaring which of the said proposed amendments have been adopted by
the people." This board was required to file a statement of the result of the
election, and the Governor to issue his proclamation declaring that the
amendment had been adopted and become a part of the Constitution. At
the instance of a taxpayer the Supreme Court allowed a writ of certiorari to
remove into the court for review the statement of the results of the
election made by the canvassing board, in order that it might be judicially
determined whether on the facts shown in that statement the board had
legally determined that the proposed amendment had been adopted. The
Supreme Court decided that the concurrence of the board of state
canvassers and the executive department of the government in their
respective official functions placed the subject-matter beyond the
cognizance of the judicial department of the state. The Court of Appeals,
after a full review of the authorities, reversed this decision, and held that
the questions were of a judicial nature, and properly determinable by the
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an
amendment to the Constitution had been legally submitted and adopted by
the people was held to be judicial, and not political, in its nature. The
amendment under consideration changed the Constitution by providing for
an elective, instead of an appointive, judiciary. It was contented that the
amendments had been improperly submitted and adopted by a majority of
the qualified voters voting at election, as required by the Constitution. The
law did direct how the result of the election should be determined. The
Legislature by joint resolution recited that the election had been duly held
throughout the state, and, as it appeared from the returns made to the
Secretary of State, that 21,169 votes were cast in favor of, and 8,643 votes
against, the amendment, it resolved 'that said amendment be, and hereby
is, inserted into the Constitution of the state of Mississippi as a part of the
Constitution.' In fact, the amendment was not submitted in the
manner prescribed by the Constitution, and it did not receive a majority of
all the qualified voters voting at the election. It was argued that the rules
prescribed by the Constitution "are all for the guidance of the Legislature,
and from the very nature of the thing the Legislature must be
the exclusive judge of all questions to be measured or determined by these
rules. Whether the question be political, and certainly a legislative one, or
judicial, to be determined by the courts, this section of rules, not only of
procedure, but of final judgment as well, confides to the separate
magistracy of the legislative department full power to hear, consider, and
adjudge that question. The Legislature puts the question to
the qualified electors.
The qualified electors
answer
back
to
the
Legislature. "If it shall appear" to the Legislature that its question has been
answered in the affirmative, the amendment is inserted and made a part of
the Constitution. The Governor and the courts have no authority to speak
at any stage of the proceedings between the sovereign and the
Legislature, and when the matter is thus concluded it is closed, and the
judiciary is as powerless to interfere as the executive.' But it was held that
the question whether the proposition submitted to the voters constituted
one, or more than one, amendment, whether the submission was
92
court on their merits. Mr. Justice Dixon, after stating the facts, said: 'It thus
becomes manifest that there was present in the Supreme Court, and is now
pending in this court, every element tending to maintain jurisdiction over
the subject-matter, unless it be true, as insisted, that the judicial
department of the government has not the right to consider whether the
legislative department and its agencies have observed constitutional
injunctions in attempting to amend the Constitution, and to annul their
acts in case that they have not done so. That such a proposition is not true
seems to be indicated by the whole history of jurisprudence in this country.'
The court, after considering the case on the merits, held that the proper
conclusion had been drawn therefrom, and that the amendment in
question was legally submitted and adopted.
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the
identical question which we have under consideration. In reference to the
contention that the Constitution intended to delegate to the Speaker of the
House of Representatives the power to determine whether an amendment
had been adopted, and that the question was political, and not judicial, the
court observed: "The argument has often been made in similar cases to the
courts, and it is found in many dissenting opinions; but, with probably
a few exceptions, it is not found in any prevailing opinion."
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that
the constitutional requirement of publication of a proposed constitutional
provision for three months prior to the election at which it is to be
submitted to the people is mandatory and that noncompliance therewith
renders the adoption of an amendment of no effect."
Done in the City of Manila, this 7th day of January in the year of Our Lord,
nineteen hundred and seventy-three.
(SG
D.)
FER
DIN
AND
E.
ANNEX B
MALACAANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
WHEREAS, since their creation pursuant to Presidential Decree No. 86
dated December 31, 1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit to them for resolution
important national issues;
On the same date of September 22, 1976, the President issued Presidential
Decree No. 1033, stating the questions to be submitted to the people in
the referendum-plebiscite on October 16, 1976. The Decree recites in its
"whereas" clauses that the people's continued opposition to the convening
of the National Assembly evinces their desire to have such body abolished
and replaced thru a constitutional amendment, providing for a legislative
body, which will be submitted directly to the people in the referendumplebiscite of October 16.
(2) Whether or not you want martial law to be continued, do you approve
the following amendments to the Constitution? For the purpose of the
second question, the referendum shall have the effect of a plebiscite within
the contemplation of Section 2 of Article XVI of the Constitution.
MARTIN, J,:
PROPOSED AMENDMENTS:
2. The interim Batasang Pambansa shall have the same powers and its
members shall have the same functions, responsibilities, rights, privileges,
and disqualifications as the interim National Assembly and the regular
National Assembly and the members thereof. However, it shall not exercise
the power provided in Article VIII, Section 14(l) of the Constitution.
3. The incumbent President of the Philippines shall, within 30 days from the
election and selection of the members, convene the interim Batasang
Pambansa and preside over its sessions until the Speaker shall have been
elected. The incumbent President of the Philippines shall be the Prime
Minister and he shall continue to exercise all his powers even after the
interim Batasang Pambansa is organized and ready to discharge its
functions and likewise he shall continue to exercise his powers and
94
prerogatives under the nineteen hundred and thirty five. Constitution and
the powers vested in the President and the Prime Minister under this
Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the
powers and functions, and discharge the responsibilities of the regular
President (Prime Minister) and his Cabinet, and shall be subject only to
such disqualifications as the President (Prime Minister) may prescribe. The
President (Prime Minister) if he so desires may appoint a Deputy Prime
Minister or as many Deputy Prime Ministers as he may deem necessary.
On October 5, 1976, the Solicitor General filed the comment for respondent
Commission on Elections, The Solicitor General principally maintains that
petitioners have no standing to sue; the issue raised is political in nature,
beyond judicial cognizance of this Court; at this state of the transition
period, only the incumbent President has the authority to exercise
constituent power; the referendum-plebiscite is a step towards
normalization.
Still another petition for Prohibition with Preliminary Injunction was filed on
October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO
SALAPANTAN, docketed as L- 44714, to restrain the implementation of
Presidential Decrees relative to the forthcoming Referendum-Plebiscite of
October 16.
Referenda conducted thru the barangays and under the Supervision of the
Commission on Elections may be called at any time the government deems
it necessary to ascertain the will of the people regarding any important
matter whether of national or local interest.
These last petitioners argue that even granting him legislative powers
under Martial Law, the incumbent President cannot act as a constituent
assembly to propose amendments to the Constitution; a referendumplebiscite is untenable under the Constitutions of 1935 and 1973; the
submission of the proposed amendments in such a short period of time for
deliberation renders the plebiscite a nullity; to lift Martial Law, the
President need not consult the people via referendum; and allowing
15-.year olds to vote would amount to an amendment of the Constitution,
which confines the right of suffrage to those citizens of the Philippines 18
years of age and above.
I
Justiciability of question raised.
95
Constitution itself The amending, like all other powers organized in the
Constitution, is in form a delegated and hence a limited power, so that the
Supreme Court is vested with that authorities to determine whether that
power has been discharged within its limits.
Political questions are neatly associated with the wisdom, of the legality of
a particular act. Where the vortex of the controversy refers to the legality
or validity of the contested act, that matter is definitely justiciable or nonpolitical. 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 abrutum fulmen. If the Constitution provides
how it may be amended, the judiciary as the interpreter of that
Constitution, can declare whether the procedure followed or the authority
assumed was valid or not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory
of non-justiciability, that the question of the President's authority to
propose amendments and the regularity of the procedure adopted for
submission of the proposal to the people ultimately lie in the judgment of
the A clear Descartes fallacy of vicious circle. Is it not that the people
themselves, by their sovereign act, provided for the authority and
procedure for the amending process when they ratified the present
Constitution in 1973? Whether, therefore, the constitutional provision has
been followed or not is the proper subject of inquiry, not by the people
themselves of course who exercise no power of judicial but by the Supreme
Court in whom the people themselves vested that power, a power which
includes the competence to determine whether the constitutional norms
for amendments have been observed or not. And, this inquiry must be
done a prior not a posterior i.e., before the submission to and ratification
by the people.
Indeed, the precedents evolved by the Court or, prior constitutional cases
underline the preference of the Court's majority to treat such issue of
Presidential role in the amending process as one of non-political
impression. In the Plebiscite Cases, 11 the contention of the Solicitor
General that the issue on the legality of Presidential Decree No. 73
"submitting to the Pilipino people (on January 15, 1973) for ratification or
rejection the Constitution of the Republic of the Philippines proposed by the
1971 Constitutional Convention and appropriating fund s therefore "is a
political one, was rejected and the Court unanimously considered the issue
as justiciable in nature. Subsequently in the Ratification Cases 12involving
the issue of whether or not the validity of Presidential Proclamation No.
1102. announcing the Ratification by the Filipino people of the constitution
proposed by the 1971 Constitutional Convention," partakes of the nature of
a political question, the affirmative stand of' the Solicitor General was
96
dismissed, the Court ruled that the question raised is justiciable. Chief
Justice Concepcion, expressing the majority view, said, Thus, in the
aforementioned plebiscite cases, We rejected the theory of the
respondents therein that the question whether Presidential Decree No. 73
calling a plebiscite to be held on January 15, 1973, for the ratification or
rejection of the proposed new Constitution, was valid or not, was not a
proper subject of judicial inquiry because, they claimed, it partook of a
political nature, and We unanimously declared that the issue was a
justiciable one. With Identical unanimity. We overruled the respondent's
contention in the 1971 habeas corpus cases, questioning Our authority to
determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ of habeas
corpus on August 21, 1971, despite the opposite view taken by this Court
in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered
to the former case, which view We, accordingly, abandoned and refused to
apply. For the same reason, We did not apply and expressly modified, in
Gonzales vs. Commission on Elections, the political-question theory
adopted in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker
and Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively
refused by the Court. Chief Justice Concepcion continued: "The reasons
adduced in support thereof are, however, substantially the same as those
given in support on the political question theory advanced in said habeas
corpus and plebiscite cases, which were carefully considered by this Court
and found by it to be legally unsound and constitutionally untenable. As a
consequence. Our decisions in the aforementioned habeas corpus cases
partakes of the nature and effect of a stare decisis which gained added
weight by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this
Constitution may be proposed by the National Assembly
upon a vote of three-fourths of all its Members, or by a
constitutional convention. (2) The National Assembly may,
by a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote of all its
Members, submit the question of calling such a convention
to the electorate in an election.
SECTION 2. Any amendment to, or revision of, this
Constitution shall be valid when ratified by a majority of
the votes cast in a plebiscite which shall be held not later
97
3. In sensu strictiore, when the legislative arm of the state undertakes the
proposals of amendment to a Constitution, that body is not in the usual
function of lawmaking. lt is not legislating when engaged in the amending
process.16 Rather, it is exercising a peculiar power bestowed upon it by
the fundamental charter itself. In the Philippines, that power is provided for
in Article XVI of the 1973 Constitution (for the regular National Assembly)
or in Section 15 of the Transitory Provisions (for the National Assembly).
While ordinarily it is the business of the legislating body to legislate for the
nation by virtue of constitutional conferment amending of the Constitution
is not legislative in character. In political science a distinction is made
between constitutional content of an organic character and that of a
legislative character'. The distinction, however, is one of policy, not of
law. 17 Such being the case, approval of the President of any proposed
amendment is a misnomer 18 The prerogative of the President to approve
or disapprove applies only to the ordinary cases of legislation. The
President has nothing to do with proposition or adoption of amendments to
the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government the Philippines
is a crisis government today are more or less concentrated in the
President. 20 According to Rossiter, "(t)he concentration of government
power in a democracy faced by an emergency is a corrective to the crisis
inefficiencies inherent in the doctrine of the separation of powers. In most
free states it has generally been regarded as imperative that the total
power of the government be parceled out among three mutually
independent branches executive, legislature, and judiciary. It is believed to
be destructive of constitutionalism if any one branch should exercise any
two or more types of power, and certainly a total disregard of the
separation of powers is, as Madison wrote in the Federalist, No. 47, 'the
very definition of tyranny.' In normal times the separation of powers forms
a distinct obstruction to arbitrary governmental action. By this same token,
in abnormal times it may form an insurmountable barrier to a decisive
emergency action in behalf of the state and its independent existence.
There are moments in the life of any government when all powers must
work together in unanimity of purpose and action, even if this means the
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally
consigned to the interim National Assembly during the transition period.
However, the initial convening of that Assembly is a matter fully addressed
to the judgment of the incumbent President. And, in the exercise of that
judgment, the President opted to defer convening of that body in utter
recognition of the people's preference. Likewise, in the period of transition,
the power to propose amendments to the Constitution lies in the interim
National Assembly upon special call by the President (See. 15 of the
Transitory Provisions). Again, harking to the dictates of the sovereign will,
the President decided not to call the interim National Assembly. Would it
then be within the bounds of the Constitution and of law for the President
to assume that constituent power of the interim Assembly vis-a-vis his
assumption of that body's legislative functions? The answer is yes. If the
President has been legitimately discharging the legislative functions of the
interim Assembly, there is no reason why he cannot validly discharge the
function of that Assembly to propose amendments to the Constitution,
which is but adjunct, although peculiar, to its gross legislative power. This,
of course, is not to say that the President has converted his office into a
constituent assembly of that nature normally constituted by the legislature.
Rather, with the interim National Assembly not convened and only the
Presidency and the Supreme Court in operation, the urges of absolute
necessity render it imperative upon the President to act as agent for and in
behalf of the people to propose amendments to the Constitution.
V
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary state is
easily seen. In the Philippines, a republican and unitary state, sovereignty
"resides in the people and all government authority emanates from
them.30 In its fourth meaning, Savigny would treat people as "that
99
VI
VII
Referendum-Plebiscite not
1. There appeals to be no valid basis for the claim that the regime of
martial law stultifies in main the freedom to dissent. That speaks of a
bygone fear. The martial law regime which, in the observation of Justice
Fernando, 41 is impressed with a mild character recorded no State
imposition for a muffled voice. To be sure, there are restraints of the
individual liberty, but on certain grounds no total suppression of that
liberty is aimed at. The for the referendum-plebiscite on October 16
recognizes all the embracing freedoms of expression and assembly The
President himself had announced that he would not countenance any
suppression of dissenting views on the issues, as he is not interested in
winning a "yes" or "no" vote, but on the genuine sentiment of the people
on the issues at hand. 42 Thus, the dissenters soon found their way to the
public forums, voicing out loud and clear their adverse views on the
proposed amendments and even (in the valid ratification of the 1973
Constitution, which is already a settled matter. 43 Even government
employees have been held by the Civil Service Commission free to
participate in public discussion and even campaign for their stand on the
referendum-plebiscite issues. 44
VIII
100
IN RESUME
is not short.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a
sufficient and proper submission of the proposed amendments for
ratification by the people. Associate Justices Barredo and Makasiar
expressed the hope, however that the period of time may be extended.
Associate Justices Fernando, Makasiar and Antonio are of the view that the
question is political and therefore beyond the competence and cognizance
of this Court, Associate Justice Fernando adheres to his concurrence in the
opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA
774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding
from the President's lack of authority to exercise the constituent power to
propose the amendments, etc., as above stated, there is no fair and proper
submission with sufficient information and time to assure intelligent
consent or rejection under the standards set by this Court in the controlling
cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).
101
The suits for prohibition were filed respectively on March 6 3 and March 12,
1981. 4 On March 10 and 13 respectively, respondents were required to
answer each within ten days from notice. 5 There was a comment on the
part of the respondents. Thereafter, both cases were set for hearing and
were duly argued on March 26 by petitioners and Solicitor General Estelito
P. Mendoza for respondents. With the submission of pertinent data in
amplification of the oral argument, the cases were deemed submitted for
decision.
It is the ruling of the Court, as set forth at the outset, that the petitions
must be dismissed.
1. It is much too late in the day to deny the force and applicability of the
1973 Constitution. In the dispositive portion of Javellana v. The Executive
Secretary, 6 dismissing petitions for prohibition and mandamus to declare
invalid its ratification, this Court stated that it did so by a vote of six 7 to
four. 8 It then concluded: "This being the vote of the majority, there is no
further judicial obstacle to the new Constitution being considered in force
and effect." 9 Such a statement served a useful purpose. It could even be
said that there was a need for it. It served to clear the atmosphere. It made
manifest that, as of January 17, 1973, the present Constitution came into
force and effect. With such a pronouncement by the Supreme Court and
with the recognition of the cardinal postulate that what the Supreme Court
says is not only entitled to respect but must also be obeyed, a factor for
instability was removed. Thereafter, as a matter of law, all doubts were
resolved. The 1973 Constitution is the fundamental law. It is as simple as
that. What cannot be too strongly stressed is that the function of judicial
review has both a positive and a negative aspect. As was so convincingly
demonstrated by Professors Black 10 and Murphy,11 the Supreme Court can
check as well as legitimate. In declaring what the law is, it may not only
nullify the acts of coordinate branches but may also sustain their validity. In
the latter case, there is an affirmation that what was done cannot be
stigmatized as constitutionally deficient. The mere dismissal of a suit of
this character suffices. That is the meaning of the concluding statement in
Javellana. Since then, this Court has invariably applied the present
Constitution. The latest case in point is People v. Sola, 12 promulgated
barely two weeks ago. During the first year alone of the effectivity of the
present Constitution, at least ten cases may be cited. 13
FERNANDO, C.J.:
The challenge in these two prohibition proceedings against the validity of
three
Batasang
Pambansa
Resolutions 1proposing
constitutional
amendments, goes further than merely assailing their alleged
constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales,
both members of the Philippine Bar and former delegates to the 1971
Constitutional Convention that framed the present Constitution, are suing
102
because the same will be submitted to the people for ratification. Once
ratified by the sovereign people, there can be no debate about the validity
of the new Constitution. 4. The fact that the present Constitution may be
revised and replaced with a new one ... is no argument against the validity
of the law because 'amendment' includes the 'revision' or total overhaul of
the entire Constitution. At any rate, whether the Constitution is merely
amended in part or revised or totally changed would become immaterial
the moment the same is ratified by the sovereign people." 19 There is here
the adoption of the principle so well-known in American decisions as well
as legal texts that a constituent body can propose anything but conclude
nothing. 20 We are not disposed to deviate from such a principle not only
sound in theory but also advantageous in practice.
(3) That leaves only the questions of the vote necessary to propose
amendments as well as the standard for proper submission. Again,
petitioners have not made out a case that calls for a judgment in their
favor. The language of the Constitution supplies the answer to the above
questions. The Interim Batasang Pambansa, sitting as a constituent body,
can propose amendments. In that capacity, only a majority vote is needed.
It would be an indefensible proposition to assert that the three-fourth votes
required when it sits as a legislative body applies as well when it has been
convened as the agency through which amendments could be proposed.
That is not a requirement as far as a constitutional convention is
concerned. It is not a requirement either when, as in this case,
the Interim Batasang Pambansa exercises its constituent power to propose
amendments. Moreover, even on the assumption that the requirement of
three- fourth votes applies, such extraordinary majority was obtained. It is
not disputed that Resolution No. 1 proposing an amendment allowing a
natural-born citizen of the Philippines naturalized in a foreign country to
own a limited area of land for residential purposes was approved by the
vote of 122 to 5; Resolution No. 2 dealing with the Presidency, the Prime
Minister and the Cabinet, and the National Assembly by a vote of 147 to 5
with 1 abstention; and Resolution No. 3 on the amendment to the Article on
the Commission on Elections by a vote of 148 to 2 with 1 abstention.
Where then is the alleged infirmity? As to the requisite standard for a
proper submission, the question may be viewed not only from the
standpoint of the period that must elapse before the holding of the
plebiscite but also from the standpoint of such amendments having been
called to the attention of the people so that it could not plausibly be
maintained that they were properly informed as to the proposed changes.
As to the period, the Constitution indicates the way the matter should be
resolved. There is no ambiguity to the applicable provision: "Any
amendment to, or revision of, this Constitution shall be valid when ratified
by a majority of the votes cast in a plebiscite which shall be held not later
than three months after the approval of such amendment or
revision." 21 The three resolutions were approved by the Interim Batasang
Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In
the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7,
1981. It is thus within the 90-day period provided by the Constitution. Thus
(2) Petitioners would urge upon us the proposition that the amendments
proposed are so extensive in character that they go far beyond the limits of
the authority conferred on the Interim Batasang Pambansa as Successor of
theInterim National Assembly. For them, what was done was to revise and
not to amend. It suffices to quote from the opinion of Justice Makasiar,
speaking for the Court, in Del Rosario v. Commission on Elections 18 to
dispose of this contention. Thus: "3. And whether the Constitutional
Convention will only propose amendments to the Constitution or entirely
overhaul the present Constitution and propose an entirely new Constitution
based on an Ideology foreign to the democratic system, is of no moment;
103
Antecedent Facts
Immediately upon her assumption to office following the successful
EDSA Revolution, then President Corazon C. Aquino issued Executive Order
No. 1 (EO No. 1) creating the Presidential Commission on Good
Government (PCGG). EO No. 1 primarily tasked the PCGG to recover all illgotten wealth of former President Ferdinand E. Marcos, his immediate
family, relatives, subordinates and close associates. EO No. 1 vested the
PCGG with the power (a) to conduct investigation as may be necessary in
order to accomplish and carry out the purposes of this order and the power
(h) to promulgate such rules and regulations as may be necessary to carry
out the purpose of this order. Accordingly, the PCGG, through its then
Chairman Jovito R. Salonga, created an AFP Anti-Graft Board (AFP Board)
tasked to investigate reports of unexplained wealth and corrupt practices
by AFP personnel, whether in the active service or retired. [2]
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to set
aside the Resolutions of the Sandiganbayan (First Division) [1] dated 18
November 1991 and 25 March 1992 in Civil Case No. 0037. The first
Resolution dismissed petitioners Amended Complaint and ordered the
return of the confiscated items to respondent Elizabeth Dimaano, while the
second Resolution denied petitioners Motion for Reconsideration.Petitioner
prays for the grant of the reliefs sought in its Amended Complaint, or in the
alternative, for the remand of this case to the Sandiganbayan (First
Division) for further proceedings allowing petitioner to complete the
presentation of its evidence.
respondent usually goes and stays and sleeps in the alleged house of
Elizabeth Dimaano in Barangay Tengga, Itaas, Batangas City and when he
arrives, Elizabeth Dimaano embraces and kisses respondent. That on
February 25, 1986, a person who rode in a car went to the residence of
Elizabeth Dimaano with four (4) attache cases filled with money and owned
by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano had
no visible means of income and is supported by respondent for she was
formerly a mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used the
military equipment/items seized in her house on March 3, 1986 without the
consent of respondent, he being the Commanding General of the Philippine
Army. It is also impossible for Elizabeth Dimaano to claim that she owns
the P2,870,000.00 and $50,000 US Dollars for she had no visible source of
income.
The Amended Complaint also alleged that the AFP Board, after a
previous inquiry, found reasonable ground to believe that respondents
have violated RA No. 1379. [6] The Amended Complaint prayed for, among
others, the forfeiture of respondents properties, funds and equipment in
favor of the State.
This money was never declared in the Statement of Assets and Liabilities of
respondent. There was an intention to cover the existence of these money
because these are all ill-gotten and unexplained wealth. Were it not for the
affidavits of the members of the Military Security Unit assigned at Camp
Eldridge, Los Baos, Laguna, the existence and ownership of these money
would have never been known.
In view of the foregoing, the Board finds that a prima facie case exists
against respondent for ill-gotten and unexplained wealth in the amount
of P2,974,134.00 and $50,000 US Dollars.
V. RECOMMENDATION:
After termination of the pre-trial, [7] the court set the case for trial on
the merits on 9-11 November 1988.
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under
Republic Act No. 1379 (RA No. 1379) [4] against Ramas.
105
three
witnesses,
petitioner
asked
for
SO ORDERED.
On 4 December 1991, petitioner filed its Motion for Reconsideration.
(3.) The evidence adduced against Ramas does not constitute a prima
facie case against him.
106
(4.) There was an illegal search and seizure of the items confiscated.
The Issues
Petitioner raises the following issues:
A. RESPONDENT
COURT
SERIOUSLY
ERRED
IN
CONCLUDING THAT PETITIONERS EVIDENCE
CANNOT MAKE A CASE FOR FORFEITURE AND
THAT
THERE
WAS
NO
SHOWING
OF
CONSPIRACY, COLLUSION OR RELATIONSHIP
BY CONSANGUINITY OR AFFINITY BY AND
BETWEEN
RESPONDENT
RAMAS
AND
RESPONDENT DIMAANO NOTWITHSTANDING
THE FACT THAT SUCH CONCLUSIONS WERE
CLEARLY UNFOUNDED AND PREMATURE,
HAVING BEEN RENDERED PRIOR TO THE
COMPLETION OF THE PRESENTATION OF THE
EVIDENCE OF THE PETITIONER.
SEC. 2. The Commission shall be charged with the task of assisting the
President in regard to the following matters:
x x x.
The PCGG, through the AFP Board, can only investigate the
unexplained wealth and corrupt practices of AFP personnel who fall under
either of the two categories mentioned in Section 2 of EO No. 1. These are:
(1) AFP personnel who have accumulated ill-gotten wealth during the
administration of former President Marcos by being the latters immediate
family, relative, subordinate or close associate, taking undue advantage of
their public office or using their powers, influence x x x; [17] or (2) AFP
personnel involved in other cases of graft and corruption provided the
President assigns their cases to the PCGG.[18]
[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a
close association with former President Marcos and/or his wife, similar to
the immediate family member, relative, and close associate in EO
No. 1 and the close relative, business associate, dummy, agent, or
nominee in EO No. 2.
xxx
It does not suffice, as in this case, that the respondent is or was a
government official or employee during the administration of former
President Marcos. There must be a prima facie showing that the
respondent unlawfully accumulated wealth by virtue of his close
association or relation with former Pres. Marcos and/or his wife.
(Emphasis supplied)
Petitioner, however, does not claim that the President assigned Ramas
case to the PCGG. Therefore, Ramas case should fall under the first
category of AFP personnel before the PCGG could exercise its jurisdiction
over him. Petitioner argues that Ramas was undoubtedly a subordinate of
former President Marcos because of his position as the Commanding
General of the Philippine Army. Petitioner claims that Ramas position
enabled him to receive orders directly from his commander-in-chief,
undeniably making him a subordinate of former President Marcos.
A close reading of EO No. 1 and related executive orders will readily show
what is contemplated within the term subordinate. The Whereas Clauses of
EO No. 1 express the urgent need to recover the ill-gotten wealth amassed
by former President Ferdinand E. Marcos, his immediate family, relatives,
and close associates both here and abroad.
Petitioners
attempt
to
differentiate
the
instant
case
from Migrino does not convince us. Petitioner argues that unlike
in Migrino, the AFP Board Resolution in the instant case states that the
AFP Board conducted the investigation pursuant to EO Nos. 1, 2, 14 and
14-A in relation to RA No. 1379. Petitioner asserts that there is a
presumption that the PCGG was acting within its jurisdiction of
investigating crony-related cases of graft and corruption and that Ramas
was truly a subordinate of the former President. However, the same AFP
Board Resolution belies this contention. Although the Resolution begins
with such statement, it ends with the following recommendation:
EO No. 2 freezes all assets and properties in the Philippines in which former
President Marcos and/or his wife, Mrs. Imelda Marcos, their close relatives,
subordinates, business associates, dummies, agents, or nominees have
any interest or participation.
Applying the rule in statutory construction known as ejusdem generis that
is-
V. RECOMMENDATION:
108
10. While it is true that the resolution of the Anti-Graft Board of the
New Armed Forces of the Philippines did not categorically find
a prima facie evidence showing that respondent Ramas unlawfully
accumulated wealth by virtue of his close association or relation
with former President Marcos and/or his wife, it is submitted that
such omission was not fatal. The resolution of the Anti-Graft Board
should be read in the context of the law creating the same and the
objective of the investigation which was, as stated in the above, pursuant
to Republic Act Nos. 3019 and 1379 in relation to Executive Order Nos. 1,
2, 14 and 14-a;[21] (Emphasis supplied)
After the pronouncements of the Court in Cruz, the PCGG still pursued
this case despite the absence of a prima facie finding that Ramas was a
subordinate of former President Marcos. The petition for forfeiture filed with
the Sandiganbayan should be dismissed for lack of authority by the PCGG
to investigate respondents since there is no prima facie showing that EO
No. 1 and its amendments apply to respondents. The AFP Board Resolution
and even the Amended Complaint state that there are violations of RA Nos.
3019 and 1379. Thus, the PCGG should have recommended Ramas case to
We disagree.
Based on the findings of the Sandiganbayan and the records of this
case, we find that petitioner has only itself to blame for non-completion of
the presentation of its evidence. First, this case has been pending for four
years before the Sandiganbayan dismissed it. Petitioner filed its
Amended Complaint on 11
August1987, and only began to
present its evidence on 17 April 1989. Petitioner had almost two years to
prepare its evidence. However, despite this sufficient time, petitioner still
delayed the presentation of the rest of its evidence by filing numerous
motions for postponements and extensions. Even before the date set for
the presentation of its evidence, petitioner filed, on 13 April 1989, a Motion
for Leave to Amend the Complaint.[34]The motion sought to charge the
delinquent properties (which comprise most of petitioners evidence) with
being subject to forfeiture as having been unlawfully acquired by
defendant Dimaano alone x x x.
[But] in view of the patent lack of authority of the PCGG to investigate and
cause the prosecution of private respondent for violation of Rep. Acts Nos.
3019 and 1379, the PCGG must also be enjoined from proceeding with the
case, without prejudice to any action that may be taken by the proper
prosecutory agency. The rule of law mandates that an agency of
government be allowed to exercise only the powers granted to it.
Petitioners argument that private respondents have waived any defect
in the filing of the forfeiture petition by submitting their respective Answers
with counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there is
no jurisdiction to waive in the first place. The PCGG cannot exercise
investigative or prosecutorial powers never granted to it. PCGGs powers
are specific and limited. Unless given additional assignment by the
President, PCGGs sole task is only to recover the ill-gotten wealth of the
Marcoses, their relatives and cronies. [29] Without these elements, the PCGG
cannot claim jurisdiction over a case.
The Court has gone through extended inquiry and a narration of the above
events because this case has been ready for trial for over a year and much
of the delay hereon has been due to the inability of the government to
produce on scheduled dates for pre-trial and for trial documents and
witnesses, allegedly upon the failure of the military to supply them for the
preparation of the presentation of evidence thereon. Of equal interest is
the fact that this Court has been held to task in public about its alleged
failure to move cases such as this one beyond the preliminary stage, when,
in view of the developments such as those of today, this Court is now faced
with a situation where a case already in progress will revert back to the
preliminary stage, despite a five-month pause where appropriate action
could have been undertaken by the plaintiff Republic. [35]
inform the court of what lies ahead insofar as the status of the case is
concerned x x x.[37] Still on the date set, petitioner failed to present its
evidence. Finally, on 11 July 1990, petitioner filed its Re-Amended
Complaint.[38] The Sandiganbayan correctly observed that a case already
pending for years would revert to its preliminary stage if the court were to
accept the Re-Amended Complaint.
Moreover,
the
pronouncements
of
the
Court
in Migrino and Cruz prompted the Sandiganbayan to dismiss the case
since the PCGG has no jurisdiction to investigate and prosecute the case
against private respondents. This alone would have been sufficient legal
basis for the Sandiganbayan to dismiss the forfeiture case against private
respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the
case before completion of the presentation of petitioners evidence.
Third Issue: Legality of the Search and Seizure
The correct issues are: (1) whether the revolutionary government was
bound by the Bill of Rights of the 1973 Constitution during
the interregnum, that is, after the actual and effective take-over of power
by the revolutionary government following the cessation of resistance by
loyalist forces up to 24 March 1986 (immediately before the adoption of
the Provisional Constitution); and (2) whether the protection accorded to
individuals under the International Covenant on Civil and Political Rights
(Covenant) and the Universal Declaration of Human Rights (Declaration)
remained in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not
operative during the interregnum.However, we rule that the protection
accorded to individuals under the Covenant and the Declaration remained
in effect during the interregnum.
During the interregnum, the directives and orders of the revolutionary
government were the supreme law because no constitution limited the
extent and scope of such directives and orders. With the abrogation of the
1973 Constitution by the successful revolution, there was no municipal law
higher than the directives and orders of the revolutionary
government. Thus, during the interregnum, a person could not invoke any
Petitioner wants the Court to take judicial notice that the raiding team
conducted the search and seizure on March 3, 1986 or five days after the
111
mere executive issuance without judicial action, would violate the due
process and search and seizure clauses of the Bill of Rights.
During the interregnum, the government in power was concededly a
revolutionary government bound by no constitution. No one could validly
question the sequestration orders as violative of the Bill of Rights because
there was no Bill of Rights during the interregnum. However, upon the
adoption of the Freedom Constitution, the sequestered companies assailed
the sequestration orders as contrary to the Bill of Rights of the Freedom
Constitution.
It was through the February 1986 revolution, a relatively peaceful one, and
more popularly known as the people power revolution that the Filipino
people tore themselves away from an existing regime. This revolution also
saw the unprecedented rise to power of the Aquino government.
From the natural law point of view, the right of revolution has been defined
as an inherent right of a people to cast out their rulers, change their policy
or effect radical reforms in their system of government or institutions by
force or a general uprising when the legal and constitutional methods of
making such change have proved inadequate or are so obstructed as to be
unavailable. It has been said that the locus of positive law-making power
lies with the people of the state and from there is derived the right of the
people to abolish, to reform and to alter any existing form of government
without regard to the existing constitution.
If any doubt should still persist in the face of the foregoing considerations
as to the validity and propriety of sequestration, freeze and takeover
orders, it should be dispelled by the fact that these particular remedies and
the authority of the PCGG to issue them have received constitutional
approbation and sanction. As already mentioned, the Provisional or
Freedom Constitution recognizes the power and duty of the President to
enact measures to achieve the mandate of the people to . . . (r)ecover illgotten properties amassed by the leaders and supporters of the previous
regime and protect the interest of the people through orders of
sequestration or freezing of assets or accounts. And as also already
adverted to, Section 26, Article XVIII of the 1987 Constitution treats of, and
ratifies the authority to issue sequestration or freeze orders under
Proclamation No. 3 dated March 25, 1986.
xxx
It is widely known that Mrs. Aquinos rise to the presidency was
not due to constitutional processes; in fact, it was achieved in
violation of the provisions of the 1973 Constitution as a Batasang
Pambansa resolution had earlier declared Mr. Marcos as the
winner in the 1986 presidential election. Thus it can be said that the
organization of Mrs. Aquinos Government which was met by little
resistance and her control of the state evidenced by the appointment of
the Cabinet and other key officers of the administration, the departure of
the Marcos Cabinet officials, revamp of the Judiciary and the Military
signaled the point where the legal system then in effect, had ceased
to be obeyed by the Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution remained
operative during the interregnum would render void all sequestration
orders issued by the Philippine Commission on Good Government (PCGG)
before the adoption of the Freedom Constitution. The sequestration orders,
which direct the freezing and even the take-over of private property by
First, the whole point of the February Revolution and of the work
of the CONCOM is to hasten constitutional normalization. Very
much at the heart of the constitutional normalization is the full
effectivity of the Bill of Rights. We cannot, in one breath, ask for
constitutional normalization and at the same time ask for a
temporary halt to the full functioning of what is at the heart of
constitutionalism. That would be hypocritical; that would be a
repetition of Marcosian protestation of due process and rule of
law. The New Society word for that is backsliding. It is tragic when
we begin to backslide even before we get there.
Third, the argument that what matters are the results and not the
legal niceties is an argument that is very disturbing. When it
comes from a staunch Christian like Commissioner Salonga, a
Thus, to rule that the Bill of Rights of the 1973 Constitution remained
in force during the interregnum, absent a constitutional provision excepting
113
sequestration orders from such Bill of Rights, would clearly render all
sequestration orders void during the interregnum. Nevertheless, even
during the interregnum the Filipino people continued to enjoy, under the
Covenant and the Declaration, almost the same rights found in the Bill of
Rights of the 1973 Constitution.
these officers did not exceed the authority granted them by the
revolutionary government. The directives and orders should not have also
violated the Covenant or the Declaration. In this case, the revolutionary
government presumptively sanctioned the warrant since the revolutionary
government did not repudiate it. The warrant, issued by a judge upon
proper application, specified the items to be searched and seized. The
warrant is thus valid with respect to the items specifically described in the
warrant.
xxx
Q. You said you found money instead of weapons, do you
know the reason why your team seized this money
instead of weapons?
A. I think the overall team leader and the other two officers
assisting him decided to bring along also the money
because at that time it was already dark and they felt
most secured if they will bring that because they
might be suspected also of taking money out of those
items, your Honor.[49]
Q. But they did not mention to you, the applicant for the
search warrant, any other properties or contraband
which could be found in the residence of Miss
Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some
hidden items, for instance, the communications
equipment and money. However, I did not include that
in the application for search warrant considering that
we have not established concrete evidence about
that. So when
Cross-examination
Atty. Banaag
Q. Were you present when the search warrant in connection
with this case was applied before the Municipal Trial
Court of Batangas, Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the
search and seizure of five (5) baby armalite rifles M-16
and five (5) boxes of ammunition?
xxx
Q. You stated that a .45 caliber pistol was seized along with
one armalite rifle M-16 and how many ammunition?
A. Yes, sir.
xxx
A. Forty, sir.
AJ AMORES
A. Yes, sir.
A. Yes, sir.
items from the possessor. We thus hold that these items should be
returned immediately to Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The questioned
Resolutions of the Sandiganbayan dated 18 November 1991 and 25 March
1992 in Civil Case No. 0037, remanding the records of this case to the
Ombudsman for such appropriate action as the evidence may warrant, and
referring this case to the Commissioner of the Bureau of Internal Revenue
for a determination of any tax liability of respondent Elizabeth Dimaano,
are AFFIRMED.
SO ORDERED.
xxx
EN BANC
Q. How about the money seized by your raiding team, they
were not also included in the search warrant?
A. Yes sir, but I believe they were also taken considering that
the money was discovered to be contained in attach
cases. These attach cases were suspected to be
containing pistols or other high powered firearms, but
in the course of the search the contents turned out to
be money. So the team leader also decided to take
this considering that they believed that if they will just
leave the money behind, it might get lost also.
RESOLUTION
PADILLA, J.:
Q. That holds true also with respect to the other articles that
were seized by your raiding team, like Transfer
Certificates of Title of lands?
It appears from the records that petitioner was first appointed Associate
Justice of the Court of Appeals on 20 June 1980 but took his oath of office
for said position only on 29 November 1982, after serving as Assistant
Solicitor General in the Office of the Solicitor General since 1974. 1
On 17 January 1983, the Court of Appeals was reorganized and became the
Intermediate Appellate Court pursuant to Batas Pambansa Blg. 129 entitled
"An Act Reorganizing the Judiciary. Appropriating Funds Therefor and For
Other Purposes." 2 Petitioner was appointed Appellate Justice in the First
Special Cases Division of the Intermediate Appellate Court. On 7 November
1984, petitioner accepted an appointment to be ceased to be a member of
the
Judiciary.
3
The seizure of these items was therefore void, and unless these items
are contraband per se,[53] and they are not, they must be returned to the
person from whom the raiding seized them. However, we do not declare
that such person is the lawful owner of these items, merely that the search
and seizure warrant could not be used as basis to seize and withhold these
"IN VIEW WHEREOF, the petition of Associate Justice Reynato S. Puno for
correction of his seniority ranking in the Court of Appeals is granted. The
presiding Justice of the Court of Appeals, the Honorable Rodolfo A. Nocon,
is hereby directed to correct the seniority rank of Justice Puno from number
twelve (12) to number five (5). Let copies of this Resolution be furnished
the Court Administrator and the Judicial and Bar Council for their guidance
and
information."
10
Petitioner now alleges that the change in his seniority ranking could only
be attributed to inadvertence for, otherwise, it would run counter to the
provisions of Section 2 of Executive Order No. 33, which reads:chanrobles
virtual
lawlibrary
Justices Javellana and Campos were required by the Court to file their reply
to Justice Punos comment on their motion for reconsideration of the
resolution
of
the
Court
en
banc
dated
24
January
117
1991.chanrobles.com:cralaw:red
people tore themselves away from an existing regime. This revolution also
saw the unprecedented rise to power of the Aquino government.
From the natural law point of view, the right of revolution has been defined
as "an inherent right of a people to cast out their rulers, change their policy
or effect radical reforms in their system of government or institutions by
force or a general uprising when the legal and constitutional methods of
making such change have proved inadequate or are so obstructed as to be
unavailable." 22 It has been said that "the locus of positive law-making
power lies with the people of the state" and from there is derived "the right
of the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution." 23
The three (3) clauses that precede the text of the Provisional (Freedom)
Constitution,
24
read:jgc:chanrobles.com.ph
"WHEREAS, the new government under President Corazon C. Aquino was
installed through a direct exercise of the power of the Filipino people
assisted by units of the New Armed Forces of the Philippines;
"WHEREAS, the heroic action of the people was done in defiance of the
provisions
of
the
1973
Constitution,
as
amended;
The resolution of this controversy is not a pleasant task for the Court since
it involves not only members of the next highest court of the land but
persons who are close to members of this Court. But the controversy has to
be resolved. The core issue in this case is whether the present Court of
Appeals is a new court such that it would negate any claim to precedence
or seniority admittedly enjoyed by petitioner in the Court of Appeals and
Intermediate Appellate Court existing prior to Executive Order No. 33 or
whether the present Court of Appeals is merely a continuation of the Court
of Appeals and Intermediate Appellate Court existing prior to said
Executive
Order
No.
33.
It is the holding of the Court that the present Court of Appeals is a new
entity, different and distinct from the Court of Appeals or the Intermediate
Appellate Court existing prior to Executive Order No. 33, for it was created
in the wake of the massive reorganization launched by the revolutionary
government of Corazon C. Aquino in the aftermath of the people power
(EDSA)
revolution
in
1986.
1986,
It is widely known that Mrs. Aquinos rise to the presidency was not due to
constitutional processes; in fact, it was achieved in violation of the
provisions of the 1973 Constitution as a Batasang Pambansa resolution had
earlier declared Mr. Marcos at the winner in the 1986 presidential election.
32 Thus it can be said that the organization of Mrs. Aquinos Government
which was met by little resistance and her control of the state evidenced
by the appointment of the Cabinet and other key officers of the
administration, the departure of the Marcos Cabinet officials, revampt of
the Judiciary and the Military signalled the point where the legal system
then in effect, had ceased to be obeyed by the Filipino.
are
recognized
and
upheld.
SO
Paras,
ORDERED.
Grio-Aquino,
Regalado,
Davide,
Jr.
and
Romero, JJ.,
concur.
Separate Opinions
FELICIANO, J.,
concurring:chanrob1es
virtual
1aw
library
The Court holds that the Court of Appeals and Intermediate Appellate Court
existing prior to Executive Order No. 33 phased out as part of the legal
system abolished by the revolution and that the Court of Appeals
established under Executive Order No. 33 was an entirely new court with
appointments thereto having no relation to earlier appointments to the
abolished courts, and that the reference to precedence in rank contained in
the last sentence of Sec. 2, BP Blg. No. 129 as amended by Executive
Order No. 33 refers to prospective situations as distinguished from
retroactive
ones.
If one examines the provisions of B.P. Blg. 129, known as "The Judiciary
Reorganization Act of 1980," relating to the old Intermediate Appellate
Court, it is quite clear that the previously existing Court of Appeals was
abolished and a new court, denominated the Intermediate Appellate Court,
was created. Thus, Section 3 of B.P. Blg. 129 reads as
follows:jgc:chanrobles.com.ph
But even assuming, arguendo, that Executive Order No. 33 did not abolish
the precedence or seniority ranking resulting from previous appointment to
the Court of Appeals or Intermediate Appellate Court existing prior to the
1986 revolution, it is believed that President Aquino as head of then
revolutionary government, could disregard or set aside such precedence or
seniority in ranking when she made her appointments to the reorganized
Court
of
Appeals
in
1986.
It is to be noted that, at the time of the issuance of Executive Order No. 33,
President Aquino was still exercising the powers of a revolutionary
government, encompassing both executive and legislative powers, such
that she could, if she so desired, amend, modify or repeal any part of B.P.
Blg. 129 or her own Executive Order No. 33. It should also be remembered
that the same situation was still in force when she issued the 1986
appointments to the Court of Appeals. In other words, President Aquino, at
the time of the issuance of the 1986 appointments, modified or
disregarded the rule embodied in B.P. Blg. 129 as amended by Executive
Order No. 33, on precedence or seniority in the case of the petitioner, for
reasons known only to her. Since the appointment extended by the
President to the petitioner in 1986 for membership in the new Court of
Appeals with its implicit ranking in the roster of justices, was a valid
appointment anchored on the Presidents exercise of her then revolutionary
powers, it is not for the Court at this time to question or correct that
exercise.
ACCORDINGLY, the Court GRANTS the Motion for Reconsideration and the
seniority rankings of members of the Court of Appeals, including that of the
petitioner, at the time the appointments were made by the President in
119
(Emphasis supplied)
which my distinguished brother in the Court, Gutierrez, Jr., J., very heavily
stressed, contemplates in my submission the situation of a member of the
new Court of Appeals accepting appointment to some other department or
branch of government, outside the Judiciary, and who later receives an
appointment once again to that same Curt of Appeals. But Mr. Justice
Reynato S. Puno was not in such a situation. The last preceding
appointment to the Judiciary of Mr. Justice Reynato S. Puno was to the then
Intermediate Appellate Court newly created by B.P. Blg. 129. In 1984, he
left that court to become Deputy Minister in the Ministry of Justice. His next
appointment to the Judiciary was not to the old Intermediate Appellate
Court, which by that time had passed on to history. His appointment dated
28 July 1986, was, in my view, as already noted, to the new Court of
Appeals established by Executive Order No. 33. Thus, the last sentence of
Section 3 of B.P. Blg. 129 (before re-enactment by Executive Order No. 33)
afforded no basis for a claim to the same numerical precedence in the new
Court of Appeals that he would have been entitled to had the old
Intermediate Appellate Court not gone out of existence. It is difficult for me
to understand how a claim to a particular position in an order of
precedence can be made where the court itself, to which the new
appointment is made, is a new and distinct court.
I must admit that, like Mr. Justice Gutierrez, Jr., and Mr. Justice Padilla, it
was not easy for me to decide to participate in the deliberations in this
case considering that it involves esteemed colleagues in the Court of
Appeals. As such, when subject Resolution was promulgated, I did not react
despite the proddings of well-meaning friends. It refused to be dragged
into the "fray" in deference to Justice Reynato S. Puno who would be
adversely affected. I remained firm in my resolve to stay away from the
controversy. It was to me a personal privilege so to do, which i could waive,
as I did.
Thus, President Aquino was quite free, legally speaking to appoint to the
new Court of Appeals whoever in her judgment was fit and proper for
membership in that new court in an order of precedence that she was just
then establishing.chanrobles law library
with Justice Puno, but as a member now of this Court it has become my
duty no longer a mere privilege, much less a right to aid the Court in
resolving this controversy in the fairest possible way, a responsibility I find
no justification to shirk.
While this letter perhaps did not elicit the desired response from Executive
Secretary Arroyo as his answer did not squarely settle the issue, the
message is clear, i.e., Malacaang did not grant the request for correction
of what was perceived to be a "possible oversight", even after it was twice
brought to its attention. Here I am reminded of the principle in procedure
that a motion that is not granted, especially after an unreasonable length
of time, is deemed denied, and the lapse of more than four (4) years before
Justice Puno finally came to Us 3 is reasonably unreasonable.
We then took our oath in the order we were ranked in the list.
I have appointed the Presiding Justice and the Associate Justices of the
Court of Appeals under the following order of seniority:chanrob1es virtual
1aw library
Some two (2) months or so later, in an En Banc session back in the Court of
Appeals, as we were seated side by side with Justice Puno, 2 I inquired
again from him as to what happened to his request with Malacaang
conveyed through the Presiding Justice for the correction of his ranking.
Justice Puno told me it was not granted.
x"
All these clearly support the view of Mr. Justice Padilla in his ponencia, as
well as of Mr. Justice Feliciano in his concurring opinion, that the present
Court of Appeals is an entirely different court, distinct from the old
Intermediate Appellate Court or the former Court of Appeals, with a new
members although some were drawn from the now defunct Intermediate
Appellate Court, and that the "error" referred to by Justice Puno could not
have been only through "inadvertence" but deliberate, otherwise,
Malacaang could have readily effected the correction?
The applicable provision of law in this case was introduced into the
Judiciary Act of 1948 by Rep. Act No. 5204 on June 15, 1968 when it
amended the first paragraph of Section 24 to read:chanrob1es virtual 1aw
library
"Provided, however, that any member of the Court of Appeals who has
been reappointed to that court after rendering service in any other branch
of the government shall retain the precedence to which he is entitled under
his original appointment and his service in court shall, to all intents and
purposes, be considered as continuous and uninterrupted . . ."cralaw
virtua1aw library
I respectfully submit that from 1968 to 1992, there was no single moment
when this provision ceased to exist. It was never repealed and never
disappeared from the law. Everybody, including the appointing power is, of
course, bound by the law.
I agree with Justice Padillas discussion of President Aquinos powers in a
revolutionary government, a government revolutionary in the sense that it
came into existence in defiance of the existing legal processes.
I regret that I have to differ from the position taken by Mr. Justice Padilla
regarding the seniority ranking of Justice Reynato S. Puno in the Court of
Appeals.
I agree that the resolution of the controversy is not a pleasant one for us
since it involves persons who are close to the members of this Court. For
me, the task is particularly difficult because apart from close personal
relationship, I also highly respect the parties considerable talents, abilities
and qualifications. I have known Justice Jose C. Campos, Jr. since my
student days and as a junior member of this Court, I once urged his
122
Nobody disputes the fact that the Screening Committee headed by the
then Secretary of Justice Neptali Gonzales and a member of which was our
own Justice Leo D. Medialdea ranked Justice Reynato S. Puno as No. 11 in
their recommendation.
When the appointments came out, Mr. Puno was No. 26. This, of course,
violates not only Executive Order No. 33 but also the laws on the same
subject which preceded it.
For us lawyers, there is one signal feature of President Aquinos six years in
the presidency and this is her dedicated personal observance of the rule of
law. Even when some of our decisions nullified her favorite projects, she
unhesitatingly ordered compliance with our interpretation of the law. I
cannot believe that the President would knowingly violate one provision of
a law she promulgated even as she complied with ever other provision of
that same law.
That the President never intended to violate a key provision of law is shown
in the September 17, 1986 letter of Executive Secretary Joker P. Arroyo,
appended to the Reply submitted by Justices Campos and Javellana. The
explanation reads:jgc:chanrobles.com.ph
"17 September 1986
Not only the law but also the facts support the correctness of our
123
to put him in No. 5 will destroy the chances of those displaced by him who
are older than he to aspire for promotion."cralaw virtua1aw library
Presiding Justice
The fears of the good Justices are unfounded. Except for the Presiding
Justice, a greater number of "junior" Justices have been appointed in the
past ten years to the Supreme Court from the Court of Appeals, than the
most senior Justices of that Court. In other words, there has been more by
passing of senior members than adherence to the seniority listing. In fact,
the latest nominations of the Judicial and Bar Council for position to which
Justice Bellosillo was appointed, included Justice Campos and excluded
Justices Kapunan and Puno. I understand that in the past few vacancies in
this court, Justice Campos has been nominated more often than Justice
Puno.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
Court of Appeals
Manila.
Sir:chanrob1es virtual 1aw library
In reply to your enclosed letter of August 7, 1986, please be informed that
the President had nothing to do with the order of seniority. The list and
order of seniority was submitted by a screening committee and passed on
to the Supreme Court for review.
Our resolution dated November 29, 1990 correcting the seniority ranking of
Justice Puno was a unanimous decision of this Court except for Mr. Justice
Padilla were discussed and fully deliberated upon. Since our resolution is
based on both the facts and the law, I see no reason why we should modify
or set it aside.
When Secretary Arroyo states that the President had nothing to do with the
order or sequence of seniority, it means that she just followed the
recommendations of her own Screening Committee, which
recommendations had already been reviewed by the Supreme Court. She
did not select any recommendees her own. She never deviated from the
recommendations because everybody recommended was appointed. The
change from No. 11 to No. 26 could not have been a deliberate act of the
President as she had nothing to do with the order of seniority of the
Justices she was appointing. The change could only have been an
inadvertence because it was violative not only of the law but also of the
recommendations of her Screening Committee.
There are other matters raised in the letter and reply of Justices Campos
and Javellana which have been answered by Justice Puno in his Comment. I
find no need to comment on them at this time.
Justices Campos and Javellana state that "Justice Puno is 50 years old and
124
FERNANDO, J.:
The principal issue that calls for resolution in this appeal by certiorari from
an order of respondent Court of Industrial Relations is one of constitutional
significance. It is concerned with the expanded role of government
necessitated by the increased responsibility to provide for the general
welfare. More specifically, it deals with the question of whether petitioner,
the Philippine Virginia Tobacco Administration, discharges governmental
and not proprietary functions. The landmark opinion of the then Justice,
row Chief Justice, Makalintal in Agricultural Credit and Cooperative
Financing Administration v. Confederation of Unions in Government
Corporations and offices, points the way to the right answer. 1 It interpreted
the then fundamental law as hostile to the view of a limited or negative
state. It is antithetical to the laissez faire concept. For as noted in an earlier
decision, the welfare state concept "is not alien to the philosophy of [the
1935] Constitution." 2 It is much more so under the present Charter, which
is impressed with an even more explicit recognition of social and economic
rights. 3 There is manifest, to recall Laski, "a definite increase in the
profundity of the social conscience," resulting in "a state which seeks to
realize more fully the common good of its members." 4 It does not
necessarily follow, however, just because petitioner is engaged in
governmental rather than proprietary functions, that the labor controversy
was beyond the jurisdiction of the now defunct respondent Court. Nor is
the objection raised that petitioner does not come within the coverage of
the Eight-Hour Labor Law persuasive. 5 We cannot then grant the reversal
sought. We affirm.
The facts are undisputed. On December 20, 1966, claimants, now private
respondents, filed with respondent Court a petition wherein they alleged
their employment relationship, the overtime services in excess of the
regular eight hours a day rendered by them, and the failure to pay them
126
WHEREFORE, the appealed Order of March 21, 1970 and the Resolution of
respondent Court en banc of May 8, 1970 denying a motion for
reconsideration are hereby affirmed. The last sentence of the Order of
March 21, 1970 reads as follows: "To find how much each of them [private
respondents] is entitled under this judgment, the Chief of the Examining
Division, or any of his authorized representative, is hereby directed to
make a reexamination of records, papers and documents in the possession
of respondent PVTA pertinent and proper under the premises and to submit
his report of his findings to the Court for further disposition thereof."
Accordingly, as provided by the New Labor Code, this case is referred to
the National Labor Relations Commission for further proceedings
conformably to law. No costs.
128
EN BANC
G.R. No. L-5
pending in said courts at the time the Philippines were reoccupied and
liberated by the United States and Filipino forces, and the Commonwealth
of the Philippines were reestablished in the Islands.
On October 23, 1944, a few days after the historic landing in Leyte,
General Douglas MacArthur issued a proclamation to the People of the
Philippines which declared:
We shall now proceed to consider the first question, that is, whether or not
under the rules of international law the judicial acts and proceedings of the
courts established in the Philippines under the Philippine Executive
Commission and the Republic of the Philippines were good and valid and
remained good and valid even after the liberation or reoccupation of the
Philippines by the United States and Filipino forces.
1. It is a legal truism in political and international law that all acts and
proceedings of the legislative, executive, and judicial departments of a de
facto government are good and valid. The question to be determined is
whether or not the governments established in these Islands under the
names of the Philippine Executive Commission and Republic of the
Philippines during the Japanese military occupation or regime were de
facto governments. If they were, the judicial acts and proceedings of those
governments remain good and valid even after the liberation or
reoccupation of the Philippines by the American and Filipino forces.
Speaking of government "de facto" of the second kind, the Supreme Court
of the United States, in the case of Thorington vs. Smith (8 Wall., 1), said:
"But there is another description of government, called also by publicists a
government de facto, but which might, perhaps, be more aptly
denominated a government of paramount force. Its distinguishing
characteristics are (1), that its existence is maintained by active military
power with the territories, and against the rightful authority of an
established and lawful government; and (2), that while it exists it
necessarily be obeyed in civil matters by private citizens who, by acts of
obedience rendered in submission to such force, do not become
130
and govern the territory of the enemy while in its military possession, is
one of the incidents of war, and flows directly from the right to conquer.
We, therefore, do not look to the Constitution or political institutions of the
conqueror, for authority to establish a government for the territory of the
enemy in his possession, during its military occupation, nor for the rules by
which the powers of such government are regulated and limited. Such
authority and such rules are derived directly from the laws war, as
established by the usage of the of the world, and confirmed by the writings
of publicists and decisions of courts in fine, from the law of nations. . . .
The municipal laws of a conquered territory, or the laws which regulate
private rights, continue in force during military occupation, excepts so far
as they are suspended or changed by the acts of conqueror. . . . He,
nevertheless, has all the powers of a de facto government, and can at his
pleasure either change the existing laws or make new ones."
As to "de facto" government of the third kind, the Supreme Court of the
United States, in the same case of Thorington vs. Smith, supra, recognized
the government set up by the Confederate States as a de
factogovernment. In that case, it was held that "the central government
established for the insurgent States differed from the temporary
governments at Castine and Tampico in the circumstance that its authority
did no originate in lawful acts of regular war; but it was not, on the
account, less actual or less supreme. And we think that it must be classed
among the governments of which these are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of
the United States, discussing the validity of the acts of the Confederate
States, said: "The same general form of government, the same general
The doctrine upon this subject is thus summed up by Halleck, in his work
on International Law (Vol. 2, p. 444): "The right of one belligerent to occupy
131
laws for the administration of justice and protection of private rights, which
had existed in the States prior to the rebellion, remained during its
continuance and afterwards. As far as the Acts of the States do not impair
or tend to impair the supremacy of the national authority, or the just rights
of citizens under the Constitution, they are, in general, to be treated as
valid and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law.
ed., 657): "The existence of a state of insurrection and war did not loosen
the bonds of society, or do away with civil government or the regular
administration of the laws. Order was to be preserved, police regulations
maintained, crime prosecuted, property protected, contracts enforced,
marriages celebrated, estates settled, and the transfer and descent of
property regulated, precisely as in the time of peace. No one, that we are
aware of, seriously questions the validity of judicial or legislative Acts in
the insurrectionary States touching these and kindered subjects, where
they were not hostile in their purpose or mode of enforcement to the
authority of the National Government, and did not impair the rights of
citizens under the Constitution'. The same doctrine has been asserted in
numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400),
held: "That what occured or was done in respect of such matters under the
authority of the laws of these local de facto governments should not be
disregarded or held to be invalid merely because those governments were
organized in hostility to the Union established by the national Constitution;
this, because the existence of war between the United States and the
Confederate States did not relieve those who are within the insurrectionary
lines from the necessity of civil obedience, nor destroy the bonds of society
nor do away with civil government or the regular administration of the
laws, and because transactions in the ordinary course of civil society as
organized within the enemy's territory although they may have indirectly
or remotely promoted the ends of the de facto or unlawful government
organized to effect a dissolution of the Union, were without blame 'except
when proved to have been entered into with actualintent to further
invasion or insurrection:'" and "That judicial and legislative acts in the
respective states composing the so-called Confederate States should be
respected by the courts if they were not hostile in their purpose or mode of
enforcement to the authority of the National Government, and did not
impair the rights of citizens under the Constitution."
In view of the foregoing, it is evident that the Philippine Executive
Commission, which was organized by Order No. 1, issued on January 23,
1942, by the Commander of the Japanese forces, was a civil government
established by the military forces of occupation and therefore a de
facto government of the second kind. It was not different from the
government established by the British in Castine, Maine, or by the United
States in Tampico, Mexico. As Halleck says, "The government established
over an enemy's territory during the military occupation may exercise all
the powers given by the laws of war to the conqueror over the conquered,
and is subject to all restrictions which that code imposes. It is of little
132
same time by private persons under the sanction of municipal law, remain
good. Were it otherwise, the whole social life of a community would be
paralyzed by an invasion; and as between the state and the individuals the
evil would be scarcely less, it would be hard for example that payment
of taxes made under duress should be ignored, and it would be contrary to
the general interest that the sentences passed upon criminals should be
annulled by the disappearance of the intrusive government ." (Hall,
International Law, 7th ed., p. 518.) And when the occupation and the
abandonment have been each an incident of the same war as in the
present case, postliminy applies, even though the occupant has acted as
conqueror and for the time substituted his own sovereignty as the
Japanese intended to do apparently in granting independence to the
Philippines and establishing the so-called Republic of the Philippines.
(Taylor, International Law, p. 615.)
Indeed, even if the Republic of the Philippines had been established by the
free will of the Filipino who, taking advantage of the withdrawal of the
American forces from the Islands, and the occupation thereof by the
Japanese forces of invasion, had organized an independent government
under the name with the support and backing of Japan, such government
would have been considered as one established by the Filipinos in
insurrection or rebellion against the parent state or the Unite States. And
as such, it would have been a de facto government similar to that
organized by the confederate states during the war of secession and
recognized as such by the by the Supreme Court of the United States in
numerous cases, notably those of Thorington vs. Smith, Williams vs. Bruffy,
and Badlyvs. Hunter, above quoted; and similar to the short-lived
government established by the Filipino insurgents in the Island of Cebu
during the Spanish-American war, recognized as a de facto government by
the Supreme Court of the United States in the case of McCleod vs. United
States (299 U. S., 416). According to the facts in the last-named case, the
Spanish forces evacuated the Island of Cebu on December 25, 1898,
having first appointed a provisional government, and shortly afterwards,
the Filipinos, formerly in insurrection against Spain, took possession of the
Islands and established a republic, governing the Islands until possession
thereof was surrendered to the United States on February 22, 1898. And
the said Supreme Court held in that case that "such government was of
the class of de facto governments described in I Moore's International Law
Digest, S 20, . . . 'called also by publicists a government de facto, but
which might, perhaps, be more aptly denominated a government of
paramount force . . '." That is to say, that the government of a country in
possession of belligerent forces in insurrection or rebellion against the
parent state, rests upon the same principles as that of a territory occupied
by the hostile army of an enemy at regular war with the legitimate power.
That not only judicial but also legislative acts of de facto governments,
which are not of a political complexion, are and remain valid after
reoccupation of a territory occupied by a belligerent occupant, is confirmed
by the Proclamation issued by General Douglas MacArthur on October 23,
1944, which declares null and void all laws, regulations and processes of
the governments established in the Philippines during the Japanese
occupation, for it would not have been necessary for said proclamation to
abrogate them if they were invalid ab initio.
2. The second question hinges upon the interpretation of the phrase
"processes of any other government" as used in the above-quoted
proclamation of General Douglas MacArthur of October 23, 1944 that is,
whether it was the intention of the Commander in Chief of the American
Forces to annul and void thereby all judgments and judicial proceedings of
the courts established in the Philippines during the Japanese military
occupation.
The phrase "processes of any other government" is broad and may refer
not only to the judicial processes, but also to administrative or legislative,
as well as constitutional, processes of the Republic of the Philippines or
other governmental agencies established in the Islands during the
Japanese occupation. Taking into consideration the fact that, as above
indicated, according to the well-known principles of international law all
judgements and judicial proceedings, which are not of a political
complexion, of the de facto governments during the Japanese military
occupation were good and valid before and remained so after the occupied
territory had come again into the power of the titular sovereign, it should
be presumed that it was not, and could not have been, the intention of
General Douglas MacArthur, in using the phrase "processes of any other
government" in said proclamation, to refer to judicial processes, in violation
of said principles of international law. The only reasonable construction of
the said phrase is that it refers to governmental processes other than
judicial processes of court proceedings, for according to a well-known rule
of statutory construction, set forth in 25 R. C. L., p. 1028, "a statute ought
That the proclamation has not invalidated all the judgements and
proceedings of the courts of justice during the Japanese regime, is
impliedly confirmed by Executive Order No. 37, which has the force of law,
issued by the President of the Philippines on March 10, 1945, by virtue of
the emergency legislative power vested in him by the Constitution and the
laws of the Commonwealth of the Philippines. Said Executive order
abolished the Court of Appeals, and provided "that all case which have
heretofore been duly appealed to the Court of Appeals shall be transmitted
to the Supreme Court final decision." This provision impliedly recognizes
that the judgments and proceedings of the courts during the Japanese
military occupation have not been invalidated by the proclamation of
General MacArthur of October 23, because the said Order does not say or
refer to cases which have been duly appealed to said court prior to the
Japanese occupation, but to cases which had therefore, that is, up to March
10, 1945, been duly appealed to the Court of Appeals; and it is to be
presumed that almost all, if not all, appealed cases pending in the Court of
Appeals prior to the Japanese military occupation of Manila on January 2,
1942, had been disposed of by the latter before the restoration of the
Commonwealth Government in 1945; while almost all, if not all, appealed
cases pending on March 10, 1945, in the Court of Appeals were from
judgments rendered by the Court of First Instance during the Japanese
regime.
There is doubt that the subsequent conqueror has the right to abrogate
most of the acts of the occupier, such as the laws, regulations and
processes other than judicial of the government established by the
belligerent occupant. But in view of the fact that the proclamation uses the
words "processes of any other government" and not "judicial processes"
prisely, it is not necessary to determine whether or not General Douglas
MacArthur had power to annul and set aside all judgments and proceedings
of the courts during the Japanese occupation. The question to be
determined is whether or not it was his intention, as representative of the
President of the United States, to avoid or nullify them. If the proclamation
had, expressly or by necessary implication, declared null and void the
judicial processes of any other government, it would be necessary for this
court to decide in the present case whether or not General Douglas
MacArthur had authority to declare them null and void. But the
proclamation did not so provide, undoubtedly because the author thereof
was fully aware of the limitations of his powers as Commander in Chief of
Military Forces of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law,
as they result from the usages established between civilized nations, the
laws of humanity and the requirements of the public of conscience,
constitute or from the law of nations. (Preamble of the Hague Conventions;
Westlake, International Law, 2d ed., Part II, p. 61.) Article 43, section III, of
the Hague Regulations or Conventions which we have already quoted in
discussing the first question, imposes upon the occupant the obligation to
establish courts; and Article 23 (h), section II, of the same Conventions,
which prohibits the belligerent occupant "to declare . . . suspended . . . in a
Court of Law the rights and action of the nationals of the hostile party,"
forbids him to make any declaration preventing the inhabitants from using
their courts to assert or enforce their civil rights. (Decision of the Court of
Appeals of England in the case of Porter vs. Fruedenburg, L.R. [1915], 1
K.B., 857.) If a belligerent occupant is required to establish courts of justice
in the territory occupied, and forbidden to prevent the nationals thereof
from asserting or enforcing therein their civil rights, by necessary
implication, the military commander of the forces of liberation or the
restored government is restrained from nullifying or setting aside the
judgments rendered by said courts in their litigation during the period of
occupation. Otherwise, the purpose of these precepts of the Hague
Conventions would be thwarted, for to declare them null and void would be
tantamount to suspending in said courts the right and action of the
nationals of the territory during the military occupation thereof by the
enemy. It goes without saying that a law that enjoins a person to do
something will not at the same time empower another to undo the same.
Although the question whether the President or commanding officer of the
United States Army has violated restraints imposed by the constitution and
laws of his country is obviously of a domestic nature, yet, in construing and
applying limitations imposed on the executive authority, the Supreme
Court of the United States, in the case of Ochoa, vs. Hernandez (230 U.S.,
139), has declared that they "arise from general rules of international law
and from fundamental principles known wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued
by the officer in command of the forces of the United States in South
Carolina after the end of the Civil War, wholly annulling a decree rendered
by a court of chancery in that state in a case within its jurisdiction, was
declared void, and not warranted by the acts approved respectively March
2, 1867 (14 Stat., 428), and July 19 of the same year (15 id., 14), which
defined the powers and duties of military officers in command of the
several states then lately in rebellion. In the course of its decision the court
said; "We have looked carefully through the acts of March 2, 1867 and July
19, 1867. They give very large governmental powers to the military
commanders designated, within the States committed respectively to their
jurisdiction; but we have found nothing to warrant the order here in
question. . . . The clearest language would be necessary to satisfy us that
Congress intended that the power given by these acts should be so
exercised. . . . It was an arbitrary stretch of authority, needful to no good
end that can be imagined. Whether Congress could have conferred the
135
If the proceedings pending in the different courts of the Islands prior to the
Japanese military occupation had been continued during the Japanese
military administration, the Philippine Executive Commission, and the socalled Republic of the Philippines, it stands to reason that the same courts,
which had become reestablished and conceived of as having in continued
existence upon the reoccupation and liberation of the Philippines by virtue
of the principle of postliminy (Hall, International Law, 7th ed., p. 516), may
continue the proceedings in cases then pending in said courts, without
necessity of enacting a law conferring jurisdiction upon them to continue
said proceedings. As Taylor graphically points out in speaking of said
principles "a state or other governmental entity, upon the removal of a
foreign military force, resumes its old place with its right and duties
substantially unimpaired. . . . Such political resurrection is the result of a
law analogous to that which enables elastic bodies to regain their original
shape upon removal of the external force, and subject to the same
exception in case of absolute crushing of the whole fibre and content."
(Taylor, International Public Law, p. 615.)
Although in theory the authority the authority of the local civil and judicial
administration is suspended as a matter of course as soon as military
occupation takes place, in practice the invader does not usually take the
administration of justice into his own hands, but continues the ordinary
courts or tribunals to administer the laws of the country which he is
enjoined, unless absolutely prevented, to respect. As stated in the abovequoted Executive Order of President McKinley to the Secretary of War on
May 19, 1898, "in practice, they (the municipal laws) are not usually
abrogated but are allowed to remain in force and to be administered by the
ordinary tribunals substantially as they were before the occupation. This
enlightened practice is, so far as possible, to be adhered to on the present
occasion." And Taylor in this connection says: "From a theoretical point of
view it may be said that the conqueror is armed with the right to substitute
his arbitrary will for all preexisting forms of government, legislative,
executive and judicial. From the stand-point of actual practice such
arbitrary will is restrained by the provision of the law of nations which
compels the conqueror to continue local laws and institution so far as
military necessity will permit." (Taylor, International Public Law, p.596.)
Undoubtedly, this practice has been adopted in order that the ordinary
pursuits and business of society may not be unnecessarily deranged,
until a change take place, and when changed it continues in such changed
condition until the next change, and so forever. Conquest or colonization is
impotent to bring law to an end; in spite of change of constitution, the law
continues unchanged until the new sovereign by legislative acts creates a
change."
The court in the said case of U.S. vs. Reiter did not and could not say that
the laws and institutions of the country occupied if continued by the
conqueror or occupant, become the laws and the courts, by adoption, of
the sovereign nation that is militarily occupying the territory. Because, as
already shown, belligerent or military occupation is essentially provisional
and does not serve to transfer the sovereignty over the occupied territory
to the occupant. What the court said was that, if such laws and institutions
are continued in use by the occupant, they become his and derive their
force from him, in the sense that he may continue or set them aside. The
laws and institution or courts so continued remain the laws and institutions
or courts of the occupied territory. The laws and the courts of the
Philippines, therefore, did not become, by being continued as required by
the law of nations, laws and courts of Japan. The provision of Article 45,
section III, of the Hague Conventions of 1907 which prohibits any
compulsion of the population of occupied territory to swear allegiance to
the hostile power, "extends to prohibit everything which would assert or
imply a change made by the invader in the legitimate sovereignty. This
duty is neither to innovate in the political life of the occupied districts, nor
needlessly to break the continuity of their legal life. Hence, so far as the
courts of justice are allowed to continue administering the territorial laws,
they must be allowed to give their sentences in the name of the legitimate
sovereign " (Westlake, Int. Law, Part II, second ed., p. 102). According to
Wheaton, however, the victor need not allow the use of that of the
legitimate government. When in 1870, the Germans in France attempted to
violate that rule by ordering, after the fall of the Emperor Napoleon, the
courts of Nancy to administer justice in the name of the "High German
Powers occupying Alsace and Lorraine," upon the ground that the exercise
of their powers in the name of French people and government was at least
an implied recognition of the Republic, the courts refused to obey and
suspended their sitting. Germany originally ordered the use of the name of
"High German Powers occupying Alsace and Lorraine," but later offered to
allow use of the name of the Emperor or a compromise. (Wheaton,
International Law, War, 7th English ed. 1944, p. 244.)
As courts are creatures of statutes and their existence defends upon that
of the laws which create and confer upon them their jurisdiction, it is
evident that such laws, not being a political nature, are not abrogated by a
change of sovereignty, and continue in force "ex proprio vigore" unless and
until repealed by legislative acts. A proclamation that said laws and courts
are expressly continued is not necessary in order that they may continue in
force. Such proclamation, if made, is but a declaration of the intention of
respecting and not repealing those laws. Therefore, even assuming that
Japan had legally acquired sovereignty over these Islands, which she had
afterwards transferred to the so-called Republic of the Philippines, and that
the laws and the courts of these Islands had become the courts of Japan,
as the said courts of the laws creating and conferring jurisdiction upon
them have continued in force until now, it necessarily follows that the
same courts may continue exercising the same jurisdiction over cases
pending therein before the restoration of the Commonwealth Government,
unless and until they are abolished or the laws creating and conferring
jurisdiction upon them are repealed by the said government. As a
consequence, enabling laws or acts providing that proceedings pending in
one court be continued by or transferred to another court, are not required
by the mere change of government or sovereignty. They are necessary only
in case the former courts are abolished or their jurisdiction so change that
they can no longer continue taking cognizance of the cases and
proceedings commenced therein, in order that the new courts or the courts
having jurisdiction over said cases may continue the proceedings. When
the Spanish sovereignty in the Philippine Islands ceased and the Islands
came into the possession of the United States, the "Audiencia" or Supreme
Court was continued and did not cease to exist, and proceeded to take
cognizance of the actions pending therein upon the cessation of the
Spanish sovereignty until the said "Audiencia" or Supreme Court was
abolished, and the Supreme Court created in Chapter II of Act No. 136 was
substituted in lieu thereof. And the Courts of First Instance of the Islands
during the Spanish regime continued taking cognizance of cases pending
therein upon the change of sovereignty, until section 65 of the same Act
No. 136 abolished them and created in its Chapter IV the present Courts of
First Instance in substitution of the former. Similarly, no enabling acts were
enacted during the Japanese occupation, but a mere proclamation or order
that the courts in the Island were continued.
On the other hand, during the American regime, when section 78 of Act No.
136 was enacted abolishing the civil jurisdiction of the provost courts
created by the military government of occupation in the Philippines during
the Spanish-American War of 1898, the same section 78 provided for the
transfer of all civil actions then pending in the provost courts to the proper
137
tribunals, that is, to the justices of the peace courts, Court of First Instance,
or Supreme Court having jurisdiction over them according to law. And later
on, when the criminal jurisdiction of provost courts in the City of Manila
was abolished by section 3 of Act No. 186, the same section provided that
criminal cases pending therein within the jurisdiction of the municipal court
created by Act No. 183 were transferred to the latter.
That the present courts as the same courts which had been functioning
during the Japanese regime and, therefore, can continue the proceedings
in cases pending therein prior to the restoration of the Commonwealth of
the Philippines, is confirmed by Executive Order No. 37 which we have
already quoted in support of our conclusion in connection with the second
question. Said Executive Order provides"(1) that the Court of Appeals
created and established under Commonwealth Act No. 3 as amended, be
abolished, as it is hereby abolished," and "(2) that all cases which have
heretofore been duly appealed to the Court of Appeals shall be transmitted
to the Supreme Court for final decision. . . ." In so providing, the said Order
considers that the Court of Appeals abolished was the same that existed
prior to, and continued after, the restoration of the Commonwealth
Government; for, as we have stated in discussing the previous question,
almost all, if not all, of the cases pending therein, or which had theretofore
(that is, up to March 10, 1945) been duly appealed to said court, must
have been cases coming from the Courts of First Instance during the socalled Republic of the Philippines. If the Court of Appeals abolished by the
said Executive Order was not the same one which had been functioning
during the Republic, but that which had existed up to the time of the
Japanese occupation, it would have provided that all the cases which had,
prior to and up to that occupation on January 2, 1942, been dully appealed
to the said Court of Appeals shall be transmitted to the Supreme Court for
final decision.
March 2, 2001
March 2, 2001
Having arrived at the above conclusions, it follows that the Court of First
Instance of Manila has jurisdiction to continue to final judgment the
proceedings in civil case No. 3012, which involves civil rights of the parties
under the laws of the Commonwealth Government, pending in said court at
the time of the restoration of the said Government; and that the
respondent judge of the court, having refused to act and continue him does
a duty resulting from his office as presiding judge of that
court, mandamus is the speedy and adequate remedy in the ordinary
course of law, especially taking into consideration the fact that the
question of jurisdiction herein involved does affect not only this particular
case, but many other cases now pending in all the courts of these Islands.
PUNO, J.:
On the line in the cases at bar is the office of the President. Petitioner
Joseph Ejercito Estrada alleges that he is the President on leave while
respondent Gloria Macapagal-Arroyo claims she is the President. The
warring personalities are important enough but more transcendental are
the constitutional issues embedded on the parties' dispute. While the
significant issues are many, the jugular issue involves the relationship
between the ruler and the ruled in a democracy, Philippine style.
138
First, we take a view of the panorama of events that precipitated the crisis
in the office of the President.
The heat was on. On November 1, four (4) senior economic advisers,
members of the Council of Senior Economic Advisers, resigned. They were
Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former
Senator Vicente Paterno and Washington Sycip. 8 On November 2, Secretary
Mar Roxas II also resigned from the Department of Trade and Industry. 9 On
November 3, Senate President Franklin Drilon, and House Speaker Manuel
Villar, together with some 47 representatives defected from the ruling
coalition, Lapian ng Masang Pilipino.10
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was
elected President while respondent Gloria Macapagal-Arroyo was elected
Vice-President. Some ten (10) million Filipinos voted for the petitioner
believing he would rescue them from life's adversity. Both petitioner and
the respondent were to serve a six-year term commencing on June 30,
1998.
January 20 turned to be the day of surrender. At 12:20 a.m., the first round
of negotiations for the peaceful and orderly transfer of power started at
Malacaang'' Mabini Hall, Office of the Executive Secretary. Secretary
Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty.
Macel Fernandez, head of the Presidential Management Staff, negotiated
for the petitioner. Respondent Arroyo was represented by now Executive
Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and
now Secretary of Justice Hernando Perez. 27 Outside the palace, there was a
brief encounter at Mendiola between pro and anti-Estrada protesters which
resulted in stone-throwing and caused minor injuries. The negotiations
consumed all morning until the news broke out that Chief Justice Davide
would administer the oath to respondent Arroyo at high noon at the EDSA
Shrine.
January 18 saw the high velocity intensification of the call for petitioner's
resignation. A 10-kilometer line of people holding lighted candles formed a
human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati
City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes
in Metro Manila to show their concordance. Speakers in the continuing
rallies at the EDSA Shrine, all masters of the physics of persuasion,
attracted more and more people.21
On January 19, the fall from power of the petitioner appeared inevitable. At
1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara
that General Angelo Reyes, Chief of Staff of the Armed Forces of the
Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of
a snap election for President where he would not be a candidate. It did not
diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense
Orlando Mercado and General Reyes, together with the chiefs of all the
armed services went to the EDSA Shrine. 22 In the presence of former
Presidents Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on behalf of Your Armed
Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government." 23 A
little later, PNP Chief, Director General Panfilo Lacson and the major service
commanders gave a similar stunning announcement. 24 Some Cabinet
secretaries, undersecretaries, assistant secretaries, and bureau chiefs
quickly resigned from their posts. 25 Rallies for the resignation of the
petitioner exploded in various parts of the country. To stem the tide of rage,
petitioner announced he was ordering his lawyers to agree to the opening
of the highly controversial second envelope. 26There was no turning back
the tide. The tide had become a tsunami.
At twelve o'clock noon today, Vice President Gloria MacapagalArroyo took her oath as President of the Republic of the Philippines.
While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality
of her proclamation as President, I do not wish to be a factor that
will prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of
the presidency of this country, for the sake of peace and in order to
begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service
to our people. I will not shirk from any future challenges that may
come ahead in the same service of our country.
I call on all my supporters and followers to join me in to promotion
of a constructive national spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
140
It also appears that on the same day, January 20, 2001, he signed the
following letter:31
"Sir:
By virtue of the provisions of Section 11, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By operation
of law and the Constitution, the Vice-President shall be the Acting
President.
On January 26, the respondent signed into law the Solid Waste
Management Act.40 A few days later, she also signed into law the Political
Advertising ban and Fair Election Practices Act.41
On January 22, the Monday after taking her oath, respondent Arroyo
immediately discharged the powers the duties of the Presidency. On the
same day, this Court issued the following Resolution in Administrative
Matter No. 01-1-05-SC, to wit:
After his fall from the pedestal of power, the petitioner's legal problems
appeared in clusters. Several cases previously filed against him in the
Office of the Ombudsman were set in motion. These are: (1) OMB Case No.
0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and
graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers
Against Crime and Corruption on November 17, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct,
violation of the Code of Conduct for Government Employees, etc; (3) OMB
Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on
November 24, 2000 for plunder, forfeiture, graft and corruption, bribery,
perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo
Capulong, et al., on November 28, 2000 for malversation of public funds,
illegal use of public funds and property, plunder, etc.; (5) OMB Case No. 000-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery,
plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA
7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.
In a resolution dated February 20, acting on the urgent motion for copies of
resolution and press statement for "Gag Order" on respondent Ombudsman
filed by counsel for petitioner in G.R. No. 146738, the Court resolved:
"(1) to inform the parties that the Court did not issue a resolution
on January 20, 2001 declaring the office of the President vacant
and that neither did the Chief Justice issue a press statement
justifying the alleged resolution;
(2) to order the parties and especially their counsel who are
officers of the Court under pain of being cited for contempt to
refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by
the Court, and
Thus, the stage for the cases at bar was set. On February 5, petitioner filed
with this Court GR No. 146710-15, a petition for prohibition with a prayer
for a writ of preliminary injunction. It sought to enjoin the respondent
Ombudsman from "conducting any further proceedings in Case Nos. OMB
0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal
complaint that may be filed in his office, until after the term of petitioner as
President is over and only if legally warranted." Thru another counsel,
petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed
for judgment "confirming petitioner to be the lawful and incumbent
President of the Republic of the Philippines temporarily unable to discharge
the duties of his office, and declaring respondent to have taken her oath as
and to be holding the Office of the President, only in an acting capacity
pursuant to the provisions of the Constitution." Acting on GR Nos. 14671015, the Court, on the same day, February 6, required the respondents "to
comment thereon within a non-extendible period expiring on 12 February
The parties filed their replies on February 24. On this date, the cases at bar
were deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
142
II
In the Philippine setting, this Court has been continuously confronted with
cases calling for a firmer delineation of the inner and outer perimeters of a
political question.57 Our leading case is Tanada v. Cuenco,58 where this
Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative
or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a
great degree, the 1987 Constitution has narrowed the reach of the political
question doctrine when it expanded the power of judicial review of this
court not only to settle actual controversies involving rights which are
legally demandable and enforceable but also to determine whether or
not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused
on the "thou shalt not's" of the Constitution directed against the exercise of
its jurisdiction.60With the new provision, however, courts are given a
greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. Clearly, the new provision did
not just grant the Court power of doing nothing. In sync and
symmetry with this intent are other provisions of the 1987 Constitution
trimming the so called political thicket. Prominent of these provisions is
section 18 of Article VII which empowers this Court in limpid language to "x
x x review, in an appropriate proceeding filed by any citizen, the sufficiency
of the factual basis of the proclamation of martial law or the suspension of
the privilege of the writ (of habeas corpus) or the extension thereof x x x."
In fine, the legal distinction between EDSA People Power I EDSA People
Power II is clear. EDSA I involves the exercise of the people power of
revolution which overthrew the whole government. EDSA II is an
exercise ofpeople power of freedom of speech and freedom of
assembly
to
petition
the
government
for
redress
of
grievances which only affected the office of the President. EDSA I is
extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is
intra constitutional and the resignation of the sitting President that it
caused and the succession of the Vice President as President are subject to
judicial review. EDSA I presented a political question; EDSA II
involves legal questions. A brief discourse on freedom of speech and of
the freedom of assembly to petition the government for redress of
grievance which are the cutting edge of EDSA People Power II is not
inappropriate.
Freedom of speech and the right of assembly are treasured by Filipinos.
Denial of these rights was one of the reasons of our 1898 revolution
against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the
recognition of freedom of the press of the Filipinos and included it as
among "the reforms sine quibus non."65 TheMalolos Constitution, which
is the work of the revolutionary Congress in 1898, provided in its Bill of
Rights that Filipinos shall not be deprived (1) of the right to freely express
his ideas or opinions, orally or in writing, through the use of the press or
other similar means; (2) of the right of association for purposes of human
life and which are not contrary to public means; and (3) of the right to send
petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States
acquired jurisdiction over the Philippines. In the Instruction to the
Second Philippine Commission of April 7, 1900 issued by President
McKinley, it is specifically provided "that no law shall be passed abridging
Needless to state, the cases at bar pose legal and not political questions.
The principal issues for resolution require the proper interpretation of
certain provisions in the 1987 Constitution, notably section 1 of Article
II,74 and section 875 of Article VII, and the allocation of governmental powers
under section 1176 of Article VII. The issues likewise call for a ruling on the
scope of presidential immunity from suit. They also involve the correct
calibration of the right of petitioner against prejudicial publicity. As early as
the 1803 case of Marbury v. Madison,77 the doctrine has been laid down
that "it is emphatically the province and duty of the judicial
department to say what the law is . . ." Thus, respondent's in vocation
of the doctrine of political question is but a foray in the dark.
144
II
Whether
or
Resigned as President
not
the
petitioner
We now slide to the second issue. None of the parties considered this issue
as posing a political question. Indeed, it involves a legal question whose
factual ingredient is determinable from the records of the case and by
resort to judicial notice. Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he submits that the office of
the President was not vacant when respondent Arroyo took her oath as
President.
The issue brings under the microscope the meaning of section 8, Article VII
of the Constitution which provides:
As the political isolation of the petitioner worsened, the people's call for his
resignation intensified. The call reached a new crescendo when the eleven
(11) members of the impeachment tribunal refused to open the second
envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for
redress of their grievance. Their number grew exponentially. Rallies and
demonstration quickly spread to the countryside like a brush fire.
x x x."
The issue then is whether the petitioner resigned as President or should be
considered resigned as of January 20, 2001 when respondent took her oath
as the 14th President of the Public. Resignation is not a high level legal
abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be
coupled by acts of relinquishment.78 The validity of a resignation is not
government by any formal requirement as to form. It can be oral. It can be
written. It can be express. It can be implied. As long as the resignation is
clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any formal
letter of resignation before he evacuated Malacaang Palace in the
afternoon of January 20, 2001 after the oath-taking of respondent Arroyo.
Consequently, whether or not petitioner resigned has to be determined
from his act and omissions before, during and after January 20, 2001 or by
the totality of prior, contemporaneous and posterior facts and
circumstantial evidence bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
145
and dignified exit but said he would never leave the country. 84 At
10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes)
guaranteed that I would have five days to a week in the palace." 85 This is
proof that petitioner had reconciled himself to the reality that he
had to resign. His mind was already concerned with the five-day
grace period he could stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m., former President Ramos
called up Secretary Angara and requested, "Ed, magtulungan tayo para
magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly
transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem
was already about a peaceful and orderly transfer of power. The
resignation of the petitioner was implied.
"Opposition's deal
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's
spokesperson) Rene Corona. For this round, I am accompanied by
Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
'1. The President shall sign a resignation document within the day,
20 January 2001, that will be effective on Wednesday, 24 January
2001, on which day the Vice President will assume the Presidency
of the Republic of the Philippines.
2. Beginning to day, 20 January 2001, the transition process for the
assumption of the new administration shall commence, and
persons designated by the Vice President to various positions and
offices of the government shall start their orientation activities in
coordination with the incumbent officials concerned.
"x x x
Our deal
by their side and he was ready to fax it to General Reyes and Senator
Pimentel to await the signature of the United Opposition. However, the
signing by the party of the respondent Arroyo was aborted by her oathtaking. The Angara diary narrates the fateful events, viz;90
"xxx
11:00 a.m. Between General Reyes and myself, there is a firm
agreement on the five points to effect a peaceful transition. I can
hear the general clearing all these points with a group he is with. I
hear voices in the background.
Agreement.
The agreement starts: 1. The President shall resign today, 20
January 2001, which resignation shall be effective on 24 January
2001, on which day the Vice President will assume the presidency
of the Republic of the Philippines.
'3. Both parties shall endeavor to ensure that the Senate sitting as
an impeachment court will authorize the opening of the second
envelope in the impeachment trial as proof that the subject
savings account does not belong to President Estrada.
xxx
During the Transition Period, the AFP and the Philippine National
Police (PNP) shall function Vice President (Macapagal) as national
military and police authorities.
'3. The Armed Forces of the Philippines through its Chief of Staff,
shall guarantee the safety and security of the President and his
families throughout their natural lifetimes as approved by the
national military and police authority Vice President.
Both parties hereto agree that the AFP chief of staff and PNP
director general shall obtain all the necessary signatures as affixed
to this agreement and insure faithful implementation and
observance thereof.
'4. The AFP and the Philippine National Police (PNP) shall function
under the Vice President as national military and police authorities.
'5. Both parties request the impeachment court to open the second
envelope in the impeachment trial, the contents of which shall be
offered as proof that the subject savings account does not belong
to the President.
The second round of negotiation cements the reading that the petitioner
has resigned. It will be noted that during this second round of negotiation,
the resignation of the petitioner was again treated as a given fact. The only
unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.
The Vice President shall issue a public statement in the form and
tenor provided for in Annex "B" heretofore attached to this
agreement.
11:20 a.m. I am all set to fax General Reyes and Nene Pimentel
our agreement, signed by our side and awaiting the signature of
the United opposition.
By this time, demonstrators have already broken down the first line
of defense at Mendiola. Only the PSG is there to protect the Palace,
since the police and military have already withdrawn their support
for the President.
And General Reyes answers: ' Oo nga, I delete na natin, sir (yes,
we're deleting the part).'
Contrary to subsequent reports, I do not react and say that there
was a double cross.
But I immediately instruct Macel to delete the first provision on
resignation since this matter is already moot and academic. Within
moments, Macel erases the first provision and faxes the
documents, which have been signed by myself, Dondon and Macel,
to Nene Pimentel and General Reyes.
It is for this reason that I now leave Malacaang Palace, the seat of
the presidency of this country, for the sake of peace and in order to
begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service
to our people. I will not shirk from any future challenges that may
come ahead in the same service of our country.
I then advise the President that the Supreme Court has ruled that
Chief Justice Davide will administer the oath to Gloria at 12 noon.
May the Almighty bless our country and our beloved people.
MABUHAY!"'
Final meal
148
disappears: (3) he expressed his gratitude to the people for the opportunity
to serve them. Without doubt, he was referring to the past opportunity
given him to serve the people as President (4) he assured that he will not
shirk from any future challenge that may come ahead in the same service
of our country. Petitioner's reference is to a future challenge after
occupying the office of the president which he has given up; and (5) he
called on his supporters to join him in the promotion of a constructive
national spirit of reconciliation and solidarity. Certainly, the national spirit
of reconciliation and solidarity could not be attained if he did not give up
the presidency. The press release was petitioner's valedictory, his final act
of farewell. His presidency is now in the part tense.
It is, however, urged that the petitioner did not resign but only took a
temporary leave dated January 20, 2001 of the petitioner sent to Senate
President Pimentel and Speaker Fuentebella is cited. Again, we refer to the
said letter, viz:
"Sir.
By virtue of the provisions of Section II, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By operation
of law and the Constitution, the Vice President shall be the Acting
president.
To say the least, the above letter is wrapped in mystery. 91 The pleadings
filed by the petitioner in the cases at bar did not discuss, may even
intimate, the circumstances that led to its preparation. Neither did the
counsel of the petitioner reveal to the Court these circumstances during
the oral argument. It strikes the Court as strange that the letter, despite its
legal value, was never referred to by the petitioner during the week-long
crisis. To be sure, there was not the slightest hint of its existence when he
issued his final press release. It was all too easy for him to tell the Filipino
people in his press release that he was temporarily unable to govern and
that he was leaving the reins of government to respondent Arroyo for the
time bearing. Under any circumstance, however, the mysterious letter
cannot negate the resignation of the petitioner. If it was prepared before
the press release of the petitioner clearly as a later act. If, however, it was
prepared after the press released, still, it commands scant legal
significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the
resignation is the result of his reputation by the people. There is another
reason why this Court cannot given any legal significance to petitioner's
letter and this shall be discussed in issue number III of this Decision.
The bill was vetoed by then President Carlos P. Garcia who questioned the
legality of the second paragraph of the provision and insisted that the
President's immunity should extend after his tenure.
Senate Bill No. 571, which was substantially similar Senate Bill No. 293,
was thereafter passed. Section 15 above became section 13 under the new
bill, but the deliberations on this particular provision mainly focused on the
immunity of the President, which was one of the reasons for the veto of the
original bill. There was hardly any debate on the prohibition against the
resignation or retirement of a public official with pending criminal and
administrative cases against him. Be that as it may, the intent of the law
ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the
investigation of a pending criminal or administrative case against him and
to prevent his prosecution under the Anti-Graft Law or prosecution for
bribery under the Revised Penal Code. To be sure, no person can be
compelled to render service for that would be a violation of his
149
constitutional right.94 A public official has the right not to serve if he really
wants to retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or
prosecution, such resignation or retirement will not cause the dismissal of
the criminal or administrative proceedings against him. He cannot use his
resignation or retirement to avoid prosecution.
III
If the Congress, within ten days after receipt of the last written
declaration, or, if not in session, within twelve days after it is
required to assemble, determines by a two-thirds vote of both
Houses, voting separately, that the President is unable to discharge
the powers and duties of his office, the Vice-President shall act as
President; otherwise, the President shall continue exercising the
powers and duties of his office."
2.
3.
Adopted,
(Sgd.)
Speaker
FELICIANO
(Sgd.)
ROBERTO
Secretary General"
BELMONTE
P.
JR.
NAZARENO
WHEREAS, the Senate of the Philippines has been the forum for
vital legislative measures in unity despite diversities in
perspectives;
JR.
Adopted,
(Sgd.)
Speaker
FELICIANO
(Sgd.)
ROBERTO
Secretary General"
BELMONTE
P.
NAZARENO
"RESOLUTION
Adopted,
152
(Sgd.)
AQUILINO
President of the Senate
Q.
PIMENTEL
JR.
B.
BARBO
(7) Despite the lapse of time and still without any functioning Cabinet,
without any recognition from any sector of government, and without any
support from the Armed Forces of the Philippines and the Philippine
National Police, the petitioner continues to claim that his inability to govern
is only momentary.
What leaps to the eye from these irrefutable facts is that both
houses of Congress have recognized respondent Arroyo as the
President. Implicitly clear in that recognition is the premise that
the inability of petitioner Estrada. Is no longer temporary.
Congress has clearly rejected petitioner's claim of inability.
Q.
PIMENTEL,
JR.
B.
In fine, even if the petitioner can prove that he did not resign,
still, he cannot successfully claim that he is a President on leave
on the ground that he is merely unable to govern temporarily.
That claim has been laid to rest by Congress and the decision that
respondent Arroyo is the de jure, president made by a co-equal
branch of government cannot be reviewed by this Court.
BARBO
IV
Whether or not the petitioner enjoys immunity from suit.
153
Petitioner Estrada makes two submissions: first, the cases filed against
him before the respondent Ombudsman should be prohibited because he
has not been convicted in the impeachment proceedings against him;
and second, he enjoys immunity from all kinds of suit, whether criminal
or civil.
Before resolving petitioner's contentions, a revisit of our legal history
executive immunity will be most enlightening. The doctrine of executive
immunity in this jurisdiction emerged as a case law. In the 1910 case of
Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a
Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of
the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police and
Chief of the Secret Service of the City of Manila, respectively, for damages
for allegedly conspiring to deport him to China. In granting a writ of
prohibition, this Court, speaking thru Mr. Justice Johnson, held:
" The principle of nonliability, as herein enunciated, does not mean
that the judiciary has no authority to touch the acts of the
Governor-General; that he may, under cover of his office, do what
he will, unimpeded and unrestrained. Such a construction would
mean that tyranny, under the guise of the execution of the law,
could walk defiantly abroad, destroying rights of person and of
property, wholly free from interference of courts or legislatures.
This does not mean, either that a person injured by the executive
authority by an act unjustifiable under the law has n remedy, but
must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of
the Legislature, may not be personally mulcted in civil damages for
the consequences of an act executed in the performance of his
official duties. The judiciary has full power to, and will, when the
mater is properly presented to it and the occasion justly warrants
it, declare an act of the Governor-General illegal and void and
place as nearly as possible in status quo any person who has been
deprived his liberty or his property by such act. This remedy is
assured to every person, however humble or of whatever country,
when his personal or property rights have been invaded, even by
the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which
result from the performance of his official duty, any more than it
can a member of the Philippine Commission of the Philippine
Assembly. Public policy forbids it.
Fr. Bernas. There is no need. It was that way before. The only
innovation made by the 1973 Constitution was to make that
explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more
query, Madam President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the light of this
history. We reject his argument that he cannot be prosecuted for the
reason that he must first be convicted in the impeachment proceedings.
The impeachment trial of petitioner Estrada was aborted by the walkout of
the prosecutors and by the events that led to his loss of the presidency.
Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83
"Recognizing that the Impeachment Court is Functus Officio." 109 Since, the
Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he
can be prosecuted. The plea if granted, would put a perpetual bar against
his prosecution. Such a submission has nothing to commend itself for it will
place him in a better situation than a non-sitting President who has not
been subjected to impeachment proceedings and yet can be the object of
a criminal prosecution. To be sure, the debates in the Constitutional
Commission make it clear that when impeachment proceedings have
become moot due to the resignation of the President, the proper criminal
and civil cases may already be filed against him, viz:110
The Opposition in the then Batasan Pambansa sought the repeal of this
Marcosian concept of executive immunity in the 1973 Constitution. The
move was led by them Member of Parliament, now Secretary of Finance,
Alberto Romulo, who argued that the after incumbency immunity granted
to President Marcos violated the principle that a public office is a public
trust. He denounced the immunity as a return to the anachronism "the king
can do no wrong."107 The effort failed.
The 1973 Constitution ceased to exist when President Marcos was ousted
from office by the People Power revolution in 1986. When the 1987
Constitution was crafted, its framers did not reenact the executive
immunity provision of the 1973 Constitution. The following explanation was
given by delegate J. Bernas vis:108
"Mr. Suarez. Thank you.
"xxx
The last question is with reference to the Committee's omitting in
the draft proposal the immunity provision for the President. I agree
with Commissioner Nolledo that the Committee did very well in
striking out second sentence, at the very least, of the original
provision on immunity from suit under the 1973 Constitution. But
would the Committee members not agree to a restoration of at
least the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not provide him
that kind of an immunity, he might be spending all his time facing
litigation's, as the President-in-exile in Hawaii is now facing
litigation's almost daily?
This is in accord with our ruling In Re: Saturnino Bermudez 111 that
'incumbent Presidents are immune from suit or from being brought to court
during the period of their incumbency and tenure" but not beyond.
Considering the peculiar circumstance that the impeachment process
against the petitioner has been aborted and thereafter he lost the
presidency, petitioner Estrada cannot demand as a condition sine qua non
to his criminal prosecution before the Ombudsman that he be convicted in
155
"We cannot sustain appellant's claim that he was denied the right
to impartial trial due to prejudicial publicity. It is true that the print
and broadcast media gave the case at bar pervasive publicity, just
like all high profile and high stake criminal trials. Then and now, we
156
xxx
xxx
a.
157
c.
Applying the above ruling, we hold that there is not enough evidence
to warrant this Court to enjoin the preliminary investigation of the
petitioner by the respondent Ombudsman. Petitioner needs to offer
more than hostile headlines to discharge his burden of proof. 131 He needs to
show more weighty social science evidence to successfully prove the
impaired capacity of a judge to render a bias-free decision. Well to note,
the cases against the petitioner are still undergoing preliminary
investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the
petitioner that the minds of the members of this special panel have already
been infected by bias because of the pervasive prejudicial publicity against
him. Indeed, the special panel has yet to come out with its findings and the
Court cannot second guess whether its recommendation will be
unfavorable to the petitioner.1wphi1.nt
can not be compelled cases which they believe deserve dismissal. In other
words, investigating prosecutors should not be treated like unthinking slot
machines. Moreover, if the respondent Ombudsman resolves to file the
cases against the petitioner and the latter believes that the findings of
probable cause against him is the result of bias, he still has the remedy of
assailing it before the proper court.
VI.
FERIA, J.:
Epilogue
Petitioner-defendant, a member of the Metropolitan Constabulary of Manila
charged with the supervision and control of the production, procurement
and distribution of goods and other necessaries as defined in section 1 of
Act No. 9 of the National Assembly of the so-called Republic of the
Philippines, was prosecuted for the crime of robbery as defined and
penalized by section 2 (a) of Act No. 65 of the same Assembly. He was
found guilty and sentenced to life imprisonment, which he commenced to
serve on August 21, 1944, by the Court of Special and Exclusive Criminal
Jurisdiction, created in section 1 of Ordinance No. 7 promulgated by the
President of the so-called Republic of the Philippines, pursuant to the
authority conferred upon him by the Constitution and laws of the said
Republic. And the procedure followed in the trial was the summary one
established in Chapter II of Executive Order No. 157 of the Chairman of the
Executive Commission, made applicable to the trial violations of said Act
No. 65 by section 9 thereof and section 5 of said Ordinance No. 7.
A word of caution to the "hooting throng." The cases against the petitioner
will now acquire a different dimension and then move to a new stage - - the Office of the Ombudsman. Predictably, the call from the majority for
instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent
Ombudsman to balance the right of the State to prosecute the guilty and
the right of an accused to a fair investigation and trial which has been
categorized as the "most fundamental of all freedoms."135To be sure, the
duty of a prosecutor is more to do justice and less to prosecute. His is the
obligation to insure that the preliminary investigation of the petitioner shall
have a circus-free atmosphere. He has to provide the restraint against
what Lord Bryce calls "the impatient vehemence of the majority." Rights in
a democracy are not decided by the mob whose judgment is dictated by
rage and not by reason. Nor are rights necessarily resolved by the power of
number for in a democracy, the dogmatism of the majority is not and
should never be the definition of the rule of law. If democracy has proved
to be the best form of government, it is because it has respected the right
of the minority to convince the majority that it is wrong. Tolerance of
multiformity of thoughts, however offensive they may be, is the key to
man's progress from the cave to civilization. Let us not throw away that key
just to pander to some people's prejudice.
The petition for habeas corpus is based on the ground that the Court of
Special and Executive Criminal Jurisdiction created by Ordinance No. 7
"was a political instrumentality of the military forces of the Japanese
Imperial Army, the aims and purposes of which are repugnant to those
aims and political purposes of the Commonwealth of the Philippines, as
well as those of the United States of America, and therefore, null and void
ab initio," that the provisions of said Ordinance No. 7 are violative of the
fundamental laws of the Commonwealth of the Philippines and "the
petitioner has been deprived of his constitutional rights"; that the
petitioner herein is being punished by a law created to serve the political
purpose of the Japanese Imperial Army in the Philippines, and "that the
penalties provided for are much (more) severe than the penalties provided
for in the Revised Penal Code."
The Solicitor General, in his answer in behalf of the respondent, states that,
in his own opinion, for the reasons expressed in his brief in the case
of People of the Philippines, plaintiff-appellant, vs. Benedicto Jose y Santos,
defendant-appellee, G. R. No. L-22 (p. 612, post), the acts and proceedings
taken and had before the said Court of Special and Exclusive Criminal
Jurisdiction which resulted in the conviction and imprisonment of the herein
petitioner, should now be denied force and efficacy, and therefore the
petition for habeas corpus should be granted. The reasons advanced by the
EN BANC
G.R. No. L-49
In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp.
113, 127, ante), recently decided, this Court, speaking through the Justice
who pens this decision, held:
In view of the foregoing, it is evident that the Philippines Executive
Commission, which was organized by Order No. 1, issued on
January 23, 1942, by the Commander of the Japanese forces, was a
civil government established by the military forces of occupation
and therefore a de facto government of the second kind. It was not
different from the government established by the British in Castine,
Maine, or by the United States in Tanpico, Mexico. As Halleck says,
"the government established over an enemy's territory during the
military occupation may exercise all the powers given by the laws
of war to the conqueror over the conquered, and is subject to all
restrictions which that code imposes. It is of little consequence
whether such government be called a military or civil government.
Its character is the same and the source of its authority the same.
In either case it is a government imposed by the laws of war and so
far as it concerns the inhabitants of such territory or the rest of the
world those laws alone determine the legality or illegality of its
acts." (vol. 2 p. 466.) The fact that the Philippine Executive
Commission was a civil and not a military government and was run
by Filipinos and not by Japanese nationals is of no consequence.
The City Fiscal of Manila appeared before this Court as amicus curiae. In his
memorandum he submits that the petition for habeas corpus be denied on
the following grounds: That the Court of Special and Exclusive Criminal
Jurisdiction and the Acts, Ordinances and Executive Orders, creating it are
not of a political complexion, for said Court was created, and the crimes
and offenses placed under its jurisdiction were penalized heavily, in
response to an urgent necessity, according to the preamble of Ordinance
No. 7; that the right to appeal in a criminal case is not a constitutional
right; and that the summary procedure established in said Ordinance No. 7
is not violative of the provision of Article III, section 1 (18) of the
Constitution of the Commonwealth, to the effect that no person shall be
compelled to be a witness against himself, nor of the provision of section 1
(1) of the same Article that no person shall be deprived of life, liberty, or
property without due process of law.
160
laws and the estate constitution, subject to the Constitution of the United
States,
remained
unimpaired
during
the
War
of
Secession
(Texas vs. White, supra) and that the Confederate States "in most, if not in
all instances, merely transferred the existing state organizations to the
support of a new and different national head. the same constitution, the
same laws for the protection of the property and personal rights remained
and were administered by the same officers." (Sprott vs. United
States, supra). In fine, because in the case of the Confederate States, the
constitution of each state and that of the United States or the Union
continued in force in those states during the War of Secession; while the
Constitution of the Commonwealth Government was suspended during the
occupation of the Philippines by the Japanese forces of the belligerent
occupant at regular war with the United States.
The question which we have to resolve in the present case in the light of
the law of nations are, first, the validity of the creation of the Court of
Special and Exclusive Criminal Jurisdiction, and of the summary procedure
adopted for that court; secondly, the validity of the sentence which
imprisonment during the Japanese military occupation; and thirdly, if they
were then valid, the effect on said punitive sentence of the reoccupation of
the Philippines and the restoration therein of the Commonwealth
Government.
In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court
of the United States held that, by the military occupation of Castine, Maine,
the sovereignty of the United States in the territory was, of course,
suspended, and the laws of the United States could no longer be rightfully
enforced there or be obligatory upon the inhabitants who remained and
submitted to the belligerent occupant. By the surrender the inhabitants
passed under a temporary allegiance to the British government, and were
bound by such laws, and such only, as it chose to recognize and impose.
And Oppenheim, in his Treatise on International Law, says that, in carrying
out the administration over the occupied territory and its inhabitants, "the
(belligerent) occupant is totally independent of the constitution and the
laws of the territory, since occupation is an aim of warfare, and the
maintenance and safety of his forces, and the purpose of war, stand in the
foreground of his interest and must be promoted under all circumstances
or conditions. (Vol. II, Sixth Edition, Revised, 1944, p. 342.)
(1) As to the validity of the creation of the Court of Special and Exclusive
Criminal Jurisdiction by Ordinance No. 7, the only factor to be considered is
the authority of the legislative power which promulgated said law or
ordinance. It is well established in International Law that "The criminal
jurisdiction established by the invader in the occupied territory finds its
source neither in the laws of the conquering or conquered state, it is
drawn entirely form the law martial as defined in the usages of nations.
The authority thus derived can be asserted either through special tribunals,
whose authority and procedure is defined in the military code of the
conquering state, or through the ordinary courts and authorities of the
occupied district." (Taylor, International Public Law, p. 598.) The so-called
Republic of the Philippines, being a governmental instrumentality of the
belligerent occupant, had therefore the power or was competent to create
the Court of Special and Exclusive Criminal Jurisdiction. No question may
arise as to whether or not a court is of political complexion, for it is mere a
governmental agency charged with the duty of applying the law to cases
falling within its jurisdiction. Its judgments and sentences may be of
political complexion, or not depending upon the nature or character of the
law so applied. There is no room for doubt, therefore, as to the validity of
the creation of the court in question.
The doctrine laid down in the decisions of the Supreme Court of the United
States (in the cases of Texas vs. White, 7 Wall., 700; Horn vs. Lockart, 17
Wall., 570; Williams vs. Bruffy, 96 U. S., 176 United States vs. Home
Insurance Co., 20 Wall., 249; Sprott vs. United States, 20 Wall., 459, and
others) that the judicial and legislative acts of the Confederate States
which impaired the rights of the citizens under the Constitution of the
United States or of the States, or were in conflict with those constitutions,
were null and void, is not applicable to the present case. Because that
doctrine rests on the propositions that "the concession (of belligerency)
made to the Confederate Government . . . sanctioned no hostile
legislation . . . and it impaired in no respect the rights of loyal and citizens
as
they
existed
at
the
commencement
of
hostilities"
(Williams vs. Bruffy, supra);that the Union is perpetual and indissoluble,
and the obligation of allegiance to the to the estate and obedience to her
first, the territorial law in general, as that which stands to the public order
and social and commercial life of the district in a relation of mutual
adaptation, so that any needless displacement of it would defeat the object
which the invader is enjoined to have in view, and secondly, such
variations of the territorial law as may be required by real necessity and
are not expressly prohibited by any of the rules which will come before us.
Such variations will naturally be greatest in what concerns the relation of
the communities and individuals within the district to the invading army
and its followers, it being necessary for the protection of the latter, and for
the unhindered prosecution of the war by them, that acts committed to
their detriment shall not only lose what justification the territorial law
might give them as committed against enemies, but shall be repressed
more severely than the territorial law would repress acts committed
against fellow subjects. Indeed the entire relation between the invaders
and the invaded, so far as it may fall within the criminal department
whether by the intrinsic nature of the acts done or in consequence of the
regulations made by the invaders, may be considered as taken out of the
territorial law and referred to what is called martial law." (Westlake,
International Law, Part II, War, p. 96.)
No objection can be set up to the legality of its provisions in the light of the
precepts of our Commonwealth Constitution relating to the rights of
accused under that Constitution, because the latter was not in force during
the period of the Japanese military occupation, as we have already stated.
Nor may said Constitution be applied upon its revival at the time of the reoccupation of the Philippines by virtue of the principle of postliminium
because "a constitution should operate prospectively only, unless the
words employed show a clear intention that it should have a retrospective
effect" (Cooley's Constitutional Limitations, seventh edition, page 97, and
cases quoted and cited in the footnote), especially as regards laws of
procedure applied to cases already terminated completely.
According to Hyde (International Law, Vol. II, p. 386), the term "martial
law," in so far as it is used to describe any fact in relation to belligerent
occupation, does not refer to a particular code or system of law, or to a
special agency entrusted with its administration. The term merely signifies
that the body of law actually applied, having the sanction of military
authority, is essentially martial. All law, by whomsoever administered, in an
occupied district martial law; and it is none the less so when applied by
civil courts in matters devoid of special interest to the occupant. The words
"martial law" are doubtless suggestive of the power of the occupant to
share the law as he sees fit; that is, to determine what shall be deemed
lawful or unlawful acts, to establish tests for ascertaining the guilt of
offenders, to fix penalties, and generally to administer justice through such
agencies as the found expedient.
And the United States Rules of Land Warfare provide that the belligerent
occupant may promulgate such new laws and regulations as military
necessity demands, and in this class will be included those laws which
come into being as a result of military rule; that is, those which establish
new crimes and offenses incident to a state of war and are necessary for
the control of the country and the protection of the army, for the principal
object of the occupant is to provide for the security of the invading army
and to contribute to its support and efficiency and the success of its
operations. (Pub. 1940, pp. 76, 77.)
(2) The validity of the sentence rendered by the Court of Special and
Exclusive Criminal Jurisdiction which imposes life imprisonment upon the
herein petitioner, depends upon the competence or power of the
belligerent occupant to promulgate Act No. 65 which punishes the crime of
which said petitioner was convicted.
From the above it appears clear that it was within the power and
competence of the belligerent occupant to promulgate, through the
National Assembly of the so-called Republic of the Philippines, Act No. 65 of
the said Assembly, which penalizes the crimes of robbery and other
offenses by imprisonment ranging from the maximum period of the
Westlake says that Article XLIII, Section III, of the Hague Conventions of
1907 "indicates that the laws to be enforced by the occupant consist of,
162
They are not the same ordinary offenses penalized by the Revised Penal
Code. The criminal acts penalized by said Act No. 65 are those
committed by persons charged or connected with the supervision and
control of the production, procurement and distribution of foods and other
necessaries; and the penalties imposed upon the violators are different
from and much heavier than those provided by the Revised Penal Code for
the same ordinary crimes. The acts penalized by said Act were taken out of
the territorial law or Revised Penal Code, and referred to what is called
martial law by international jurists, defined above by Hyde, in order, not
only to prevent food and other necessaries from reaching the "guerrillas"
which were harassing the belligerent occupant from every nook and corner
of the country, but also to preserve the food supply and other necessaries
in order that, in case of necessity, the Imperial Japanese forces could easily
requisition them, as they did, and as they had the right to do in accordance
with the law of nations for their maintenance and subsistence (Art. LII, Sec.
III, Hague Conventions of 1907). Especially taking into consideration the
fact, of which this court may take judicial notice, that the Imperial Japanese
Army had depended mostly for their supply upon the produce of this
country.
It is, therefore, evident that the sentence rendered by the Court of Special
and Exclusive Criminal Jurisdiction against the petitioner, imposing upon
him the penalty of life imprisonment, was good and valid, since it was
within the admitted power or competence of the belligerent occupant to
promulgate the law penalizing the crime of which petitioner was convicted.
(3) The last question is the legal effect of the reoccupation of the
Philippines and restoration of the Commonwealth Government; that is
whether or not, by the principle of postliminy, the punitive sentence which
petitioner is now serving fell through or ceased to be valid from that time.
It may not be amiss to say in this connection that it is not necessary and
proper to invoke the proclamation of General Douglas MacArthur declaring
null and void all laws, among them Act No. 65, of the so-called Republic of
the Philippines under which petitioner was convicted, in order to give
retroactive effect to the nullification of said penal act and invalidate
sentence rendered against petitioner under said law, a sentence which,
before the proclamation, had already become null and of no effect.
Bengzon,
JJ., concur.
And Wheaton, who, as above stated, considers as war crimes such offenses
as those penalized in Ordinance No. 7 and Act No. 65, says: "In general, the
cast of the occupant possess legal validity, and under international law
should not be abrogated by the subsequent government. But this rule does
not necessarily apply to acts that exceed the occupant's power
(e.g., alienation of the domains of the State or the sovereign), to sentences
for 'war treason' and'war crimes,' to acts of a political character, and to
those that beyond the period of occupation. When occupation ceases, no
reparation is legally due for what has already been carried out."
(Wheaton's International Law, supra, p. 245.)
We have already held in our recent decision in the case of Co Kim Cham vs.
Valdez Tan Keh and Dizon, supra, that all judgments of political complexion
of the courts during the Japanese regime, ceased to be valid upon the
reoccupation of the islands by virtue of the principle or right of
postliminium. Applying that doctrine to the present case, the sentence
which convicted the petitioner of a crime of a political complexion must be
considered as having ceased to be valid ipso facto upon the reoccupation
or liberation of the Philippines by General Douglas MacArthur.
FERIA, J.:
This is a petition for the issuance of a writ of habeas corpus and for the
release of the petitioner on the ground that the latter is unlawfully
imprisoned and restrained of his liberty by the respondent Director of
Prison in the provincial jail at Vigan, Ilocos Sur.
Petitioner was convicted by the Court First Instance of Ilocos Sur (Criminal
case No. 23) of the crime of illegal discharge of firearms with less serious
164
Petitioner now questions the validity of the decision of the Court of Appeals
of Northern Luzon, on the sole ground that said court was only a creation of
the so-called Republic of the Philippines during the Japanese military
occupation of the Islands; that the Court of Appeals was not authorized by
Commonwealth Act No. 3 to hold sessions in Baguio, and that only the two
Justices constituted the majority which promulgated the decision in
question. The petitioner does not question the validity of said decision on
the strength of the Proclamation of General Douglas McArthur of October
23, 1944, which according to our decision in the case of Co Kim Cham vs.
Valdez Tan Keh and Dizon, G.R. No. L-5 (p. 113, ante), does not refer to
judicial processes.
In the said case of Co Kim Cham vs. Valdez Tan Keh and Dizon, this Court
ruled that the so-called Republic of the Philippines and the Philippine
Executive Commission established in the Philippines during the Japanese
regime were governments de facto organized by the belligerent occupant
by the judicial acts thereof were good and valid and remained good and
valid after the restoration of the Commonwealth Government, except those
a political complexion. In that the same case this Court held that the Court
of Appeals which was continued throughout the Japanese occupation, was
the same Court of Appeals existed prior to the Japanese occupation and
was lately abolished by Executive Order No. 37. The division of the Court of
Appeals into several District Court of Appeals, and the reduction of the
number of Justices sitting in each division, the regime of the so-called
Republic effected no substantial change in its nature and jurisdiction.
In view of the foregoing, the petitioner for the writ of habeas corpus is
denied.
Moran, C.J., Ozaeta, Paras, Jaranilla, Pablo and Bengzon, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
Even assuming that the Court of Appeals of Northern Luzon was a new
court created by the belligerent occupant or the de facto governments
established by him, the judgments of such court, like those of the court
which were continued during the Japanese occupation, were good and valid
and remain good and valid, and therefore enforceable now after the
liberation or occupation of the Philippines, provided that such judgments
do not have a political complexion, as this court held in its decision in the
abovementioned case of Co Kim Cham vs. Valdez Tan Keh and Dizon supra,
in accordance with the authorities therein cited.
165
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the
Court, acting on the petition for habeas corpusfiled by Anastacio
Laurel and based on a theory that a Filipino citizen who adhered to
the enemy giving the latter aid and comfort during the Japanese
occupation cannot be prosecuted for the crime of treason defined
and penalized by article 114 of the Revised Penal Code, for the
reason (1) that the sovereignty of the legitimate government in the
Philippines and, consequently, the correlative allegiance of Filipino
citizens thereto was then suspended; and (2) that there was a
change of sovereignty over these Islands upon the proclamation of
the Philippine Republic:
October 4, 1922
MALCOLM, J.:
168
About August 20, 1920, the Secretary of the Philippine Senate, Fernando M.
Guerrero, discovered that certain documents which constituted the records
of testimony given by witnesses in the investigation of oil companies, had
disappeared from his office. Shortly thereafter, the Philippine Senate,
having been called into special session by the Governor-General, the
Secretary for the Senate informed that body of the loss of the documents
and of the steps taken by him to discover the guilty party. The day
following the convening of the Senate, September 7, 1920, the
newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article
reading as follows:
During the course of the trial in the Court of First Instance, after the
prosecution had rested, the defense moved for the dismissal of the case.
On the subject of whether or not article 256 of the Penal Code, under which
the information was presented, is in force, the trial judge, the Honorable
George R. Harvey, said:
Half a month has elapsed since the discovery, for the first time, of
the scandalous robbery of records which were kept and preserved
in the iron safe of the Senate, yet up to this time there is not the
slightest indication that the author or authors of the crime will ever
be discovered.
How many of the present Senators can say without remorse in their
conscience and with serenity of mind, that they do not owe their
victory to electoral robbery? How may?
The author or authors of the robbery of the records from the said
iron safe of the Senate have, perhaps, but followed the example of
certain Senators who secured their election through fraud and
robbery.
There may perchance exist some doubt as to the authority of the decision
in the Helbig case, in view of the circumstances above described. This
much, however, is certain: The facts of the Helbig case and the case before
us, which we may term the Perfecto case, are different, for in the first case
there was an oral defamation, while in the second there is a written
defamation. Not only this, but a new point which, under the facts, could not
have been considered in the Helbig case, is, in the Perfecto case, urged
upon the court. And, finally, as is apparent to all, the appellate court is not
restrained, as was the trial court, by strict adherence to a former decision.
We much prefer to resolve the question before us unhindered by references
to the Helbig decision.
This is one of those cases on which a variety of opinions all leading to the
same result can be had. A majority of the court are of the opinion that the
Philippine Libel Law, Act No. 277, has had the effect of repealing so much
of article 256 of the Penal Code as relates to written defamation, abuse, or
insult, and that under the information and the facts, the defendant is
neither guilty of a violation of article 256 of the Penal Code, nor of the Libel
Law. The view of the Chief Justice is that the accused should be acquitted
for the reason that the facts alleged in the information do not constitute a
violation of article 156 of the Penal Code. Three members of the court
believe that article 256 was abrogated completely by the change from
Spanish to American sovereignty over the Philippines and is inconsistent
with democratic principles of government.
Without prejudice to the right of any member of the court to explain his
position, we will discuss the two main points just mentioned.
1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of
the Spanish Penal Code. The Libel Law, Act No. 277, was
enacted by the Philippine Commission shortly after organization of
this legislative body. Section 1 defines libel as a "malicious
defamation, expressed either in writing, printing, or by signs or
pictures, or the like, or public theatrical exhibitions, tending to
blacken the memory of one who is dead or to impeach the honesty,
virtue, or reputation, or publish the alleged or natural deffects of
one who is alive, and thereby expose him to public hatred,
contempt or ridicule." Section 13 provides that "All laws and parts
of laws now in force, so far as the same may be in conflict
herewith, are hereby repealed. . . ."
It will be noted in the first place that the trial judge considered himself
bound to follow the rule announced in the case of United States vs. Helbig
(R. G. No. 14705, 1 not published). In that case, the accused was charged
with having said, "To hell with the President and his proclamations, or
words to that effect," in violation of article 256 of the Penal Code. He was
found guilty in a judgment rendered by the Court of First Instance of Manila
and again on appeal to the Supreme Court, with the writer of the instant
decision dissenting on two principal grounds: (1) That the accused was
deprived of the constitutional right of cross-examination, and (2) that
article 256 of the Spanish Penal Code is no longer in force. Subsequently,
on a motion of reconsideration, the court, being of the opinion that the
Court of First Instance had committed a prejudicial error in depriving the
accused of his right to cross-examine a principal witness, set aside the
judgment affirming the judgment appealed from and ordered the return of
the record to the court of origin for the celebration of a new trial. Whether
such a trial was actually had, is not known, but at least, the record in the
Helbig case has never again been elevated to this court.
That parts of laws in force in 1901 when the Libel Law took effect, were in
conflict therewith, and that the Libel Law abrogated certain portion of the
Spanish Penal Code, cannot be gainsaid. Title X of Book II of the Penal
Code, covering the subjects of calumny and insults, must have been
particularly affected by the Libel Law. Indeed, in the early case of Pardo de
Tavera vs. Garcia Valdez ([1902], 1. Phil., 468), the Supreme Court spoke of
the Libel Law as "reforming the preexisting Spanish law on the subject
170
of calumnia and injuria." Recently, specific attention was given to the effect
of the Libel Law on the provisions of the Penal Code, dealing with calumny
and insults, and it was found that those provisions of the Penal Code on the
subject of calumny and insults in which the elements of writing an publicity
entered, were abrogated by the Libel Law. (People vs. Castro [1922], p.
842, ante.)
The Libel Law must have had the same result on other provisions of the
Penal Code, as for instance article 256.
The facts here are that the editor of a newspaper published an article,
naturally in writing, which may have had the tendency to impeach the
honesty, virtue, or reputation of members of the Philippine Senate, thereby
possibly exposing them to public hatred, contempt, or ridicule, which is
exactly libel, as defined by the Libel Law. Sir J. F. Stephen is authority for
the statement that a libel is indictable when defaming a "body of persons
definite and small enough for individual members to be recognized as
such, in or by means of anything capable of being a libel." (Digest of
Criminal Law, art. 267.) But in the United States, while it may be proper to
prosecute criminally the author of a libel charging a legislator with
corruption, criticisms, no matter how severe, on a legislature, are within
the range of the liberty of the press, unless the intention and effect be
seditious. (3 Wharton's Criminal Law, p. 2131.) With these facts and legal
principles in mind, recall that article 256 begins: Any person who,
by . . . writing, shall defame, abuse, or insult any Minister of the Crown or
other person in authority," etc.
The Libel Law is a complete and comprehensive law on the subject of libel.
The well-known rule of statutory construction is, that where the later
statute clearly covers the old subject-matter of antecedent acts, and it
plainly appears to have been the purpose of the legislature to give
expression in it to the whole law on the subject, previous laws are held to
be repealed by necessary implication. (1 Lewis' Sutherland Statutory
Construction, p. 465.) For identical reasons, it is evident that Act No. 277
had the effect so much of this article as punishes defamation, abuse, or
insults by writing.
It cannot admit of doubt that all those provisions of the Spanish Penal Code
having to do with such subjects as treason, lese majeste, religion and
worship, rebellion, sedition, and contempts of ministers of the crown, are
not longer in force. Our present task, therefore, is a determination of
whether article 256 has met the same fate, or, more specifically stated,
whether it is in the nature of a municipal law or political law, and is
consistent with the Constitution and laws of the United States and the
characteristics and institutions of the American Government.
Act No. 292 of the Philippine Commission, the Treason and Sedition Law,
may also have affected article 256, but as to this point, it is not necessary
to make a pronouncement.
The courts have naturally taken the same view. Mr. Justice Elliott, speaking
for our Supreme Court, in the case of United States vs. Bull ([1910], 15
Phil., 7), said: "The President and Congress framed the government on the
model with which American are familiar, and which has proven best
adapted for the advancement of the public interests and the protection of
individual rights and privileges."
Therefore, it has come with somewhat of a shock to hear the statement
made that the happiness, peace, and prosperity of the people of the
Philippine Islands and their customs, habits, and prejudices, to follow the
language of President McKinley, demand obeisance to authority, and royal
protection for that authority.
According to our view, article 256 of the Spanish Penal Code was enacted
by the Government of Spain to protect Spanish officials who were the
representatives of the King. With the change of sovereignty, a new
government, and a new theory of government, as set up in the Philippines.
It was in no sense a continuation of the old, although merely for
convenience certain of the existing institutions and laws were continued.
The demands which the new government made, and makes, on the
individual citizen are likewise different. No longer is there a Minister of the
Crown or a person in authority of such exalted position that the citizen
must speak of him only with bated breath. "In the eye of our Constitution
and laws, every man is a sovereign, a ruler and a freeman, and has equal
rights with every other man. We have no rank or station, except that of
respectability and intelligence as opposed to indecency and ignorance, and
the door to this rank stands open to every man to freely enter and abide
therein, if he is qualified, and whether he is qualified or not depends upon
the life and character and attainments and conduct of each person for
The nature of the government which has been set up in the Philippines
under American sovereignty was outlined by President McKinley in that
Magna Charta of Philippine liberty, his instructions to the Commission, of
April 7, 1900. In part, the President said:
In all the forms of government and administrative provisions which
they are authorized to prescribe, the Commission should bear in
mind that he government which they are establishing is designed
not for our satisfaction or for the expression of our theoretical
views, but for the happiness, peace, and prosperity of the people of
the Philippine Islands, and the measures adopted should be made
172
himself. Every man may lawfully do what he will, so long as it is not malum
in se or malum prohibitum or does not infringe upon the qually sacred
rights of others." (State vs. Shepherd [1903], 177 Mo., 205; 99 A. S. R.,
624.)
It is true that in England, from which so many of the laws and institutions
of the United States are derived, there were once statutes of scandalum
magnatum, under which words which would not be actionable if spoken of
an ordinary subject were made actionable if spoken of a peer of the realm
or of any of the great officers of the Crown, without proof of any special
damage. The Crown of England, unfortunately, took a view less tolerant
that that of other sovereigns, as for instance, the Emperors Augustus,
Caesar, and Tiberius. These English statutes have, however, long since,
become obsolete, while in the United States, the offense of scandalum
magnatum is not known. In the early days of the American Republic, a
sedition law was enacted, making it an offense to libel the Government,
the Congress, or the President of the United States, but the law met with so
much popular disapproval, that it was soon repealed. "In this country no
distinction as to persons is recognized, and in practice a person holding a
high office is regarded as a target at whom any person may let fly his
poisonous words. High official position, instead of affording immunity from
slanderous and libelous charges, seems rather to be regarded as making
his character free plunder for any one who desires to create a senation by
attacking it." (Newell, Slander and Libel, 3d ed., p. 245; Sillars vs. Collier
[1890], 151 Mass., 50; 6 L.R.A., 680.)
To summarize, the result is, that all the members of the court are of the
opinion, although for different reasons, that the judgment should be
reversed and the defendant and appellant acquitted, with costs de officio.
So ordered.
Ostrand and Johns, JJ., concur.
Article 256 of the Penal Code is contrary to the genius and fundamental
principles of the American character and system of government. The gulf
which separates this article from the spirit which inspires all penal
legislation of American origin, is as wide as that which separates a
monarchy from a democratic Republic like that of the United States. This
article was crowded out by implication as soon as the United States
established its authority in the Philippine Islands. Penalties out of all
proportion to the gravity of the offense, grounded in a distorted
monarchical conception of the nature of political authority, as opposed to
the American conception of the protection of the interests of the public,
have been obliterated by the present system of government in the
Islands. 1awph!l.net
EN BANC
A.M. No. 133-J May 31, 1982
BERNARDITA R. MACARIOLA, complainant,
vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First
Instance of Leyte, respondent.
From an entirely different point of view, it must be noted that this article
punishes contempts against executive officials, although its terms are
broad enough to cover the entire official class. Punishment for contempt of
non-judicial officers has no place in a government based upon American
principles. Our official class is not, as in monarchies, an agent of some
authority greater than the people but it is an agent and servant of the
people themselves. These officials are only entitled to respect and
obedience when they are acting within the scope of their authority and
jurisdiction. The American system of government is calculated to enforce
respect and obedience where such respect and obedience is due, but never
MAKASIAR, J:
In a verified complaint dated August 6, 1968 Bernardita R. Macariola
charged respondent Judge Elias B. Asuncion of the Court of First Instance of
Leyte, now Associate Justice of the Court of Appeals, with "acts
unbecoming a judge."
173
The factual setting of the case is stated in the report dated May 27, 1971
of then Associate Justice Cecilia Muoz Palma of the Court of Appeals now
retired Associate Justice of the Supreme Court, to whom this case was
referred on October 28, 1968 for investigation, thus:
Atty.
for
the
SO ORDERED.
Given in Tacloban City, this 23rd day of
October, 1963.
(SGD) ELIAS B. ASUNCION Judge
EXH. B.
her report dated May 27, 1971 recommending that respondent Judge
should be reprimanded or warned in connection with the first cause of
action alleged in the complaint, and for the second cause of action,
respondent should be warned in case of a finding that he is prohibited
under the law to engage in business. On the third and fourth causes of
action, Justice Palma recommended that respondent Judge be exonerated.
The records also reveal that on or about November 9 or 11, 1968 (pp. 481,
477, rec.), complainant herein instituted an action before the Court of First
Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff, versus
Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case
No. 4235, seeking the annulment of the project of partition made pursuant
to the decision in Civil Case No. 3010 and the two orders issued by
respondent Judge approving the same, as well as the partition of the estate
and the subsequent conveyances with damages. It appears, however, that
some defendants were dropped from the civil case. For one, the case
against Dr. Arcadio Galapon was dismissed because he was no longer a
real party in interest when Civil Case No. 4234 was filed, having already
conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge
and on August 31, 1966 the remainder was sold to the Traders
Manufacturing and Fishing Industries, Inc. Similarly, the case against
defendant Victoria Asuncion was dismissed on the ground that she was no
longer a real party in interest at the time the aforesaid Civil Case No. 4234
was filed as the portion of Lot 1184 acquired by her and respondent Judge
from Dr. Arcadio Galapon was already sold on August 31, 1966 to the
Traders Manufacturing and Fishing industries, Inc. Likewise, the cases
against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go,
Jesus Perez, Traders Manufacturing and Fishing Industries, Inc., Alfredo R.
Celestial and Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla,
Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete were
dismissed with the conformity of complainant herein, plaintiff therein, and
her counsel.
177
Furthermore, respondent Judge did not buy the lot in question on March 6,
1965 directly from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio
Galapon who earlier purchased on July 31, 1964 Lot 1184-E from three of
the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa
after the finality of the decision in Civil Case No. 3010. It may be recalled
that Lot 1184 or more specifically one-half thereof was adjudicated in equal
shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and
Anacorita Reyes in the project of partition, and the same was subdivided
into five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot
1184-E was sold on July 31, 1964 to Dr. Galapon for which he was issued
TCT No. 2338 by the Register of Deeds of Tacloban City, and on March 6,
1965 he sold a portion of said lot to respondent Judge and his wife who
declared the same for taxation purposes only. The subsequent sale
on August 31, 1966 by spouses Asuncion and spouses Galapon of their
respective shares and interest in said Lot 1184-E to the Traders
Manufacturing and Fishing Industries, Inc., in which respondent was the
president and his wife was the secretary, took place long after the finality
of the decision in Civil Case No. 3010 and of the subsequent two aforesaid
orders therein approving the project of partition.
I
WE find that there is no merit in the contention of complainant Bernardita
R. Macariola, under her first cause of action, that respondent Judge Elias B.
Asuncion violated Article 1491, paragraph 5, of the New Civil Code in
acquiring by purchase a portion of Lot No. 1184-E which was one of those
properties involved in Civil Case No. 3010. 'That Article provides:
Article 1491. The following persons cannot acquire by
purchase, even at a public or judicial action, either in
person or through the mediation of another:
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of
superior and inferior courts, and other officers and
employees connected with the administration of justice,
the property and rights in litigation or levied upon an
execution before the court within whose jurisdiction or
territory they exercise their respective functions; this
prohibition includes the act of acquiring by assignment and
shall apply to lawyers, with respect to the property and
rights which may be the object of any litigation in which
they may take part by virtue of their profession [emphasis
supplied].
The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234
can no longer alter, change or affect the aforesaid facts that the
questioned sale to respondent Judge, now Court of Appeals Justice, was
effected and consummated long after the finality of the aforesaid decision
or orders.
Consequently, the sale of a portion of Lot 1184-E to respondent Judge
having taken place over one year after the finality of the decision in Civil
Case No. 3010 as well as the two orders approving the project of partition,
and not during the pendency of the litigation, there was no violation of
paragraph 5, Article 1491 of the New Civil Code.
It is also argued by complainant herein that the sale on July 31, 1964 of Lot
1184-E to Dr. Arcadio Galapon by Priscilla Reyes, Adela Reyes and Luz R.
Bakunawa was only a mere scheme to conceal the illegal and unethical
transfer of said lot to respondent Judge as a consideration for the approval
of the project of partition. In this connection, We agree with the findings of
the Investigating Justice thus:
And so we are now confronted with this all-important
question whether or not the acquisition by respondent of a
portion of Lot 1184-E and the subsequent transfer of the
whole lot to "TRADERS" of which respondent was the
President and his wife the Secretary, was intimately related
to the Order of respondent approving the project of
partition, Exh. A.
Respondent
vehemently
denies
any
interest
or
participation in the transactions between the Reyeses and
the Galapons concerning Lot 1184-E, and he insists that
there is no evidence whatsoever to show that Dr. Galapon
had acted, in the purchase of Lot 1184-E, in mediation for
him and his wife. (See p. 14 of Respondent's
Memorandum).
Finally, while it is. true that respondent Judge did not violate paragraph 5,
Article 1491 of the New Civil Code in acquiring by purchase a portion of Lot
1184-E which was in litigation in his court, it was, however, improper for
him to have acquired the same. He should be reminded of Canon 3 of the
Canons of Judicial Ethics which requires that: "A judge's official conduct
should be free from the appearance of impropriety, and his personal
behavior, not only upon the bench and in the performance of judicial
duties, but also in his everyday life, should be beyond reproach." And as
aptly observed by the Investigating Justice: "... it was unwise and indiscreet
on the part of respondent to have purchased or acquired a portion of a
piece of property that was or had been in litigation in his court and caused
it to be transferred to a corporation of which he and his wife were ranking
officers at the time of such transfer. One who occupies an exalted position
in the judiciary has the duty and responsibility of maintaining the faith and
trust of the citizenry in the courts of justice, so that not only must he be
truly honest and just, but his actuations must be such as not give cause for
doubt and mistrust in the uprightness of his administration of justice. In
Political Law has been defined as that branch of public law which deals with
the organization and operation of the governmental organs of the State
and define the relations of the state with the inhabitants of its territory
(People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that
political law embraces constitutional law, law of public corporations,
administrative law including the law on public officers and elections.
Specifically, Article 14 of the Code of Commerce partakes more of the
nature of an administrative law because it regulates the conduct of certain
public officers and employees with respect to engaging in business: hence,
political in essence.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated
that: "It is a general principle of the public law that on acquisition of
territory the previous political relations of the ceded region are totally
abrogated. "
Upon the transfer of sovereignty from Spain to the United States and later
on from the United States to the Republic of the Philippines, Article 14 of
this Code of Commerce must be deemed to have been abrogated because
where there is change of sovereignty, the political laws of the former
sovereign, whether compatible or not with those of the new sovereign, are
automatically abrogated, unless they are expressly re-enacted by
affirmative act of the new sovereign.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311
[1912]) that:
It does not appear also from the records that the aforesaid corporation
gained any undue advantage in its business operations by reason of
respondent's financial involvement in it, or that the corporation benefited
in one way or another in any case filed by or against it in court. It is
undisputed that there was no case filed in the different branches of the
Court of First Instance of Leyte in which the corporation was either party
plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R.
Macariola, plaintiff, versus Sinforosa O. Bales, et al.," wherein the
complainant herein sought to recover Lot 1184-E from the aforesaid
corporation. It must be noted, however, that Civil Case No. 4234 was filed
only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI
Judge Jose D. Nepomuceno when respondent Judge was no longer
connected with the corporation, having disposed of his interest therein on
January 31, 1967.
Under Section 67 of said law, the power to remove or dismiss judges was
then vested in the President of the Philippines, not in the Commissioner of
Civil Service, and only on two grounds, namely, serious misconduct and
inefficiency, and upon the recommendation of the Supreme Court, which
alone is authorized, upon its own motion, or upon information of the
Secretary (now Minister) of Justice to conduct the corresponding
investigation. Clearly, the aforesaid section defines the grounds and
prescribes the special procedure for the discipline of judges.
It may be pointed out that Republic Act No. 296, as amended, also known
as the Judiciary Act of 1948, does not contain any prohibition to that effect.
As a matter of fact, under Section 77 of said law, municipal judges may
engage in teaching or other vocation not involving the practice of law after
office hours but with the permission of the district judge concerned.
Likewise, Article 14 of the Code of Commerce which prohibits judges from
engaging in commerce is, as heretofore stated, deemed abrogated
automatically upon the transfer of sovereignty from Spain to America,
because it is political in nature.
182
And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the
Supreme Court can discipline judges of inferior courts as well as other
personnel of the Judiciary.
It is true that under Section 33 of the Civil Service Act of 1959: "The
Commissioner may, for ... violation of the existing Civil Service Law and
rules or of reasonable office regulations, or in the interest of the service,
remove any subordinate officer or employee from the service, demote him
in rank, suspend him for not more than one year without pay or fine him in
an amount not exceeding six months' salary." Thus, a violation of Section
12 of Rule XVIII is a ground for disciplinary action against civil service
officers and employees.
WE are not, however, unmindful of the fact that respondent Judge and his
wife had withdrawn on January 31, 1967 from the aforesaid corporation
and sold their respective shares to third parties, and it appears also that
the aforesaid corporation did not in anyway benefit in any case filed by or
against it in court as there was no case filed in the different branches of
the Court of First Instance of Leyte from the time of the drafting of the
Articles of Incorporation of the corporation on March 12, 1966, up to its
incorporation on January 9, 1967, and the eventual withdrawal of
respondent on January 31, 1967 from said corporation. Such disposal or
sale by respondent and his wife of their shares in the corporation only 22
days after the incorporation of the corporation, indicates that respondent
realized that early that their interest in the corporation contravenes the
aforesaid Canon 25. Respondent Judge and his wife therefore deserve the
commendation for their immediate withdrawal from the firm after its
incorporation and before it became involved in any court litigation
Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the
Commissioner of Civil Service who has original and exclusive jurisdiction
"(T)o decide, within one hundred twenty days, after submission to it, all
administrative cases against permanent officers and employees in the
competitive service, and, except as provided by law, to have final authority
to pass upon their removal, separation, and suspension and upon all
matters relating to the conduct, discipline, and efficiency of such officers
and employees; and prescribe standards, guidelines and regulations
governing the administration of discipline" (emphasis supplied). There is no
question that a judge belong to the non-competitive or unclassified service
of the government as a Presidential appointee and is therefore not covered
by the aforesaid provision. WE have already ruled that "... in interpreting
Section 16(i) of Republic Act No. 2260, we emphasized that only
permanent officers and employees who belong to the classified service
come under the exclusive jurisdiction of the Commissioner of Civil Service"
(Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9
SCRA 619 [1963]).
III
With respect to the third and fourth causes of action, complainant alleged
that respondent was guilty of coddling an impostor and acted in disregard
of judicial decorum, and that there was culpable defiance of the law and
utter disregard for ethics. WE agree, however, with the recommendation of
the Investigating Justice that respondent Judge be exonerated because the
aforesaid causes of action are groundless, and WE quote the pertinent
portion of her report which reads as follows:
The basis for complainant's third cause of action is the
claim that respondent associated and closely fraternized
with Dominador Arigpa Tan who openly and publicly
advertised himself as a practising attorney (see Exhs. I, I-1
member of the Judiciary must not only be characterized with propriety but
must always be above suspicion.
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF
APPEALS IS HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND
BUSINESS ACTIVITIES.
SO ORDERED.
Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova
and Gutierrez, JJ., concur.
Concepcion Jr., J., is on leave.
Fernando, C.J., Abad Santos and Esolin JJ., took no part.
****Vilas v. City of Manila (Insert here)
TRENT, J.:
About $400,000, were subscribed and paid into the treasury of the
Philippine Islands by the inhabitants of the Spanish Dominions of the relief
of those damaged by the earthquake which took place in the Philippine
Islands on June 3, 1863. Subsequent thereto and on October 6 of that year,
184
4. That the court erred in not declaring that Act Numbered 2109,
passed by the Philippine Legislature on January 30, 1912, is
unconstitutional.
5. That the court erred in holding in its decision that there is no
title for the prescription of this suit brought by the Insular
Government against the Monte de Piedad y Caja de Ahorros for the
reimbursement of the eighty thousand dollars ($80,000) given to it
by the late Spanish Government of these Islands.
6. That the court erred in sentencing the Monte de Piedad y Caja
de Ahorros to reimburse the Philippine Government in the sum of
eighty thousand dollars ($80,000) gold coin, or the equivalent
thereof in the present legal tender currency in circulation, with
legal interest thereon from February 28th, 1912, and the costs of
this suit.
In the royal order of June 29, 1879, the Governor-General of the Philippine
Islands was directed to inform the home Government in what manner the
indemnity might be paid to which, by virtue of the resolutions of the relief
board, the persons who suffered damage by the earthquake might be
entitled, in order to perform the sacred obligation which the Government of
Spain had assumed toward the donors.
The next pertinent document in order is the defendant's petition, dated
February 1, 1883, addressed to the Governor-General of the Philippine
Islands, which reads:
1. The court erred in not finding that the eighty thousand dollars
($80,000), give to the Monte de Piedad y Caja de Ahorros, were so
given as a donation subject to one condition, to wit: the return of
such sum of money to the Spanish Government of these Islands,
within eight days following the day when claimed, in case the
Supreme Government of Spain should not approve the action taken
by the former government.
2. The court erred in not having decreed that this donation had
been cleared; said eighty thousand dollars ($80,000) being at
present the exclusive property of the appellant the Monte de
Piedad y Caja de Ahorros.
3. That the court erred in stating that the Government of the
Philippine Islands has subrogated the Spanish Government in its
rights, as regards an important sum of money resulting from a
national subscription opened by reason of the earthquake of June
3, 1863, in these Island.
185
the Monte de Piedad, order that, out of that sum of one hundred
thousand pesos held in the Treasury at the disposal of the central
relief board, there be transferred to the Monte de Piedad the sum
of $80,000, there to be held under the same conditions as at
present in the Treasury, to wit, at the disposal of the Relief Board.
Sixth: That should this transfer not be approved for any reason,
either because of the failure of His Majesty's Government to
approve the proposal made by your Excellency relative to the
application to the needs of the Monte de Piedad of a pat of the
subscription intended to believe the distress caused by the
earthquake of 1863, or for any other reason, the board of directors
of the Monte de Piedad obligates itself to return any sums which it
may have received on account of the eighty thousand pesos, or the
whole thereof, should it have received the same, by securing a
loan from whichever bank or banks may lend it the money at the
cheapest rate upon the security of pawned jewelry. This is an
urgent measure to save the Monte de Piedad in the present crisis
and the board of directors trusts to secure your Excellency's entire
cooperation and that of the other officials who have take part in
the transaction.
OF
THE
PHILIPPINES.
H. M. Government
(Signed) P. DE RIVERA.
shall
be
advised
hereof.lawphi1.net
that fund and which were expended in a different way from that
intended by the donors) and this Intendencia believed the moment
had arrived to claim from the board of directors of theMonte de
Piedad y Caja de Ahorros the sum of 80,000 pesos which, by
decree of your general Government of the date of February 1,
1883, was loaned to it out of the said funds, the (Monte de Piedad)
obligating itself to return the same within the period of eight days if
H. M. Government did not approve the delivery. On this
Intendencia's demanding from the Monte de Piedad the eighty
thousand pesos, thus complying with the provisions of the Royal
Order, it was to be supposed that no objection to its return would
be made by theMonte de Piedad for, when it received the loan, it
formally engaged itself to return it; and, besides, it was
indisputable that the moment to do so had arrived, inasmuch as H.
M. Government, in ordering that the assets of the earthquake relief
fund should he collected, makes express mention of the 80,000
pesos loaned to the Monte de Piedad, without doubt considering as
sufficient the period of ten years during which it has been using
this large sum which lawfully belongs to their persons.
This Intendencia also supposed that theMonte de Piedad no longer
needed the amount of that loan, inasmuch as, far from investing it
in beneficient transactions, it had turned the whole amount into
the voluntary deposit funds bearing 5 per cent interests, the result
of this operation being that the debtor loaned to the creditor on
interest what the former had gratuitously received. But the Monte
de Piedad, instead of fulfilling the promise it made on receiving the
sum, after repeated demands refused to return the money on the
ground
that
only
your
Excellency,
and
not
theIntendencia (Treasury), is entitled to order the reimbursement,
taking no account of the fact that this Intendencia was acting in
the discharge of a sovereign command, the fulfillment of which
your Excellency was pleased to order; and on the further ground
that the sum of 80,000 pesos which it received from the fund
intended for the earthquake victims was not received as a loan, but
as a donation, this in the opinion of thisIntendencia, erroneously
interpreting both the last royal order which directed the
apportionment of the amount of the subscription raised in the year
1863 and the superior decree which granted the loan, inasmuch as
in this letter no donation is made to the Monte de Piedad of the
80,000 pesos, but simply a loan; besides, no donation whatever
could be made of funds derived from a private subscription raised
for a specific purpose, which funds are already distributed and the
names of the beneficiaries have been published in the Gaceta,
there being lacking only the mere material act of the delivery,
which has been unduly delayed. In view of the unexpected reply
made by the Monte de Piedad, and believing it useless to insist
further in the matter of the claim for the aforementioned loan, or to
argue in support thereof, this Intendencia believes the intervention
of your Excellency necessary in this matter, if the royal Order No.
1044 of December 3, last, is to be complied with, and for this
twenty thousand pesos, which they deposited with their own funds.
On the same account and on each of the dates of March 12, April
14 and June 2 of the said year, 1883, they also received and turned
into their funds a like sum of twenty thousand pesos, making a
total of eighty thousand pesos. (Signed) Emilio Moreta.
I hereby certify that the foregoing is a literal copy of that found in
the letter book No. 2 of those Pious Institutions.
The record in the case under consideration fails to disclose any further
definite action taken by either the Philippine Government or the Spanish
Government in regard to the $80,000 turned over to the Monte de Piedad.
Manila,
(Sgd.)
Secretary
(Sgd.)
O.
Managing Director.
November
EMILIO
K.
19,
EMILIO
1913
LAZCANOTEGUI,
MORETA,
On March 16, 1902, the Philippine government called upon the defendant
for information concerning the status of the $80,000 and received the
following reply:
MANILA, March 31, 1902.
To the Attorney-General of the Department of Justice of the
Philippine Islands.
SIR: In reply to your courteous letter of the 16th inst., in which you
request information from this office as to when and for what
purpose the Spanish Government delivered to the Monte de
Piedad eighty thousand pesos obtained from the subscription
opened in connection with the earthquake of 1863, as well as any
other information that might be useful for the report which your
office is called upon to furnish, I must state to your department
that the books kept in these Pious Institutions, and which have
been consulted for the purpose, show that on the 15th of February,
1883, they received as a reimbursable loan and without interest,
188
Counsel for the defendant, in support of their third assignment of error, say
in their principal brief that:
The Spanish nation was professedly Roman Catholic and its King
enjoyed the distinction of being deputy ex officio of the Holy See
and Apostolic Vicar-General of the Indies, and as such it was his
duty to protect all pious works and charitable institutions in his
kingdoms, especially those of the Indies; among the latter was
the Monte de Piedad of the Philippines, of which said King and his
deputy the Governor-General of the Philippines, as royal vicepatron, were, in a special and peculiar manner, the protectors; the
latter, as a result of the cession of the Philippine Islands, Implicitly
renounced this high office and tacitly returned it to the Holy See,
now represented by the Archbishop of Manila; the national
subscription in question was a kind of foundation or pious work, for
a charitable purpose in these Islands; and the entire subscription
not being needed for its original purpose, the royal vice-patron,
with the consent of the King, gave the surplus thereof to an
analogous purpose; the fulfillment of all these things involved, in
the majority, if not in all cases, faithful compliance with the duty
imposed upon him by the Holy See, when it conferred upon him the
royal patronage of the Indies, a thing that touched him very closely
in his conscience and religion; the cessionary Government though
Christian, was not Roman Catholic and prided itself on its policy of
non-interference in religious matters, and inveterately maintained
a complete separation between the ecclesiastical and civil powers.
189
The contention of counsel, as thus stated, in untenable for two reason, (1)
because such contention is based upon the erroneous theory that the sum
in question was a donation to the Monte de Piedad and not a loan, and (2)
because the charity founded by the donations for the earthquake sufferers
is not and never was intended to be an ecclesiastical pious work. The first
proposition has already been decided adversely to the defendant's
contention. As to the second, the record shows clearly that the fund was
given by the donors for a specific and definite purpose the relief of the
earthquake sufferers and for no other purpose. The money was turned
over to the Spanish Government to be devoted to that purpose. The
Spanish Government remitted the money to the Philippine Government to
be distributed among the suffers. All officials, including the King of Spain
and the Governor-General of the Philippine Islands, who took part in the
disposal of the fund, acted in their purely civil, official capacity, and the
fact that they might have belonged to a certain church had nothing to do
with their acts in this matter. The church, as such, had nothing to do with
the fund in any way whatever until the $80,000 reached the coffers of
the Monte de Piedad (an institution under the control of the church) as a
loan or deposit. If the charity in question had been founded as an
ecclesiastical pious work, the King of Spain and the Governor-General, in
their capacities as vicar-general of the Indies and as royal vice-patron,
respectively, would have disposed of the fund as such and not in their civil
capacities, and such functions could not have been transferred to the
present Philippine Government, because the right to so act would have
arisen out of the special agreement between the Government of Spain and
the Holy See, based on the union of the church and state which was
completely separated with the change of sovereignty.
If "the whole matter is one of trusteeship," and it being true that the
Spanish Government could not, as counsel say, transfer the ownership of
the fund to the Monte de Piedad, the question arises, who may sue to
recover this loan? It needs no argument to show that the Spanish or
Philippine Government, as trustee, could maintain an action for this
purpose had there been no change of sovereignty and if the right of action
has not prescribed. But those governments were something more than
mere common law trustees of the fund. In order to determine their exact
status with reference to this fund, it is necessary to examine the law in
force at the time there transactions took place, which are the law of June
20, 1894, the royal decree of April 27. 1875, and the instructions
promulgated on the latter date. These legal provisions were applicable to
the Philippine Islands (Benedicto vs. De la Rama, 3 Phil. Rep., 34)
The funds collected as a result of the national subscription opened in Spain
by royal order of the Spanish Government and which were remitted to the
Philippine Government to be distributed among the earthquake sufferers
by the Central Relief Board constituted, under article 1 of the law of June
20, 1894, and article 2 of the instructions of April 27, 1875, a special
charity of a temporary nature as distinguished from a permanent public
charitable institution. As the Spanish Government initiated the creation of
the fund and as the donors turned their contributions over to that
Government, it became the duty of the latter, under article 7 of the
instructions, to exercise supervision and control over the moneys thus
collected to the end that the will of the donors should be carried out. The
relief board had no power whatever to dispose of the funds confided to its
charge for other purposes than to distribute them among the sufferers,
because paragraph 3 of article 11 of the instructions conferred the power
upon the secretary of the interior of Spain, and no other, to dispose of the
surplus funds, should there be any, by assigning them to some other
charitable purpose or institution. The secretary could not dispose of any of
the funds in this manner so long as they were necessary for the specific
purpose for which they were contributed. The secretary had the power,
under the law above mentioned to appoint and totally or partially change
the personnel of the relief board and to authorize the board to defend the
rights of the charity in the courts. The authority of the board consisted only
in carrying out the will of the donors as directed by the Government whose
duty it was to watch over the acts of the board and to see that the funds
were applied to the purposes for which they were contributed .The
secretary of the interior, as the representative of His Majesty's
Government, exercised these powers and duties through the GovernorGeneral of the Philippine Islands. The Governments of Spain and of the
Philippine Islands in complying with their duties conferred upon them by
law, acted in their governmental capacities in attempting to carry out the
intention of the contributors. It will this be seen that those governments
were something more, as we have said, than mere trustees of the fund.
loan, was wiped out on the change of sovereignty, or inn other words, the
present Philippine Government cannot maintain this action for that reason.
This contention, if true, "must result from settled principles of rigid law," as
it cannot rest upon any title to the fund in the Monte de Piedad acquired
prior to such change. While the obligation to return the $80,000 to the
Spanish Government was still pending, war between the United States and
Spain ensued. Under the Treaty of Paris of December 10, 1898, the
Archipelago, known as the Philippine Islands, was ceded to the United
States, the latter agreeing to pay Spain the sum of $20,000,000. Under the
first paragraph of the eighth article, Spain relinquished to the United States
"all buildings, wharves, barracks, forts, structures, public highways, and
other immovable property which, in conformity with law, belonged to the
public domain, and as such belonged to the crown of Spain." As the
$80,000 were not included therein, it is said that the right to recover this
amount did not, therefore, pass to the present sovereign. This, in our
opinion, does not follow as a necessary consequence, as the right to
recover does not rest upon the proposition that the $80,000 must be "other
immovable property" mentioned in article 8 of the treaty, but upon
contractual obligations incurred before the Philippine Islands were ceded to
the United States. We will not inquire what effect his cession had upon the
law of June 20, 1849, the royal decree of April 27, 1875, and the
instructions promulgated on the latter date. In Vilas vs.Manila (220 U. S.,
345), the court said:
In Fontain vs. Ravenel (17 Hw., 369, 384), Mr. Justice McLean, delivering
the opinion of the court in a charity case, said:
When this country achieved its independence, the prerogatives of
the crown devolved upon the people of the States. And this power
still remains with them except so fact as they have delegated a
portion of it to the Federal Government. The sovereign will is made
known to us by legislative enactment. The State as a sovereign, is
the parens patriae.
Chancelor Kent says:
In this country, the legislature or government of the State,
as parens patriae, has the right to enforce all charities of public
nature, by virtue of its general superintending authority over the
public interests, where no other person is entrusted with it. (4 Kent
Com., 508, note.)
The Supreme Court of the United States in Mormon Church vs. United
States, supra, after approving also the last quotations, said:
191
Consequently, the plaintiff is not the proper party to bring the action." The
earthquake fund was the result or the accumulation of a great number of
small contributions. The names of the contributors do not appear in the
record. Their whereabouts are unknown. They parted with the title to their
respective contributions. The beneficiaries, consisting of the original
sufferers and their heirs, could have been ascertained. They are quite
numerous also. And no doubt a large number of the original sufferers have
died, leaving various heirs. It would be impracticable for them to institute
an action or actions either individually or collectively to recover the
$80,000. The only course that can be satisfactorily pursued is for the
Government to again assume control of the fund and devote it to the
object for which it was originally destined.
The court in the same case, after quoting from Sohier vs. Mass. General
Hospital (3 Cush., 483, 497), wherein the latter court held that it is deemed
indispensible that there should be a power in the legislature to authorize
the same of the estates of in facts, idiots, insane persons, and persons not
known, or not in being, who cannot act for themselves, said:
In People vs. Cogswell (113 Cal. 129, 130), it was urged that the plaintiff
was not the real party in interest; that the Attorney-General had no power
to institute the action; and that there must be an allegation and proof of a
distinct right of the people as a whole, as distinguished from the rights of
individuals, before an action could be brought by the Attorney-General in
the name of the people. The court, in overruling these contentions, held
that it was not only the right but the duty of the Attorney-General to
prosecute the action, which related to charities, and approved the following
quotation from Attorney-General vs. Compton (1 Younge & C. C., 417):
Where property affected by a trust for public purposes is in the
hands of those who hold it devoted to that trust, it is the privilege
of the public that the crown should be entitled to intervene by its
officers for the purpose of asserting, on behalf on the public
generally, the public interest and the public right, which, probably,
no individual could be found effectually to assert, even if the
interest were such as to allow it. (2 Knet's Commentaries, 10th ed.,
359; Lewin on Trusts, sec. 732.)
In Vilas vs. Manila, supra, the plaintiff was a creditor of the city of Manila as
it existed before the cession of the Philippine Islands to the United States
by the Treaty of Paris of December 10, 1898. The action was brought upon
the theory that the city, under its present charter from the Government of
the Philippine Islands, was the same juristic person, and liable upon the
obligations of the old city. This court held that the present municipality is a
totally different corporate entity and in no way liable for the debts of the
Spanish municipality. The Supreme Court of the United States, in reversing
this judgment and in holding the city liable for the old debt, said:
It is further urged, as above indicated, that "the only persons who could
claim to be damaged by this payment to the Monte, if it was unlawful, are
the donors or the cestuis que trustent, and this Government is neither.
192
In support of the fifth assignment of error counsel for the defendant argue
that as the Monte de Piedad declined to return the $80,000 when ordered
to do so by the Department of Finance in June, 1893, the plaintiff's right of
action had prescribed at the time this suit was instituted on May 3, 1912,
citing and relying upon article 1961, 1964 and 1969 of the Civil Code.
While on the other hand, the Attorney-General contends that the right of
action had not prescribed (a) because the defense of prescription cannot
be set up against the Philippine Government, (b) because the right of
action to recover a deposit or trust funds does not prescribe, and (c) even
if the defense of prescription could be interposed against the Government
and if the action had, in fact, prescribed, the same was revived by Act No.
2109.
The material facts relating to this question are these: The Monte de
Piedad received the $80,000 in 1883 "to be held under the same conditions
as at present in the treasury, to wit, at the disposal of the relief board." In
compliance with the provisions of the royal order of December 3, 1892, the
Department of Finance called upon the Monte de Piedadin June, 1893, to
return the $80,000. The Monte declined to comply with this order upon the
ground that only the Governor-General of the Philippine Islands and not the
Department of Finance had the right to order the reimbursement. The
amount was carried on the books of the Monte as a returnable loan until
January 1, 1899, when it was transferred to the account of the "Sagrada
Mitra." On March 31, 1902, the Monte, through its legal representative,
stated in writing that the amount in question was received as a
reimbursable loan, without interest. Act No. 2109 became effective January
30, 1912, and the action was instituted on May 3rd of that year.
Counsel for the defendant treat the question of prescription as if the action
was one between individuals or corporations wherein the plaintiff is
seeking to recover an ordinary loan. Upon this theory June, 1893, cannot
be taken as the date when the statute of limitations began to run, for the
reason that the defendant acknowledged in writing on March 31, 1902, that
the $80,000 were received as a loan, thereby in effect admitting that it still
owed the amount. (Section 50, Code of Civil Procedure.) But if counsels'
theory is the correct one the action may have prescribed on May 3, 1912,
because more than ten full years had elapsed after March 31, 1902.
(Sections 38 and 43, Code of Civil Procedure.)
In the instant case the Philippine Government is not a mere nominal party
because it, in bringing and prosecuting this action, is exercising its
sovereign functions or powers and is seeking to carry out a trust developed
upon it when the Philippine Islands were ceded to the United States. The
United States having in 1852, purchased as trustee for the Chickasaw
Indians under treaty with that tribe, certain bonds of the State of
Tennessee, the right of action of the Government on the coupons of such
bonds could not be barred by the statute of limitations of Tennessee, either
while it held them in trust for the Indians, or since it became the owner of
such coupons. (U. S. vs. Nashville, etc., R. Co., supra.) So where lands are
held in trust by the state and the beneficiaries have no right to sue, a
statute does not run against the State's right of action for trespass on the
trust lands. (Greene Tp. vs. Campbell, 16 Ohio St., 11; see also Atty.Gen. vs. Midland R. Co., 3 Ont., 511 [following Reg. vs. Williams, 39 U. C. Q.
B., 397].)
FERNANDO, J.:p
The disputants in this appeal from a question of law from a lower court
decision are the mother and the uncle of a minor beneficiary of the
proceeds of an insurance policy issued on the life of her deceased father.
The dispute centers as to who of them should be entitled to act as trustee
thereof. The lower court applying the appropriate Civil Code provisions
decided in favor of the mother, the plaintiff in this case. Defendant uncle
appealed. As noted, the lower court acted the way it did following the
specific mandate of the law. In addition, it must have taken into account
the principle that in cases of this nature the welfare of the child is the
paramount consideration. It is not an unreasonable assumption that
between a mother and an uncle, the former is likely to lavish more care on
and pay greater attention to her. This is all the more likely considering that
the child is with the mother. There are no circumstances then that did
militate against what conforms to the natural order of things, even if the
language of the law were not as clear. It is not to be lost sight of either that
the judiciary pursuant to its role as an agency of the State as parens
patriae, with an even greater stress on family unity under the present
Constitution, did weigh in the balance the opposing claims and did come to
the conclusion that the welfare of the child called for the mother to be
entrusted with such responsibility. We have to affirm.
These principles being based "upon the foundation of the great principle of
public policy" are, in the very nature of things, applicable to the Philippine
Government.
Counsel in their argument in support of the sixth and last assignments of
error do not question the amount of the judgment nor do they question the
correctness of the judgment in so far as it allows interest, and directs its
payment in gold coin or in the equivalent in Philippine currency.
For the foregoing reasons the judgment appealed from is affirmed, with
costs against the appellant. So ordered.
Torres,
Johnson
Moreland, J., did not sign.
and
Araullo,
JJ.,
concur.
After trial duly had, the lower court in a decision of May 10, 1965, rendered
judgment ordering the defendant to deliver the proceeds of the policy in
question to plaintiff. Its main reliance was on Articles 320 and 321 of the
Civil Code. The former provides: "The father, or in his absence the mother,
is the legal administrator of the property pertaining to the child under
parental authority. If the property is worth more than two thousand pesos,
the father or mother shall give a bond subject to the approval of the Court
195